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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 Only a very few are withdrawn because the evidential hurdle of threshold cannot be met.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.

the aptly named rat snake (thanks to Cotinis on flickr)

Andrew Commins, a colleague in chambers, has written an interesting article for Family Law Week on the impact of remarriage on variation applications by the ex spouse. I particularly like the mental image described in the extract from Delaney v Delaney [1991] 2 FLR 457, CA, that the court will deprecate “any notion that a former husband and extant father may slough off the tight skin of familial responsibility and…slither into and lose himself in the greener grass on the other side...” (Delaney, at page 461E).

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Fork tongued husbands be warned…

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Its a b*tch of a document (that’s local legal jargon) and I’m still digesting it piece by piece in between hearings and nappy changes – but I will be cooking up a summary of it for you. My preliminary observation is that it is convoluted, complicated and will probably benefit only the legal profession who will be instructed to deal with all the applications prompted as we all try to work out what it all means. And in a special election double whammy it contains a whole raft of future changes which will be brought in 18 months down the line – just at the moment that everyone has worked out what the law is. I can tell you that fat cats like me are rubbing our greasy little paws with glee. Or I would be if I didn’t have such a god awful headache from trying to unpick the unsightly mess that is the CSFA 2010.

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To experience the pain yourself first hand you may wish to visit the Office of Public Sector Information where you can view the Act alongside the explanatory notes, and also a helpful article in Family Law Week here (written when the Act was still a twinkle in the Queen’s eye (at Bill stage) but still helpful).

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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.

POSTSCRIPT: See this extract from Hansard for no explanation at all regarding the delay in the announcement (hat tip to Brick, whose comment on the previous post I have only just noticed)

Although I have taken some time to post this since the story first broke I can find no fresher information than the Times report linked to above, so I assume there is no further announcement as yet.  Cutting it a bit fine eh?

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I’m a little puzzled by this article by Martin Evans at The Telegraph, entitled ‘Lesbian Mother Appeals Court Decision After Daughter Removed’. Having seen this re-tweeted on twitter (thanks @johnbolch), I was expecting (reasonably I thought) that the subject of the appeal might relate to how same sex relationships are correctly to be treated by the family courts, that one of the grounds might raise some discrimination point etc – and so I clicked through. So naive…In fact the reference to the sexuality of the Appellant appears to be 100% gratuitous because there is absolutely no reference to the Mother’s sexuality anywhere in the article. Either that or the author has omitted to include some crucial information, because from the information provided this appears to be a relatively unremarkable appeal where the parents’ sexuality is nothing to do with anything. I despair at the state of journalism sometimes.

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But it’s an enormous and complex topic to cover in an hour, and there was an aspect of this debate that I wish had been explored more thoroughly. Much of the discussion was based on the supposed dichotomy between journalists (reputable) and bloggers (boo, hiss) and the assumption that all things bad are represented by the internet bogeyman. The Bill it seems, will remove (inadvertently perhaps?) the power of the court to permit access to persons other than ‘accredited media representatives’, which theoretically at least can presently be used to permit access to the responsible blogger without the benefit of a press card. It is of course imperative that whatever the rules permit to be heard, disclosed or published, safeguards should be in place to promote responsible reporting and minimise unbalanced coverage. But, in much the same way that many held misplaced expectations that the press would be a conduit for educating the public at large about the day to day work of the family justice system (is it really a surprise that they don’t report a range of cases across the board but select only those with the power to sell papers?), there seems to be a misplaced perception that we can or should draw some bright line between the ‘journalists’ and ‘the bloggers’.

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First: Journalists and bloggers alike publish, via their different media, information for their own purposes. They none of them serve the interests of the family justice system in educating or informing the public: although their interests may coincide from time to time they are not coterminous.

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Second: Much journalism in the so-called ‘reputable’ press is scandalously unbalanced, sloppy, and sensationalist. A good portion of it is probably in breach of the restrictions on publishing material likely to identify a child. Similarly, an enormous amount of poorly written, inappropriate, biased and frankly crackers material is published by bloggers on the internet on this topic, often by disgruntled litigants or campaigners. The worst blogs are more extreme than the worst newspaper reports, but the worst newspaper reports probably reach far many more pairs of eyes than any single truly dodgy blog. But in each category there are a number of responsible, thorough and professional writers who can be relied on to report in an appropriate way. As Joshua Rozenberg pointed out journalism is not a ‘Profession’ with a regulatory body. A press card is not necessarily a marker of good quality, and media access rules based on it draw a somewhat arbitrary line. Even Joshua Rozenberg, prize winning legal reporter, was at one point on the wrong side of that line because he was freelance and had no press card. And by way of a further example Charon QC, a notable blawger (law blogger) does have a press card.

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Third: In practice a certain category of individuals who publish via blogs or websites do not consider themselves contrained by the rules in the same way that professional journalists (and their employers) may do. They may post the detail of their own cases, photographs of their children, names, and catalogues of injustice (perceived or real), the names of experts or social workers and the contents of their reports. They either do not know that the rules apply or they do not care. And the sharing of inappropriate information on sites like facebook is now endemic. Whilst I am hugely uncomfortable about some of the material I have found publicly available on the internet, tortured rules trying to prevent what is already happening – and frankly will continue to happen – is a distraction. If there is material published on the internet that is inappropriate or contrary to the rules we should give teeth to the existing prohibitions on such publications and enforce those breaches rather than creating broad a new set of rules which will then go unheeded by the rogue bloggers just like the last set. We are in danger of throwing out the baby with the bath water, because 

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Fourth: The drive to reform in this area has multiple aims – to increase public confidence in the system by way of greater transparency and by educating the public about what happens inside the family courts. The penny seems to be dropping that newspapers aren’t going to do this job. Even Camilla Cavendish (self appointed champion of the open courts campaign) appears to have got bored reporting about family courts (nothing since 9 July) And frankly they don’t have the reach. The internet is a hotbed of debate about family law, about the court system, about CAFCASS, about social services, lawyers, judges…We can’t simply pretend this debate is not happening if we expect to increase public confidence in the system. What we ought to be doing is contributing to and informing these debates, using the internet and the blogosphere rather than consigning it to the naughty corner. If you want to reach the cynics, the confused and the disillusioned put it out there on the net. Mr Justice Coleridge cracked a joke today about lawyers not even knowing how to switch on their computers. We have got to get switched on to this and stop hiding behind our bundles.

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I’m not advocating the disclosure of court reports or documents to either bloggers or ’real’ journalists. I’m not advocating access of the public to the courts. We have a responsibility to children – and to families in general – to protect their privacy and their wellbeing (I’ve posted about this before). And I don’t profess to offer an opinion on how we do this in practice – it is a really difficult one to crack. But I do think that the lack of public confidence in our family courts is something we need urgently to tackle, and that we need to be more wide ranging and more creative in our thinking. Dr Brophy proposed that we needed to get more involved in communities. She’s right on that, but unfortunately all she could suggest was more Court Open Days, which are positive but are simply not going to have any significant impact on the scale of the problem.

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One further point. I think its unhelpful to talk about ‘PR’ as one of the panellists did today. This is not about opening up the courts in order to demonstrate that the family courts are great. It’s not just an exercise in validating ourselves as professionals. It’s about people understanding what happens and why, and of being able to get an understanding of how robust and fair the system is – but also an understanding of where and why that system falls down. I don’t think its about putting the court system in a positive light. I think it’s about being honest and about engaging in dialogue. We all know that although there is much to be proud of the system is in fact far from perfect, although this may be in different aspects or for different reasons than are perceived by the unhappy ex-litigant. To pretend the family justice system is not struggling with significant problems would be disingenuous and transparent in the wrong sense of the word.

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Following on from today’s discussion I’d like to prompt a debate amongst professionals working in the family justice system about this – lawyers, judges, social workers, court staff. Right here on this blog. And of course anyone who reads this blog is welcome to chip in.

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How should we harness the power of the internet and how can we engage meaningfully with the public through the  internet and bloggers, web fora etc? How can those of us working in the family court system help in increasing the quality, reliability and balance of the information available to those whose main source of information on this topic is the internet? How can we use the internet to enhance our own understanding of what the public think of the system and why?

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Who will start me off with a comment?