Posted on | September 25, 2013 | 10 Comments
If you don’t know where you are going, any road will take you there – An Unapologetic Rant
I will start by setting out my credentials. I am no reform refusenik. I think it was 2001 when I wrote my first article about what seemed to be the knee jerk response in care proceedings to appoint both a psychologist and psychiatrist. These experts would often do little more than repeat the social worker’s chronology, add a few paragraphs of assessment then recommend a programme of therapeutic intervention for which no one could or would pay and which was way beyond the child’s timescales in any event. Experts were not being used in helpful ways as often the letters of instruction lacked focus and clarity.
Therefore I accept that many care proceedings had become bloated behemoths, dragging on for months even years beyond which the framers of the Children Act had thought likely. I accept that it is a reasonable assumption that delay is bad for children and parents. I don’t accept care proceedings became elongated because professionals in this field were lazy or stupid or wanted to milk the system. Most of us who do this work are keen at all times to do what we think will secure the best outcome for the children. These are difficult decisions with enormous consequences and we wanted to get them right. In an area of law with such serious ramifications for all involved, and which is sometimes heavily reliant upon the understanding and application of psychological research, it is hardly surprising that lawyers and the court wanted as much help as they could get.
However, when dealing with children’s lives, decisions generally need to be made swiftly and on the best evidence and I concede the way in which care proceedings have been operating for the past ten years was likely to thwart both goals.
So the solution is to set out the new Public Law Outline. Care proceedings must be concluded within 26 weeks. It can be done, it shall be done it will be done! Is the mantra of our President.
Care proceedings will speed up. There are now three stages in the court process; at stage 1 the application is issued and allocated to the appropriate court. This takes 2 days. There is then Stage 2, an Advocates Meeting no later than day 10 to accommodate the Case Management Hearing on day 12. Finally, Stage 3 no later than 20 weeks in is the IRH, no longer a directions hearing but instead a ‘genuine and informed attempt at resolving issues’. You will be expected to list your Final Hearing dates at the CMH so be prepared to be given simply a day even though it may be impossible by day 12 to know how this case will pan out by day 140.
The LA must produce a numerous documents with its application, including genograms and a chronology, and there will be further documents not necessary disclosed but which can be requested. All must come to the Advocates Meeting ready and able to set out precisely what the case needs in terms of any further expert analysis, to have identified the necessary experts and found out how long they would take and how much they would cost.
As the President says:
‘… the revised PLO is going to put a much greater emphasis than hitherto on the first hearing. It has been re-named the Case Management Hearing (CMH) to bring out the key fact that it is to be the effective case management hearing … it is vital to the entire process of reform… ‘
The message to parents’ lawyers is clear. You have no more than 9 days to get your house in order and to present your full case analysis at the CHM. And don’t think you can easily get any help with any tricky or complex issues from an expert outside the proceedings. Similar pressure applies to guardians, particularly if listing difficulties in certain courts mean the CMH has to be heard before day 12.
As the President says:
‘What is required is a major change of culture. Three things are needed: first, reduction in the use of experts, second a more focused approach in the cases where experts are still needed: and third, a reduction in the length of expert reports’.
Thus an expert will now only be appointed if he or she is ‘necessary’, a word defined as falling somewhere along the scale between ‘indispensable ‘and ‘useful’. (see Re H-L (A Child)  EWCA Civ 655 para 3]
Or, if you find you respond better to jaunty mantras; as the President says ‘ If in doubt, do without!’
In the light of all this, it is therefore unsurprising that the President now takes the view that it will be a rare case that comprises more than one lever arch file of documents.
I have no quarrel whatsoever with the need for more focused analysis. My fundamental complaint about the majority of cases in which I am involved is that no one has sat down at the initial stage and thought carefully enough about what they need to prove. A poorly drafted and ill considered threshold document or schedule of findings sets the tone for the whole proceedings.
But however sharp one’s forensic wits there is no escaping the essential truth that good analysis takes time. It takes time to plough through a bundle, to discover that the three referrals to the NSPCC about your client which now form one of the main planks of the social worker’s evidence, was actually only one and malicious to boot. Or that the minutes of one meeting clearly record the parents being told the LA plan was for adoption prior to any parenting assessment being carried out, so yes I would like an independent social work report, thanks very much. I have many, many more examples to prove this simple point – you have to sit down and read the papers to get a proper picture about what is going on and what we need to do.
And time is what we are now told we don’t have. Of course, the majority of us will try to do the best we can. You don’t specialize in this field to get rich. You do it because it is interesting, because you are dealing with significant issues about human lives. We are mostly good at our jobs and proud of what we do.
But, may I ask with gritted teeth and growing sense of frustration, just how am I supposed to reconcile all the President’s clearly expressed views about the urgent need for a massive change in culture, for speed, for efficiency, for an entire case to be dissected in nine days and using no more than 300 pages of A4, with what the President goes on to endorse in the judgement of the Court of Appeal in Re B-S (Children)  EWCA Civ 1146.
This was handed down on September 17th and has already been subject to comprehensive analysis by suesspicious minds to which I recommend you go if you want further details about the substance of this case.
I am going to cherry pick some of the paragraphs I think prove my point in the most succinct manner.
The Court of Appeal cite with approval what was said in Strasbourg in YC v United Kingdom (2012) 55 EHRR 967, para 134:
‘Family ties may only be severed in very exceptional circumstances and .. everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing’
The Court goes on to assert at para 22:
‘Orders contemplating non-consensual adoptions … are a ‘very extreme thing, a last resort’ only to be made where ‘nothing else will do’ where ‘no other course [is] possible in [the child’s] interests,’ the are ‘the most extreme option,’ , a ‘last resort – when all else fails’, to be made ‘ only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do’.
The Court is not happy with the job we have been doing to date. At para 30 they say:
‘We have real concerns, shared by other judges, about the recurrent inadequacy of the analysis and reasoning put before the court by local authorities and guardians and also in too many judgements. This is nothing new. But it is time to call a halt’.
At para 40 we are accused of ‘sloppy practice’ which is simply ‘unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high’
So how to we make it better? Para 34 tells us how:
‘First, there must be proper evidence both from the local authority and from the guardian. The evidence must address all the option which are realistically possible and must contain an analysis of the arguments for and against option.’
We must undertake a ‘global, holistic evaluation’ of the evidence (see para 44).
In nine days. With one lever arch file of papers. With the expectation that we shall need no help from any external expert.
I agree with all I have cited from this judgment. But in my view, it is simply incompatible with a fixed timetable of 26 weeks and the initial and most important analysis of a case squeezed into the first two weeks of proceedings.
The Court of Appeal deal with this point at paragraph 49:
‘We do not envisage that proper compliance with what we are demanding, which may well impose an more onerous burden on practitioners and judges, will conflict with the requirement, soon to be imposed by statue, that care cases are to be concluded within an maximum of 26 weeks. Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the local authority’s plan envisages adoption. If, despite all, the court does not have the kind of evidence we have identified, and is therefore no properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.
With respect to the Court of Appeal, I need a little more than a simple ‘envisaging’ that all will be fine and dandy and that what they demand will not conflict with the imperatives of the PLO. I am afraid I do question the adequacy of their analysis of this point.
I am unable to see how their demands for rigorous and holistic analysis can be realistically compatible with the timescales of the PLO; indeed they explicitly recognize this in the final sentence of the paragraph cited above.
Following the abolition of capital punishment, taking someone’s child away must now represent the zenith of permissible State interference with the individual. When examining our role in this process it is worth asking what kind of society we want to live in – not to be pious or peddle some tedious political agenda but to ask the serious questions – when should the State intervene in someone’s private and family life? When should someone be deprived of his or her children? When should a child be deprived or his or her parents? What help and support are we offering those who love their children but can’t seem to stop hurting them, either emotionally or physically?
Although the House of Lords, as it then was, opined in Re G in 2005 [2005http://www.familylawweek.co.uk/site.aspx?i=ed371 ]
that no one has the right to be made a better parent at the expense of the State, a significant proportion of my parent clients in care cases were children in care themselves, brutalized and neglected by their corporate parent every bit as efficiently as they were by their biological ones. What do we owe them?
I don’t mind if your answer to that question is ‘nothing’ so long as you have thought about this answer and its implications. Are the vulnerable worth supporting? For how long and in what ways? How much are we prepared to spend?
My very real fear is that those responsible for the programme of reform are answering different questions entirely and those which focus primarily on how to save money. Of course this is a valid issue. It is easy to make free and easy with other people’s money and I accept that public funds are precious and finite. But when we are making such important decisions about human lives, it is hard to accept that money should be the prime or even only consideration. But if it is, then say so. Don’t dress it up in impossible demands for increased efficiency in tight timescales.
Just as the discussions in some quarters about reform to criminal legal aid appeared to be based on the assumption that all defendants were guilty and could thus be moved though the system quickly by a crack team of Eddie Stobart’s lawyers, so too does the debate around care proceedings often seem to carry a whiff of an assumption that any parent caught up in this must be hopeless so the aim is simply to process the case as quickly and cheaply as possible. The Court of Appeal point out eloquently and repeatedly in Re B-S why this cannot be so.
I would like now to go back to various courts in which I have appeared over past year armed with the Court of Appeal’s judgment. To the Judge who refused an extension to the 26 weeks even though the mother was undergoing treatment for cancer that would continue beyond six months. To the Magistrates who sent us out of court for two hours while they searched for the ‘guidance’ which they were sure existed and which would enable them to list a final hearing which the expert couldn’t attend for cross examination – we could simply note that his written evidence was ‘not agreed’. To the Judges who refused to list a final hearing for more than 1 day, even when a fully contested hearing was likely to need at least 3.
We family lawyers are certainly living in interesting times. We are apparently both fearful of making decisions and overly reliant on experts but also rushing to make bad decisions and sloppy in our analysis. We are taking too long to make decisions and taking into account too many issues of doubtful relevance yet we are also failing to analyse evidence holistically and exhaustively. We are guilty of artificially inflating our final hearing dates and yet also failing to ensure all the relevant issues are properly ventilated.
So a plea then to the architects of reform. Make up your minds. Along which road do you want us to be travelling? Don’t take the engine out of our metaphorical car, dump us on the M1 and then complain that we are taking a very long time to get to Scotland. If you were rather we were riding a bike or walking along a single-track lane or even giving up the journey altogether, then say so. Consider the necessary questions in this debate and be open and honest in your answers. Otherwise we are going to spend a lot of time and effort on a journey that leads us somewhere you might not want to go.
NB all quotations from the President have been taken from his various ‘Views’, now six in total.