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Written Agreements

 

Written agreements in cases involving Social Services are always a tricky thing. It is important that the wording is clear about what is being asked of a parent and what is okay and what’s not. It is also important that they are fair and not  “setting a parent up to fail”

 

These would be my golden rules for parents about written agreements

 

1. Don’t sign one unless you understand every single bit, and you’ve been told clearly what will happen if you don’t stick to it

2. If you have a lawyer, you should ask for legal advice BEFORE you sign it.  If you don’t have a lawyer, say that you want the Local Authority to hold a Meeting Before Action, so that you can have free legal advice about the agreement.

3. If you think that something isn’t fair, say so

4. If you’re willing to do what is being asked, but you want help, ask for that help to be identified and put in the agreement

5. Never ever sign a written agreement if you don’t intend to stick to it – your position is made worse by signing it and not doing it than by not signing it.

 

 

And for social workers

 

1. Be clear

2. Be fair

3. Don’t try to solve every tiny problem – worry about fresh fruit and veg and home-cooked shepherd’s pie AFTER you’ve solved the violent partner hitting the children.

4. It should be a two-way street – what are you doing to help the parent?

 

The Court of Appeal touch on a particular aspect of Written Agreement in Re W (Children) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1065.html

 

There are some important issues in this case, so I will do a follow-up post, but just on the Written Agreement issue.

 

In August 2012 a social worker, Ms Nesbitt, was appointed to the case and in October 2012 began work on a core assessment. On 12 November 2012 the mother and Ms Nesbitt signed a document which described itself as an “Agreement” made between the local authority, the mother and the paternal grandmother. So far as material for present purposes it read as follows:
 

“This is not a legal agreement however; [sic] it may be used in court as evidence if needed.
This agreement has been complied [sic] to ensure that [the mother] agrees for [the children] to remain in the care of paternal grandmother whilst further assessments are completed.
[the mother] agrees to [the children] remaining in the care of paternal grandmother whilst further assessments are completed.

 

[As one of my commentators once had a go at me for [sic]  I will point out that these are the words of the Court, not mine. I loathe the use of [sic], and it isn’t something I would ever do.]

 

Ryder LJ seems to have assumed, and I can well understand why, that the powers the local authority was exercising in and after July 2012 were those conferred on it by section 20 of the Children Act 1989. But the very curious terms of the “Agreement” dated 12 November 2012 give pause for thought. Why was it stated to be “not a legal agreement”? Why was it said that “it may be used in court as evidence if needed”? Whatever it meant, and whatever its true legal status, it was treated by the local authority as enabling it – I decline to say authorising it – in effect to control this mother and her children. And, moreover, to exercise that control without the need to commence care proceedings and hopefully, from its perspective, without exposing the local authority to the various obligations which arise in relation to a child who is or has been ‘looked after’ in accordance with section 20.
 

I express no view at all as to whether this was in law the effect of what was being done, a question on which my Lady’s judgment in SA v KCC (Child in Need) [2010] EWHC 848 (Admin), [2010] 2 FLR 1721, is illuminating (compare the facts in that case as analysed in paras 57-60, 72-74). See also my Lady’s judgment in Re B, Redcar and Cleveland Borough Council v Others [2013] EWCA Civ 964, [2013] Fam Law 1382, and the earlier judgments of Smith LJ in Southwark London Borough Council v D [2007] EWCA Civ 182, [2007] 1 FLR 2181, para 49, and of Baroness Hale of Richmond in R (M) v Hammersmith and Fulham London Borough Council [2008] UKHL 14, [2008] 1 WLR 535, para 42, to which Mr Boucher-Giles referred us.
 

That is not all. I suspect that the reference to the “Agreement” being “used in court as evidence if needed” can only have been intended to have the effect of warning the mother that if she did not ‘toe the line’ the “Agreement” would be used against her in some way in any proceedings that ensued. I remark that, as Hedley J put it in Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 27, the use of section 20 “must not be compulsion in disguise”. And any such agreement requires genuine consent, not mere “submission in the face of asserted State authority”: R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin), [2008] 1 FLR 1668, para 61, and Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 44.
 

Moreover, the “Agreement” was expressed, more than once, to be “whilst further assessments are completed”, yet it seemingly remained in place even after the assessment had been cancelled. And the children were not returned to the mother even after she had asked. If this was a placement under section 20 then, as my Lord pointed out during the hearing, the mother was entitled under section 20(8) to “remove” the children at any time. Why were they not returned to her? I can only assume it was because the local authority believed that the arrangements were not within section 20, so that it was for the mother, if she wished, to take proceedings, as in the event she had to, against the paternal grandmother. But if this was so, why did the local authority arrogate to itself effective decision-making power as to whether the mother’s contact with the children should be supervised or not? And why was the local authority as recently as January 2014 seemingly arrogating to itself decision-making power as to whether or not there should be overnight staying contact?
 

The local authority’s decision to decline Ryder LJ’s invitation to intervene makes it impossible for us to get to the bottom of these issues. The picture we have, however, is disturbing.

 

There are two issues here :-

 

1. The use of the wording that “this is not a Legal Agreement”  and

 

2. Whether a written agreement that is signed as ‘mere submission in the face of asserted state authority’  is fair

 

On the first point, I’ve seen this wording crop up on Written Agreements, and I don’t care for it. It is factually true that the document is not a Legal Agreement – in the sense that the Local Authority can’t sue for compensation or breach of contract or go to Court to MAKE a parent give up heroin because they agreed to it in writing.  But as the Court of Appeal point out, it is a document that would be used in evidence if there was a breach. It is a document that HAS CONSEQUENCES if you don’t stick to it, and those consequences are legal ones.

 

Does writing ‘this is not a Legal Agreement’ on them assist a parent? Well, I think very few parents were signing under the impression that the document was a contract under Contract law.  Does it hinder a parent? Well, if any of them read that message to mean ‘you don’t have to stick to it’, then yes, it does.

 

I can only think that at some time in the distant past, someone or other has said “These Written Agreements have to have written on them ‘This is not a Legal Agreement’, and it got absorbed into practice or philosophy. It might even have been a Judge. I haven’t found an authority to that effect, but it could easily be a small line in a judgment.

 

On the second, the Court of Appeal don’t go as far as saying that written agreements signed in that way should be disregarded   (unless they are a section 20 agreement that the child should live elsewhere, in which case it is established law that this consent must be given on an informed basis and freely, not under duress.

But it raises an important point – if the Written Agreement, as so many of them are, is really a  ‘sign this and you get one last chance before we take the kids’ then is the consent to the written agreement just an extension of what the Courts have ruled wrong in s20 cases ?  Remember that the s20 cases are not about the wording of the Act, which doesn’t mention consent at all, but about the wider Human Rights Act principles of proportionality and fairness.

 

Written Agreements can be valid tools for helping a family to change, to solve problems and in some cases to remove the risks that would otherwise make the children unsafe at home, but a degree of thought has to be given about their construction and use if they are instead being ‘sign this or else’

 

The principles in Re CA would be a sensible way to look at Written Agreements  (even when they are not agreements that involve agreement that the child live elsewhere , section 20)

 

i) Every parent has the right, if capacitous, to exercise their parental responsibility to consent under Section 20 to have their child accommodated by the local authority and every local authority has power under Section 20(4) so to accommodate provided that it is consistent with the welfare of the child.

ii) Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so.

iii) In taking any such consent the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and consider the questions raised by Section 3 of the 2005 Act, and in particular the mother’s capacity at that time to use and weigh all the relevant information.

iv) If the social worker has doubts about capacity no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management.

v) If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed:

a) Does the parent fully understand the consequences of giving such a consent?
b) Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?
c) Is the parent in possession of all the facts and issues material to the giving of consent?
vi) If not satisfied that the answers to a) – c) above are all ‘yes’, no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary.

vii) If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of such consent and the subsequent removal is both fair and proportionate.

viii) In considering that it may be necessary to ask:

a) what is the current physical and psychological state of the parent?
b) If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?
c) Is it necessary for the safety of the child for her to be removed at this time?
d) Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?
ix) If having done all this and, if necessary, having taken further advice (as above and including where necessary legal advice), the social worker then considers that a fully informed consent has been received from a capacitous mother in circumstances where removal is necessary and proportionate, consent may be acted upon.

x) In the light of the foregoing, local authorities may want to approach with great care the obtaining of Section 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made.

 

 

 

 

 

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“A pair of star-cross’d lovers…”

 

Written agreements, love and difficult choices in care proceedings.

 

 This written agreement is prepared and entered into by the parents of Rose Smellsweet Capulet

 

 

It is accepted that the father of Rose,  Romeo Montague, will live apart from Rose and the mother, Juliet Capulet, whilst assessments are undertaken of him.

 

It is accepted that there is a need to undertake such assessments based on these three factors :-

 

(i)                 The age of Juliet when the relationship began, she being thirteen(nearly fourteen) at the time

(ii)                The conflict and tension between the paternal and maternal family

(iii)             The incident where Romeo is alleged to have stabbed Juliet’s cousin Tybalt

(iv)             The incident where it is alleged that both parents planned to commit suicide

 

 

The parents agree :-

 

 

  1. That Romeo will not visit the home of Juliet.
  2. That he will not visit the immediate boundaries of Juliet’s home (this having been added due to incidents where he was singing up at her balcony)
  3. That all contact between Romeo and Rose will be supervised by the Local Authority
  4. That Romeo and Juliet will not have communication face to face, or by letter, text message, email, instant messaging, , Lutebook or through intermediaries such as Nurse or Benvolio.
  5. That this written agreement will be reviewed once Dr Falstaff’s risk assessment has been received.

 

 

 

 

Ridiculous, of course, but some serious points emerge.

 

 

Within care proceedings, it is often the case that one parent is asked to separate, either temporarily or permanently , from another parent who they love, as a result of a risk posed by that parent to the safety of a child.

 

It is hoped that once assessments are in, or factual allegations determined, that the parents will be able to resume that relationship, with either there being no risk or the risk being determined as one which can be safely managed or reduced with specialist help.  But that doesn’t always happen.

 

Sometimes the care proceedings and decisions about the future turn on whether a parent can stick to their word and stay away from the risky partner. 

[I am trying hard within this piece not to fall into the stereotypical pitfall of implying that it is always safe mums and risky dads, although that is the more common category we see, I have had significant numbers of safe dads and risky mums too, and of course risky dads and risky mums in the same case]

 

 

There are really only three options where one parent is found to be a risk (and where the risk is determined to be substantial):-

 

  1. Let mum and dad look after the child together and take that risk that the child will be harmed
  2. Remove the child from harm and the mum and dad can live together but without the baby
  3. Ask the parents to live apart and for the child to live with the safe parent and manage the contact with the risky parent

 

 

Frankly, none of these are ideal, and the third one is the compromise position that is often reached, not as the best, but the least worst of the three.

 

 

Now, onto the points the fake written agreement is trying to touch on by using Romeo and Juliet as the particular example.

 

 

I think most people in the Western world would agree that Romeo and Juliet is one of our touchstones of romantic love and what it means to be in love. It means intensity, it means passion, it means one person in the entire world who is the one for you.   It means not being kept apart, no matter how much external forces try to split you up. It means being bound together being unable to live if not with the person you love.  It may even mean that if the world says you can’t be together you must keep your love a secret.

 The way the world sees and sells love, it is that consuming passion, the fire that burns within us.

 

All of which are really bad for option 3 above.

 

How realistic is it, really, to ask two people who are genuinely in love to be apart for the sake of a child when neither of them really wants to end the relationship? No matter what someone external might see as inherent crappiness of their relationship or how one partner “could do so much better” the truth of the matter is that for THOSE people, that love is real and vivid and powerful and emotional and painful as it is for any one of us who has ever been in love.

 

 

The point of using Romeo and Juliet is to remind ourselves that these parents in any particular case that we are looking at,  are in love, bound up with another person, with all that this means. It is easy enough to look at it purely from  the outside and say “of course he should leave this woman, she is awful to him and so dangerous to the child, it’s a no-brainer”   but you have to remind yourself that love and logic are strange bedfellows, and that for these people, their feelings and emotions and pain are just the same as yours would be, if you found yourself in that awful dilemma.

 

It is very hard to countenance, if you try to put yourself in these parents shoes for a moment, ending that relationship because someone else tells you that you should.  It is hard to end a relationship when you really want to, harder still when the other person ends it and you weren’t at that same place.  It is almost inconceivable to think of ending a relationship when the flames in both your hearts haven’t gone out.

 

That’s not to say that it is the wrong thing to do – looking at the three options above, the third is the least damaging for the child, who gets to live safely with one parent.

 

Just that really, what we ask of parents in this situation, whether we be social workers, experts, lawyers, family members or even the Courts, is HARD.  It might actually be the hardest thing that the parent will ever have to do in their life, and for that reason, it is not surprising that often these imposed separations don’t work out.

 

They crumble, or sometimes the risky parent (who after all has lost their lover but not gained a child) applies pressure for the relationship to continue, or attempts are made to keep the relationship going in secret. 

 

The temptation to introduce an option 4 to that unappealing list

 

4. The child lives with the safe parent, and so far as social services and the court are concerned, the relationship is over, but we keep it going and don’t get caught

 

Must be a massive one.

 

 

[Actually, I think the word “clandestine” is probably used more in care proceedings than any other walk of life, for exactly that reason.  ]

 

The other, slightly cheap shot, reason for using Romeo and Juliet to illustrate this piece, is that our greatest imagery of love and passion, our Platonic ideal of it if you like,  is involving a young man pursuing a 13 year old girl….

 

 

[There’s probably a whole other piece on looking at the examples people would give of “famous or inspiring lovers”    – Romeo and Juliet,  Anthony and Cleopatra, Richard Burton and Elizabeth Taylor, Heathcliffe and Cathy, Scarlett O’Hara and Rhett Butler, whoever the heck the couple are in Les Miserables,  Peter Venkman and Dana Barratt, Jane Eyre and Mr Rochester,  Lancelot and Guinevere, Juliet Roberts and Richard Gere in Pretty Woman, Elizabeth Bennett and Mr Darcy….  They are all pretty dysfunctional couples and a heck of a lot of hearts get broken or even stopped along the way]

 

 

i bet this ends well