Lilo is a Hawaiin orphan being raised by a struggling older sister. She is bullied at school and displaying alarming behavioural problems including violence against her contemporaries. She is odd and sad (she explains to the other girls at school that her home made green doll’s head is oversized because it is full of insects – she is shunned). She is at risk of removal by the oddest ex-CIA social worker / man in black I have ever seen and apparently the sisters are left to fend for themselves with no help or support at all. And then they adopt an odd looking ’dog’ Stitch, in fact an alien experiment programmed to exhibit destructive tendencies but who longs for a family to belong to. I don’t really understand how the squalid living environment, near death through negligence and demonstrably poor behaviour management techniques are miraculously overcome by the simple concept of ‘family’ (the Hawaiin word is ‘Ohana’ meaning family, and the concept that nobody gets left behind) nor how the house that was blown up by aliens is rebuilt in a mere blink of an eye (although I think that may have been down to some kind of alien wizardry). But somehow it turns out ok and the family lives happily ever after with Lilo and Stitch, big sis and random male friend who is good at surfing who appears towards the end I think just to make it more of a conventional sort of unit. But it was a touching movie with a refreshing glimpse of the sadness and oddness of children who live with fractured families and loss. But at the end of the day although Lilo is a wierd kid, she is still a cartoon and as cute as a button. Not all survivors of difficult home scenarios are quite so appealing. And sometimes someone is left behind.

Gee I should really lighten up….[Sighs....and gets back to work]…

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I do despair sometimes when a children’s guardian can say such a thing to the lawyers in a case. I understand why these things are said, but still. It’s a little insulting and a little upsetting.

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But there is a serious point here. Simply because counsel acting on instructions of their client, say the mother or father in care proceedings, pursues an appeal on fairness grounds which will cause delay in a case where the Guardian is clear in her own mind what the outcome should be – does not demonstrate the callousness to the best interests of the child that the quote might suggest.

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For what is fairness if it is not something applicable to all parties? If a parent seeks a step to be taken in proceedings to enable them to have a fair trial this may well cause delay but this does not necessarily mean that such a course of action is not child focussed. Delay is better avoided, but an unfair trial is unfair for all concerned. A gap in the evidence that prevents a parent properly pursuing their case for return of their children is a gap in the evidence which has prevented a child from having as good a chance as possible of going home to their family, which increases the risk that they may be avoidably adopted. And a trial which is rushed through to avoid delay at all costs may end up being postponed or appealed and reheard to ensure that it is done thoroughly and fairly – causing unnecessary delay and heartache for all concerned. And then there’s the worst case scenario – a trial that produces the wrong outcome for a child that is not rectified on appeal.

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Lawyers understand this whoever they are acting for and whatever their silent views of the merits of their clients case. What some professionals interpret as not caring is no more than our professional ability to take a step back from making judgments about what is or is not worth delaying matters for, and focussing on preparing the case properly so that the judge who has to make the final decision can make the right decision first time round. It is not easy for professionals of any discipline involved in these cases to maintain a professional distance, and it is particularly difficult for social workers and Guardians who are specifically tasked with making recommendations to the court to feel anything but frustrated waiting for their considered views to be acted upon by the court at trial, but the court framework is overlaid upon the social work role for a reason – to protect families, and to protect children. The lawyers are not working against that aim, they are a vital art of the process of getting to the right outcome.

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Some cases admittedly look so hopeless or pointless or inevitable that everyone concerned feels that they are going through the motions. But in cases like that I remind myself of the cases I have dealt with where I have found myself succeeding on what I have told the client is a completely hopeless case. That’s neither a mark of my brilliant advocacy skills, nor of my poor judgment – it is a demonstration of the importance of the judicial process.  

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So to go back to the question – for my part I think about the kids all the time. How could one not? But then I get on with giving sound advice and acting on my instructions, and put my faith in the court to work out the right solution.

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Often for a parent in the midst of care proceedings the realisation that they need therapy comes late, too late for the children who are subject to proceedings. But the legal process gives parents access to professional analysis of what has gone wrong with their lives, with their parenting and their relationships generally that might otherwise not have been available to them. And in the course of making recommendations in the context of the case, an expert will often point to the way forward for the parent in the shape of therapy. But whilst many of these damaged parents are still of child bearing age and may want to become parents again, they can do nothing to make the recommendations from the court appointed experts for long term therapy become a reality. Long term psychodynamic psychoanalytic therapy (often what is recommended) is usually completely unavailable on the NHS or at best subject to very long waiting lists (and my point is good in respect of drug rehabilitation too although there community based provision is more widely accessible in one shape or form even if residential rehab is difficult to access). So the opportunity to make the best use of the money spent on expert reports, to seize the moment, take something positive from the sadness of such cases and to prevent a repeat with future siblings is lost. Looking at it from a purely economic point of view this is madness. The cost of repeated care proceedings, and the long term financial burden to the state of supporting a child in care throughout his life must surely outweigh the cost of therapy, even if in many cases the parent will be unable to fully engage.

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It’s not every case by any means where therapy is a viable option – some problems are not susceptible to treatment, and other individuals are not ready to accept help. And of course in many cases therapy is not even the answer to the question. But in cases where an expert in care proceedings recommends therapeutic input and gives a reasonably positive prognosis, particularly where that therapy will increase the parents chance of successfully parenting either existing or future children, there should be an obligation on the Local Authority or the NHS to make that available to the willing parent. Somebody ought to stump up so that parents can be rehabilitated. They are often the product of the care system themselves.

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To be told and to come to terms with the fact that your life and chances of parenting in future will be blighted by your deep rooted psychological and emotional issues is extremely difficult (quite apart from the fact that this realisation is often coupled with the permanent loss of your children). But to be told that there is a way out for the future but you can’t have it because the NHS won’t provide it and you can never afford it must be soul destroying, and probably compounds a parent’s pre-existing difficulties and sense of despair. To be finally ready to make the changes you have needed to make for years, and yet to have that opportunity put before you and snatched away is a cruel thing. If we are serious about child welfare and serious about our responsibilities to help families we need to focus more of our resources on helping people to be better – better people, better parents. We need to prevent the removal of children by helping (if not ‘curing’) the parents.

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I know that simply making therapy available will not magically fix deep rooted issues. There will be a high attrition and failure rate. But this is part of a cross generational cycle of abuse and poor parenting where indiviudals are very often involved in the care system as both child and then – sometimess seemingly almost as day follows night - as parent. The system currently fails both those in need of therapy, and their children who may suffer needlessly as a result of society’s failure to help them become better parents and to break the cycle.

PS Can somebody tell me if I’m losing my marbles slightly – paragraph 189 of the judgment of Lord Justice Wall contains the word ‘unexceptionable’ which I’m pretty sure is NOT a word. Although the Court of Appeal has many inherent powers I’m not sure that creating new words is one of them…

Children’s Society report (Thanks Teech Liz) – from a 2 second look at the Guardian’s related article it’s a report saying how sad life as a child is ‘these days’. Boo.

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House of Lords Judgment in Holmes-Moorhouse v LB Richmond. See Family Lore and Nearly Legal who have beaten me to it. This as I understand it basically says you can’t force a LA to treat both parents as priority need for housing by using a shared residence order as a device. Boo.

The long awaited (and long) Court of Appeal Judgment in A (A Child) concerning overseas adoption. 33 pages. Boo.

These latter two are obviously important as they have landed in my inbox today sent to all FLBA members at the request of The Pres (not Obama, Pres of the Family Division). Now I just need to find time to read them.

For those of you who liked the snowman gag and who think the above is all a bit heavy for a Friday check out today’s newsbiscuit.

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As a story this piece would have us believe that social workers have acted on the basis of one dichotomy: age versus sexuality – and have ignored all other features of the case (including the welfare of the child) in the name of political correctness. From reading the story one might reasonably form the view that the grandparents were in some kind of direct competition with a specific adoptive couple and have been sidelined simply to give the gays a shot. Of course what in fact will have happened is that the matter will have been approached in stages: 1 can the children remain with family (preferably a parent) long term? 2 if not what is the best non-family arrangement for them? On the basis that this is how the law and the procedure works, question 1 must have been answered negatively by the social workers and subsequently the court quite separately from the second question (although often in practice the court will sanction both decisions on the same day they are legally distinct processes).

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It is common for news pieces to fail to distinguish properly between the judgments of social workers and the sanctioning of those judgments through the decisions of the courts. Although social workers will have formed a view and prepared a care plan for the children, and although their views will have been important to the court, we know from the article that the litigation continued for 2 years. That in itself is an indication that the social work view has not simply been rubber stamped, and so the validity of the social workers views about the grandparents and the issue of adoption has been aired at length. We know that ultimately the court must have accepted the social work view that the children could not remain with their grandparents long term. The reasons for that will have had nothing to do with the identity or characteristics of any proposed adopters.

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It is apparent from the article that the grandparents both suffered from quite serious health complaints which might realistically have had implications for their long term ability to act in a parental capacity, particularly when considering that the grandfather would be over 70 by the time the children were 18. We can make a reasonable guess that these little children had been subjected to some significant disruption in their lives prior to placement with the grandparents owing to their Mother’s drug addiction, making it very important that whatever arrangements are made for them were permanent. So many other factors are likely to have played a part in the assessment of whether or not the grandparents were suitable long term carers – what is the background to the Mother’s drug abuse? Are there intergenerational or family wide problems of substance abuse or other difficulties in the family background which may have led to the drug abuse? Are the grandparents able to manage the relationship between the children and their mother without exposing them to disruption or risk? And many other questions. I don’t know the answers to those questions but I do know that the decision is highly unlikely to have been based just on the age of the grandparents, even though that may be their perception.

The tone and construction of the article tends to suggest a degree of sympathy for the grandparents indignation at the placement with a gay couple. The immortal lines ‘I’m not prejudiced but…’ are followed by the clearest ever demonstration of why the grandparents would be unable to emotionally allow or support the children in settling into the adoptive placement. The old argument about playground taunts is the same one used years ago to discourage mixed marriage or dual heritage children (‘it’s not fair on the children’). It didn’t wash 20 years ago and it doesn’t wash now – children are just as likely to be teased for living with their grandparents as for having 2 dads.

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And then, to cap it off, in wades someone from the Catholic Church with a blanket statement to remind us all why no children should ever be parented by gay parents. And apparently ‘There is an overwhelming body of evidence showing that same sex relationships are inherently unstable and reduce the life expectancy of those involved.’ REALLY? Being in a homosexual relationship makes you DIE EARLY? I’d like to see that evidence.

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So…I’ve picked a few holes, speculated a little and hopefully demonstrated that this is very probably only part of the story. In fact there is only really a ‘story’ in the sense of something one can utilise to express moral outrage and disgust at the erosion of ‘traditional family values’ if the factual information is pared right down. Each time I read an article like this that plays off of the sadness and anger of families it makes me more convinced about the need to open up of family courts to the media. Because these articles do nothing to genuinely inform but they do erode public confidence in the system and for the families who are the subjects of these articles they may well instill in them a sense of justified grievance that may not in fact be valid in law or reality. Whilst all cases are difficult, important and heartrending for the families involved, 99% of cases do not raise any point of public interest that is genuinely newsworthy as opposed to being merely prurient or an exercise in headline over substance.

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PS 1 Feb Oh God…it gets worse. The Daily Mail has waded in…

PPS 2 Feb And worse yet still…

What interests me more is court’s interpretation of the welfare of the child - it is this that perplexes me most about the decision really. I see the point that the context is very different as between a child who has never had any meaningful link with a biological father and a child who has had some form of relationship with him which is better not severed but I’m not sure that renders the biological completely without meaning. For a child it is certainly significant  - although her emotional parenting is clearly more important in many respects than whose sperm made her, its well known that in adolescence adopted children often struggle with questions of identity and seek out (for better or for worse) their biological parents. Lord Justice Thorpe seems to have in part justified the secrecy now with the fact that the child can seek out his parenting in the future, but this seems to me to miss the point, storing up emotional difficulties for later in life, and perhaps more importantly sidestepping the significance of the father as parent rather than a mere locus of identity.

The Court of Appeal has correctly based its decision on the paramount principle of the welfare of the child, saying that the priority in a case like this was the placement of the child in a permanent home as soon as possible, and (suprisingly perhaps given previous authority and received wisdom) that the court should not require a preference to be given as a matter of policy to the natural family of a child.

But who is to say that the father could not able and willing to parent this child admirably? According to the Court of Appeal: the Mother. Her view of this, given her personal circumstances, is likely to be less than impartial, and one might observe that a one night stand hardly disqualifies one from the capacity for good parenting. Its dangerous to try and judge these things in too much detail without knowing the full case details – the court will have had a wealth more information than you or I, but I can’t help thinking that from the outside looking in, this decision looks a little like the court has been swayed by the Mother’s view / interests and the Mother’s account of the likelihood of the father or extended family’s suitability. And without investigating at least to a preliminary level there is no way of knowing whether the Mother’s pessimistic view is correct or coloured by self-interest.

To say that there was no evidence the Father could meet the childs needs and that the prospect of a placement with him was too intangible to warrant a delay, as the Court of Appeal did, is to beg the question – doesn’t this child deserve to have that possibility explored? Agreed: delay is detrimental, and the younger a child is when placed the better. But to discount a father out of hand seems to me to do a disservice to the child.

Mr McClintock’s strongly held view was that the question of allowing same sex couples to adopt children had not been sufficiently researched and tested and that by making it possible for same sex couples to adopt children were effectively being used as “guinea pigs” in a “social experiment”. When he asked to be excused from dealing with same sex adoptions he did not base his request on his religious or philosophical beliefs. Mr McClintock had not as a matter of principle rejected the possibility that single sex parents could ever be in a child’s best interests; he felt that the evidence to support this view was unconvincing but did not discount the possibility that further research might reconcile the conflict which he perceived to exist. Accordingly the treatment afforded to him was not on grounds of any such religious or philosophical belief and could not amount to discrimination on those grounds. Further, the DCA would have treated any person in equivalent circumstances similarly regardless of religious beliefs and so the treatment was not less favourable by reason of religion. The direct discrimination claim therefore failed, as did the harassment and indirect discrimination claims, primarily on the basis that the regulations were not even engaged.

The mere existence of the judicial oath of course is not in itself an answer to an indirect discrimination claim and to the extent that the tribunal had taken the view that the judicial oath was a complete answer to that element of the claim there was an error of law. However, the tribunal had correctly held that even if there were indirect discrimination it was eminently justifiable because of the importance of upholding the judicial oath – the regulations under which the DCA made its decision were a proportionate means of achieving a legitimate aim.

A Magistrate is claiming for unfair dismissal at the employment tribunal because he was denied his request not to sit on cases involving gay adoption, with which he does not agree on religious grounds. When his request was denied he resigned, hence his claim. He lost at tribunal and is now on appeal. According to The Times Mr McClintock believed that placement with a gay couple was ‘an experiment in social science’. His argument on appeal at least appears to have been based on his ‘reasonable and responsible opinion as a scientific officer’. He said ‘In my view the best interests of a chlid are best served by a dual-gender upbringing’. 

I’m sorry, am I missing something? We ALL have our personal views about things but isn’t it pretty fundamental that if you are involved in the legal system you leave your baggage at the door and get on with the job at hand? I don’t get to say ‘actually I don’t want to represent this client because I don’t agree with his beliefs about the role of women’ and a Judge doesn’t get to say ‘actually I’d rather not deal with this case because its a bit difficult, or a bit unpleasant’. And none of us get to say ‘you know what? I don’t much like that bit of the law, would you mind if someone else dealt with it?’

A Magistrate’s role is as a Judge of the evidence and an applier of the law. No more, no less. A Magistrate is NOT a ‘scientific officer’ even if in another part of his life he is in fact one. A Magistrate is NOT an expert. His job is to listen to the experts (the social workers, the psychiatrists, the psychologists etc) and to weigh up their evidence – including that of the risks of a particular course of action – and THEN (and ONLY THEN) to make a decision about what is right for THIS child. Not what is right for ‘children’. THIS CHILD.

And – WHAT RISK is he insinuating? That a gay couple might be paedophiles? That they will teach a ‘normal’ child to be gay? Or simply that a child may be bullied because of his parents sexuality?

Mr McClintock believes in ‘dual-gender’ upbringing and yet I don’t see any reference to him asking for exemption from cases involving sole adopters (not so uncommon). If the proposition is that all children are better off with a Mummy and a Daddy, as it seems to be, the principled approach would be to refuse to deal also with those cases. And so it becomes apparent how slippery a slope this really is.

Its not so much the religious belief which irks, but rather the fact that the Magistrate has applied his religious (sorry ‘scientific’) views to ALL children without giving them the right to a fair trial of all the evidence before deciding something very fundamental about their life. It is fundamental to the justice system that decisions are more than just value judgments based on generalisations (a child is best with his Mother, two parents are better than one, bangladeshi women are often beaten by their husbands, the fathers are always the instigators of the violence….etc) – all lawyers learn from bitter experience that what you think is a foregone conclusion is not always so. And to suggest that questions of this importance do not merit consideration on a case by case basis demonstrates a failure to understand the purpose of a trial – it is the process by which a decision is reached and NOT a charade which has to be played out before a generic answer is applied.

It seems to me that this Magistrate has so misunderstood his role that he has failed to see that his job is not to do what he thinks is morally right, but to listen to and weigh up the evidence and apply the law. 

The point is – this Magistrate would want (if he could) to rule out all gay adopters for all children without considering the evidence of this child or these adopters. Instead he takes the option of refusing to apply the law. Every child deserves the chance to have the people making decisions about her life to consider all of the options to ensure that her new family is the best one for her. Any Magistrate who would discount an individual who might just be the best Daddy in the world for this vulnerable child without listening to the evidence should not be hearing family cases at all.

If this Magistrate were to have been permitted to continue sitting on ‘straight-only’ adoption cases would that be OK? You only have to ask yourself the question of whether you would be comfortable having him make a decision between a dual-gender placement or a return to a single gay parent and you probably have your answer.