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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Rozenberg on MoJ Cuts

Joshua Rozenberg warns of injudicious cost cutting of courts and legal aid:

Many of the economies we can expect will be false ones. Cutting legal aid will simply lead to more litigants in person. Cases will take longer and court costs will rise. Vulnerable children will be at greater risk. There will be more miscarriages of justice, costing huge sums to investigate and put right.

Full article here.

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WHY CARE?

Background to this post appears here.

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Alas, this is not the beautifully crafted discussion piece I had wanted to post, but I cannot devote as much time to this as I would like, and so I offer it as your starter for ten in its slightly disjointed and unpolished form…

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Firstly, let me explode the myth that the outcome of care applications is inevitable and that therefore care proceedings are purposeless.

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Almost all care applications result in orders of some kind. Most result in permanent or long term removal, many in adoption. Only a very few are withdrawn because the evidential hurdle of threshold cannot be met. In that limited sense applications made are by and large justifiably made (The alternative viewpoint is that almost all applications succeed because the courts are a mere rubber stamp – I don’t subscribe to that view).

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But many applications result in different orders than originally anticipated or sought (supervision orders, residence orders or special guardianship orders) or with less draconian care plans (care order with a placement at home, a plan for eventual rehabilitation, a change in placement type, or identification of more suitable carers, more structured or substantial support package for parents or child, proper financial and support package for kinship carers). These changes in plan and outcome are on one level matters of detail, but it is in matters of detail that long term outcomes for children and families can be radically altered – the chaos theory of family law. Complaint was made at the review session that there is an increasing tendency for courts to micro-manage care planning and that this is inappropriate. In the first place I don’t think that this is an accurate representation of the law or of practice. But really, why shouldn’t care plans be scrutinised? If they are appropriate and properly thought through there will be no problem – detailed scrutiny is necessary where, as is sadly often the case, they are ill thought through or poorly justified. The extent to which courts scrutinise the detail of care planning is in direct correlation with the quality of the care planning, and the confidence of the courts in it.

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Meltdown Imminent

Couldn’t have put it better myself. This letter from the ALC published in today’s Times is spot on.

POSTSCRIPT: More superlatives – this time it’s implosion rather than meltdown (per Wall LJ).

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Judge Dread – The Future

The Family Justice Review is calling for written evidence by the end of September (see here). Anyone who is considering submitting a response should consider this: at the recent oral evidence session I attended with other lawyers, the panel were asking serious and reaching questions about the extent to which the courts needed to be involved in decisions about care planning. Suggestions were made that in our search efficiency we need to seriously scrutinise whether or not there is a need for judicial sanction along the whole process we currently know as ‘care proceedings’. Although there seemed to be an acceptance that court involvement could not be avoided insofar as there were disputes of fact, the need for judicial scrutiny of Local Authority decision making was not necessarily approached as immutable: the implication being that once threshold is proven to have been crossed decisions to removal of children from their families could become decisions of social services alone (or possibly of some yet to be created tribunal?).

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Take a deep breath and wait for the significance of that to dawn upon you. Yes. They are really considering leaving these decisions to The Man, without the safeguard of The Judge. The full horror of it may be evident to you and I, but it evidently raises crucially important questions that do not appear on the call for evidence list of questions – but which need to be answered explicitly, directly and forcefully. Those of us who believe in a Family Justice System clearly need to make the case at base level for judicial scrutiny of state intervention into families. It will be vitally important for those responding to the call for evidence to give their views about this very specific and fundamental issue rather than just answering the questions as posed. To get you thinking I will post something shortly on the question of ‘Why do we need care proceedings?’ which you will be at liberty to plagiarise, develop or denounce as you see fit. But I’m afraid that now is too late in the evening for me to contemplate embarking on that little beauty. It will have to wait…

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Family Justice Review

Further to my previous post, I am en route back to the sticks having thrown my two penn’orth in the general direction of the Family Justice Review Panel (I got ’em, right between the eyes). I was somewhat surprised to find that the session was ‘private’ (and apparently not recorded), and so I will not report it’s contents here until clarification on that is received (jokes about the transparency of the family justice system on a postcard please). BUT:  in light of this evidence session, can I urge everybody to consider with renewed vigour to PLEASE respond to the review? It is more important and more serious than you may imagine. We 8 lawyers were asked to contribute orally in an hour and a half and, predictably enough for a room full of lawyers with a short time estimate, were falling over each other to respond to the serious points raised – we could not hope to address the issues fully in that format and the written representations will be crucial.  Over the next little while I will be posting some blog posts to focus minds on issues which the Review are likely to address. No doubt the FLBA and other associations will be consulting more widely over the summer on the matters discussed today (as far as permitted) in advance of presenting their written representations.

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Apologies for the slightly ridiculous cloak and dagger approach. But know this:  there are no givens. Change is a comin’.

POST SCRIPT 5 AUG: Although I have not had time to post further, the Panel confirmed that they have no objection to wider discussion of the issues raised for discussion at the evidence session I attended. I will be posting shortly about that.

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