I have not had the chance to fully read this judgment, but this case appears to be an astonishing rebuke to CAFCASS’ bureaucratic, authoritarian managerial approach, and firmly reminds them of the need to allow Guardian’s to exercise their independent judgment without fetter.

Jordan’s Family Law summary here.

Judgment on BAILII here.

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In another Times piece about social work ‘gone wrong’, it is reported that social workers tried to remove a child from his parents because of their vegan diet. I can’t really make sense of this report, because it appears to suggest that the parents had their public funding withdrawn on merits grounds, but public funding in care proceedings is not merits tested. I think that the answer is that the parents were pursuing some kind of Judicial Review against the Local Authority, which would be merits tested but they would have been entitled to legal representation as of right in relation to the main proceedings where the removal of their children was in issue.

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.

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

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

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

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

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Although it is plain that if the article is accurate there may be some real questions about the manner of removal by Haringey and probably about the effectiveness of the vetting process for the adoptive parents, the stringing together of all the various issues raised in the headline for this piece as if they were somehow directly causally related to one another and that they were directly carried out or sanctioned by Ms Shoesmith was potentially misleading and sloppy.

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Whatever Haringey, and Ms Shoesmith in particular, may have to answer for – this article was media frenzy at it’s worst. Failures in the care system ought to be reported but they must be reported objectively and sensitively and without being driven by the desire to scapegoat and ratchet-up already highly charged issues for the sake of a headline. I’d like to know what caused things to go wrong in the case concerned, but this article did not help me form a sensible view about it.

As yesterday’s OFSTED report apparently tells us (I say apparently because I haven’t had time to read it, and because frankly it’s not news to me) this kind of tragedy is going on all over the country. Sadly many kids are killed by their carers, and no doubt sometimes this could have been prevented. But as the slathering media machine churns on and on  I am beginning to feel a little bit like the gawping at the spectacle of Baby P is not only unhealthy in itself but a little bit disrespectful to all those other forgotten babies and children. I’m afraid what is being reported as ‘shocking’ to many of us is probably ‘normal’ for many many unhappy children.