Thankin’ yoo.

.

The court also ordered that the new contracts should not be issued pending the hearing of the case, though the LSC’s work on appeals and verification will continue. The LSC has agreed that existing civil legal aid contracts will be extended by one month.

See Law Society news item here.

Hat tip to Noel at Philcox Gray & Co.

Question 1: What does the family justice system mean to you? What should the purpose of the family justice system be? What should not be included in the family justice system?

Don’t confuse the witness – that’s three questions! The family justice system is a mechanism through which disputes between adults and parents can be resolved where other methods have failed, through which vulnerable adults can acquire protection from violence or abuse, and through which the state’s exercise of its responsibility to protect children can be properly scrutinised. It’s purpose is to strike the balance between the rights and needs of children and the rights and needs of their parents, to intervene as between parents and to check the intervention of the state into families. The family justice system should not provide a forum for ventilation of parental, spousal or ex-partner dispute or for the apportioning of blame except insofar as that is necessary in order to establish and ensure the welfare of children and / or vulnerable adult parties. The family justice system should not provide a ‘day in court’ simply in order to give bitter exes an opportunity to spout venom and bile.

Question 2: What should the role of the state be when dealing with family-related disputes that do not concern the protection of children or vulnerable adults? To what extent should the state fund this?

Isn’t this a big Political question?? (capital P) Do you really wanna go there?

We should embrace the Big Society and start community fora for dispute resolution. Meetings could be held weekly in the village pub and the community could decide contact disputes by arm wrestling or the best of three games of shove ha’penny.

Alternatively, one might say that the state’s role when dealing with family related disputes should be to provide support to families to the extent that they struggle with healthy family relationships as a result of intergenerational or endemic deprivation, abuse or neglect. The state should fund or otherwise make arrangements for this support to be available in order to minimise the broader and long term cost to the public purse of family breakdown, of intergenerational abuse, neglect and deprivation, and the impact of social exclusion and poverty.

The state should intervene in families only where strictly necessary for the protection of children and where support has failed. The final arbiter of when such intervention is appropriate should be the court.

Question 3: How effectively does the current family justice system meet the needs of its users? For example:a. Does it have the capacity to deal with all cases comprehensively?b. How could capacity in the system be increased?c. How efficient is the system?d. Does the system ensure equality and diversity?

I was under the impression that the snswer to this question was really the reason the review had been ordered in the first place. But here goes: The current family justice system does not meet the needs of its users at all effectively because it is chronically under-resourced.  a. It does not have the capacity to deal with all cases comprehensively or at all. b. Capacity in the system could be increased by an increase in resources, specifically more judges and more staff acting in welfare or guardian capacity (whether that be via CAFCASS or some other method of delivery). I don’t really understand d. but here’s a stab at it: delay is generally detrimental to parents seeking contact who are generally fathers, ergo under-resourcing in private law disputes tends to disadvantage men more than women, but is harmful to families and children in general. The downward pressure on legal aid makes starting or remaining in practice as a family lawyer increasingly difficult for all lawyers but particularly for female self employed barristers with young families. The slow long term brain drain of professionals of all fields of the family justice system, who are similarly undervalued and underpaid is detrimental to families and children in general without discrimination. The more superficial approach to cases of a certain type which is dictated by the need to spread limited resources thinly is likely to result in some cases in the  failure to properly understand and appreciate the significance of cultural nuance in a given case.

Question 4: Are there areas within the current system where we could adopt a more inquisitorial approach, whereby the court actively investigates the facts of the case as opposed to an adversarial system where the role of the court is primarily that of an adjudicator between each side? What are the options, and advantages and disadvantages, for:a. Private disputes arising from divorce or separation?b. Public matters, where the state intervenes to ensure the protection of children?

Newsflash, the family courts already adopt a quasi-inquisitorial approach. The court’s inquisitorial function is in part exercised by CAFCASS – except its not. Because CAFCASS doesn’t work. Or by experts. Where permitted. The posing of an adversarial as against an inquisitorial system is a false dichotomy.

Question 5: How far are users able to understand the processes and navigate the family justice system themselves? a. Are there clear signposts throughout the system? b. Do users know how and where to access accurate and timely information and advice? Is it readily available?c. What are the options to support/enable people to resolve these issues without recourse to legal processes?

Users are able to understand and navigate the processes and navigate the family justice system with the assistance of a lawyer. They are less able to do so without that benefit. a. The signposting throughout the system for litigants without the benefit of legal advice is woefully poor. b. Users do not have any means of accessing accurate and timely information and advice if there is no solicitor in their area who is able to take on their case. Support from other sources is limited and patchy. c. If by ‘these issues’ you mean family disputes (the question does not actually identify what is referred to) families can seek to resolve matters by alternative dispute resolution processes such as mediation or family law. This is inappropriate for some families and does not work for others. Alternatively the grandparents can bang their respective children’s heads together and tell them to grow up for the sake of the children. Oh no, wait. That won’t work because they’ll all be too busy at court asking for their own grandparental rights to be enforced (see below).

Question 6: How best can we provide greater contact rights to non-resident parents and grandparents?

By changing the law. But don’t do that. Because it’s a stupid idea. All parents already have rights, they just need to be able access legal redress if those rights are breached within a reasonable timeframe. Grandparents are big and ugly enough to come to court already without difficulty where warranted. It’s insanity to expand the pool of potential contact disputees and to encourage a litigious rights based approach whilst simultaneously encouraging mediation and hugs all round.

Question 7: How effective is alternative dispute resolution (ADR), such as mediation, collaborative law and family group conferencing? What types/models of ADR are more effective and for which circumstances? Does this differ according to cases? How could we improve it and incentivise its use and what safeguards need to be put in place?

Not as effective as successive governments would like to think i.e. it does not represent a complete alternative to court. Suggest however that in order to answer this question it might be a good idea to do some research before strangling the court system by transferring 95% of the significantly reduced FJS budget to untested ADR projects. Clearly a one size fits al approach won’t work. Of course it needs to differ according to cases. It’s use could be incentivised by the courts actually using the power to require parents to attend mediation information sessions.

Question 8: To what extent do issues around enforceability of court orders motivate decisions to go to court? To what extent does it affect decisions within and outcomes of cases?

Issues around enforceability of court orders (which is negligible) do not motivate people to go to court. People go to court as an option of last resort, in spite of the fact that orders are not enforced, but in the hope that they will be made and obeyed. Difficulties ensuring compliance with orders significantly affect outcomes for children in cases of parental hostility to contact. These difficulties also increase the burden on the court service and public purse generally by requiring frequent returns to court and prolonged court intervention.

Question 9: Are there elements of cases which could be considered outside of a court setting and if so by whom? For what type of cases would this be appropriate and what sort of settings might be suitable alternatives? What are the benefits and disadvantages?

Yes, some things can be dealt with outside court. Mostly where this is possible it already happens. The advantages are that most vaguely sensible people don’t want to come to court and have someone else decide important things in their livest. If it works its cheaper, quicker and less stressful. The disadvantages are that it doesn’t always work. The risk of trying too hard to steer all cases away from court is that the protection of adults and children may be compromised and failed attempts to resolve dispute through ADR will cause harmful delay and greater expense to the public purse than going to court promptly.

Question 10: Would adding a triage stage, whereby cases are assessed as to the appropriate course of action, make the system more efficient; i.e. by speeding processes up, ensuring resource could be allocated appropriately etc? In what areas might this be appropriate?

Urm…please refer to the Revised Private Law Programme. I think someone has already thought of this.

Question 11: Do you think the family justice system is well organised and managed? What are the strengths and weaknesses of the current governance and management structures? Who should take responsibility for the decision-making process? Who should be responsible for the administrative running of the system?

No. Strengths of current governance and management structures – none spring to mind. I think you’ll find that traditionally Judges take responsibility for the decision-making process and administrators for the running of the system. Suggest that a reveral of roles might be entertaining but unwise.

Question 12: What systems issues are there? Eg. how could things like IT, filing and administrative processes be improved?

IT could be improved by having functioning faxes, basic photocopying facilities, reliable email addresses, phones that are answered. It would be novel if HMCS did not rely routinely on lawyers to carry out its administrative responsibilities in the form of drawing up orders and if the computer said ‘no’ less often. It would be nice if the many wonderful staff in the court service were not so chronically overworked.

Question 13: Who should take ownership of cases when they are in the family justice system? Who is the case manager? And at which point do and should they relinquish responsibility?

If there were sufficient judges to ensure judicial continuity this question would be redundant.

Question 14: How can we ensure that there is sufficient and appropriate accountability throughout the system?

Incidentally, solicitors embroiled in the tender debacle may wish to join in the debate on the ilegal fora here.

.

It was a shocking story, perhaps more so for those who do not work in the system and have not been caught up in it in respect of their own families. On another level, for care practitioners like myself it was however in many respects unremarkable – although the case broke new ground in respect of issues concerning publication of judgments and the identity of experts the care proceedings themselves raised familiar issues and followed a well worn path. What was unusual in terms of the care proceedings was the total failure of the Local Authority to make out threshold.

.

There were several predictable references to the secrecy of the system, though the system was not so secret as to prevent the programme from being made. The fact that permission had been given for the proceedings to be reported did not appear to attenuate the hyperbole about the cloak and dagger approach of the courts (In fairness though, the lengths to which the parties and the BBC had to go to get permission were not insignificant as can be seen from the number of citations which follow at the end of this post).

.

In general I thought that the process was explained pretty well, and accurately. However I thought that towards the end it rather descended into a sort of tabloid style. I am thinking in particular of the naming and shaming of ‘the experts who got it wrong’, which rather undermined what had gone before and was frankly rather unfair to the Community Paediatrician whose referral triggered the child protection processes. It went as follows:

‘The experts who got it wrong:

Dr Carl Johnson the police expert whose evidence suggested a history of abuse (cue mugshot on wall of shame)

Dr David Vickers the community paediatrician who told police that without an explanation for Williams injuries the likely cause was that it was inflicted. The judge did not accept this argument. (cue mugshot on wall of shame)

Professor howard bird the rheumatologist who suggested hypermobility. The judge found that he had failed to be guided by a duty of professional detachment. (cue mugshot)’

What was not adequately teased out to my mind was the fact that the evidence of the community paediatrician who had made the initial referral was ‘rejected’ only after further expertise was drawn in for the purposes of the family court proceedings: i.e. the court process had served to vindicate the parents in a way that could not have taken place had no court process been commenced. It was a significant omission in my view not to make clear the distinction between professionals treating on the ground offering provisional opinions about the risk of NAI for the purposes of initiating child protection processes, and the considered opinion of experts instructed specifically for the purposes of conducting a rigourous after the fact analysis of the cause of injury on the basis of a vast amount of additional evidence and with the benefit of a great deal of hindsight. The insinuation from the programme was that the evidence of the community paediatrician involved prior to the commencement of proceedings was rejected as in some way substandard, or that he did not do his job properly, when it is not in fact at all clear that this was the case. The Radiologist was the subject of criticism and this was spelt out, and the listing of them together as ‘the experts who got it wrong’ tends to suggest the court was similarly critical of Dr Vickers.

.

Unfortunately, although permission was granted to report it, the original judgment in the care proceedings does not appear to be reported although extracts from it appear in the subsequent judgments about publicity. It is not clear from that material what role the community paediatrician played in the care proceedings, but most likely he was a witness of fact if even called, who will have testified simply to the child’s presentation on the day. It is unlikely that he offered an opinion on causation to the court as he was not an independently instructed expert in the case, if indeed he gave evidence at all.  There is no suggestion in the material available that he was criticised by the Judge, even though her conclusion was that there was a non-accidental explanation for the injury. A child protection professional must approach possible NAI from the perspective of protecting a child whilst investigation and judicial processes are carried out: there is a necessarily cautious basis of operation based on risk. It is only subsequently that the judge enters the arena and she does not deal in terms of risk but in terms of fact.

.

The fact that the court, taking into account all the evidence, concluded that findings could not be made and that NAI did not take place is not equivalent to suggesting that the individuals named were professionally substandard, wrong or incompetent. Had Dr Vickers not made a referral raising concerns about NAI he would have been in gross dereliction of duty and no doubt criticised for it. The parents in the programme acknowledged as much, clearly accepting that the child protection process had to be worked through, however awful. The programme fundamentally confused the identification of risk and triggering of child protection processes – which is a process designed to further investigate suspicions of harm rather than to conclude upon them – with the considered opinion of experts instructed to assist the court in reaching conclusions about what did or did not happen.

.

Although in the event Munby LJ in did not grant anonymity to the treating clinicians, he did say this in his judgment ([2010] EWHC 538 (Fam)):

‘there is a significant and important wider public interest in protecting the anonymity of treating clinicians in child protection cases in order to promote the effective working of the child protection system; if treating clinicians are publicly ‘named and shamed’ and subjected to vilification for merely doing their jobs properly, there is a legitimate concern that they will become understandably reluctant to make child protection referrals and/or consciously or subconsciously require a higher standard of proof before doing so; or they may simply refuse to accept the personal risks of becoming involved in this area of work – consequences all of which would be profoundly against the public interest.’

This would seem to be a case in point.

.

I was also  struck by the concluding remarks which I thought implied that in some way the campaign fought by these parents was responsible for some sea change in the approach of the courts, and indeed was instrumental in bringing about the Children Schools and Families Act 2010. Of course cases like these of perceived or real injustice and heartbreak are many, and it is the collective pressure applied by individual parents and campaign groups, as well as the advice of professionals from within the system that have brought about some change in this area and have made the question of transparent justice a matter of serious public debate. The Ward case is one example of the incremental shift in approach which has been gathering pace for some time.

.

Jeremy Vine, during his brief slot topping and tailing of the report also suggested that the law had now been changed (as a result of the Children Schools and Families Act 2010) so that experts could now routinely be identified in the way that the experts in this case had been. He said:

‘And in the final week of the last Parliament, a bill was passed which rubber stamps the Ward ruling that paid expert witnesses can be identified.’

(Of course two of the three professionals the programme makers crowed about having obtained permission to identify did not fall into this category). This is not an accurate representation of the legal position, not least because the CSFA has yet to be brought into force. I think that viewers may well have understood from the programme was that they can name experts and tell the world what experts have said about their family and why they were wrong. In fact even when (if) the CSFA is implemented the press will be able to report only the name of the expert. The contents of any report will be classed as ‘sensitive’ and not publishable without permission, the background to its having been ordered is likely to be largely unprintable because it may identify the family and the parents themselves are not permitted to publish any information at all. Even if the press considered the bare bones of the story which are permitted to be published to be newsworthy they would only be able to publish information that they had gathered from attending the proceedings. There is of course facility under the new provision for specific application for permission to publish more, but this is already the case – and is the process used by the Wards and the BBC in order to make and air the programme.

.

Far from the shift in the law that Panorama insinuated this case brought about, the situation remains and will remain in broad terms the same on this point (subject to any further statutory amendment). There is provision in the Act for relaxation of the reporting restrictions in future, but there is an 18 month moratorium from the date of implementation on that, and a slew of hoops that must be jumped prior to that being permissible under the act, including an independent review and public consultation.

.

I thought it was a shame that a programme that quite carefully explained the court process and the reasons why child protection professionals had to take the action they did in a balanced way, was spoiled by basic legal inaccuracies and the temptation to find a way to engineer in a few punchy soundbites.

.

The judgments in this case (excluding the original final care judgment) can be found here:

• British Broadcasting Corporation v CAFCASS Legal and others [2007] EWHC 616 (Fam).
• A v Ward [2010] EWHC 16 (Fam) [2010] 1 FLR 1497.
• Re Ward (A Child), Doctor A and Others v Ward and Another (No 2) [2010] EWHC 205 (Fam).
• In the Matter of William Ward [2010] EWHC 538 (Fam).

‘CPDcast is an online CPD provider to the legal profession, helping solicitors, barristers and legal executives get their points and keep up to date. Their library contains over 400 titles in 25 practice areas, divided into pithy 30 minute legal podcasts.

To get your free podcast just select the one you’d like to listen to for free. Then when you get to the payment screen put in the following voucher code “pinktape2010″ which will discount the price to 0.

This voucher code can be used to listen to any one podcast on our site and is valid until the end of this calendar year.’

Feedback on the CPD they provide could be helpfully posted in comments on this post.

If you are from a firm who has lost out in the tender process to a local firm who successfully bid for a large number of matter starts you should read this NOW and circulate it widely.

POSTSCRIPT:

Email from a colleague: