Thoughtful and Thought Provoking

A couple of pieces in the Guardian which are worth a read: here and here. No soundbites, just common sense and a thoughtful approach to the problems. The first, by a very sensible and knowledgeable family magistrate, almost makes me waver in my long held view that family cases are unsuitable for disposal in the magistrates…Almost.

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Panorama

On Monday Panorama showed a report on the journey through the family courts of a family accused of causing serious non-accidental injuries to their baby son: ‘Parents’ Child Abuse Nightmare’. After lengthy police investigation and care proceedings no prosecution was pursued and a finding of fact hearing exonerated the parents, the Judge holding that there was no cogent evidence that causation of the injuries was non-accidental.

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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.

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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).

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Well – DUUR!!

News just in from the FLBA: The Report from Francis Plowden – the Review of Court Fees in Child Care Proceedings – was published yesterday. Francis Plowden recommends (unsurprisingly?) abolition of fees for Local Authorities bringing child care proceedings. The Government has accepted this recommendation, and will implement it in April 2011 alongside the next three-year funding settlement for English local authorities. The full report can be read here.

Although I have not had time to read it for myself I understand that Francis Plowden concludes that “the increased fees are an additional complication to an already complicated field and, specifically, added to the immediate costs of what was already more expensive than other ways of safeguarding children. The new arrangements also seem to be more expensive to administer than the previous arrangements”; he commented that he was “struck by how complex the arrangements for safeguarding are, how poorly understood the interdependencies are by outsiders, but also by some working within the area, and by the poor quality of data. These factors perhaps contributed to the decision to raise fees, which was based on a number of misconceptions.”

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Unintended Consequences

I had an interesting chat the other day with a child’s solicitor about one of the unintended consequences of the public law outline, with its emphasis on pre-proceedings assessment and meetings. Children’s solicitors are really a niche within a niche. However, now that parents are able to instruct solicitors prior to the issue of proceedings in order to participate in the pre-proceedings meetings (and hence are doing so prior to the appointment of Guardian’s or the instruction of children’s solicitors), children’s solicitors are often finding that they are conflicted out of acting for a child because they have already given pre-proceedings advice to one of the parents (and there may well be more than two parents in a case with multiple children). So for example in Gloucester where there are only (I think) three remaining firms undertaking public law children work, the parents have usually made a beeline for the firms nearest to them, meaning that by the time a Guardian is appointed they have to instruct solicitors further afield. This accounts for solicitors in Hereford and Worcester currently undertaking a lot more Gloucester work than they used to and means that solicitors who pride themselves on being specialists in acting for children are ending up doing a really rather different type of work as a result of a quirk in the system. 

Is this happening anywhere else?

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Mother Acquitted of Shaking Baby to Apply to Discharge Care Orders

Fatimah Miah is a mother recently acquitted of the charge of manslaughter in relation to her baby son who died in May 2007. The Telegraph reports here that she is to make an application to the High Court for the return of the baby’s three siblings who are now in care.

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Of course the mere fact of her acquittal is in itself not enough to secure the return of the children. The family court within care proceedings will have heard evidence, including medical evidence, and most likely made a finding of fact that she was more likely than not the perpetrator of the non-accidental injuries to the child. In order to secure a return of her children she will have to go further than persuading the court that the evidence is insufficient to be satisfied of her actions to the criminal standard – she will need to persuade the court that the new evidence she seeks to rely upon is such that the balance of probabilities now falls in her favour. It is quite possible that whilst evidence is insufficient to secure a conviction in criminal the same evidence can be sufficient to satisfy the lower standard of proof in civil and family proceedings. And before the court will re-open the findings made in the family case it will need to be persuaded that there really is important new evidence that may well undermine the findings.

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It is impossible to tell from the reported material whether any of this is likely to happen, but one thing is for certain – seeking the return of children in these circumstances is a road fraught with potential difficulties even if one is armed with an acquittal. And even more so if the children have already been adopted.

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O-VER-LOAD! [Dalek voice effect]

The Guardian reports that 7% of CAFCASS Guardian appointments in care cases are unallocated. That is 653 of a total of 9060 cases. The only surprise there is that the figure for unallocated cases is so low. You can’t get a Guardian for love nor money round these here parts, and Judges have all but given up trying to appoint them in private law cases, along with s7 reports from either social services or CAFCASS, opining ‘but what’s the point Ms Reed, they won’t do it?’. Although I have heard of some other creative judicial attempts at plugging the gap it is truly a sorry state of affairs when a justice system that is founded on the paramountcy principle is unable to secure a Guardian to guide the court how to achieve it’s ultimate goal by making orders that are in the best interests of the children.

 

But what I want to know having read this article is – what portion of the 739 applications issued in March 09 (79% up on the same month in 2008) have a Guardian appointed? And in how many of those cases issued in March have the children been removed without a Guardian being appointed or at court? The new duty CAFCASS Officer system doesn’t do justice to the seriousness of urgent removals and I have done at least one ICO hearing where the application was for removal where there was no duty Guardian at court, and another where the duty Guardian had not read any of the papers.

 

On one level 7% unallocated doesn’t sound too bad, but I would hazard a guess that of new applications the proportion is much much higher, and of the 6090 total cases the majority of ‘old’ cases have a Guardian. Crucial – and sometimes irreversible – decisions are made at early hearings in care cases and it is vital that the children’s needs are properly protected. And of course the 7% figure does not include Guardian appointments in private law cases under r9.5 FPR 1991, or the dire situation with respect to s7 reports.

 

Whilst it is right to prioritise cases in circumstances where CAFCASS are simply unable to meet demand, this really does an injustice for the families which fall in the ‘serious but not that urgent’ category, particularly in private law cases where what might previously have been a short interruption in contact remedied by a swift and robust s7 report can turn into a protracted interruption in the parent-child relationship, which is a massive disadvantage to the parent seeking a contact order, and of course a failure for the children involved. 

 

I wonder when CAFCASS leadership will stop telling us all ‘we can manage’ and admit that the system is in crisis and needs an urgent increase in its staffing levels? I don’t know what Anthony Douglass means by suggesting CAFCASS is providing a ‘proportionate’ children’s guardian service: either a child needs a Guardian or they don’t and when they do CAFCASS are ordered to appoint one – there is not then a discretion on CAFCASS as to whether or not to comply. As a matter of public policy a child is deemed ALWAYS to need a Guardian in care cases, as set out in the Public Law Outline. Under the PLO CAFCASS are ordered by the court, to appoint a Guardian before the first hearing in every care case. There is a good reason why a Guardian is required to be active before first hearing – a hasty removal in those feverish early days can have a ripple effect that can affect the direction and outcome of a case and can have a long lasting effect on a child’s life.

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