The President of the Family Division has published his second bulletin/speech/rallying cry/let’s get ready to rumble.
This is backing up a lot of what is rumoured to be in the new PLO and represents a significant shift in judicial mindset from the current practice. Less paper, more analysis, is the “too long, didn’t read” summary
It is an important precursor to the PLO and is worth reading in full
It confirms that the thinking is for a CMC on day 12 (I’ve already written about what that would mean for any parent solicitor seeking an expert assessment)
It confirms the thinking that we would basically have three lots of material – that filed in the Court bundle (slimmed down, almost to ring binder status), a set of primary disclosure which is given to the parties and choice bits might find their way into the Court bundle but it doesn’t go to the Judge until that sifting process is done, and effectively a list of unused material which the parties may seek discovery of.
This reinforces really that counsel who will be running the case on behalf of the parents needs to be involved throughout – it won’t be any good someone sitting down and prepping a five day trial on the Friday before, because it will be too late to realise that there’s something useful in those papers which haven’t been before the Court. Of course, continuity of counsel is great and very important anyway, but it comes at a price – there has to be some resolution of the conflict between counsel’s availability and when the Court can accommodate hearings, and I’m yet to see a proposal for this.
It confirms that the Court don’t want to see any documents that are older than two years (for my own part, I assume that for that purpose they don’t necessarily mean to exclude thresholds or judgments of previous proceedings, but everything else would go)
At the same time, there is a strong imperative to produce documents that are focused and succinct. The social work chronology must contain a succinct summary of the significant dates and events in the child’s life. The threshold statement is to be limited to no more than 2 pages.
Well…. yes with a but. If you pick up a file of previous proceedings that was dealt with by someone else, from years ago, or from another local authority, the final determined threshold is a really decent way of seeing what the problems and concerns in the case were – not the allegations, but what was finally determined. A two page one isn’t going to be much use (unless we have to run alongside it an old-fashioned meaningful Guardian’s report which draws together the entire case)
We must get away from existing practice. All too often, and partly as a result of previous initiatives, local authorities are filing enormously voluminous materials, which – and this is not their fault – are not merely far too long; too often they are narrative and historical, rather than analytical. I repeat what I have previously said. I want to send out a clear message: local authority materials can be much shorter than hitherto, and they should be more focused on analysis than on history and narrative.
In short, the local authority materials must be succinct and analytical. But they must also of course be evidence based.
I worry there that we are just going to have hour upon hour during final hearings of ” Well, this isn’t in your statement” and rightly “My client hasn’t been able to see this in your statement, and therefore hasn’t been able to deal with it before now”
And on the issue of experts
One of the problems is that in recent years too many social workers have come to feel undervalued, disempowered and deskilled. In part at least this is an unhappy consequence of the way in which care proceedings have come to be dealt with by the courts. If the revised PLO is properly implemented one of its outcomes will, I hope, be to re‐position social workers as trusted professionals playing the central role in care proceedings which too often of late has been overshadowed by our unnecessary use of and reliance upon other experts.
Social workers are experts. In just the same way, I might add, CAFCASS officers are experts. In every care case we have at least two experts – a social worker and a guardian – yet we have grown up with a culture of believing that they are not really experts and we therefore need experts with a capital E. The plain fact is that much of the time we do not.
Social workers may not be experts for the purposes of Part 25 of the Family Procedure Rules 2010, but that does not mean that they are not experts in every other sense of the word. They are, and we must recognise them and treat them as such.
One assumes that the Court of Appeal (which has several of the drivers of the family justice modernisation sitting on it) will this time around, back Judges who make robust case management decisions, rather than slap them, which is what brought the PLO and the Protocol to their knees.
I’m not so sure – it seems to me that faced with an individual case where rigorous application of the new 26 week principles seem to result in unfairness and prejudice to a child’s chance to be brought up within a family, the Court of Appeal will do what is best for that individual child, rather than the system as a whole. That’s what they are charged to do, and it seems to me proper that they do that. It will depend, of course, on the detail and flavour of the first cases that come before them on :-
(i) I was refused an expert because it would have gone out of timescales
(ii) I was refused for my Auntie Beryl (who used to be a foster carer in Croydon) to be assessed, because I didn’t realise it was going to end up with adoption, so I didn’t tell her my child was in care until week 19.
(iii) The expert said I could parent my child and make the changes if I was given six months of help, but the Court made a Care Order.
And whether the cases that come before the Court of Appeal are strong on their facts.
[If you are thinking, by the way, that the subtitle to the article is a gratuitous excuse for a Star Trek reference and a chance to put in another picture of Benedict Cumberbath for the benefit of Ms Suesspicious Minds, you would be correct]
suesspiciousminds 