Category Archives: Uncategorized

“Opening the windows and breathing in petrol”

Posted on March 30, 2012 by suesspiciousminds

The recent furore over petrol-shortages (which have come about because people think there might be a petrol-shortage, and have thus manufactured the situation they were fearful of)  reminded me of a piece of work I did way back in the mists of time, when “Schedule One offender” was a phrase often deployed within care proceedings.

Peculiarly, this phrase was generally distorted by the mothers within care proceedings to be “that Schedule Offender One”  making certain aspects of conversations take on a Liverpudlian, Brookside twang (despite being on the other side of the country).

The piece of work I had to do was to slog through all of the legislation and draw up a list of exactly what offences WERE accurately labelled as Schedule One offences, and which were not.

One of the particular quirks (as it arose in a case where the parents following the final hearing, shut the contact supervisor in a cupboard and legged it with their child being on the run for about a fortnight, and plea-bargained that down at criminal trial to “attempted abduction”) was that for many offences, an attempt was not a Schedule one offence, only the successful execution of it.

But I do recall, quite vividly that at that time, you could become a Schedule One offender by selling petrol to a child under sixteen.

(and frankly, I don’t need much of an excuse to (a) be topical and (b) throw in a Jam lyric)

I also remember that allowing children under 14 to do street performances, and that allowing a child under 12 to do any dangerous activity would be Schedule one offences.   It was many, many, years ago, but I also recall that regardless of whether a child was within ten miles of you, it was a Schedule One offence to set a fire in a telephone box….

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“Oh don’t leave me alone like this” – the legal test on Stays

Posted on March 30, 2012 by suesspiciousminds

Apologies both for the lack of blogging (have been on puppy-adoption leave) and bringing East 17 into this. Possibly the first time East 17 and the Children Act 1989 have been combined together, unless there was a case conference about whether having your child dressed head to toe in Burberry was emotionally harmful…

I thought I’d share the relatively recent decision on applications for Stays in care proceedings, firstly because it filled a gap in caselaw  (it remains a source of amazement and inspiration to me that nearly twenty years after the Children Act took effect, there are still gaps to be filled in), and secondly because I was trying to find this the other week, knowing that it existed and what the gist of it was, and I had a hell of a job…

The tl:dr version is that the case (Haringey 2011) derives these five principles to be applied in any application for a stay :-

  1. The Court must take into account all the circumstances of the case
  2. A stay is the exception rather than the general rule
  3. The applicant seeking the stay should provide cogent evidence that the appeal will be stifled or rendered nugatory unless a stay is granted
  4. The court applies a balance of harm test, in which the prejudice to the successful party must be carefully considered
  5. The Court should take into account the prospects of the appeal succeeding, and only consider a stay where there are strong grounds of appeal or a strong likelihood of success.

 

 

The word nugatory struck me as being potentially interesting, as well as having good ‘mouth-feel’  (like the word I got from Inky Fools this week ‘apricate’ meaning to bask in the sun)  and so I double-checked it  – it means ‘trifling’ or ‘of no value’  and derives from Latin meaning ‘jester’ or ‘trifler’

 

 

Neutral Citation Number: [2011] EWHC 3544 (Fam)

Case No: BT 09 C 00235

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

7th October 2011

B e f o r e :

MR. JUSTICE MOSTYN
____________________

Between:

NB

 Applicant

– and –

LB OF HARINGEY

 Respondent

____________________

____________________

MISS TERESA PRITCHARD (instructed by Eskinazi & Co.) for the Applicant
MR. JUSTIN AGEROS (instructed by LB Haringey) for the Respondent
MISS JANE PROBYN (instructed by Donald Galbraith & Co.) for the Guardian
____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

MR. JUSTICE MOSTYN:

  1. Yesterday, at 5.30 p.m., the North London Family Proceedings Court made an interim care order in respect of JG, who I think is nearly 3 years old. The application before me today is for a stay pending an appeal of that decision, which appeal would likely be heard on 28th October 2011 by the Circuit Judge in the Barnet County Court.
  1. Given the nature of the application and of the decision I have to make, it is important that I do not say more than is strictly necessary to decide the application and do not say anything which might influence the outcome of the appeal one way or the other.
  1. The application was made against a backdrop of considerable chaos in the life of this child. His mother is an admitted drug user who claims to have foresworn the use of drugs until comparatively recently, six weeks ago. She is a person who has not complied with agreements and directions for testing for drugs notwithstanding the plainest warning to her on the face of an interim order of the court that were she not to do so the inevitable inferences would be drawn; and she is a person who maintains a close relationship with her partner who is in prison convicted of serious domestic violence upon her.
  1. The position of the mother before the justices was that the interim threshold was not passed. In contrast, the position of the guardian was that the interim threshold was indeed passed but that an interim supervision order rather than an interim care order should be made. The position of the local authority was that the interim threshold was passed and an interim care order should be made. The result of the case was that an interim care order was made. The magistrates produced their reasons in an extremely abbreviated period of time. Inevitably, analysis of those reasons reveals that they may have been better put but the pressure of time meant that defects were almost inevitable.
  1. A complaint is that section 5 of the written decision relies only on the risk of domestic violence at the hands of a man who is in prison and will remain in prison until the matter is next considered by the justices, and does not make any explicit reference to the other matters, although in their account of the history it is clear that those other matters were at the forefront of their mind, which is hardly surprising given that the mother herself had given oral evidence before them.
  1. The appeal is governed by Part 30 of the Family Procedural Rules 2010 and Rule 30.8 states that an appeal notice does not operate as a stay of any order or decision of the lower court unless the lower court or appeal court orders otherwise. There are numerous authorities bearing on whether a stay should be granted although, rather surprisingly, there is none so far as I am aware on whether those tests are modified in a case involving a child, whether in private law proceedings or public law proceedings. Plainly, the test which I will adumbrate in a moment has to be seen through the welfare prism that overarches all family proceedings. That said, the principles cannot, in my judgment, be materially different whatever the nature of the dispute in hand.
  1. The leading authorities are Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065, Leicester Circuits Ltd v Coates Bros plc [2002] EWCA Civ 474, Contract Facilities Ltd v The Estates of Rees (decd) [2003] EWCA Civ 465, the old Court of Appeal case of Wilson v Church (No. 2) [1879] 12 Ch Div, 454, an unreported decision of the Court of Appeal, Winchester Cigarette Machinery Ltd v Payne (No. 2), 15th December 1993, and a helpful decision which seeks to draw all the authorities together given by the Chief Judge of the High Court of Hong Kong, Ma J, Wenden Engineering Services Co Ltd v Lee Shing UEY Construction Co Ltd, HCCT No. 90 of 1999. In that latter case the Chief Judge stated:

“7. The existence of merely an arguable appeal cannot by itself amount to a sufficient reason to justify a stay. It can be put this way, the existence of an arguable appeal, that is one with reasonable prospects of success, is the minimum requirement before a court would even consider granting a stay. In other words, however exceptional the circumstances may be otherwise justifying a stay of execution, if the court is not convinced that there exists arguable grounds of appeal no stay will be granted. Conversely, however, the existence of a strong appeal or a strong likelihood that the appeal will succeed, will usually by itself enable a stay to be granted because this would constitute a good reason for a stay. (See Winchester Cigarette Machinery Ltd)

8. In most cases the court will not be dealing with the extreme situations I have referred to. Often, it will be faced with simply the existence of an arguable appeal. Here, it becomes necessary for the appellant to provide additional reasons as to why a stay is justified. The demonstration of an appeal being rendered nugatory is one example albeit a common one. Here, where it is demonstrated that an appeal would be rendered nugatory if a stay was not granted the court may require no more than the existence of an arguable appeal. Correspondingly, where it cannot be shown that an appeal would be rendered nugatory if a stay were not granted, the court will require in the absence of any other factors the applicant to demonstrate strong grounds of appeal or a strong likelihood of success.

From these authorities I derive the following five principles in relation to the application before me. First, the court must take into account all the circumstances of the case. Second, a stay is the exception rather than the general rule. Third, the party seeking a stay should provide cogent evidence that the appeal will be stifled or rendered nugatory unless a stay is granted. Fourth, in exercising its discretion the court applies what is in effect a balance of harm test in which the likely prejudice to the successful party must be carefully considered. Fifth, the court should take into account the prospects of the appeal succeeding. Only where strong grounds of appeal or a strong likelihood of success is shown should a stay be considered.”

  1. In this case, given the proximity of the appeal hearing and given the nature of the dispute, namely, the effective residence of the child for the next three weeks and one day, there is no question that the appeal will be stifled were a stay not to be granted. It therefore follows, in my view, that in order for a stay to be awarded it has to be demonstrated today that there are strong grounds of appeal or a strong likelihood of success. I find it impossible on the material before me to reach that conclusion. Indeed, in circumstances where it was accepted by the guardian, and indeed positively asserted by the local authority, that the interim threshold had been passed, it likely becomes a simple question of analysing whether the exercise of discretion made by the justices to award an interim care order rather than an interim supervision order has miscarried or it is otherwise demonstrated to be plainly wrong. On the material before me I cannot say that that is the case, although I am not, I emphasise, deciding the appeal. What I am deciding is that I am not satisfied on the material before me that there are strong grounds of appeal or a strong likelihood of success and the application is therefore refused.

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sound the action klaxon, summon action jackson…

Posted on March 14, 2012 by suesspiciousminds

It is all go today, good job it is my non-working day. My bits will be in bold, on this piece – the non-bold stuff is directly from the report.

The much-vaunted Government Adoption Action Plan is finally published. No longer will we have to rely on scraps on information leaked by Ofsted or behind paid firewalls at the Times (just a little gripe that if you are going to launch far-reaching policy guidance on vulnerable children, maybe making people pay Rupert Murdoch if they want to read it isn’t the greatest plan)

Here’s where it is  (in usual government style, it takes a while to find by searching, so I’ll save people the trouble)

http://media.education.gov.uk/assets/files/pdf/a/an%20action%20plan%20for%20adoption.pdf

Firstly, tackling delay in adoption is a laudable aim, as is trying to do something about the disparity of time that children of different ethnicity have to wait, and promoting the concept that adoption might be something that more people want to try and removing some of the more unnecessary barriers to good-hearted people coming forward are all good things. 

Let’s see if they’ve accidentally thrown the baby out with the bathwater, however. The headlines flying around suggest that the report is yet more micro-management and exactly the sort of Tony-Blair target-setting that has (a) worked so badly in the NHS and (b) Munro thought so little of.  Are those headlines reflective of the report as a whole, or have the Government just done a press-release for the media that’s all “tough on lazy social workers, tough on political correctness gone mad” but with a report that is actually much more nuanced and thoughtful?

A shocking statistic early on  (albeit from 2004) – that 42% of looked after children aged between 5-10 had a mental disorder of some kind – this being five times the figure for children of that age-group generally.

The current number of looked after children under five is 15,680 and growing quickly.

.Delays in the adoption system cause lasting harm for vulnerable children, and may rob them of their best chance of the love and stability of a new family.  Based on an in-depth study of the case histories of 130 older looked after children for whom adoption had been identified as the best option, Dr Julie Selwyn concluded that: ‘delay in decision making and action has an unacceptable price in terms of the reduction in children’s life chances
and the financial costs to local authorities, the emotional and financial burden later placed on adoptive families and future costs to society’. We must not and will not allow unnecessary delay to continue

There’s a nice recognition of both the important role that social workers have, and the risks of breakdown – it is pleasing to see some proper research being commissioned into adoption breakdowns  (I’m sure we’ve all heard different figures bandied about, to suit various agendas, as to what proportion of adoptions break down and it will be good to get a definitive answer, and hopefully some better understanding of the factors that lead to this and how we can address them.)

32.Social workers have an extremely sensitive, challenging, and important job to do.  We expect them to make decisions which change lives, on what can only ever be imperfect evidence.  We owe them a great deal of gratitude.
33.When a social worker is considering a decision about adoption, the risks of getting it wrong are all too evident in terms of the impact on vulnerable children, birth parents and adoptive parents.  What can be less obvious is the harm done to the child by delaying adecision in order to allay all remaining doubts.
34.Social workers need time to gather the necessary evidence, work with birth parents and provide the basis for a robust decision.  Some argue that efforts to speed up adoption will lead to an increase in adoption breakdown, by forcing social workers and local authorities to make rushed and therefore lower quality decisions.  Adoption breakdown is of course an important issue and we currently have too little data and evidence about it.  Estimateshave tended to put it at around 20%, but in his recent report, Martin Narey convincingly argued that the true figure was much lower – around ten percent for children adopted under the age of five, and just three percent for those adopted under the age of one.  He cited a study which followed a high risk group of children – adopted between the ages of five and eleven – until their fourteenth birthday. It found that 23% of the adoptions had broken down by that age, which would suggest a much lower rate for adopted children overall.  We have commissioned the University of Bristol to undertake further research into the rate of and reasons for breakdown
35.But it is too simplistic to argue that speedier adoption will lead to more adoption breakdown.  First, it is wrong to suggest that unnecessary delay in the system is all down to social worker decision-making – the causes are much more widespread and include the regulatory and accountability frameworks, the supply of prospective adopters and issues in the family justice system. Second, as we have seen, taking longer to make decisions is in itself harmful to children and reduces the chance of successful adoption

This also sounds like a sensible proposal

.Currently, the generic degree for social workers contains limited content on child development, attachment theory and other relevant research from neuroscience, and very little on adoption.  The Government is asking that universities address these gaps as a matter of urgency
43.The Family Justice Review identified a similar issue and suggested that a better understanding of child development and the negative impacts of delay for children was an absolute requirement for all family judges.  It recommended that the Judicial College, the provider of training for judicial office-holders, reflect this in its training for family law work.  The Government accepted this recommendation and will work with the JudicialCollege to take it forward.
44.At present, there is no readily accessible reference material for family justice professionals, such as judges, magistrates and lawyers, on the impact of delay on a child’s development. To address this, the Government has commissioned Professor Harriet Ward to produce some concise but authoritative guidance which summarises the key research evidence in the context of care proceedings.  The Government will make this guidance available later this year

Best-practice – they were taken with the involvement of Coram in adoption, and particularly this model 

We spoke to a number of local authorities who had rigorous case management systems, which were effective in tackling delay.  The London Borough of Harrow, which works with the voluntary adoption agency Coram, holds monthly meetings chaired by a Coram senior manager at which the progress of every child is tracked.  These meetings help social workers to balance the demands on their time and give due regard to the child’s pressing timetable in their decision-making. They provide a forum for delay to be escalated and tackled – for example by widening the search for a family to other agencies.  They can also offer a useful mechanism for the
Independent Reviewing Officer (IRO) to monitor the local authority’s performance of its functions.  Every looked after child has an IRO, who is appointed by the local authority to quality-assure care planning.
48. Our fieldwork showed that these simple but effective approaches are not yet standard practice.  The Government will therefore work with the Children’s Improvement Board – the consortium of local government representatives responsible for supporting local authorities in improving children’s services – to gather and disseminate best practice in establishing management systems that help ensure swifter high-quality decision-making.

Ethnicity – the big hot potato of a political issue  – the italics are mine here, to show plans for new primary legislation

52.That is not to say that ethnicity can never be a consideration.  Where there are two sets  of suitable parents available then those with a similar ethnicity to the child may be the better match for the child.  Sometimes an ethnic match will be in a child’s best interests, for example where an older child expresses strong wishes.  However, it is not in the best interests of children for social workers to introduce any delay at all into the adoption process in the search for a perfect or even partial ethnic match when parents who are otherwise suitable are available and able to provide a loving and caring home for the child.
53.Similarly, there are approved adopters who are ready and able to offer loving homes but who are too readily disregarded because they are single, or considered too old.  These can, of course, be relevant factors, but we know that in most cases delay and the instability associated with it will be the greater potential cause of damage to the child.
54.The Government will bring forward primary legislation at the next available opportunity to  address these issues.  The overriding principle in finding a match for a child will remain what is in the child’s best interests throughout their life

National register – requirement to search on this register after 3 months if child not placed

56. It also proposes a legislative requirement on all adoption agencies to refer to the Adoption Register all prospective adopters who are not being matched to a child within three months of being approved (provided the adopters agree).

58 .We are also considering other ways of promoting earlier and wider efforts in family finding.  Over the last decade, about 20% of children who have been adopted were placed with adopters recruited and approved by voluntary adoption agencies, but voluntary adoption agencies tell us they could do more.  One of the reasons that many local authorities do not make more use of them is that they think the inter-agency fee is   too high. In fact, Dr Julie Selwyn has found that inter-agency placements cost virtually the same as in-house placements when overheads are taken into account. As part of our work for the summer children in care publication, we intend to review the effectiveness of local authority commissioning arrangements for adoption, and consider whether further action should be taken to increase the role of voluntary adoption agencies in the system.

(I have to confess that this bit makes me apprehensive, and thinking that when some people hear the phrase ‘conflict of interest’ they might possibly be hearing something different to when I hear it. My fear prior to reading this report is that it would be setting up a system that public authorities couldn’t comply with, in order to smuggle in private practice taking over the role of adoption agencies – this being a political belief that private=better than public always, which has served us so well in IT, security guards, the NHS, construction of schools, hospitals etc over the years. This was the first bit that made me shudder, as I am very aware of the gulf that currently exists between in-house and inter-agency placement fees/costs)

Concurrent placements, and make it more easy to convert from fostering to adoption

.We would like the principles behind concurrent planning to be used more widely and for children as well as infants.  Whilst there can be no question of pre-empting a court decision, we want to see local authorities working with family-finding teams as early as possible to find potential permanent carers for children, and children with families who may, if the court agrees, go on to adopt them.  Where a child’s case is still in court and no placement order has been made, these placements are foster placements under the Children Act 1989.
62.While such practice is consistent with the current legislative framework, the Government believes that it should be easier for local authorities to approve prospective adopters as foster carers as this would enable more children to benefit from a greater continuity of care.  We will therefore consult on changes to legislation to enable a more stream-lined process for prospective adopters to be approved as foster carers in appropriate cases. This will enable vulnerable children, for whom there is little likelihood of a return home, tobe placed with their potential permanent carers as early as possible.  Local authorities will make sure that carers have the necessary skills, training and ongoing support to meet the needs of the child who is being fostered whilst allowing full consideration of the placement order application by the courts, and the birth family will continue to be supported.

I’m very excited about the idea of concurrent placements and think that it has potential to really transform outcomes for children. I was very excited when I first came to my area that it was something they did, but in three years, I’ve not done a single one, and the distrust of it amongst other family justice practitioners has made it unworkable. I can see a real and genuine fear amongst those acting for parents that foster carers (who often are a source of primary evidence about say, how the children react to contact or missed contacts) might find themselves in a conflict of interest if they are at the same time hoping to adopt the child AND providing the Local Authority with evidence about the children.

Recruitment and training of adopters   (all seems sensible – though I’m not sure four months gives the time both for a robust assessent and for the prospective adopters to have really undergone the rigorous self-examination that is required)

76.At the heart of the proposals is a radically redesigned two stage training and assessment process.  For the majority of prospective adopters the first stage (pre-qualification) will be completed within two months and the second (full assessment) within four.  There will be a fast-track process for people who have adopted before, or who are already approved foster-carers who wish to adopt a child in their care.
77.The pre-qualification phase will involve initial training and preparation – clearly separated from the full assessment phase.  During this stage, prospective adopters will use initial training sessions and online training materials to develop their understanding of adoption and to reflect on what they have to offer before progressing with their application.  The full assessment stage will consist of more intensive preparation and training and a new more streamlined and analytical assessment process. Adoption agencies will sign up to assessment agreements with prospective adopters setting out what will be involved and what the timetable will be, given their particular circumstances.
78.We think this new process has the potential to improve significantly the quality of the service that prospective adopters receive from the adoption system and to begin to increase the numbers that enter and complete the assessment process while providing the appropriate rigour. This in turn will improve its reputation and attract greater numbers of prospective adopters.  We accept these proposals outright.  Implementing them fully will require changes to regulations, statutory guidance and the National Minimum Standards. The Government will consult on the necessary changes later this year, with aview to implementing them as early as possible next year.  In the meantime, theGovernment will work with the national and local agencies represented on the WorkingGroup to prepare for successful implementation of the new system.   BAAF has produced a draft new assessment form and intends to pilot this over the coming months.  We agree in principle with the proposal that the government develop new online training materials,and will consider further how they can best be developed.
A new national gateway to the adoption system  – again, seems sensible that adopters can get a secondary route into the process and not be solely reliant on their own LA

79.The Working Group’s second key proposal is the creation of a new national gateway to the adoption system.  This would complement adoption agencies by providing a central point of contact for anyone interested in adoption.  Through a telephone helpline and website, it would provide independent advice and information about adoption and how to apply to become an adopter.  In particular, it would make sure those interested in adoption knew they were not obliged to adopt through their local authority, and help them to choose the right agency for them in their local area.  It would also assess management  information about how prospective adopters are treated and support a national customer service charter.
80.We think the proposal for a new national gateway could dramatically improve the experience of those who enquire about adoption.  We think it could also help prospective adopters to exercise greater choice and so encourage improvement by adoption agencies.  We accept the proposal in principle but before we begin to implement it, we want to consider whether the gateway’s remit should extend further.  Should it for example have a role in supporting prospective adopters to hold local authorities, voluntary agencies and consortia to account for the quality of their service?  Should it be linked to the Adoption Register – the other national element in what is primarily a local system?  Should we seek to encourage all prospective adopters to use it as a first point of contact to ensure it has a comprehensive national picture of the supply of adopters? We will explore these questions and others, with the help of the Working Group, in order to develop a final proposal in time for the summer children in care publication.  We welcome the proposal for a customer service charter and we have asked the WorkingGroup to develop its contents, as we consider the proposal for a national adoption gateway

There’s also discussion of an “adopter’s passport” which will be a transparent guarantee of the support adopters will get – sounds very sensible (silent as to whether there will be more funds for adoption support, and silence speaks volumes, as we all know)

The adoption scorecard  (this is where the ghosts of Tony Blair and John Major’s cones hotline came in and rested cold skeletal hands on my shoulder, but I don’t think it is necessarily as bad as the truly awful name suggests – it might actually be a way of getting some quality information as to where the problems exist so that they can be targeted – and I mean where in the system more than where in the country)

A new adoption scorecard
94.All of this will make a difference, but we need to go further if we are to get the system from where it is now to where it needs to be to best serve children in need of adoption.
95.Generally, the Government does not believe in managing the performance of local authorities from the centre by reference to a large and comprehensive set of targets and indicators. In most circumstances, we think it is more effective for local authorities to be held accountable by their local residents through democratic means.  However, where necessary, we continue to take action ourselves to ensure adequate services are provided to the vulnerable. Looked after children are amongst the most vulnerable people in our society and they are not in a strong position to hold the local authority – who acts as their parent – to account.  It is clear that the current inspection and accountability frameworks have not secured the improvements needed to maximise their chances of being placed quickly in a safe and loving home.
96.At present, all but a small handful of local authorities fail on average to meet the timescales that statutory guidance sets out for the different parts of the assessment process.  And there is huge variation between local authorities.  Large numbers of them fall short by a significant margin, with the very slowest local authorities taking an average of nearly three years for a child to go from entering care to being placed for adoption.  As this Action Plan has made clear there are a variety of reasons for this, but for the sake of children whose best future depends on timely adoption, we need to increase the focus of the adoption system on eradicating unnecessary delay.
97.In the coming weeks, the Government will therefore publish new adoption scorecards for each local authority, which will then be updated annually when new data become available.  The scorecards will highlight key indicators for how swiftly local authorities place children in need of adoption and how swiftly they and adoption agencies deal with prospective adopters.  They will allow local authorities and other adoption agencies to monitor their own performance and compare it with that of others.  Because comprehensive national data on timeliness for prospective adopters will not be available until autumn 2014, the scorecard will focus initially on local authorities and the adoption process for children.  In the interim, we will assess the timeliness of the prospective adopter’s journey in a cross-section of adoption agencies as they prepare to implement
the new training and assessment process. From 2014, the scorecards will include data on prospective adopters and will be published for all adoption agencies so that they can
compare their performance in relation to timeliness with each other (see figure 1 below).

98.The first key indicator will relate to the overall experience of a child who is adopted. It will measure the average time it takes for a child who goes on to be adopted from enteringcare to moving in with his or her adoptive family.  The local authority leads this process, working with the child, the birth parents and the prospective adopters, but they share the responsibility for parts of this process with the other agencies in the family justice system,  including the courts and Cafcass.  Where this indicator signals weaknesses in the family justice system in a local area, this will be tackled both through the work of the Family Justice Board at national level and the Local Family Justice Operational Boards.
99.The second key indicator will look at the same period, but identify the proportion of  children who wait longer for adoption than they should.  It will help ensure the scorecard takes account of children still waiting, as well as those who have already been adopted – and allow us to act quickly if a large number of children seem to be stuck in the system in a particular local area.
100. The third key indicator will test the speed and effectiveness of family-finding.  It will measure the average time it takes for a local authority to match a child to an adoptive family once the court has formally decided that adoption is the best option.  Family finding is a part of the adoption process which is the sole responsibility of the local authority so this indicator will always give an undiluted picture of their performance.  We will measure the time it takes to match a child, rather than for the child to move in with their new family because we recognise that a smooth introductory phase is vital and will be different for each child. As we set out in chapter one, family-finding should begin as soon as a child is identified as needing adoption, and run in parallel with other parts of the adoption process. In many cases, prospective adopters should be ready and waiting
for the child when the placement order is made.
102. The introduction of the scorecard does not mean that we are asking adoption agencies to focus on the timeliness of adoption to the exclusion of everything else that makes a difference to a child’s adoption.  It is designed to incentivise the adoption system to give timeliness greater attention than it previously has.  We don’t want it to distort local authority decisions about whether adoption is the best option for children, for example by discouraging them from placing some children for adoption – such as older children, those in sibling groups or those with complex needs.  Both the Department, in looking at local authority performance in relation to the scorecards, and Ofsted in their inspections, will take account of and give credit to local authority efforts to place childrenfor whom it is difficult to find a family.  We will therefore include amongst the additional
information the numbers of older children being adopted, and the numbers of children where the local authority initially decides adoption is the best option, but revisits and changes that decision before the child is adopted

The overall target – there’s a recognition that one can’t make immediate dramatic transformations, and it is more stepped

. Initially, our performance threshold for the child’s journey overall will be twenty one months.  Within four years, it will be fourteen months. The threshold for the family finding indicator will be seven months initially, moving down to four months within four years. We will keep these thresholds under review as we develop and implement the changes to the adoption system set out in this Action Plan and elsewhere.  Achieving this level of transformation will help protect thousands of children from the harm associated with delay and instability

What’s at the end of the stick, Vic ?   (as usual, it is Ofsted, the paragon of good practice everywhere. Sorry, my SARCASMLOCK button got pressed accidentally there) Note the really big stick in my italics at the end.

105. In line with our general approach to local government, we expect the sector to lead efforts to ensure local authorities and the family justice system improve in line with these minimum expectations through its own improvement mechanisms.  However, given the vulnerability of these children and the current levels of under performance, central Government can and will intervene where necessary.  The indicators alone do not give a full and authoritative picture of local authority performance so there will be no automatic link between the performance thresholds and intervention. Where local authorities are below one or both of the thresholds, we will look at further information from the performance tables and from Ofsted reports to get a fuller sense of the results they achieve for the children in their care. We will, for example, look at whether poorperformance against the indicators reflects the complex needs of the children being placed for adoption, as opposed to failings in the local authority’s family finding.  We will also consider to what extent a local authority’s performance is already showing signs of improvement, even if the threshold has not yet been met.  Where this exercise substantiates performance concerns triggered by the scorecard indicator, we will have conversations with local authorities about their performance. Ultimately, we will consider where we may need to intervene in order to ensure that local authorities are providing an adequate service to children in need of adoption.
106. Where we need to intervene in the interests of children, we will use improvementnotices to require authorities to take specific action to improve their performance within set timescales. Where performance remains poor and the evidence suggests an authority will be unable to improve its own performance sufficiently, we will not hesitate to use our statutory powers of intervention.  This might involve, for example, directing local authorities to outsource all or part of their adoption service to another higher performing local authority or voluntary adoption agency with a strong record

My overall impressions – not as bad as I had feared – the document has clearly had input from people who have actually had something to do with adoption, rather than being a top-down this is what the Daily Mail will like hatchet job, and whilst I don’t necessarily embrace all of how they want to achieve their goals, the goals themselves are laudable. This reads to me like a genuine attempt to address problems, rather than the Politicians Syllogism  (1. We must do SOMETHING. 2. THIS is SOMETHING. 3. Therefore we must do THIS)

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The Banality (and relative rarity) of evil

Posted on March 11, 2012 by suesspiciousminds

I suppose if you asked a member of the public whether evil was to be found in any of these groups :- politicians, estate agents, journalists, people who abuse children and lawyers; once you got past the obvious barbed remarks, there would be a consensus that there is one group where you might actually expect to find it, not just in the worst outliers of that group but diffused throughout.

I haven’t ever kept numbers, but I think I’ve probably done over three hundred care cases over my long and undistinguished career.  And I would say that I have come across more evil than the average person, but substantially less than you might expect, given that every single one of those cases has involved a parent subject to at least a suspicious of harming harmed (or doing something that would cause a risk of harm) to their child.  Of course, some of them are exonerated by the enquiry and either did nothing wrong (the suspicious-looking injury turned out to be an accident, the unpleasant allegation turns out to be fabricated, the evidence of neglect turning out to be something more akin to an evidence that different people have different standards), but that doesn’t account for all that many of the cases – probably 20 or so?

The vast majority of the cases I’ve been involved in – for Local Authorities and parents, have been with people who had changes they needed to make in their life, because they’d taken a wrong turn – whether that be drugs, alcohol, inability to cope, depression or in Wodehouse’s lovely expression “Mistaking it for a peach, having picked instead a lemon in the garden of love”.  Some of those people, when shown that the wrong turn was having an effect on their children they hadn’t realised are able to turn back, most want to and try their best but aren’t able to and some think that they don’t really have to make the choices between their children and something else that professionals are telling them they have to. Like the famous advertising maxim  “Fifty per cent of the money we spend on advertising is wasted, we just don’t know which half”,  you can never be sure of which family that resources and attention are being thrown at will respond, which of them will try but fall short, and which of them won’t really give their all thinking that they can have it all.

But actual evil?  Pretty rare. I would say that I have worked with probably 3 evil people in those 300, which, given that we are drawing from a group of people who had harmed, or were suspected of harming children is a tiny proportion. I have worked with more people who have brought about the deaths of children than I have evil parents.

I once visited a client, who I shan’t name, but had murdered some children; and whilst seeing her, was less than twenty feet away from Myra Hindley, who I think most people might come up with if trying to name a truly evil woman. She wasn’t platinum-blonde, defiant-eyed and black-lipsticked. In fact both of these two women would not have looked out of place in a mobile library. And that made me think of the banality of evil concept – that most people who do truly monstrous things are not necessarily what we in our head think of as being abominations, but are instead shockingly normal.

The Press never seem to get this – as we can see in the last year’s press coverage of the murder of Jo Yeates, it was felt acceptable to smear, vilify and identify a man as the likely killer for not much more than him having a distinctive physical appearance that the Press felt snapped closely into the model that they had in their head of what a killer would look like. They were utterly wrong, and nearly destroyed a man in the process, because he had unorthodox hair…

This whole disconnection between what people who do terrible things look and act like, and what we (persuaded by culture) think they look and act like, causes problems in care proceedings all the time. When we all know that paedophiles look like dirty old men in macs and that they would leap on a child and abuse them the second they got the chance, small wonder that vulnerable women faced with someone who looks like a regular person and who is kind to them, loving to them, and ‘wouldn’t hurt a fly’ and aren’t presenting like a slavering wolf drooling at the prospect of getting at the children find it hard to believe that the person they know could have done the things in the past that they’ve been accused of.  If we equate in the media all people who do awful things to children (and heaven knows I’m not defending the actions) as monsters, it’s no surprise that vulnerable mothers just think to themselves “If he had done those things he was accused of, he’d be a monster. I know him and he’s not a monster. So he’s been wrongly accused”

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Do you think I was born yesterday?

Posted on March 9, 2012 by suesspiciousminds

 

 

 

A headlong rush through some of the key authorities on establishing whether a young person is young enough to receive services from a Local Authority

These cases chiefly involve unaccompanied asylum seekers, because they are a debate about whether the young person in question is under eighteen at the time they present to a Local Authority requesting either support under section 17 of the Children Act or accommodation under section 20 of the Act, AND there being a dispute about whether the young person is under 18 or over 18  – UK or European nationals tend to have documentation which will establish that age beyond doubt, whereas it is common practice for unaccompanied asylum-seekers to either not have such documentation, or to have destroyed it (in order to make it harder to establish where they should be sent back to)

Sadly for anyone trying to remember these cases, nearly all of the case names involve Croydon   (alternatively, if one is trying to bluff their way through a conversation about age-assessment cases, saying “of course, the Croydon case deals with this point” is a sensible tactic)

Our starting point is with R (on the application of B) v MERTON LONDON BOROUGH COUNCIL (2003)

[2003] EWHC 1689 (Admin)

QBD (Admin) (Stanley Burnton J) 14/07/2003

Which creates for us the eponymous “Merton” assessment,  and the Court indicating that there had to be a solid evidence-based and documented assessment by the Local Authority of how they had calculated the age of the young person, and what factors they had taken into account

HELD: (1) Where it was obvious that a person was under or over 18 years old there would normally be no need for an extended inquiry into their age. However, where, as in B’s case, a UASC could not provide any reliable documentary evidence to support his claim to be a minor, the determination of his age depended on the credibility of the history given, his physical appearance and his behaviour, factors which all interconnected. There was no statutory procedure or guidance issued to local authorities as to how to conduct an assessment of the age of a person claiming to be under 18 for the purpose of deciding on the applicability of Part III of the 1989 Act. Nor was there any reliable scientific test to determine whether a person was over or under 18. (2) It would be naive to assume that a UASC was unaware of the advantages of being classified as a child. A lack of travel documentation, including a passport, may justify suspicion, particularly where he claimed to have entered the country overtly in circumstances, for example through an airport, where a passport would be required. The matter could be determined informally, provided that minimum standards of inquiry and fairness were ensured. The decision-maker had to seek to elicit the general background of the UASC, including his family circumstances, his educational background and his history during the previous few years. Ethnic and cultural material might be important. A decision-maker would have to ask questions to assess a UASC’s credibility where there was reason to doubt it. It was not useful to apply notions of a burden of proof to the assessment. (3) A local authority’s social services department should not merely adopt a decision made by the Home Office, although it could take into account information obtained by the Home Office. (4) Merton had made its own assessment as to B’s age and not solely relied on the Home Office’s stance. The decision-maker’s reasons were inconsistent with the decision letter. However, it was permissible for the court to consider those reasons (Nash v Chelsea College of Art & Design (2001) EWHC 538). The evidence before the court represented the true basis of the decision and those reasons were adequate. A UASC was entitled to know the true reasons for an age assessment decision so that he could make an informed decision on whether to ask a local authority to review the decision or to make a complaint. The reasons did not need to be long or elaborate: it would have sufficed for the decision-maker to inform B that the decision was based on his appearance and behaviour and on the inconsistencies in his history which had made the decision-maker doubt his credibility. (5) The court should not impose unrealistic and unnecessary burdens on those required to make decisions such as this. Some cases would require more inquiry than others. The court should not be predisposed to assume that the decision-maker had acted unreasonably or carelessly or unfairly: it was for a claimant to establish that a decision-maker had so acted. It was not necessary to obtain a medical report. Nor was it necessary for a local authority to support a UASC for a period of days or weeks to give others an opportunity to observe him, if the information available was sufficient for a decision about his age to be made. It was greatly preferable for an interpreter to be physically present in an interview. Verbatim notes of an interview were also useful, although not essential as a matter of law. Such notes did not have to be counter-signed by a UASC. Procedural fairness required that a decision-maker explain the purpose of the interview to a UASC. (6) If a decision-maker formed the preliminary view that a UASC was lying about his age, he had to be given an opportunity to address the issues that led to that view (R (on the application of Q) v Secretary of State for the Home Department (2003) EWCA Civ 364). The decision-maker had failed to give B such an opportunity. Merton failed to establish that B’s responses could not have reasonably altered the decision. There was not a suitable alternative procedure for B to challenge the decision: there was no evidence about Merton’s complaints procedure; moreover, any complaint under s.26 of the 1989 Act would have been too slow for a child without accommodation or support. Therefore Merton’s decision had to be set aside and Merton had to reassess B’s age.

I note, with grim interest, this part of the Merton decision… “The court should not impose unrealistic and unnecessary burdens on those required to make decisions such as this” sadly, this is a custom more honoured in the breach than the observance.

There were other cases prior to Merton, but this was the big one, where the Courts made a solid attempt to get to grip with the issue of young persons asking for services and Local Authorities refusing on the basis that they appeared to be older than the group who were entitled to such services.

If the Courts felt that Merton  (do a good Merton assessment, make your decision, and it won’t be judicially reviewed) would put an end to the flood of judicial review challenges, on age assessments, they were sadly wrong.

There was litigation about medical evidence, about whether medical evidence was of any use at all, about whether the Local Authority had given enough weight to the medical evidence even though it was fundamentally not of assistance (there being finally acceptance that when deciding if a young person is 17 or 19, a medical test that is only accurate to within 2 years doesn’t help  – if one ever needs to argue this, R v Croydon –of course, helps R (on the application of R) v CROYDON LONDON BOROUGH COUNCIL (2011)[2011] EWHC 1473 (Admin) QBD (Admin) (Kenneth Parker J) 14/06/2011), and every single inch of the Merton assessments as lawyers nobly representing young persons sought to establish that the LA decision not to provide their client with services was “Wednesbury unreasonable”

There then came the decision of the Supreme Court, which knocked on the head any talk of ‘unreasonableness’ and judicial review, and determined that if there was a dispute between the LA and the young person about their age, this was a decision to be made by the Court.   (This had the, one hopes, inadvertent effect of massively expanding the number of potential cases, since one no longer had to show the Court that there was reason to believe the LA had been unreasonable in their age assessment, but just that the young person disagreed with it)

R (on the application of A) v LONDON BOROUGH OF CROYDON (Respondent) & (1) SECRETARY OF STATE FOR THE HOME DEPARTMENT (2) CHILDREN’S COMMISSIONER (Interveners) : R (on the application of M) v LONDON BOROUGH OF LAMBETH (Respondent) & (1) SECRETARY OF STATE FOR THE HOME DEPARTMENT (2) CHILDREN’S COMMISSIONER (Interveners) (2009)

HELD: (1) In s.17(10) a clear distinction was drawn between whether a person was a “child” and whether that child should be “taken to be” in need within the meaning of the Act. That suggested that they were two different kinds of question. “Taken to be” imported an element of judgment which Parliament may well have intended to be left to the local authority rather than the courts. But the word “child” was undoubtedly defined in wholly objective terms, however hard it might be to decide upon the facts of the particular case. It admitted only one answer. As stated by Scarman L; where the exercise of an executive power depended upon the precedent establishment of an objective fact, the courts would decide whether the requirement had been satisfied, R. v Secretary of State for the Home Department Ex p. Khawaja [1984] A.C. 74 considered. Whether a person was a child for the purposes of s.20(1) was therefore a question of fact which must ultimately be decided by the court. (2) (Obiter) Those conclusions made it unnecessary to come to any firm view on the application of art.6 to decisions under s.20(1) of the Act. The House of Lords in Begum v Tower Hamlets LBC [2003] UKHL 5, [2003] 2 A.C. 430 had been content to assume, without deciding, that a claim for suitable accommodation under the homeless provisions of the Housing Act 1996 was a civil right, but no Strasbourg case had yet gone so far, Begum considered. In the instant case, the court was reluctant to accept, unless driven by Strasbourg authority to do so, that art.6 required the judicialisation of claims to welfare services of the kind in M and X’s case. If the right to accommodation under s.20(1) was a civil right at all, it rested at the periphery of such rights and the present decision-making processes, coupled with judicial review on conventional grounds, were adequate to result in a fair determination within the meaning of art.6, Tsfayo v United Kingdom (Admissibility) (60860/00) (2004) 39 E.H.R.R. SE22 considered.

[It is worth noting that the Supreme Court also went on to determine that a person seeking a challenge to the LA about accommodating them did not trigger article 6 of the Human Rights Act – at the time, this was probably academic, but now that the free legal advice provisions that enabled all of this litigation to be brought may vanish, it becomes more relevant. ]

It is settled law that when approaching this task, the Court is not bound by any decision of other tribunals as to their resolution of age-assessment conflict, though they may take them into account

R (on the application of PM) v HERTFORDSHIRE COUNTY COUNCIL (2010)

[2010] EWHC 2056 (Admin)

QBD (Admin) (Hickinbottom J) 04/08/2010

A local authority assessing the age of a young asylum seeker was not bound by an age assessment that the First-tier Tribunal (Immigration and Asylum Chamber) had made while hearing the asylum seeker’s asylum appeal.

The approach to be followed

 

Mr Justice Holman was the first judge to really grapple and set some guidance for the brave new world of Judges no longer just deciding whether the LA had behaved unreasonably, but actually deciding how old the young person in question was.  [Note that Mr Justice Holman ruled that the medical evidence was admissible into the fact-finding hearing, notwithstanding the earlier criticisms of it in the Croydon case referred to above, and also that he considered the cases to still run on a judicial review model, with permission being required]

R (on the application of F) v LEWISHAM LBC : R (on the application of D) (Claimant) v MANCHESTER CITY COUNCIL (Defendant) & SECRETARY OF STATE FOR THE HOME DEPARTMENT (Interested Party) : R (on the application of Z) v GREENWICH LBC : R (on the application of C) v CROYDON LBC : R (on the application of S) v SOUTHWARK LBC (2009)

[2009] EWHC 3542 (Admin)

QBD (Admin) (Holman J) 17/12/2009

HELD: (1) The approach to disputed age cases had been clarified by the Supreme Court. There still had to be an assessment by the local authority; judicial review was the appropriate mechanism and remedy for any challenge to that assessment and on any judicial review the essential issue was one of pure fact for the court, Lambeth LBC followed. The instant cases would be listed for a fact-finding hearing to determine whether, on the relevant date, C were children and if so, their date of birth. Once the court was required to engage on determination of whether a person was, on the relevant date, a child, it had to go on to make its own determination as to actual age or date of birth. (2) Proceedings such as the instant cases remained firmly proceedings for judicial review. Accordingly, permission was required before the claim could proceed. The relevant test for the grant of permission where the person had been assessed as over 18 years of age on the relevant date was whether there was a realistic prospect that at a substantive fact-finding hearing the court would reach a relevant conclusion that the person was of a younger age than that assessed by the local authority and was on the relevant date a child. Where a local authority had assessed the person as under 18 years of age on the relevant date, the test was whether there was a realistic prospect that the court would conclude that the person was of a younger age than that assessment. (3) The standard of proof in all such cases was the ordinary civil standard of the balance of probability. As to the question of where the evidential burden lay, that was entirely a matter for the judge at a final hearing and might depend on the facts and circumstances of individual cases. (4) If local authorities wished to defend cases by reliance on assessments of their social workers, then they had to produce those social workers for cross-examination if required. (5) Fact-finding hearings could not ordinarily take place without some involvement of the claimant and the engagement of the claimant with the court as, in most if not all cases, there was some issue as to the credibility of the claimant and the account that he or she had given regarding their history. However, the extent to which, and manner in which, a claimant participated or gave evidence was quintessentially a matter for the judge. (6) A major issue in such cases had been whether a decision of the local authority not to take into account medical evidence rendered the underlying decision regarding age assessment vulnerable to judicial review. There was nothing in the judgment of Collins J to indicate that such medical evidence was so unreliable or so unhelpful that it could simply be ignored altogether. The evolution of the approach to be taken indicated that such medical reports could not be disregarded by local authorities or by the court, Croydon LBC considered. Therefore, in the instant cases in which there was already such evidence, that evidence could be admitted into the proceedings and relied on.

Mr Justice Garnham QC developed this practical guidance further, in that the Court was not obliged to nail their colours to the mast on a firm date of birth, but rather to assess what was the most likely of a range of dates proferred.

R (on the application of N) v CROYDON LONDON BOROUGH COUNCIL (2011)

[2011] EWHC 862 (Admin)

QBD (Admin) (Neil Garnham QC) 16/03/2011

HELD: (1) A declaration as to a person’s date of birth could not be granted as a matter of course, especially in circumstances such as in the instant case where the declaration had potential effects on third parties who were not before the court, including the Home Office. Such a declaration would only be appropriate after careful consideration of the evidence. A court had to exercise an original jurisdiction and determine the precedent fact of whether the claimant was a child, and if so, his date of birth, for which the standard of proof was the ordinary civil standard of a balanced probability, R. (on the application of A) v Croydon LBC [2009] UKSC 8, [2009] 1 W.L.R. 2557 followed and R. (on the application of F) v Lewisham LBC [2009] EWHC 3542 (Admin), [2010] 1 F.L.R. 1463 applied. A court faced with such a question was not considering whether it had been shown on the balance of probabilities that a particular date was the true date of birth, but making an assessment of the most likely date of birth after comparing a wide potential range of dates, MC v Liverpool City Council [2010] EWHC 2211 (Admin), [2011] 1 F.L.R. 728 applied. Where all other factors were equal, the date might well be the middle of the appropriate range, because proximity to error increased towards the extreme ends of the range (see paras 2-5, 9, 35 of judgment).

Burden of proof

There had been some debate about whether the burden of proof was on the young person (since they were claiming to be a child and entitled to services) or the Local Authority (since they were claiming that the young person in question was not entitled to the services)

The Court of Appeal determined last year in R (on the application of CJ (BY HIS LITIGATION FRIEND SW)) v CARDIFF COUNTY COUNCIL (2011)

[2011] EWCA Civ 1590   that the burden of proof was not on the young person to prove that they were under 18, reversing the decision that had been made in the High Court on the same case.

The High Court’s supervision of the exercise of jurisdiction by an inferior court, tribunal or public body was not an issue which could be resolved according to the private interests of the parties. The nature of the court’s inquiry under the 1989 Act was inquisitorial and to speak in terms of a burden of establishing a precedent or jurisdictional fact was inappropriate. Once the court was invited to make a decision on jurisdictional fact, it could do no more than apply the balance of probability to the issue. A distinction needed to be made between a legal burden of proof and the sympathetic assessment of evidence. In evaluating the evidence it might well be appropriate to expect conclusive evidence from a claimant but the nature of the evaluation would depend on the particular facts of the case. Where a range of powers and duties which were exercisable dependent on the age of an individual were raised in the same proceedings, it would be highly undesirable for contradictory findings to be made as to the existence of the precedent fact. The nature of the inquiry in which the court would be engaged was itself a strong reason for departure from the common law rule which applied a burden on one or other of the parties. The court, in its inquisitorial role, had to ask whether the precedent fact existed on a balance of probability

.

[It is worth noting, however, that in the particular case, notwithstanding that the young person did not have to prove that he was under 18, the Court of Appeal agreed with the conclusion of the High Court that the young person was in fact over 18 and thus not entitled to the services he was seeking. ]

On burden of proof – the Courts have also ruled that the issue of burden of proof should only arise where the matter is so finely balanced that it was only this that would tip the balance

R (on the application of U) v CROYDON LONDON BOROUGH COUNCIL (2011)

[2011] EWHC 3312 (Admin)

QBD (Admin) (Judge David Pearl) 14/12/2011

HELD: When considering an age-assessment case, a judge had first to examine all of the evidence that had been presented and try to arrive at an assessment of the person’s age. Only if it was a close decision would it be necessary to resort to the burden of proof,

Is the judgment on age assessment confined to the Children Act proceedings, or broader?

 

In R (on the application of MWA) v (1) SECRETARY OF STATE FOR THE HOME DEPARTMENT (2) BIRMINGHAM CITY COUNCIL (2011)

[2011] EWHC 3488 (admin)

QBD (Admin) (Beatson J) 21/12/2011

 

The High Court found that the young person was over 18 and agreed with the Local Authority age assessment – disagreeing with two decisions of the Asylum and Immigration Panel that he was under 18.  (This of course poses an interesting internal dilemma, since the Court’s decision is binding for the purposes of the Children Act, but the AIP for the purposes of asylum and immigration, and the young person is currently occupying a state of flux akin to Schroedinger’s cat, being simultaneously under 18 and over 18. )

 

but, hoorah! The Court has also resolved this, by indicating the cases in which it is sensible for the age-assessment decision to be binding on everyone.

 

 

R (on the application of AS (BY HIS LITIGATION FRIEND THE OFFICIAL SOLICITOR)) v CROYDON LONDON BOROUGH COUNCIL (2011)

[2011] EWHC 2091 (Admin)

QBD (Admin) (Judge Anthony Thornton QC) 25/10/2011

it was possible to identify factors which had to be established for a declaration to be made in rem. A claimant had to show that: (a) the determination was in the form of a judgment and not simply a finding of facts upon which a judgment was based; (b) the tribunal had jurisdiction to make the relevant determination; (c) the relevant statute, expressly or by necessary implication, conferred on the tribunal the jurisdiction to make a determination in rem, indicated by the conferral of exclusive jurisdiction to make a final determination about the status of the claimant; (d) the judgment was final, on the merits and not by consent; and (e) there was a public interest in the judgment being one which bound everyone

I have found over forty reported cases on age assessments of unaccompanied asylum seekers, and those obviously don’t include any that are resolved by a Court but don’t have any particularly interesting or novel clarifications of points of law.  That includes seventeen in 2011 and thirty since the Supreme Court ruling.

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Respect my prior authoriteh !

Posted on March 7, 2012 by suesspiciousminds

 

“I guess one person can make a difference… but most of the time, they probably shouldn’t”   – Marge Simpson

 

I would be very interested to know if this is a local problem, or more widespread, but I’ve had a spate over the last five months (getting steadily worse) of cases being delayed and my email being clogged full of problems about Prior Authority.  This tension seems to have arisen because the LSC appear to intepret a Court order that says “The costs of this expert be shared in equal one quarter shares between the Local Authority and the public funding certificates of the mother, father and Child” to actually mean “The costs be split one quarter to the LA, who have to pay up and shut up, whatever we feel like we want to pay, and the rest out of the solicitors profit costs – providing of course that we think the assessment should actually happen at all”  and “the report to be filed and served by 1st April 2012”  to mean “The expert report will be filed at some indeterminate time in the future, after we’ve processed prior authorities, granted one of them, rejected one of them, and refused one, then reconsidered on appeal”

 

 

If that’s sounding familiar, I have a suggested order, and a generic skeleton below, which I have been using in a concerted effort to educate the LSC that in Court proceedings, it is the Court who decide what reports take place, and who pays for them. Hint – the clue is in the wording of the initial order, and the omission of the words “Whatever we feel like we want to pay and the rest out of the solicitors profit costs”

 

Please let me know of problems or solutions in your area. It will all be helpful should the LSC decide to challenge the Court’s jurisdiction on costs.

 

Order :-

The Court orders that the costs of the assessment be met in equal one quarter shares between the Local Authority and the public funding certificates of the mother, father and Child/ren, it being a reasonable and proportionate disbursement for the purposes of public funding, and the Court having determined that the report is necessary for the resolution of the case.  In the event that the Legal Services Commission, who adminster the public funding certificates and payments made, seek to vary or set aside this order, such application should be made on notice to the parties, no later than                (2 weeks time).  If no such application has been made by that date, this order shall stand. The publicly funded parties shall serve both the sealed order, and a typed version of this order (to avoid delay in waiting for the sealed order) upon the branch of the LSC dealing with their certificate, forthwith.

 

Skeleton

Case No: 

IN THE                                  COURT

 

IN THE MATTER OF

 

AND IN THE MATTER OF THE CHILDREN ACT 1989

 

B E T W E E N:

Applicant

-and-

 

1st Respondent

-and-

 

 

2nd Respondent

-and-

 

 

(by his/her/their Guardian)

3rd Respondent

 

_____________________________

Skeleton argument

Prepared by the Local Authority

______________________________

 

 

Brief background

 

 

Proceedings in relation to                                            were commenced on                          .  [Information re dates of birth of the children, who the parents are, where the children are living and under what orders]

 

The concerns in the case relate to                                           as set out in the threshold document [page reference].

 

 

 

 

On [date] , the Court made the following direction relating to the instruction of an expert:-

 

 

 

 

Certain of the publicly funded parties made an application to the Legal Services Commission (hereafter LSC) for “Prior Authority”  – that is, agreement in advance of receipt of the invoice from the expert that the LSC would honour that payment.

 

Obtaining “Prior Authority” from the LSC is not a required element of the solicitors firms contract with the LSC, but many firms, locally and nationally, take the cautious and not unreasonable view that they would wish to ensure that the LSC will pay any costs incurred, as if they do not, the firm themselves are left paying any shortfall, thus taking a financial loss on dealing with the case.

 

The Local Authority would emphasise that they have sympathy and understanding for the solicitors firms involved, who have to operate in a financial climate where making up the shortfall between what an expert charges and what the LSC pays towards that expert fees can mean a Mr Micawber-esque outcome :- “Annual income twenty pounds, annual expenditure nineteen nineteen six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery.”

 

 

The “Prior Authority” mechanism, whereby the solicitors firms seek reassurance from the LSC that their allotted share of the expert fees will be recouped in full, in advance of the expert incurring any fees (by commencing the work which has been directed), is sadly not flexible, fluid or swift enough for such results to be known in good time for the expert to undertake the work and hit the deadlines imposed by the Court. In many cases, the process is taking a period of months, rather than weeks, leading to significant delays in the expert commencing the work, and hence the report being available when directed. This in turn, leads to delays in the Court being able to resolve decisions for children.

 

 

 

The Local Authority stance is that the Court have ordered, legitimately and lawfully, that an expert report be commissioned, and ordered, legitimately and lawfully that the costs of that report be apportioned in a certain way. If the LSC now resist that legitimate and lawful order, they should seek to apply to vary or discharge it.

 

It is suggested that to clarify this position in future, it should be made explicit on the face of the order that if the LSC seek to vary or discharge the order as to the apportionment of costs, they do so within 14 days of the order being made, and that the publicly funded parties shall file and serve the order (or a typed note thereof) upon the branch of the LSC dealing with their particular certificate.

 

This then avoids the need for any application for Prior Authority, as the Court will have ordered how the costs are to be paid, and the LSC will have their opportunity to challenge that within timescales which are more suitable for the child, and the administration of justice.

 

 

 

 

Notwithstanding the legitimate desire of the LSC to manage their budget and to drive down the costs of expert assessment, the Local Authority submit that where this causes delay for the child, the system has not worked properly.

 

 

 

The law

 

 

Section 38(6) of the Children Act 1989 gives the Court the power to order that assessments be conducted within care proceedings.

 

That this power extended to directing how the assessments were to be paid for derives from a number of authorities, notably

 

CALDERDALE METROPOLITAN BOROUGH COUNCIL V (1) S (2) LEGAL SERVICES COMMISSION (2004)

 

[2004] EWHC 2529 (Fam)

 

In which the High Court determined that the Court had jurisdiction to order that the costs of obtaining an assessment be divided in whatever way it saw fit, including making provision  (as in this case) that the Local Authority pay one quarter, and each of the three publicly funded parties pay their own one quarter share through their public funding certificate.

 

It will be noted that the LSC played an active role within that case.

 

The principles in Calderdale were revisited in

 

LAMBETH LBC v S (2005)

 

[2005] EWHC 776 (Fam)

Fam Div (Ryder J) 03/05/2005

 

Where the High Court determined that funding of section 38(6) assessments was not outside the remit of the LSC, and importantly that the Commissions own guidance on funding was not binding on the Court.

 

 

Some extracts from that judgment which are pertinent to the issue here (and given that it was made nearly seven years ago, prescient)  :-

 

Paragraph 43 : – “It is equally correct that the Community Legal Service Fund has fixed and limited resources but so do local authorities… the services they both provide are inextricably linked to the obligation on the Court to ensure within the Court’s process the exploration rather than the exclusion of expert assessment and opinion that might negate the State’s case for the permanent removal of a child from his parents”

 

Paragraph 62 : –  “ There is already a healthy delegation of the Commission’s powers and duties to the parties legal advisors. That practice of delegation was very properly exercised on the facts of this case and as a matter of practice around the country great care is taken by publicly funded practitioners to abide by their duties. A paper review of a case by the Commission is in any event a poor substitute for the Court’s overall impression gained by its continuous case management”

 

Paragraph 63 “It is a matter for them (the LSC) to put in place guidance to deal with exceptional expense provided that any prior authority or notification systems do not cause delay”

 

 

 

 

 

 

 

 

 

The Court do have the power, under Rule 25.4 (4) of the Family Procedure Rules 2010 , set out below, to limit the amount of an experts fee and the expenses that may be recovered from any other party.  There is nothing within that power to circumscribe HOW the Court may limit the amount, and certainly nothing to indicate that they are bound by the LSC’s own internal policy or guidance.

 

Court’s power to restrict expert evidence

25.4.—(1) No party may call an expert or put in evidence an expert’s report without the court’s permission.

(2) When parties apply for permission they must identify—

(a) the field in which the expert evidence is required; and

(b) where practicable, the name of the proposed expert.

(3) If permission is granted it will be in relation only to the expert named or the field identified under paragraph(2).

(4) The court may limit the amount of a party’s expert’s fees and expenses that may be recovered from any other party

 

 

The Court must consider, in any application to vary or discharge the original order :-

 

Section 1 (1) of the Children Act 1989  “when a Court determines any question with respect to (a) the upbringing of the child; the child’s welfare shall be the court’s paramount consideration.

 

And section (1) (2) of the Children Act 1989 “in any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child”

 

The paramount consideration is the child’s welfare, and that delay is likely to be prejudicial to that welfare; rather than the financial aspects (important as they legitimately are to both the LSC and the firms involved)

 

 

It is submitted as a result of all that has preceded,  that :-

 

(a)    the Court has power to direct that an assessment take place (pace s38(6) of the Children Act 1989)

(b)   the Court has power to direct that the costs of the assessment be apportioned in such way as they see fit, including directing that the parties public funding certificates bear all or some of the costs  (pace Calderdale)

(c)    The LSC own internal policy on funding, and the limits they will pay in relation to experts is not binding on the Court (pace Lambeth)

(d)   The Court does have the power to set a cost limitation when instructing an expert, and also when considering any application to vary the original order.  (pace rule 25.4 (4) of the Family Procedure Rules 2010)

(e)    If the consequences of setting a cost limit and varying the existing order, mean that a fresh assessment be commissioned, or significant delay incurred, the Court cannot make that variation without considering the provisions of section 1 (1) and section 1 (2) of the Children Act 1989

 

And that

 

(f)    the interests of the child would be better served by the report which is so close to completion being completed and filed and served, as originally intended, and for the existing order to remain in place, with no cost cap being added.

 

 

The Local Authority would accept that in some cases where the LSC actively seek to become involved and make representations, that the balance might well fall another way, and that the LSC’s perfectly legitimate motivation in controlling costs and curbing what had been excesses might justify the Court setting a cap pursuant to rule 25.4 (4) of the FPR.

 

In this case, however, it is not. Decisions here need to be made about this child/these children, and what the appropriate arrangements for his/her/their family life should be.

 

In general, the Local Authority would suggest that where Prior Authority is  refused, then there is a need for the case to be urgently restored for directions, to consider whether the original direction needs to be varied, and the impact on the timetable generally.  The Local Authority would remark that a great deal of their time is currently spent on wrangling with decisions in relation to Prior Authority and whether expert assessments which have been directed by the Court can take place, and many of these disputes have led to delay for the children concerned.

 

 

 

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Three, is not the magic number

Posted on March 3, 2012 by suesspiciousminds

I’ve been pondering this week about an issue that seems to come up more and more. Obviously, this whole article is prefaced by the caveat that children are better off with their birth family or family members if at all possible, even if that means a lot of support going in, so the issue arises in cases where the Court is being presented with a plan by the Local Authority that a sibling group can’t go home to the birth family or extended family.

It is the vexed question of separation of siblings – how far can anyone predict whether the future desired placements will materialise, does there ever come a point at which the desired outcome of keeping a sibling group together actually becomes harmful (i.e the trade-off between them being together versus them not having stable, lasting placements but running the risk of placement breakdowns), and to what extent is the detail of the care planning for a sibling group within the control of the Court, and what happens if the Court don’t want to let go of the reins because they doubt that what has been promised will be delivered?.  I’m probably going to do a post about the official solution to the “starred care plans” issue, and whether that official solution actually works in practice  (hint, since the introduction of the IRO referring to CAFCASS, CAFCASS making an application system has been in place, CAFCASS have had 8 such requests, and issued on none of them)

But one thing kept coming to my mind, and it is that children in a sibling group of three are the most difficult in this argument. A single child, siblings don’t arise. Two children – you generally want to keep them together (although if there’s a big age difference, that can be tricky) and you stand a good chance of doing so. Four children, it is generally accepted that you’re unlikely to be able to keep them together and although you may try to find such a placement, the consensus is that it would be a beautiful and pleasant surprise if you managed it, but not something you’d be condemned for if you couldn’t. Five and over, and it is accepted that the siblings would have to be split and the debate is about how to do this.

When you have a group of three, however, there remains a disconnect between what people hope and expect  (you should be able to keep these siblings together, and you must find them a placement together, because splitting them would be terrible) and what the reality of carers searching for sibling groups of three actually are.  Even assuming your sibling group of three has no particular quirky features, no unusual cultural issues, not a high level of post placement contact being planned, they have no significant behavioural problems  (all of which assumptions are not necessarily the reality), the carers in the available pool who are looking for sibling groups of three are very limited.

A figure I saw this week suggested that currently for sibling groups of three or more, there are far, far, far more sibling groups looking for carers than there are carers looking for sibling groups.  [I was going to give the figures, but had an attack of unease about doing so – but if you’re imagining that there are five sibling groups for every one carer looking for a sibling group, you’re way, way overestimating the number of carers]  

That doesn’t mean that one shouldn’t try, or shouldn’t try really really hard, or that for any one of those individual sibling groups that not being placed together is anything other than a  tragedy  (having already given my caveat that this arises only if they CAN’T go home or to extended family), but it strikes me that no matter how hard one tries, no matter how fervently every professional involved scours the potential placements, not all of the sibling groups who are competing for a much, much smaller pool of carers are going to find placements together.

Even if we tripled the number of carers who want sibling groups; by some magical recruitment process, or as Gove is suggesting by dramatically reducing standards/the exhaustive bureacratic and draining process (depending on where you stand), still the vast majority of those sibling groups of three waiting to be placed together (who all professionals have determined, really really need to be together if at all possible) are going to be let down. And are we letting them down further by spending months of such a critical period in the children’s lives searching for something that has a high probability can’t be delivered?

I don’t know what the solution is. Long-term, taking action to either support families, to prop up and improve placements within the family, to get the treatment that parents who have been through the care system process badly need, or earlier intervention on the first child, so that we don’t get three children needing to be removed, with a view to massively reducing the need for large sibling groups to come before the Court. A whole different approach with foster carers – the concurrency model rolled out across the board, so that more often than not, the people fostering the children during the proceedings do so with an open mind that they would offer them a home for life, if needed? I don’t know what you would need to offer, or seek in recruitment to make concurrency foster placements the norm rather than an exception.

But we are working in a reactive system. What Government is ever going to throw millions of pounds of public money in helping parents who have heroin addictions or alcohol problems, and stand firm in front of the criticism that would come from the Daily Mail about that policy? Even if those millions would save that tenfold over time, and greatly reduce the human tragedy that ever single set of care proceedings inevitably is, no matter how well handled they are?

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Not just clean-bowled

Posted on February 27, 2012 by suesspiciousminds

I’ll be doing a more detailed analysis of the Government’s decision, when responding to the Family Justice Review, to not adopt the recommendation to abolish Court fees for care proceedings, which went up from £175 per case to around £5000 (if the case goes to final hearing, it is cheaper if it is resolved at Issue Resolution Hearing), but in very broad terms :-

The consultation about the change to fees was rolled out on a Government website on New Year’s Eve  (I like to think Local Government lawyers are hard-working and don’t keep the hours that the general public might stereotypically associate with public sector workers, rightly or wrongly, but even we have better things to do on New Year’s Eve)

The consulation proceeded on the premise that the principle that the full costs of care proceedings to the Court service should be met by Local Authorities. And basically gave a range of choices about whether they wanted to be punched in the stomach, kidneys or face while they were being mugged. There was plenty of talk about how the fee increase wasn’t intended to be a lever to drive down the number of care applications within that consultation. Most LA lawyers who responded to the consultation made exactly the point that there was a risk of it being used that way. The consultation disregarded this.

The numbers of care proceedings issued dropped like a stone (there was the additional complication of the PLO, which got rid of delay in care proceedings (ha!) by front-loading them so that all the delay happened before the case got to Court, so I couldn’t claim that they were responsible for the entireity of the plummet)

Then Baby P came along, the numbers spiked up and have kept doing so, and the Government invited Lord Laming to report, saying that they would accept all his recommendations. He reported, saying that he feared that if even one application that should have been made to Court had not been because of the fees, then they should be scrapped and recommended that a report look into that.

The Plowden review reported and recommended the abolition of Court fees.  The Government didn’t respond to that. In fact, it took a Parliamentary question to get from them that they intended to kick it into the long grass and leave it for whoever won the (at the time imminent) election to resolve.

The new Government kicked it into the long grass, and waited for the Family Justice Review. The interim FJR recommended the abolition of court fees. The full report came, and recommended the total abolition of Court fees in care proceedings. The Government accepted most of the other recommendations (wavering about presumptions of shared parenting) and rejected the abolition of Court fees in care proceedings.

To me, this is a batsman at the crease who is clean bowled, and says he wasn’t ready, then is LBW next ball, and says the sun was in his eyes, and then finally is caught and just stands at the crease, refusing to walk and says “Come on, next ball – I’ve got a good feeling about this innings”

Why does it matter?  Well, it has a huge financial impact on Local Authorities – it would be fair to say that most of them don’t get anywhere close to breaking even from the money Central Government gave for this purpose, and pay out far, far more. But more importantly, it has an impact on parents.

When I started out, I used to issue care proceedings on parents who were in danger of losing their children if they didn’t turn things around – we applied for Supervision Orders and Interim Supervision Orders. And in many cases, being in Court, and having representation, and hearing from a Guardian and a Judge who would explain to the parents that they could be helped to avoid an awful calamity did the trick.  LA’s don’t apply for many Supervision Orders now – despite the spike in the numbers of proceedings, most of the time, LA’s go to Court when they perceive they are at the end of the road with the parents (sometimes we’re right, sometimes we’re wrong, but the mindset is that we are in Court to say ‘we can’t manage this at home any more’).   The application form for Care proceedings has a section on it (before the page where the form asks you the gender of the mother…) where you indicate whether you seek an Interim Care Order or an Interim Supervision Order.  If I had any confidence that HMCS kept stats, that would be a fine Freedom of Information question – the proportion of cases where an LA issues seeking an Interim Supervision Order  (reflecting that it isn’t the end of the road, but a significant junction where a parent can choose a better course)

And the other huge impact that the Government hasn’t thought about, is that if you keep the Court fees as they are, and implement the hard six month cap; you exclude Local Authorities reaching a conclusion in cases where there’s general progress, but a wobble (a parent is abstinent for five months, but has a lapse just before the final hearing for example) to say “Let’s give this a try with a Supervision Order – we can always bring it back to Court”  if giving that benefit of the doubt is going to cost £5000 to get it wrong. Much easier to do it under a Care Order.  Which is fine if the lapse was just a lapse, and no more, but what happens when it is a relapse instead, and rather than having to bring it back to Court and prove it, the Care Order (which remember will come with a much looser care plan than at present) just kicks into force and the child is removed without a hearing?

I rather suspect we might be seeing an increase in the number of Care Orders made at final hearings, as an accidental consequence of a flawed system.

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what can the past of section 31 tell us about the future and the Family Justice Review?

Posted on February 14, 2012 by suesspiciousminds

 

 

No plan ever survives contact with the enemy

 

 

                                      Helmuth von Moltke the elder

 

 

 

I’m fairly sure that I’ll be writing about the Family Justice Review and their proposals on many occasions, but I just wanted to set aside any ideas for a moment about the merits of the ideas within it, or how practical they are to implement, and just to take the main headline idea and imagine how it will be once exposed to lawyers in the field; using the history of the threshold criteria and the litigation around that as an example.

 

I’m sure everyone who has done any public children work knows that the test for whether the Court can consider making orders that give the State (in the form of Social Services/the Local Authority) powers about children,  is the ‘threshold criteria’ set out in section 31 of the Children Act 1989.  (It is worth noting that the threshold criteria being met doesn’t mean that an order will be made or what it would be, but rather that it allows to proceed to the next stage of considering what is in the child’s welfare – no threshold means the State has to go away)

 

Section 31 (2) says “A Court may only make a care order or a supervision order if it is satisfied  –

 

(a)  that the child concerned is suffering, or is likely to suffer, significant harm; and

(b)  that the harm, or likelihood of harm, is attributable to –

(i)            the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii)          the child’s being beyond parental control  “

 

 

That appears to me to be a solid piece of drafting– positively wonderful by modern standards (where half of the relevant bits would be defined in Schedule 2 and another key element being with reference to other sections). It is self-contained – everything you need to know is set out in that one section, rather than cross-referring, and using everyday language and concepts.  [You can see, for example, that paraphrasing it as ‘the State have to prove that you’ve caused your child harm, or will probably cause them harm in the future, by not doing what the State expects of you as a parent’  distils the essence of it, without getting too far away from the concepts as stated]

 

Now, following contact with lawyers and thirty years of cases which have unpicked within it every single word other than ‘child’, the actual unspoken and unwritten, but legal meaning of the section is as follows, [original in bold, additions in italics]

 

 

“A Court may only make a care order or a supervision order if it is satisfied [on the balance of probabilities, with the burden of proof falling upon the applicant Local Authority]   –

 

(a)  that the child concerned is suffering [at the time of the hearing of the application for the care or supervision order, or at the time when the local authority initiated the procedure for the protection of the child concerned provided those arrangements have been continuously in place until the time of the hearing – to cover the situation where a child is voluntarily accommodated before the application is made and would no longer be currently suffering significant harm at the time the application were made, it is possible to consider later acquired information as to that state of affairs at the relevant date but not evidence of later events unless these events can be used to show the state of affairs at the relevant date ] , or is likely to suffer [likely meaning having a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case, the seriousness of the allegations or the consequences having no impact upon the standard of proof to be satisfied,  and the facts upon which that prediction of likelihood is based having been proven to the balance of probabilities to have actually occurred, it not being sufficient that those facts may have occurred or that there is a real possibility that they did, and establishing that one child did suffer significant harm does not automatically establish that another child of the same family is likely to suffer significant harm, note also that the Court is not limited to looking at the present and immediate future but may look at the long-term future], significant harm [the harm must be significant enough to justify the intervention of the State and disturb the autonomy of the parents to bring up their children by themselves in the way they choose. It must be significant enough to enable the court to make a care order or a supervision order if the welfare of the child demands it; society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent, it is not the province of the State to spare children all the consequences of defective parenting; the harm must be more than commonplace human failure or inadequacy, where considering whether a child’s health or development has been significantly harmed one has to compare with that which could be reasonably expected of a similar child; and

(b)  that the harm, or likelihood of harm [see everything above], is attributable to –

  1.     the care given [which can go beyond physical care and includes emotional care] to the child, or likely  to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him [it is not necessary that there be culpability on the parents part who may be trying their hardest yet failing to reach the required standard of care and thereby causing significant harm, also this test can be met in a circumstances where one parent has caused significant harm and the other has not, or where a parent and a person other than a parent, such as a childminder, cannot be excluded from having perpetrated an injury to the child where the identify of the perpetrator cannot be established on the balance of probabilities even where there is only a possibility that the parents themselves were responsible for injuries that the child had sustained,  regard may also be had to whether the failure of a local authority to provide the necessary statutory support has contributed to this]; or
  2. the child’s being beyond parental control [this must have caused the significant harm or created the risk of such harm, there is no requirement to show some failure on the part of the parent in order to establish that a child is beyond parental control, and parental control is something which will no doubt vary with the age of the child] “

 

 

and we have gone from an 87 word definition to nearly 700  words, nearly an eightfold increase; and from a definition of a vital concept which could be read (albeit with some throbbing about the temples) by an ordinary person  to one which is to all extents and purposes unintelligible.

 

 

The point is, that these were all ‘clarifications’ or glosses to the existing statute that were required, and which arose in the context of individual cases where those shades of meaning were vitally important.

 

I have particularly fond memories, having lived through it of the changes to “likely” where there was a period when one couldn’t tell from one month to the next whether a sexual abuse allegation was capable of meeting the threshold or not. Frustrating for the day to day job, but fascinating for the inner-law-geek.

 

This was largely through the H&R case which changed tack at various stages of the process until the House of Lords delivered a final decision in 1996.  During that lengthy process, the sands were shifting as to whether the law was going to import an additional test in accordance with David Hume’s philosophy that ‘extraordinary claims require extraordinary proof;  or in the gloss put on it by lawyers ‘that where the allegations are very serious, a higher standard of proof is required’, this eventually morphing into ‘for very serious allegations, the difference between the criminal standard of proof and the civil standard is, in truth,  largely illusory’ –  this last commonly asserted maxim, derived from some judicial remarks in firstly a sex offender order, and secondly an ASBO case took a second House of Lords case in Re B  2008 to finally resolve once and for all  that neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied.

 

 

So, and here is the million-dollar question, how robust can a six month cap on the duration of care proceedings be, even if it is put into statute?  The fact that the FJR and the Government response both talk about there being a need for Judges to be able to make exceptions to the six month cap where the welfare of the child requires it, means that a  clause that says :-

 

Section 1   “The duration of care proceedings shall not, under any circumstances, exceed six months, the duration being calculated as being from the date that the proceedings are issued to the making of a final order”

 

cannot be what is being considered, and anything with more fluidity than that is just going to be litigated with vigour, to try to expand the definitions and categories and terminology that applies to the exceptions, and in the meantime, there will be a temptation to instead fudge the 6 month cap by saying that in the circumstances of this particular case, the child’s welfare requires additional time for the issues to be determined.

 

We are, after all, a group of professionals who spent from 1989 to 2008 arguing about what the word ‘likely’ meant, and aren’t necessarily done with it quite yet.

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Posted on February 14, 2012 by suesspiciousminds
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I was reading a case today – notably this one 

L (Children) [2011] EWCA Civ 1705

 in which Lord Justice MacFarlane manages to squeeze more elegance into one paragraph than most mortals can dream of  – thus

“In terms of clarity, thoroughness and overall structure, this judgment by HHJ Dowse is exemplary.  No criticism is made during the course of this appeal in respect of the judge’s detailed directions to himself as to the law.  In short, on its face it is a gem of a judgment but this appeal rightly raises the question, despite its sheen, is it nevertheless flawed?” 

The appeal is considering some very specialist medical evidence, centring around whether two children who had died did so of unnatural causes, or of some medical condition; and what impact that had on the likelihood, or otherwise of future harm to the siblings. More than that, however, the Court had to wrestle with the hypothesis that the cause of the children’s deaths might be as yet unknown to medical science, and thus unquantifiable. The experts were, no doubt through very careful, appropriate and skilful questioning, drawn towards placing some percentage chance on that possibility – two felt that the chance of the cause being non-accidental was around 90%, and one felt that it was no higher than 70%.  Both, of course, result in it being open to a Judge to make a finding that it was more likely than not that the deaths had been caused non-accidentally and go on to derive a likelihood of harm to the younger children.

But it struck me, that here were doctors, extraordinarily eminent in their field and capabilities – with demonstrable, verifiable and repeatable empirical evidence – they had been able to conduct tests and establish the presence of a particular gene variant; yet prepared to tell a Court that effectively their science only goes so far, and that there are possibilities that we do not yet know of, that in years to come might very well dramatically tip those percentages given above.

It reminded me of RE R (A CHILD) sub nom R (CARE PROCEEDINGS: CAUSATION) (2011) [2011] EWHC 1715 (Fam)       Sadly, I don’t have a link on that one – but the facts are fascinating – a serious head injury, coupled with a leg fracture. The Court grappled with the medical evidence, and one medic in particular outlined to the Court that there was a school of thought in relation to head injuries amongst medical specialists which simply accepted that at present, we just don’t know enough to be confidently certain and making bold diagnosis about causation of injuries.

Again, that’s an expert who has the basis of science and empirical evidence behind them. There are scans and tests, and results, and what one expert sees on the scans, another would see (though they might come to different conclusions about the cause, they’d agree on the nature of the injury)   And yet, within care proceedings, one never sees that with psychologists – a Socratic acceptance that we don’t yet know everything, and we are making our best informed guess at it, based on the information and techniques that usually work.  A key difference for me, is that the medical experts are looking at something which has happened, and can look carefully at the evidence that supports such a diagnosis, whereas the psychologists are taking something as generally unpredictable as human behaviour, and what someone might do in six months, a year, and making predictions about the future for that person – notwithstanding that the sort of person who often goes to see a psychologist in care proceedings is doing so because they’ve lived a life doing non-rational and unpredictable things.

I personally think that the doctors who spoke up in those hearings and said effectively “It would be lovely to be able to tell you that I’m SURE that this was an accident, or not an accident, or organic in cause, but all I can be SURE of, is that we can’t be SURE”    – my more cynical youth would have speculated that they were making a name for themselves as helpful people to call if you wanted a counter-opinion, but I think with the benefit of age and experience, that they were just calling it truthfully.

If the people who are telling you, with tests and X-rays, and chemical analysis, that they can’t be certain of what happened in the past; how can we put so much stock in the people who tell us with no hard science that they’re sure of what is going to happen for this child in the future?

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