PLO: local practice

As a footnote to the post immediately below, I would be very glad to hear of any other local practice directions / plans for PLO implementation and to have a copy of them so that they can be publicised to other practitioners. I don't know why these important documents always seem to be so difficult to get hold of. It's rather difficult to follow a practice direction if you haven't seen it. I suppose it may be that it will be distributed to all parties when the application notice is served. I will try to find this out.

Public Law Outline: Initial Local Plan for London

Judge Altman, the Designated Judge for London, has issued an Initial Local Plan for London dated 10th April 2008in respect of the implementation of the Public Law Outline (which is already in force). It applies to the London Care Centre which means the PRFD & Barnet, Kingston & Croydon County Courts & is relevant also to cases transferred into those courts from the FPCs.

The guidance deals with:

• the documentation which the LA must file on application, what it is expected to file if practicable, that reasons must be given for non-filing of any required document, recognising that it is not always possible to have everything ready on issue and that proceedings should not be delayed for the preparation or collection of any document provided an explanation is given, and that the pre-proceedings aspect of the PLO may not be achievable in cases where there is urgency in getting before the court;
• the need to deal with disclosure from the police at an early stage;
• a new procedure for the renewal of interim care orders - in particular on application for renewal there is a form which the LA should complete notifyin the court whether case management directiosn have been completed or are at risk of non-completion;
• the need for the child's solicitor to monitor the progress of the case bringing any appropriate matter to the attention of the court and the other parties;
• the procedure on transfer from the FPC, including a standard direction that the instruction of experts should be considered and agreed if possible so that decisions can be made at the CMC where all parties should attend with full information about proposed experts & availability etc as well as information relevant to the listing of the IRH and final hearing, and notifying that there will be no allocation hearing on transfer - the first hearing will be the CMC which is expected to be listed within 14 - 28 days after transfer is ordered (FPC clerk to get hearing listed before transfer, the DFJ to assign the case to a Judge for the CMC);
• Advocates' meetings must take place at least 5 days before the CMC;
• PLO3 (draft template order) must be completed (on court service website in the forms & guidance - Children Act 1989 section);
• There will generally be no directions hearings between the CMC & the IRH;
• Potential alternative carers should be identified by the CMC so they can be assessed;
• Transfer to the High Court must involve consultation with Hedley J or the DFJ (again if transferred the first hearing is likely to be the CMC);
• guidance on single issue transfer;
• the need for expeditious planning of fact finding hearings to avoid delay;
• Target times for the listing of hearings - 12 weeks for a fact finding, 25 weeks for the IRH & 40 weeks for the final hearing;
• Barnet, Kingston & Croydon will not generally list the final hearing before the IRH. The PRFD will continue to list at the CMC but plans to move to listing at the IRH in time.
• Informal recordings of proceedings or judgments are not permitted in London;
• Professionals' meetings as opposed to chaired experts' meetings are not sanctioned;
• LAs should provide a genogram with the application.

At the moment this document does not appear to have been published online. If you would like a copy immediately please email me at jacqui.gilliatt@4bc.co.uk In due course it may be published online, possibly on the main website and this post will be updated and a new post published announcing its publication wherever that may be.

Assessing Risk

Last week I attended the annual London Family Justice Council’s Seminar on Risk Assessment. It was a highly informative day and attended by a wide cross section of those involved in family justice. Of particular interest was the talk given by Prof Don Grubin, Professor of Forensic Psychiatry from the University of Newcastle. In his experience the attitude in USA was very different in respect of experts where lawyers would know the area of expertise as well as the expert and would cross examine much more vigorously. Prof Grubin’s suggestion for the UK family courts was for a single court appointed expert in cases with each party being able to have an expert to advise them on the court appointed expert’s report and areas for cross examination. It was his opinion that lawyers should have a good enough understanding of expert areas to be able to cross examine effectively. When experts talk about “high risk” lawyers should be asking them what they mean by that – is it the same definition that the court is thinking of? He argued that lawyers must challenge standard stock phrases when talking about risk assessment. In particular he said he was an experienced expert and had never been asked in the UK courts (as he was routinely asked in the US) about the instruments that he had used in his risk assessments and it would be the first question that he would ask. What instruments have been used and are they valid? What is the data/evidence to back up that instrument? There are instruments being used for risk assessments which are supported by studies which don’t hold up to scrutiny.

Another interesting point which was raised was whether the use of polygraphs can help in the family courts? (see this link for a general overview). We were told that polygraphs have been used three times in the UK family courts and are 80% reliable. Would you recommend a polygraph to a parent with a success rate of 80%? This article by the Guardian examines whether polygraphs are reliable and discusses how they are being used more than we think. Professor Grubin has writen an article in the British Journal of Psychiatry on polygraphs in the testing post sex offenders. Most interesting was the evidence we were shown at the seminar from studies by Heil et al (2003) on polygraphs where questions were asked about the likelihood of re offending. The studies found that when being polygraphed people disclosed much more information voluntarily on their likely re offending behaviour than when they were not undertaking a polygraph. When convicted child molesters were asked whether they would sexually abuse relatives yes responses went from 16% when not being polygraphed to 65% when polygraphed. The speakers thought that polygraphs would be particular useful in family cases where the issues revolved around “he said, she said” types of allegations.

Dr Gillian Mezey asked the seminar for comments about what makes them chose an expert. Why do we choose X over Y? Is it reputation? Do they have a list? Is it because an expert has been on a particular course? She wanted to work with the Royal College of Psychiatrists to produce some sort of an accredited list of experts as she was concerned that experts could go on a course and call themselves an expert which would give the impression of them being more experienced than they actually were.

Taking on the Experts: Part 1

The main Family Law Week website has published an opinion piece by Dr John Fox of Lamb Building on 'Trial by Expert' . I am entirely sympathetic to his viewpoint which raises many interesting issues. I intend over the course of a few posts to deal with possible solutions to the difficulties he identifies.

Firstly, on Cafcass officers. The rules say (FPR 4.11) (4): A party may question the officer of the service or the Welsh family proceedings officer about oral or written advice tendered by him to the court. Cafcass Officers can be questioned. That means all of them, including a Children's Guardian.

You may need to ensure that the officer is available at the hearing (many courts direct that the Cafcass Officer should be available for the hearing but their actual attendance is to be confirmed at the pre-hearing review). You may also need to ensure that the Cafcass Officer is written to about the hearing dates as the notification to them by the court is not infallible.

The Cafcass Officer's evidence of opinion, including their opinion on the truthfulness of a witness, is admissible. However, this does not detract from the court's ultimate responsibility for deciding on where the truth lies. It is for the court to decide what weight to give the Officer's opinion and any evidence on which it is based. You may wish to consider asking for copies of the Cafcass Officer's notes of interviews to be produced rather than the summary which tends to make its way into the report. This is an unusual step and it is best not left to the final hearing itself.

The Cafcass Officer needs to consider the welfare checklist. This can be a good way of cross-examining. Has each relevant factor been given sufficient weight? Has some vital factor not been considered at all? What research base has the Officer relied on implicitly or explicitly (what, for example, is known about the type or quantity of contact which is beneficial for a child of any given age)?

The Cafcass Officer also needs to comply with Cafcass' own service standards & policies . This can be another line of exploration of the Officer's underlying thinking in cross-examination.

The Court of Appeal gave useful guidance on the role of the court & the Children & Family Reporter in the case of Re M (Disclosure: Children & Family Reporter) [2002] EWCA Civ 1199 .

Here are Thorpe LJ's views:

"(i) The relationship between the CFR and the judge is collaborative. Each has distinct functions and responsibilities in the discharge of which each exercises independently both judgment and discretion.

(ii) If in the course of inquiries in private law proceedings the CFR is alerted to the possible abuse of a child he should consider the following analysis:

(a) Is this either:

(i) a discovery or direct report; alternatively

(ii) is the CFR listening to an account of someone else's discovery or to a second-hand report?

(b) If the latter:

(i) Has the information been relayed to social services or the police already?

(ii) Is there a history or pattern of past complaints?

(iii) How plausible is the report?

(iv) Was the informant a party to the proceedings?

(v) If yes, has he put this statement in evidence?

(c) Would the abuse, if established, amount to significant harm or the risk of significant harm within the meaning of s 31?

(d) Is there a need for urgent action? What are the risks of delay?

(iii) The answers that this analysis elicits should help to decide the appropriate course of action. It will seldom be necessary for the CFR to relay second-hand reports to social services. Furthermore such reports are unlikely to be urgent. Accordingly there will ordinarily be no obstacle to consultation with the judge before taking any action.

(iv) The CFR should always be alert to the danger of being enmeshed in the strategy of the manipulative litigant. The independence and impartiality of the CFR are crucial and if one party perceives that the CFR has taken sides with the other the judge's ultimate task, both to promote the welfare of the child and to impress the parties with the fairness of the proceedings, is rendered more difficult.

(v) Where the CFR makes a discovery or receives a direct report an immediate report to social services or to the police may be indicated. In such a situation the CFR must exercise an unfettered independent discretion. The only rule is that he must inform the judge of the steps he has taken at the earliest convenient opportunity to enable the judge, who controls the proceedings, to consider the impact of the development and the need for consequential directions."

The italics are mine to emphasise yet another possible avenue of challenge.

Applications for leave to revoke placement orders

In Re F (A Child) [2008] EWCA Civ 439 the Court of Appeal has considered the effect of human rights on the interpretation of s 24 of the Adoption & Children Act 1989. The court declined to allow the appeal holding that a local authority had not acted unlawfully in placing a child for adoption when an application for leave to apply to revoke a placement order had been made but not yet heard by the court.

Wall LJ & Wilson LJ dismissed the appeal (Thorpe LJ dissenting) on the basis that the statutory wording was clear and unambiguous. However, they described the actions of the local authority (East Sussex County Council) in the case as a "travesty of good practice which the 2002 Act happens to permit" and "disgraceful" and "the worst I have ever encountered in a career now spanning nearly 40 years". They set out their views which have the approval of the President as to the practice to be followed by local authorities in future and suggest that those who do not observe the good practice recommended will be susceptible to judicial review.

The court recommended that those representing applicants for leave should invite local authorities to give an undertaking that they will take no steps to place (the child) with prospective adopters pending the hearing of the application & if such an undertaking is not given to apply without notice in the first instance to the county court for an order in those terms restraining placement.

Wall & Wilson LJJ concluded without hesitation that the county court has jurisdiction to grant injunctions restraining placement as a temporary, holding measure, until both sides could be before the court. The court could either then give directions for a swift hearing, or resolve the matter summarily.

Local authorities who become aware of applications for leave to apply should have reply promptly providing information as to the state of preparation of its plans and likely timescale for implementation and should themselves apply to the court, on short notice, for leave to place the child for adoption under section 24(5) of the 2002 Act.