Aunts aren’t gentlemen

Posted on June 20, 2012 by suesspiciousminds

 

New High Court decision ordering the LA to pay 50% of the aunt’s costs in care proceedings.  Beware, or be happy (depending on whether you’re representing a Local Authority, or a relative putting themselves forward as a carer)

 

http://www.bailii.org/ew/cases/EWHC/Fam/2012/1637.html

 

The case was decided by Justice Peter Jackson, who I have had the fortune of observing in a very difficult case and have a very high regard for.

 

The very bald facts are that the child’s parents were deemed to present a very high level of risk. An aunt came forward to care for the child. The LA and Guardian considered that it would be too dangerous for the child, because of the risks from the parents, to live with any family member (and thus that whatever positive qualities the aunt may have had as a carer were outweighed by that) . The Court felt otherwise and an arrangement was struck whereby the Court effectively sanctioned the placement (in line with Mr Justice Munby – as he then was, decision in Cardiff) under an Interim Care Order.

 

The aunt was represented, but being ineligible for public funding, her representatives did the work pro-bono. Their costs amounted to just under £23,000.  There was to be a five day trial, but it concluded much quicker than that, and the Judge recognised the valuable role in that that had been played by the aunt being represented, rather than a litigant in person. The LA had offered an ex gratia payment of £2,000 to the aunt to assist with her costs.

 

This hearing was then to deal with the issue of whether the Court should make a costs order against the LA, as the aunt had effectively secured what she wanted at the hearing and her solicitors had not been recompensed.

 

The LA manfully attempted to resist this, on the basis that the authorities are fairly plain that making costs orders in family cases is exceptional rather than the norm that it would be in say a civil case, and that making a cost order should essentially be reserved for the ‘wasted costs’ scenario, where the costs have been incurred as a result of bungling, ineptitude or bad faith of some kind. Had the aunt been funded through the LSC, there would have been no question of the Court making an order for costs against the LA, and this was arising purely as a result of the State (in the form of the LSC) having a cut-off point above which the aunt fell.

 

Essentially, that there are two situations in which the Court can make costs orders in family cases :-

    1. It is unusual to order costs in children cases. This proposition was stated by Butler-Sloss LJ in Gojkovic v Gojkovic (No 2) [1992] Fam 40 at p 57C, and by Wilson J in Sutton London Borough Council v Davis [1994] 2 FLR 569. In fact, the proposition applied in neither case, the first being a financial case and the second concerning the registration of a child-minder, but the unusual nature of costs orders is well-known to those practising in public or private law children proceedings.

 

    1. “The proposition applies in its fullest form to proceedings between parents and other relations; but it also applies to proceedings to which a local authority is a party. Thus, even when a local authority’s application for a care order is dismissed, it is unusual to order them to pay the costs of the other parties.” (Sutton). Wilson J is there referring to the corrosive effect of an order for costs as between family members in private law proceedings, a consideration that does not apply in care proceedings.

 

    1. There are established exceptions to the general proposition. The first, as stated in Sutton is that “the proposition is not applied where, for example, the conduct of a party has been reprehensible or the party’s stance has been beyond the band of what is reasonable.” A recent example of an order being made against a local authority that had failed in its duty of disclosure is Kent County Council v A Mother, F and X, Y and Z (IR Intervener) (Costs in Care Proceedings) [2011] EWHC 1267 (Fam) [2011] 2 FLR 1088 (Fam), a decision in which Baker J emphasised the exceptional nature of such orders.

 

    1. The second exception is where the costs are referable to a distinct issue that has been decided in favour of one party, such as at a fact-finding hearing. Instances are Re J (Costs of Fact-Finding Hearing) [2009] EWCA Civ 1350, [2010] 1 FLR 1893 and Kent County Council v A Mother (above).

 

  1. A further instance of this kind is Re T (A child) [2010] EWCA Civ 1585. Grandparents who did not qualify for public funding applied for their costs of a fact finding hearing at which they were exonerated. The Court of Appeal, reversing the judge, made an order that the local authority should pay their costs. It said that the judge should have started with “a clean sheet” and not with the general proposition in favour of no order as to costs. That local authority has obtained permission to appeal and the matter will be heard in the Supreme Court later this year. The local authority will argue that it was bound to have pursued the fact-finding as part of its child protection duties and that it was not criticised for its decision to do so.

 

Until this case, that was the position in terms of the authorities. However, Mr Justice Jackson reminded himself of the broad powers within the Family Procedure Rules 2010 and the need to ensure justice,

    1. I do not consider that the circumstances in which an order for costs may be made are limited to the two exceptions mentioned above. That would improperly hinder the court in its duty to make an order that is just. Nor do the rules speak of such a limit: on the contrary, they require the court to take account of all the circumstances, and not just the conduct of the parties. Likewise, in Sutton, Wilson J specifically refers to unreasonable conduct as an example of circumstances in which the proposition will not apply.

 

  1. The present case has been a welfare inquiry into C’s future, and I therefore start from the proposition that there will normally be no order for costs. To succeed in her application, the aunt must demonstrate that there are unusual or exceptional circumstances that justify departure from that proposition

 

He then determined that there were such exceptional circumstances : –

 

    1. I find that this is an exceptional case that justifies an order requiring the local authority to contribute towards the aunt’s costs. The combination of the following unusual features, elaborated upon above, takes the case outside the norm:

 

      • The extreme history surrounding C’s placement with her aunt (#4-5)
      • The importance for C of the placement succeeding (#12)
      • The exceptional challenge faced by the aunt in caring for C (#20)
      • The need for the aunt to be a party (#21) and to have legal representation (#22)
      • The risk to the placement from the poor relationship between the aunt and social services (#23)
      • The stance of the local authority, leading to uncertainty about the outcome until a very late stage (#25)
      • The reduction in the length of the final hearing as a result of the aunt being represented (#24)
    1. In this case, departure from the usual outcome is warranted by the need for some degree of equality of arms between a state body and an unrepresented litigant who is of cardinal importance to the welfare of the child in question, and where the local authority has elected to put her to the test over a protracted period.

 

  1. Also, while costs do not follow the event, the court is entitled to have some regard to the trajectory of the proceedings. In November 2010, the local authority strongly opposed placement with the aunt: in May 2012, she was granted an adoption order. To note this outcome is not to be critical of the local authority but to recognise how much the aunt has achieved.

 

This is obviously an important authority (at least until such time as the Supreme Court address Re T, which I understand will be on 25th June 2012, and might dramatically alter matters) because it establishes that (a) the need for equality of arms can be a relevant factor in making a costs order and (b) that a cost order can be made without being unduly critical of the LA but in recognition of progress that the unfunded party has made.

 

(*My heading by the way, is a tribute to P G Wodehouse and not any attempt to besmirch the aunt in this case, who sounds like a jolly nice person, or aunts in general. They have, as a body of people, been traditionally very kind to me what with gift tokens and scottish pound notes at birthday times and such)

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The Boy under the stairs – an imaginary judgment

Posted on June 19, 2012 by suesspiciousminds

 

(Another one of my imaginary judgments – the facts may be familiar to some readers)

 

I am dealing with an application by X Local Authority for a Care Order in relation to a child who I shall name Harry, for the very good reason that this is not only his name, but that his first name is already well known to the public at large through the media interest in his case, he being “The Boy under the Stairs” of public notoriety.

 

His surname, and that of his carers, his aunt and uncle, are not known. I shall refer in this judgment to the aunt as P, the uncle as V, and their son, coincidentally the same age as Harry as D.

 

A reporting restriction order has been made, which will ensure that the surnames and any other identifying characteristics will not be published.

 

 

Harry is now fourteen years old. He had the most difficult start in life, his birth parents being murdered when he was literally a babe in arms. P, who is his maternal aunt, took him in and have cared for him since then.  I have heard and read evidence that this arrangement was certainly not entered into in good heart, nor even the sense of making the best of a fraught situation, but with a deal of truculence;  I heard V describe it as a “grudging arrangement” and that is sadly an accurate version of events.

 

Up until Harry was eleven years old, he had a relatively unremarkable life. His teachers noted that his clothes were not particularly kempt, that he was somewhat shy and quiet; it was noted that his cousin D (who attended the same school and lived in the same house as Harry) displayed a conspicuously higher standard of living and of money clearly being spent on D when it was not on Harry.  One school teacher produced a essay written by Harry entitled “What I did in the summer holidays” which described Harry living in a cupboard under the stairs and eating his meals in that cupboard whilst his aunt, uncle and D enjoyed a fine time in the family home without him. This was put down to a vivid imagination, and dismissed as fiction. We now of course, know this not to be the case. No blame can be attributed to his school teacher – I had the clear sense in hearing her evidence that this teacher who was a good, caring, kind and professional person has reproached herself more or less constantly since “The Boy under the Stairs” case broke, and whilst this may be of scant consolation to her my own conclusion is that she has no need to do so, and that any objective person in the same situation would have reached the same conclusion as she did.

 

 

I turn now to the findings of harm that I am invited to make. This has been a rather unorthodox hearing, since P and V were not seeking to care for Harry or seeking his return to their care, in fact they were adamant that he should remain in care and have no contact with them, but instead devoted all of their efforts into ensuring that the criticisms made of their care of Harry did not result in any consequences for their care of D.

 

I was invited at the outset of this case by those representing P and V to find that the threshold criteria was made out on the basis that Harry was beyond parental control, and not to make any of the other findings sought by the Local Authority.

 

I manifestly reject that invitation, which was certainly a bold submission.  The matters contained within the threshold are significant allegations and it would be of considerable assistance in the long-term care of Harry to establish which allegations are proven and which are not; they are of such consequence to Harry that it is appropriate in my view, for the Court to go beyond the concessions given by P and V (which effectively seek to place the blame for all matters upon the child himself).

 

In broad terms, the findings sought by the Local Authority were :-

 

  1. That from the age of 11, Harry has not attended school at all. He is now 14.
  2. That this lack of education has resulted in a boy who was bright and capable (even though he was never a high-flyer, he was certainly not dull) now having no grasp of basic matters that would be known to any child of his age.
  3. That he was made to live and  sleep in a cupboard under the stairs for his entire life with P and V until his removal. That the conditions of this accommodation were manifestly unsuitable, compounded by the fact that he shared this cramped, dark accommodation with an owl.
  4. That the scar on his head was the result of a non-accidental injury, perpetrated by either P or V.

 

I add, though this is not threshold per se, but an aggravating factor, that V had an extremely well-paid job and was perfectly in position to care for Harry and meet his needs, as can be seen by the high ‘standard of living’ enjoyed by D. It is an astonishing detail of the case, and one understandably embraced by the tabloid press, that whilst living in this cupboard under the stairs, Harry’s pockets were full of gold coins which could have afforded him a life of luxury if surrendered.

 

That gaping chasm in the quality of life enjoyed by D and the abject misery endured by Harry is said by the Local Authority to be an additional element of emotional harm. I shall turn to that aspect at a later stage.

 

The position of P and V  (though as indicated, they were clear from the outset that they had no desire to resume the care of Harry and described themselves as being “well shot of him”) in relation to these allegations was : –

 

 

  1. That Harry had been attending a private boarding school from the age of 11.
  2. That having arranged the private boarding school, they are not responsible for any gaps in Harry’s education as a result of paucity in the quality of the schooling he received.
  3. That Harry did live and sleep in a cupboard under the stairs, but only in the school holidays. The presence of the owl in said cupboard was Harry’s own choice.   [Parenthetically, I will add that in twenty years of sitting in the family courts, one gains a high threshold for what is surprising, but these two arguments in tandem were amongst the most surprising I have ever seen deployed, and one has to congratulate begrudgingly counsel for P and V for the chutzpah with which they made the most unpromising of arguments]
  4. The allegation that P and V caused the scar was strenuously denied, they stating that the scar had taken place on the same night that Harry’s parents were murdered and by the same assailant.

 

 

The private school


P and V were unable to provide the address of the alleged private school that Harry was attending, nor any school report, nor any correspondence, or any evidence from any teacher at this school. Their bank statements did not show any payment of private school fees. The private school they named is not known to the Department of Education, nor Ofsted, nor has frankly anyone ever heard of it. The fact that P and V could not even hazard a guess as to which county this school is in raises further doubt.

 

It would be fair for me to say that this was not the most difficult factual issue I have ever had to wrestle with. It is established beyond doubt that Harry did not attend any local school from the age of eleven, and the account of P and V that he attended a private school whose details they cannot provide, and who apparently provided this private education, including boarding , entirely free of charge, is utterly without merit.

 

I find that P and V did not send Harry to school for three years when he was in their care. Those three years are some of the most critical in his education, and emotional development and any proper parent (or relative acting in a parenting role) would have known that Harry should have been at school. Their lack of this most basic of parenting functions caused him significant harm.

 

The lack of education


Harry was assessed by a Child and Adolescent Psychiatrist, Miss Gale Terns, and the findings were astonishing.  His grasp of chemistry bore no relation to the science as practised since the Middle Ages and was closer to alchemy than genuine chemistry, biology restricted to non-existent plants, his understanding of the basic laws of physics was diametrically opposed to how they in fact operate,  he had no idea of history or geography other than that of fanciful creations of his own. Even on a less academic level, he had no idea of football, which is astonishing in a boy of his age, even a bookish one.  I have studied carefully Harry’s account of the sport he does claim to follow, and I am afraid that even making allowances for a young boy’s imagination and the psychological damage he has clearly sustained, this sport makes absolutely no sense.

 

He had devised his own intricate fantasy world, with its own rich internal rules and customs. Miss Terns concludes that this is by way of being a fugue state, the boy being so unhappy and living such a dreadful life that he had to fashion an escape from reality by creating something more appealing and satisfying. It is for that reason, that although he is fourteen, he is adjudged by the Court to not have capacity to instruct solicitors on his own behalf, and has been represented through his helpful Children’s Guardian.

His imagination is without doubt vivid, and the consistency of his own account (while utterly amazing) makes it easy to recognise that there is a keen if misdirected intelligence at work here. Had he been given mainstream education, there is much he could have achieved.

I agree with Miss Terns, the failure of P and V to provide Harry with mainstream education has been immensely damaging to him. The internal fantasies he created about having attended a school where wondrous things were taught as a substitute for having a genuine education means that there is much work ahead for those who are going to have to teach this young man genuine skills to be able to cope in the real world in which he will sadly have to live.  I am sure I speak for all of us that in glimpsing into the world Harry imagined himself living in, it sounds markedly more pleasant and entertaining than our own, and it is a harsh but necessary task to unpeel him from that one and bring him into ours.

The psychological damage that has been done to Harry through the poor quality care he has received at the hands of P and V is considerable, and the Court is grateful that Miss Terns has agreed to take on the long-standing reparative work that is required, and indeed for the Local Authority for funding such work.

 

The cupboard under the stairs


 

This was barely disputed. Given that the Court has already found that the account of P and V that Harry attended a private boarding school is a wild fantasy, their account that he only lived and slept in the cupboard under the stairs during the school holiday is rejected. The fact that they admitted that much is considerably damning.

 

The Court has seen the photographs of this small, dingy and cramped space in which a growing adolescent spent his days and nights. I  have heard from the neighbours that for months on end they never saw Harry, and that he was not even having the benefit of attending school or even seeing the light of day for long periods – weeks and months, rather than  minutes or hours.

 

I am satisfied that P and V provided Harry with accommodation and a standard of basic care which would have been woefully inadequate had they been living in an Elizabethan slum, let alone in a suburban home that many middle-class parents might aspire to live in. He was made by them to live and sleep in a cupboard under the stairs for his entire life. This is utterly unacceptable, and caused him significant harm. These were not parents of meagre means, doing the best that they could but that best not being enough. It is woefully apparent, from the lavish care and attention and material provision for D, that P  and V were more than capable of providing a child with much better than good enough care, and they deliberately chose to treat their own biological child far, far better than they did Harry, who was their kin and deserved so much better. The other harm I have identified in this judgment is compounded by the fact that Harry was faced on a daily basis with D who was being loved, and indulged and even spoiled. That in itself must have been hurtful and harmful to him.

 

 

The miserable day to day existence for Harry in such an unsuitable physical accommodation  was compounded by an owl being kept in this wretched accommodation with him. The smell was reported by those who removed Harry to be unspeakable. It is hard to fathom, even for this jaded Court who are faced on a day to day basis of new, creative and barbaric ways to mistreat children and let them down, to imagine what was going through the mind of P and V when they brought this situation about.

 

I completely reject their attempt to mitigate this situation by claiming that the owl was a pet and that it was Harry’s own desire to share his accommodation with the owl.

 

The scar


The Court has had the benefit of paediatric evidence from Dr Malcolm Foy, who was clear that there was no likely accidental explanation for the lightening shaped scar on Harry’s head. He gave clear evidence that the injury had been caused non-accidentally – the mechanism was unclear, but the only conceivable one was that a hot object, in the shape of a lightening bolt had been pressed against Harry’s head. No parent or carer could do this by accident.

 

P and V had provided no explanation for an accident that had caused it.  They had been the carers for Harry for every day since the death of his parents. There had been no hospital admission or medical attention for any accidental injury to Harry.

Counsel for P and V have urged me to take into account the strenuous and vehement manner in which P and V denied this allegation, and compare this to the very serious allegation that they kept Harry under the stairs which they instantly admitted at least in part.  This is probably the best of a bad bunch of arguments that P and V have deployed during this hearing.

 

But it does not hold water, when one considers the alternative. Either this scar was caused by P and V, who have behaved disgracefully towards Harry for 14 years, or it was inflicted on him by his birth parents when he was a mere infant.

 

The Court must find, therefore either that Harry’s birth parents deliberately inflicted this injury on Harry BEFORE P and V began caring for him.  [I should add, for the benefit of the transcribers and those taking a careful note, that when I use the term “caring” in relation to what P and V provided for Harry, I am using inverted commas] ,  OR that P and/or V inflicted this injury on Harry after they began caring for him.

 

Given the findings that have already been made, I must consider that whether it is substantially more likely that P and V (who I have found to have systematically abused this young boy for 14 years in appalling ways) injured him or that his birth parents, about whom no criticisms or allegations have been made, caused the injury and scarring. This young man had the worst start in life imaginable, and has grown up with no memories of his parents. This Court is not going to leave him with any residual doubt that his parents might have deliberately harmed him. It is inconcievable to this Court that the injury was caused by anyone other than P or V, and the Court makes that finding, that the injury was caused deliberately by either P or V and neither can be excluded.

 

The threshold is crossed, overwhelmingly so.

The Court is grateful for the active role that Harry’s Guardian played within that enquiry,  Mr Thomas Riddle has been a stalwart Guardian throughout, ensuring that matters were properly ventilated. The Court entirely agree with his conclusions, and adopt his formuation that it is impossible that anyone other than P or V caused the scar to Harry’s forehead.

 

I have considered, following those findings, the Welfare Checklist. I have no doubt whatsoever that the appropriate order to be made in relation to Harry is a Care Order.  The Guardian’s suggestion, in combination with the expert, Miss Gale Terns, that Harry be cared for by the Imperius academy for damaged children, is an excellent one and I am pleased that the Local Authority saw fit to put that forward as the care plan. The Court endorse that care plan as being the best thing for Harry. He will attend a mainstream school, and there will be no more of his life wasted thinking about “Hogwarts”

 

The Local Authority will need to consider, in the light of this judgment, whether to seek an order in respect of D.  He has, as I have acknowledged, had a markedly different life to Harry, but I suspect that witnessing all of this mistreatment must have had some detrimental impact on him.  It is hoped that he and Harry will preserve some ongoing contact.

 

The Court once again thanks Mr Riddle, for his efforts in representing Harry, which have gone above and beyond. I am even told today that Mr Riddle has kindly arranged to take the owl with whom Harry shared so much of his life, and to provide the owl with a home. This shows how much Mr Riddle thinks about Harry and wants to take care of him.  Harry is very lucky to have had Mr Riddle take an interest in him.

 

 

 

 

 

 

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Help, it’s the care-hair bunch!

Posted on June 18, 2012 by suesspiciousminds

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

That’s £3,750,000 per year.

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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Co-op (good with kids)

Posted on June 13, 2012 by suesspiciousminds

Co-operative Parenting Following Family Separation: Proposed Legislation on the Involvement of Both Parents in a Child’s Life

The Government has published its consultation document on reform of the law for private law children proceedings. Fortunately for me, private law isn’t my bag anymore  (once you’ve spent a day arguing about whether the contact should begin at 4.30pm or 5.00pm, the cut and thrust of private law advocacy tends to lose its appeal).

The consultation document is here:-

http://www.education.gov.uk/consultations/index.cfm?action=conDocument&consultationId=1825&menu=1

The whole nature of the consultation is interesting, because of course, we had a large Family Justice Review which made recommendations about private law, and the Government decided that it didn’t like the suggestion that the law shouldn’t change to bring in any concept of shared parenting. That’s of course, the Government’s prerogative – they took account of the reaction of the public, interested parties and the media to the suggestion that there be no introduction of shared parenting concept to legislation, and that reaction was pretty adverse.

So, this is another crack at a consultation.  (Only this time, the consultation is – in traditional government style – “We’re going to do this, which of these four ways do you want it precisely done?’  Oh, and we’ll make none of the options particularly desirable, but one on offer is less awful than the others, so that when that one triumphs in the consultation, we can imagine to ourselves that it was the overwhelmingly popular way to make this change)

Here are the four options :-

Four different approaches are presented below for amending section 1 of the Children Act 1989 in order to meet the Government’s objectives set out in paragraphs 4.1 to 4.6:

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

And in detail :-

10. Option 1 – The ‘Presumption’ Approach

10.1 Draft clause

This option would insert the following text as a new subsection after section 1(2) of the Children Act 1989 and before the ‘welfare checklist’:

“In the circumstances mentioned in subsection (4)(a) or (4A) the court is to presume, unless the contrary is shown, that the welfare of the child concerned will be furthered by involvement in the child’s upbringing of each parent of the child who can be involved in a way not adverse to the child’s safety”

11. Option 2 – The ‘Principle’ Approach

11.1 Draft clause

This option would insert a new subsection into section 1 of the Children Act 1989, after existing subsection (2) and before the ‘welfare checklist’, as follows:

“In the circumstances mentioned in subsection (4)(a) or (4A), the court shall have regard to the general principle that, irrespective of the amount of contact a child may have with any parent, the child’s welfare is likely to be furthered by the fullest possible involvement of each parent of the child in the child’s life”.

12. Option 3 – The ‘Starting Point’ Approach

12.1 Draft clauses

This option would insert a new subsection into section 1 of the Children Act 1989, after existing subsection (2) and before the ‘welfare checklist’, as follows:

“In the circumstances mentioned in subsection (4)(a) or (4A), the court’s starting point is to be that the welfare of the child concerned is likely to be furthered if each parent of the child is involved in the child’s upbringing.”

13. Option 4 – The ‘Welfare Checklist’ Approach

13.1 Draft clause

This option would insert a new subsection immediately after section 1(3) – the welfare checklist – setting out an additional factor which the court would need to consider, as follows:

“In the circumstances mentioned in subsection (4)(a) a court shall also, and in the circumstances mentioned in subsection (4A) a court shall, have regard in particular to enabling the child concerned to have the best relationship possible with each parent of the child”.

The consultation ends on 5th September, so if you have an interest in this, I recommend speaking out.

My rough evaluation of the options are that option 4 is, well, how should I put this? You could add a new definition in the interpretation section of the Act  “Wishy washy”  and point straight to this new addition. It adds so little that it isn’t worth adding.  [Frankly, I think that the whole concept that Judge’s aren’t embracing shared parenting because the Act doesn’t expressly tell them to is fairly flawed, but if you want to bring in something to make the key role that both parents have in a child’s life explicit, you may as well bring in something that is more than a polite cough in a corridor)

Option 3 is less wishy-washy, but its a really long way from shared parenting – the suggestion is sort of that any sort of involvement will do.

Option 2 – well the glaring fault with it is this bit “ irrespective of the amount of contact a child may have with any parent”   – I really, honestly, truly, madly, deeply believe that parents aren’t litigating over children in order to get the Court’s recognition that their parenting is “really, really valuable for the child”, it is because they disagree about how much time each should spend with the child.  Contact, and the amount of it, is exactly the thing that people are litigating about.  I see this option being the one that parents who have Residence would favour, and those who are non-resident parents seeking contact (or shared residence) would consider almost worse than what we have now, because it seems to imply that small amounts of contact can still result in a great outcome for children.

Option 1 is the one that we will end up with, because it is the only one that is attractive to non-resident parents. Those lobbying on their behalf will go fairly universally for that one, whereas the anti-shared parenting or ‘cautious about shared parenting’ votes will be split between the other three. It is still fairly wishy-washy, even then.

Surely, if you’re introducing a concept of shared parenting  (and I am fairly neutral about whether that’s a good or bad thing) at least one of the options should be “When the Court decides where a child should live, or how much contact a child should have with a parent, the Court should strive to make an order that allows the child to have a meaningful relationship with each parent wherever possible and where the order made results in one parent spending a significantly greater proportion of time with the child than the other, the Court must have good reasons for doing so, and set them out in a judgment, and gender should never be a reason for that”

(or, even shorter –  There is a rebuttable presumption that a child should spend significant periods of time with each parent, and the Court must consider in each case whether a broadly equivalent amount of time would be the correct outcome.)

(I’m not claiming that this version is by any stretch of the imagination perfect, but if you’re consulting about changing the legislation to mean that the Court should give more attention to shared parenting concepts, shouldn’t at least one of the options be for something that might actually end up with shared parenting?   These four all look to be as meaningful as the parrot-fashion form of words that we waive article 8 in every single family case with precisely the same phrase each and every time and never once actually having regard to it)

If I were a lobbyist for any father’s rights group, I’d be mighty disappointed with what’s on offer. It looks to me like nothing more than a placatory gesture.  I’m not, by the way, advocating one way or the other on whether there should be a presumption or starting point of broadly equal time, but I can’t see how you can have a consultation about shared parenting without at least one of the options being that.

[I should have added, but am doing it now, that given that most private law cases will be dealt with by litigants in person, perhaps this principle should be set out in as plain English as possible, whereas the four options on offer all seem to be very ‘lawyer-y’ and will involve endless debate about shades of meaning)

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New adoption regs . I say we take off, and nuke panel from orbit. It’s the only way to be sure

Posted on June 6, 2012 by suesspiciousminds

 

The 

The Adoption Agencies (Panel and Consequential Amendments) Regulations 2012 have just been published.

 

Even as a law geek, these are too dull to read (my pet-hate is legislation that simply consists of ‘remove the word ‘always’ from s271 (1) (b) (iv) of the Act, and replace with ‘under no circumstances whatsover’)

 

The nub of it is, in cases after 1st September 2012, there is no longer a requirement for the LA to present a child’s case to Adoption Panel to get permission to seek a Placement Order from the Court, or to present a care plan of adoption to the Court.  In fact, not only is it no longer a requirement, from 1st September the LA is FORBIDDEN  to place the child before Adoption Panel for that decision.  (This doesn’t apply to cases where a baby is given up for adoption, or relinquished).

 

What’s not terribly clear is whether the cut-off date of 1st September applies to  :-

(a) cases where the Court won’t be actively considering making the ORDER until after 1st September

or

(b) cases where the LA evidence is due before 1st September. 

 

I suspect, in the absence of clear guidance to the contrary, it has to be assumed that (as the LA needed Panel permission to put in a care plan of Adoption, it would be (b).  I suspect the Court might see a massive surge in directions which put the LA evidence due on 1st September or later, even when it could actually come in the week before.

 

If you really want to read the legislation (and I do warn you, that it bored even me, and I have a high tolerance level), here it is :-

 

 http://www.legislation.gov.uk/uksi/2012/1410/made 

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

Posted on May 31, 2012 by suesspiciousminds

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

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

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

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

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

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

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

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

Guidance

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

 

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

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

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

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

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

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

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

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

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

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

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

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

Coda

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

 

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

b) This case is exceptional on its facts.

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

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

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

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

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

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

Nov 2011  – 216

Dec 2011 – 492

Jan 2012 – 784

Feb 2012 – 1140

Mar 2012 – 1840

Apr 2012 1855

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

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

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

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

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Madame Le Guillotine and the law of unintended consequences

Posted on May 31, 2012 by suesspiciousminds

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

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

So, here is my fourpennorth.

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

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

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

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

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

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

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

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

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

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

Let’s look at a little example.

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

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

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

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

(b) She says she is committed to being abstinent

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

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

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

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

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

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

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

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

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

 Let’s make this a little bit more tricky.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 Rant over.

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Mental Capacity Act -inspirational blogpost

Posted on May 29, 2012 by suesspiciousminds

 

No, not mine, I’m not blowing my own trumpet.

THIS

http://www.thesmallplaces.blogspot.co.uk/2012/05/guest-post-we-are-whats-missing-from.html

 

is probably the best piece of writing I’ve read in a long time. If you have any interest in adult social care, or mental health law, or damnit, if you just have any interest in personal freedoms and the extent to which the state should mess with that, I urge you to give this a read.

Again, I wish I’d written it.

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Who pushes who about in the careenium?

Posted on May 29, 2012 by suesspiciousminds

 

A fairly short post on a very big topic.  With the way modern neuroscience is moving, such that one can look at a very detailed brain scan of the make-up of a persons brain and detect the differences that make one person a murderer, and another not, Hume’s Fork becomes less of a philosophical debate, and more of a scientific one.

Hume’s Fork is basically a philosophical brain-teaser, along these lines. If an action I perform is a result of a decision I take because of who I am, and who I am is either the result of my genetic make-up (for which I am not responsible) or my childhood upbringing (for which I am not responsible) why am I responsible for my actions?

 

As a lawyer, part of my intrinsic belief system is that whilst I can understand that an individual is made more likely to do something they shouldn’t because of background or circumstances, there is still ultimately a degree of free will, and thus responsibility, that says “I am more tempted than another person might be to steal that flat-screen TV from a bookies during a riot, but it is up to me whether I actually DO steal it or not”

 

But the more I read on modern neuroscience, the less I am sure about the reality of free will.

There’s a lovely paradox about free-will versus determinism (the opposite concept that basically, you don’t really make decisions, the decisions you think you are making are just an illusory construct of the various factors beyond your control acting on you, and that you could really do nothing other than what you believe you just decided to do).

 

It is called Newcombe’s Paradox. In this, a super-intelligent alien, or computer, or God, whatever you feel most comfortable with, says to you “I have put a cheque in these two envelopes, A and B.  And I have also predicted what you will do, when given the choice of just opening A, or opening both A and B.

If I think you will just open A, then there is a cheque for £1,000,000 in envelope A, and a cheque for £10,000 in envelope B.  If I think you will open both envelopes, then there is a cheque for £1 in envelope A, and a cheque for £10,000 in envelope B. 

The cheques are already written, and in sealed envelopes. I don’t go anywhere near them after you make your choice. So, do you want to open Envelope A, or both envelopes?”

 

Now, depending on whether you believe in free-will or determinism, you’ll have a very strong and clear view as to what you should do. You’ll also have a very clear and strong view that the other option is wrong (unless you’re far too reasonable to be reading a law blog)

 

The interesting thing is, if you imagine that your best friend goes into the booth and looks inside the envelopes just before they are sealed, they will ALWAYS want you to open both envelopes, because that ALWAYS makes you £10,000 better off.

 

Anyway, that’s probably fried your mind for a few minutes, and made you argue with anyone else you put this Paradox too.

 

This blog all inspired by the excellent blog on neuroscience and the law on the Human Rights Blog today, by Rosalind English of One Crown Office Row. I wish I’d written it.

 

http://ukhumanrightsblog.com/2012/05/29/we-need-to-think-about-kevin/

 

The title of my blog entry today, stolen from Douglas Hofstadter, who was writing about free will and choice and illusion of free will and choice, artificial intelligence, game theory, morality, cooperation, and just about every topic of any consequence in the modern world back in the seventies, and was also the author of the first book ever purchased on Amazon. I could not recommend Douglas Hofstadter more highly to anyone who wants to stretch their mind.

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

Posted on May 26, 2012 by suesspiciousminds

 

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

 

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

 

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

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

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

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

 

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

 

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

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

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

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

 

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

 

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

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