I think I got out of the wrong side of bed. I had better go back to it before I get proper mardy.

Greasy Dial courtesy of country_boy_shane on flickr

I have a mental picture of the family justice system like some kind of Wonka-esque intricate pressurised system of pipes and valves. You can shut off a particular release valve, but at some point the pipes begin to clank and steam will escape from the weakest point in the system with a shrill whistle. You need to constantly readjust the system, and release the pressure in a managed way in order to stop the whole thing from overheating or going kaput. It’s not a very good analogy, but that’s why I’m a lawyer and not a novelist. And since in the world of family justice we are coming to terms with the barely functional it will do.

It is easy to say that parents who are in dispute about their children should not benefit from legal aid to help them perpetuate those harmful conflicts. But whilst I frequently have to refrain from banging my client’s head together with that of his/her ex out of sheer frustration for how pathetically lacking in perspective they are, I know from experience that by and large the parents caught up in these disputes are confident that they are doing the right thing, even if most reasonably objective observers would be horrified. To say that we should leave these people to get on with their petty disputes without wasting public funds on them is to fail to properly think through the consequences of that withdrawal. Withdrawing support and advice does not create insight, does not lift the fog of emotion and hurt, does not enhance the ability to make sensible decisions. People who behave like idiots in court are unlikely to behave immaculately out of it. People who struggle to accept sensible advice are unlikely to behave sensibly in the absence of any advice.

Dealing with what one might call ‘high conflict’ contact and residence disputes in a court context is not ideal. It is a process which can exacerbate the battle mentality, particularly when it is running inefficiently slowly. However for some cases it is the only realistic forum and is better than leaving the parties to take the law into their own hands. Clearly we have to work harder at encouraging mediation and other consensual mechanisms for resolving disputes, but the the type of case I am talking about here is simply not going to be made better by mediation. You can say that parties must attend mediation, but I doubt that it is realistic to suppose we could enforce that attendance. And you also can’t force parties to agree. If you want to force parties to adhere to a particular arrangement you need a court. Some cases will always need court assistance. We need to steer those cases towards sensible resolutions through legal advice, not abandon them to their own self absorption.

I can tell you now what I absolutely do NOT think will happen if legal aid is withdrawn for private law disputes: there will not be a Eureka! moment, where parents will realise how foolish it all is and go off happily co-parenting into the sunset.

What I think WILL happen to these high conflict cases is this: mediation will either not happen or it will not work. One way or another the conflict will continue, because for this type of case the whole thing is driven by grievance not by objectivity. And either the parents will have to find their way through the court process both acting in person, which they will do in a bewildered and frustrated state which will lead to poor decisions and increased conflict. Or they will simply carry on their conflict outside of any managed or moderated environment – on the phone, in the street, on facebook, in front of the children, or by withholding contact or denigrating the other parent. Or both. This is what social workers call “emotional harm” before closing their files because the children are being safeguarded through the mechanism of private law proceedings. Will Local Authorities be able to shed their duty towards children at risk of this kind of emotional harm so easily in future? One suspects not. I think that where previously they have been so used to effectively contracting out their responsibilities to the private law system, Local Authorities will increasingly have to keep a watchful eye and remain involved in order to discharge their statutory duties vis a vis emotional harm.

You may see my Wonka analogy beginning to make sense now. If the private law system fails as a safety mechanism, some other part of the system will feel the pressure. I may be wrong – the leak may spring elsewhere, Local Authorities may simply continue to turn their corporate face away and emotional harm will go unchecked until it emerges in behavioural difficulties or underperformance at school or is played out in difficulties with relationships in adult life – but you can be pretty sure that if the lid is screwed down too tightly on private law proceedings, somewhere else a gasket is eventually going to blow. and it may not just be mine.

These of course are just hypothetical musings…and perhaps they are not just premature but also crackers. Whatever the precise detail of the forthcoming spending review I predict there will be steam coming out of our collective ears by close of business on Wednesday.

Incidentally, solicitors embroiled in the tender debacle may wish to join in the debate on the ilegal fora here.

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:

*that’s 40% of a relatively small sample, but I’d hazard a guess its pretty much got the situation pegged. I’m only surprised the figure isn’t higher.

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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.