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:

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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Wall of Brick’s excellent observations on Martin Narey of Barnardos (and ex Probation Service) recent expounding of views on the family courts. I agree with Brick, and I think it best if I let him express my views through the link to his blog post, otherwise I might vent my spleen inappropriately – there are so many people with so many views on how to fix the family courts – Barnardos, LSC, solicitors organisations, CAFCASS, children’s organisations and slightly informed journalists… Every time I have turned on the radio I have heard a different element of the system being blamed for the totality of the current or impending catastrophe. I’m glad that the crisis is reaching a wider audience but there is an awful lot of balone out there.

Barnardo’s press release is worth reading in full. The headlines sound sensible – why not aspire to a 30 week longstop, even if we all know it won’t happen? But then you read that Barnardos want to have a a tiered, fast track target of 12 weeks for children under 18 months. Don’t get me started on why that’s *not good* idea. Quite apart from the fact that I hadn’t even worked out which end of my baby was up by the time he was 12 weeks, its astonishing to hear the suggestion that we can deal with quite the most difficult and sensitive of cases in the shortest period of time. Maybe we should just brand parents ‘bad mother’ across their forehead when their first child is taken away so that we can fast track them through to adoption when they deliver their next child? You see what churlish mood I’m in? I’ll stop now before I say what I really think.

Also worth a read are Law Society Gazette’s interview with Carolyn Downs (interesting take), and Catherine Baksi’s summary of the same.

I’m off to do some work. And some deep breathing.

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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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Court scrutiny, the involvement of a Guardian, appropriate activity on the part of parents lawyers, are all forms of wholly appropriate and effective pressure with which to focus minds and leverage better care planning on the part of Local Authorities. It is tempting to think that if Local Authority care plans achieve approval of the court for their care plans in most cases then we can trust them to do the job without bothering with the rigmarole of expensive and long winded court proceedings. Tempting but foolhardy. There is another line of thinking (that sometimes social workers or other Local Authority employees who have been in the job for just a little too long blurt out loud before they have had time to check themselves – the very jaded are oblivious to the raising of eyebrows all around them): ‘the court process is just jumping through hoops and ticking boxes, court ordered assessments are never successful: it’s just a waste of time’. And there’s the nub of the problem. We all despair sometimes of clients who mess up the hard fought for assessment, but when those who are making decisions about the permanent removal of children from their birth family start from an expectation that the parents will fail, decision making can be and is often flawed. And so, rather than court proceedings existing simply to make miseries of the lives of social workers and local authority managers, they exist to ensure that preconceived ideas do not act as a barrier to rigorous and appropriate attempts to explore ways of keeping children with their birth families before severing ties with them.

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Let this not be seen as a broad criticism of social workers or local authorities. They are stressed, overworked, undersupported, badgered by management (who themselves are under pressures of a different kind), and vilified by the public and the press. They can’t do right for doing wrong and it must feel as if lawyers and courts are all part of the perpetual bombardment of negativity that social workers must endure (not so very unlike lawyers). No reasonable person would expect them to get things right all the time, especially in the feverish climate of post Baby-P and swingeing public sector cuts. There are many pressures on social workers and local authorities in general and the interests and views of local authorities responsible for many children may not always be one and the same as those of individual parents or children. And that is where the court performs an essential role. I can think of many cases where it is immediately apparent on issue that something has gone wrong, and it is through the court process that this is remedied. 2 examples:

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• A case where a very young child was left for almost a year in the care of parents following the unexplained death of her twin sibling but where NAI by the parents was one possibility – it was only upon the belated issue of proceedings almost the appointment of a guardian that safeguards were put in place pending determination of the cause of injury and any possible perpetrator.

• A case where learning impaired first time parents were assessed without reference to their learning difficulties and without any appropriate support to enable them to access support or learning or understand what was required of them being put in place. They failed the assessment, and another more appropriate assessment had to be commissioned, causing delay, anguish and wasted expense.

There are many more.

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I don’t suggest that the motivation of social work professionals is anything other than genuine and child focused (with the odd bad apple as is the case in any walk of life), but the court process is an important driver in ensuring rigour of approach, proper investment of resource and forward planning, as opposed to firefighting. And rather than disempowering or frustrating good social workers, the process is beneficial to Local Authorities because their judgment is validated.

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The healthy challenge to care planning and social work that court proceedings entail come not just from parents’ lawyers intent on filling their pockets by stringing things out, but from Guardians and children’s solicitors too, and even from the Official Solicitor on occasion when acting for hard done by parents. These are people who are motivated not by ‘parent’s rights’ without regard for the needs of the child, but who are seeking further thought, deeper thinking, reappraisal by local authorities in order to ensure the best outcomes for children. And it is a combination of the hard work and dedication of social workers and other agencies along with the involvement of the court and the court based professionals that ensures better quality outcomes for children.

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Although the role of Guardians is itself something of a hot potato at present, the role of the Guardian as an inherent part of the court process is crucial (see Jacqui Gilliat’s excellent summary of why).

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But it’s not just about detail:

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Its about the big issues too. It’s about public confidence in the administration of justice – already very low, but (notwithstanding a widespread perception by a certain number of parents and parents campaigners that the judiciary are part of a grand state conspiracy to snatch children from the bosom of their families) it would inevitably plummet to new depths if there were no independent external scrutiny of a local authority’s powers.

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It’s about proper limitation of the powers of the state – the most draconian of powers that the state has are to imprison us and to take away our children. If those powers are not routinely subject to the scrutiny of an independent court what is left? It would be an odd kind of civilised society where those in dispute over contracts and road traffic accidents could call upon the court’s protection whilst children could be taken away from their parents forever without expectation that a judge would have authorised that life altering course. How do we explain that to our children?

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It’s about following through on our commitments to the fundamental human rights of both child and parent – our rights to family life without interference except where necessary for the protection of children, our rights to fair trial, a child’s right to life. The need to save costs does not render these fundamental principles dispensable, we cannot put fundamental elements of the social contract in suspended isolation during times of financial hardship.

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Local Authorities would be foolish to think they can get it right all the time, and recent history tells us that they do not. We should not kid ourselves that they will be able to do so in future without the watchful eye of the court upon them, and with 25 – 40% less available resource. What’s more, it would be wrong to burden Local Authorities and frontline social workers (who are so often decried as baby snatchers by the ill informed) with such weighty decisions without the protective ratification of the courts.

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There are ways – many ways – in which the system could be improved. But the prospect of the unfettered removal of children by agents of the state is frightening in the extreme.

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It is difficult to envisage what alternative framework is in the minds of the review panel – whether safeguards would be in the form of judicial review of a local authority or some form of tribunal. It is not immediately apparent what economic sense the creation of a separate and less skilled tribunal would make (recent policy has been to consolidate court management and tribunals into fewer and larger organisations), and it is hard to see what advantage such tribunals would present over magistrates or judges. The key distinction between a court and a tribunal is the availability of legal representation and the expertise of the decision makers (and no doubt in family cases the appointment of a Guardian). Those are crucial features which cannot be abandoned without significant consequences for public confidence in the administration of justice, an almost inevitable breach of Article 6 rights to a fair trial by failing to ensure access to justice, and poorer outcomes for children and parents.

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

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Whilst a number of results have yet to be announced and large numbers of solicitors are likely to appeal decisions refusing them contracts, it seems highly likely that this green and pleasant land may be undergoing something of a desertification as far as access to justice is concerned…

(Thanks to Provincial Solicitor for reminding me that I needed to post on this topic)

Amongst other things (not dealt with here) it makes substantial and controversial changes to the law concerning the publication of material relating to family proceedings, which are summarised below. There will be repeals and amendments of a number of pieces of primary legislation, in particular s12 Administration of Justice Act 1960, s97 Children Act 1989 and s39 Children and Young Persons act 1933.

The relevant provisions are contained in Part II of the Act, and they apply to all relevant family proceedings at which the public are / were not entitled to be present. Broadly: divorce, civil partnership and financial matters are not ‘relevant family proceedings’. References to ‘the Act’ in this article refer to Part II and its associated schedules. At the time of writing the Act is not yet in force and no date for its implementation has been announced.

The Act does not apply to proceedings concluded prior to the coming into force of the Act, but does apply to those ongoing at that date. Unlike s97 Children Act 1989 (which makes publication of information identifying a child, his school or his address a criminal offence and which will be repealed as the Act is brought into force) the provisions of the Act do not cease to bite at the conclusion of proceedings, but operate without end point as with s12 Administration of Justice Act 1960 (which defines circumstances where publication may amount to a contempt of court, and is also to be substantively repealed on enactment of Part II), thus fulfilling Jack Straw’s promise to repeal the rule in Clayton v Clayton [2007] 1 FLR 11.

Publication of information relating to the proceedings is made a contempt, except in three specified categories:

1. an authorised publication of the text or summary of the whole or part of an order or judgment,
2. an authorised news publication, or
3. as authorised by rules of court.

These three categories comprise publications which either meet certain criteria, or where the court has specifically given its permission. Any publication which is not ‘authorised’ as defined by the Act will amount to a contempt of court.

‘Information relating to the proceedings’ is not defined but, since this terminology is in identical terms to s12 Administration of Justice Act 1960 existing caselaw, in particular RE: B (A Child) (Disclosure) [2004] 2 FLR 142, is of assistance and tells us that the classes of information falling into this category are likely to be:

…accounts of what has gone on in front of the judge sitting in private, as also the publication of documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings, transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment. (I emphasise that this list is not necessarily exhaustive.)… likewise…extracts or quotations from such documents…also the publication of summaries (per Munby J pa 66).

‘Publication’ includes disclosure or communication in any form to any person or persons (s21). This all encompassing definition of ‘publication’ is attenuated by Part XI of the Family Proceedings Rules which came into operation last year, and rather oddly it only is through these rules that a party is permitted to disclose information about the case even to their own lawyer, which would otherwise be a contempt of court under the Act. One might have thought that lawyer : client communication at least would be sufficiently fundamental to be protected by way of primary legislation rather than left to rules of court, but instead legal advisors, litigants and journalists will have to cross reference the provisions of the Act with the Family Proceedings Rules in order to work out what is and is not permitted.

Publication of an order (or a summary or section of it) is classed as authorised providing it does not contain ‘identification information’, does not relate to adoption proceedings (adoption proceedings does not include placement proceedings) and providing the court has not prohibited publication – it will therefore be generally acceptable to publish anonymised orders arising from most family proceedings. Where the order does relate to adoption proceedings or contains identification information it is only classed as authorised where the court has granted permission under s12.

Publication of a judgment is only authorised for the purposes of the Act where the court has specifically granted permission (s12(2)).

‘Identification information’ is defined as ‘information the publication of which is likely to lead members of the public to identify the individual as someone who is or has been involved in or otherwise connected with the proceedings’, or to ‘identify the address or school of the individual as being that of an individual who is or has been involved in or otherwise connected with the proceedings’. This definition is specified to include the categories of information on the following comprehensive but not exhaustive list:

1. the name of the individual or any title, pseudonym or alias of the individual;
2. the address or locality of any place where the individual lives or works or is educated or taken care of;
3. the individual’s appearance or style of dress;
4. any employment or other occupation of, or position held by, the individual;
5. the individual’s relationship to particular relatives, or association with particular friends or acquaintances, of the individual;
6. the individual’s recreational interests;
7. the individual’s political, philosophical or religious beliefs or interests;
8. any property (whether real or personal) in which the individual has an interest or with which the individual is otherwise associated;

It will be seen immediately that the prohibition on publication of identification information is in fact significantly broader than current patchwork of anonymity provisions, and now encompasses not just protection of the privacy of children but also of parents and indeed any other individual involved in the proceedings. Far from advancing the Government’s stated aim of promoting open justice the Act further restricts the public dissemination of information about children cases.

Although the detailed list of categories of information set out in s21(1) and rehearsed above are prohibited only insofar as they are ‘likely to lead members of the public to identify…’, the lack of precision and subjectivity inherent in the framing of these provisions is likely to make them very difficult to interpret with any certainty. Conversely, those very characteristics may make enforcement of any alleged contempt by way of breach of these provisions difficult to pursue with success.

An ‘authorised news publication’ is one where an accredited media representative (i.e. press card holder) obtains the information ‘by observing or listening to the proceedings when attending them in exercise of a right conferred on accredited news representatives by rules of court’ (s13(2)). This would presumably exclude publication of information gathered by an a party who is also a press card holder. The publisher of the information must be either the accredited news representative himself or must publish the information with the consent of, or pursuant to a contract or other agreement entered into with her. The re-publication of information gathered from an authorised news publication will also be an authorised news publication.

Publication of ‘identification’ or ‘sensitive personal information’ or ‘restricted adoption / parental order information’ must be expressly permitted by the court in order for the publication to qualify as an authorised news publication. Again, information relating to parental orders or adoption proceedings cannot be classed as ‘authorised’ without the permission of the court. It is difficult to see precisely what useful or newsworthy material  will be left for the press to report once all identification and sensitive personal information has been stripped out. Certainly the current practice of many national newspapers of simply stating ‘names have been changed’ at the foot of an article describing the parties and the circumstances of the case in some detail will have to change unless individual journalists are prepared to make applications for specific permission.

Schedule 2 defines ‘sensitive personal information’ as falling into three categories:

1. ‘information related to the proceedings which has been provided by a child to a person who is or is expected to be a witness or which has been or is expected to be referred to in the proceedings’. The paradigm example of this would be a child’s wishes or feelings as expressed to their Guardian or parent or drawings or letters written by them to the judge.
2. Information relating to a medical, psychological or psychiatric condition or a medical psychological or psychiatric examination or evaluation of any person which has been or is expected to be referred to in the proceedings. Query whether this would encompass an expert report prepared by an independent social worker who offers views regarding a person’s psychological profile? Note that the identity of the expert conducting any assessment is not classed as ‘sensitive’.
3. Information relating to any healthcare, treatment or therapy which has been or is being provided or is proposed to be provided to any person that has been or is expected to be referred to in proceedings.

Sch 1 makes provision for the arrangements in relation to sensitive personal information to be amended by way of order of the Lord Chancellor. Under s19 such an order can only be made after the carrying out of an independent review of the working of both of these provisions and the changes brought into force in April 2009 has been carried out in conjunction with public consultation, and a report has been laid before Parliament. Built into s19 is an 18 month bedding in period before which the independent review cannot commence.

If and when an Order is made under Sch 1 it will no longer be a contempt of court to publish sensitive personal information, providing all the other conditions for authorised publication are met.

Although no permission is required to publish the identity of a professional witness this is likely to be of limited use to the media until the restrictions on publication of sensitive personal information are lifted. Until then the majority of the evidence such a professional would give is unlikely to be publishable under the Act because it would be ‘sensitive’ in one way or another. In the short term this is most likely to have an impact on social workers, portions of whose evidence may not be ‘sensitive’.

The court has power to superimpose its own orders in relation to what would otherwise amount to an authorised news publication and may make permissive or restrictive orders. However, the exercise of these powers is now subject to the criteria set out in sections 14 – 16, hence existing case law may be of limited value in future.

Pursuant to s14 the court may not permit the publication of identification information, or sensitive personal information unless at least one of the following criteria are fulfilled:

1. It is in the public interest to give permission,
2. It is appropriate to give permission to avoid injustice to a person involved in, referred to or connected with the proceedings,
3. It is necessary to give permission in the interests of welfare of a child or vulnerable adult involved in, referred to or connected with the proceedings,
4. An application has been made by a party or on behalf of a subject child and in all the circumstances it is appropriate to give permission,

The court must have regard to any risk that publication may pose to the safety or welfare of any individual involved in, referred to or connected with the proceedings and may impose conditions on publication.

S15 effectively creates a presumption against publication in relation to restricted adoption or parenting order information and the court must pay particular regard to issues of consent and capacity.

S16 restricts the court’s power to make prohibitive orders on publication of material that would otherwise amount to an authorised news publication, to cases where the publication would give risk to a real risk of prejudice to:

1. the safety of any person,
2. the welfare of any child or vulnerable adult, or
3. in the interests of justice in the proceedings, or
4. additionally, where identification information relates to a professional witness but that information is interwoven with the identification or sensitive personal information of another person involved in the proceedings, or where the professional witness has been, is or will also be a treating professional (s16(3)(c)).

Publication of information relating to the proceedings which does not accord with the requirements of Sections 11 – 16 of the Act will amount to a contempt of court, subject to a number of knowledge / constructive knowledge defences provided by s17, namely that:

1. the person publishing did not know or had no reason to suspect at the time of publication that the information was ‘information relating to the proceedings’, or
2. that the information published was obtained from a prior publication and the person publishing did not know or have reason to suspect it was not an ‘authorised news publication’, or
3. that the publication would have been authorised but for the fact that it contained identification, sensitive personal or restricted adoption / parenting information which the person publishing did not know or have reason to suspect fell into those categories.

There are no provisions in the Act relating to the court’s powers to deal with a contempt, and the position must therefore continue to be that the court’s power to deal with any unauthorised publication is contingent upon issue of a ‘notice to show cause’ by a party, and subject to all the usual rules relating to contempt. Thus there is more to chew on, but with no more teeth.

It will be seen from the length of this ‘summary’ that the new provisions are complex and one might anticipate a considerable degree of confusion particularly on the part of the media as regards the meaning and operation of the new provisions. In the context of the current national crisis in the newspaper industry it will be interesting to see how many national – let alone local – papers are able to satisfy the requirement to attend court in order to source information for the purposes of publication. It may be that in the current economic climate the journalistic resources are simply not deployed for these purposes except in a very few cases. This is particularly so where there is still no change to the arrangements relating to access to documents, although as ever it is still open to an individual journalist to make an application to the court for sight of documents.

Whilst the Act appears to relax the regime for the reporting of family cases by the media, it is appears to be designed to prevent any publication of information by families themselves or by campaigning groups such as fathers rights groups, whether that be by way of blog or the offering up of their version of events to the media: unless the court orders otherwise information that a journalist would be entitled to publish cannot be published by a parent or other party, a parent cannot pass even anonymised and non-sensitive information to a journalist to publish, and the views or comment of parents cannot be published at all. Whilst there are valid arguments in support of measures which promote the balanced and accurate reporting of the goings on in the family courts by the media, for the furtherance of public confidence in the system (and a quite separate argument about whether or not these provisions will achieve that), the author questions the wisdom of the approach taken by the legislators to the enormous quantity of very private information arising from family proceedings that is published by individuals on the internet – which appears to be simply to ban it without providing any mechanism for enforcement.

An individual involved in family proceedings might well ask why it is that the media are entitled to publish information concerning their family when they themselves are not, even if the material is stripped of identification or sensitive personal information? The Act is clearly based on the premise that there is a public interest in the workings and decisions of the family court being open to public scrutiny, subject of course to appropriate protection of the privacy of all those involved, but in particular the children. If information concerning family proceedings is to be more widely published to the world at large (and the author recognises that to be a proposition not universally welcomed), is it not difficult to prevent those about whom that information relates from playing a part in that process? If one of the purposes of this programme of reform is to increase public confidence in the family court system by making it visible, is it right to bar those individuals whose rights are being adjudicated upon by the courts from speaking publicly about their experience? Although a permissive judicial power is retained by the Act so that individual parents may be granted permission, it seems unlikely that many parents will have the resources or inclination to heap yet further court appearances on themselves in order to obtain such permission, or that they are likely to be the sort of litigants with sufficient confidence in the system to consider it a purposeful venture. Of course, one might argue that an important difference between parents and / or ‘campaigning bloggers’ and professional journalists or media organisations is that the latter will be most likely have a better understanding of the legal restrictions in place, and are subject to a professional and commercial imperative to operate within the law, all of which may be said to protect against accidental or contumelius breaches of the law.

It is abundantly clear that the intricacies of the Act will present a considerable challenge to even the legal and media professionals confronted with issues surrounding publication of information, and no doubt this difficulty would be magnified were lay parties to proceedings required to work out whether or not material they wished to publish included identification information or otherwise offended against the Act. But that raises an argument as regards the clarity and complexity of the legislative provisions rather than a justification for the severe restriction on the right to free speech of the subjects of proceedings.

Not only is the Act unlikely to result in a significant increase in the quantity or quality of reporting of family proceedings by the media, (indeed if it is honoured by the national press it will result in a significant contraction in the quantity and quality of information so published), it also fails both to address the widespread reality that – notwithstanding the current legal framework – a small but significant number of parents do publish often highly sensitive information about their case on the internet, which risks identifying the child concerned or may otherwise adversely affect their welfare, whilst simultaneously prohibiting the publication by a parent of his own experience at the hands of the family justice system on blogs otherwise, even where that publication is in measured and suitably anonymised form. Although to some extent already impermissible by virtue of s12 Administration of Justice Act 1960, the new law will effectively outlaw the discussion by a parent of his or her experience in the family court (even if anonymised) on community websites and internet forums for the purposes of support and guidance.

Far from presenting the risk to children’s privacy that the Act’s opponents may have anticipated, the Children Schools and Families Act 2010 is more likely to reduce the amount of information about subject children that finds its way into the public domain, and will be a disappointment to both the media and family justice campaigners alike. Sadly the only group likely to benefit from this legislation are the lawyers instructed to deal with the inevitable applications and appeals that will be follow the implementation of it.

This article was published in the July issue of Family Law, and is reproduced courtesy of Jordans. The author would like to acknowledge Richard Norman’s assistance in the preparation of this article.

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Even Forrest Gump knows that s7 reports are like a box of chocolates (you never know whatchu gonna git – are you going to get the truffle, or the orange creme nobody wants? Apologies for the naff analogy but it’s nearly time to knock off for the hols and a big tin of Christmas chocs is beckoning…) As for s7 reports, I’ve had a few orange cremes lately, and whilst I am the kind of social outcast who is happy to scoff all the orange cremes at the bottom of the tin (I love ‘em), when it comes to duff s7 reports there is an important point of policy beneath that sparkly foil wrapping (Okay, enough of the analogy it’s making my teeth hurt).

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Occasionally a Judge will decide that a s7 report is flawed or that there is some other good reason to depart from a recommendation contained in it. Usually they do so politely and without hurting anybody’s feelings. Very occasionally a Judge will decide that a s7 report is so badly flawed that it warrants being spelt out in the judgment in terms which are quite strongly critical of the report writer. I have dealt with perhaps 3 or 4 of these in the last couple of years. Very very occasionally the Judge will be so unhappy with the quality of the s7 report that they will order a copy of the judgment be sent to social services to ensure that they are aware of the court’s concern (this can only happen with the court’s permission – parties cannot disclose the judgment themselves without permission). Incidentally, I’ve yet to deal with one of these cases where the media has been present, but I suppose it is only a matter of time before a similar case is identified by the media and permission given for it to be reported.

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In most of the cases that I have dealt with where a judgment has been highly critical of an unsatisfactory s7 report that report has been prepared by social services: by a social worker who may or may not be experienced but who has very little experience of private law work or of s7 reports (in one case a CAFCASS report was prepared by a sandwich year social work undergraduate on a work placement at CAFCASS). Clearly this is nothing like a statistically valid sample, but my sense is that (for better or for worse) the organisational quality checks on reports may tend to be more rigorous within CAFCASS than elsewhere. Big generalisation, but that’s my sense. In some respects this should come as no surprise since it used to be the expectation (not so any more since CAFCASS has ground to a halt) that most s7 reports were produced by CAFCASS as a matter of course – its what CAFCASS DO, and its more of a sideline for social services. In recent times of course the courts have been forced to fall back on social services to prepare s7 reports where CAFCASS cannot, and no doubt this is an additional pressure on often reluctant Local Authorities who would frankly rather be focussing their resources on child protection and on actual or potential care cases.

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If my experience is representative a s7 report from social services will typically be comparatively cursory. Sometimes it will be a slender report that has an air of ’Yep, current situation looks fine, now can I go back to my child protection caseload?’ to it. Concerning features I have noted from time to time are reports which

• substitute inappropriate criteria for the welfare checklist (safeguarding as buzzword, Every Child Matters Five Outcomes as glib justification for decision) and / or fail to properly utilise the welfare checklist as a tool for informing the s7 assessment and cross checking of recommendations, in particular a report which fails properly to take into account the significance of change (I think this is probably a by-product of a child protection mindset where the starting point in care planning is often of an already displaced child rather than a status quo with one parent?),

or are prepared by a reporter who

• takes a minimalist approach to the scope of assessment or the breadth of the question posed (least possible work to achieve compliance with direction), or who
• produces an oversimplistic rendering of the issues in the case, a flattening out of the subtleties (because if its not ‘care’ its not complex).

Again, I generalise. Again, I stress: this is not the norm, it is the extreme end of the spectrum. But I have seen it more than once. And it does worry me.

The reality is this. A publicly funded party will often have funding withdrawn on the filing of a negative report. That’s ok if the report is of good quality. If a report is solid then in the vast majority of cases sensible advice will be given to both parties, the matter will be compromised in line with the recommendations, and the parties and children can move on with their lives without waiting for a hearing date and without the stress of proceedings hanging over them. However if counsel advises the report is flawed and there is scope for it to be challenged at final hearing funding may still continue. Almost certainly in these circumstances neither party can be advised to settle – the outcome is still uncertain. One party has the benefit of a recommendation in their favour, the other of some arguments about a flawed report. A contest is inevitable. The matter will have to be listed.

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I hold the view that where a Judge has been strongly critical of the quality of a report (whether CAFCASS or Social Services) the interests of justice require that Judgment to be disclosed back to the Local Authority (or CAFCASS). It is essential that reports are of a consistently good quality and Local Authorities, CAFCASS and indeed individual report writers cannot be expected to improve quality if they are not told where they are going wrong. It may be unpalatable to potentially get a well meaning and hard working social worker into hot water with her manager (Although in practice the report has probably been seen and approved by a team manager and someone in legal before ever being filed), but consider these important reasons why judicial remarks about poor quality reports should be disclosed to the organisation responsible for it:

• to ensure the court and the parties can be reasonably confident that the right outcome will be reached for their child and that the court will be put in a position of having a reliable basis upon which to reach a conclusion
• to ensure that public funds are not wasted on unnecessary contested hearings (say, at least 1 day court / judicial time, solicitors and barristers costs etc)
• to ensure that parents are not given false hope of an outcome in their favour or conversely are not unecessarily forced to endure the wait for a contested hearing that could have been avoided, with all the stress that goes with that
• to ensure that delay is not caused for the child, either by increasing the need for contested hearings or by resulting in the need for addendum reports or even reports from alternative agencies to make up in the deficit in information in the first report
• to ensure that the overstretched resources available are not further overstretched by taking up court time / prolonging cases
• to ensure that where cases have with hindsight gone wrong parents can be satisfied that steps have been taken to ensure that such failings will be learnt from and will not be repeated

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At the end of the day, it feels good to have successfully undermined a flawed report through cross examination and to have achieved the outcome your client sought in the face of a negative recommendation. But the significance of these experiences goes beyond that child and that case – will the flaws be present in the next report prepared by that social worker? And what happens to parents who are not represented? It is a tough job to unseat a s7 recommendation and a judge has to be given sufficient basis upon which to properly do this, or risk appeal. I don’t think this is something most litigants in person would be able to do.

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So what happens if the quality of s7 reports declines as a result of an overstretched or failing system, and if simulataneously the availability of public funding or of counsel to take on such cases reduces as a result of public funding cuts? The wrong outcome for children, injustice for parents and families. So whilst it’s no panacea to send a critical judgment to social services or CAFCASS by way of feedback, I think it’s the least that can be done.

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The stark reality given the current state of CAFCASS is that Social Services are likely to be the primary providers of s7 reports for the forseeable future and it needs to be something that their social workers are trained and competent in, not just a sideline.

The Family Law Bar Association (FLBA) notes the announcement made today by the Ministry of Justice about changes to the family fee proposals made last December, in particular some limited recognition of complexity in cases. However, it is a matter of regret that the Government has refused further time to the representative groups to consider the underlying data and structure of the changes announced today. The refusal of further time undermines the benefits to be derived from a more collaborative way of working between the Legal Services Commission and its stakeholders,  which the Justice Committee called for in their report on Family Legal Aid Reform, published in July.

The FLBA remains concerned that these changes will drive experienced practitioners away from this work, at a time when child protection cases are increasing. Those cases involving allegations of domestic violence, private law disputes and financial cases will simply be uneconomic to undertake. This will deter talented new entrants from doing this important work, which cannot be in the public interest.

I understand that the new scheme represents an improvement on the previous set of proposals, insofar as it recognises some graduation and different types of hearings. But the fundamental concern that this is work which is becoming increasingly unattractive and unviable remains, for all the shifts and tweaks. Still, I have until October 2010  to steel myself to read the proposals, if I can afford ever to take any time off again…