About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Wednesday, 30 July 2008

News roundup

A quarter of the 36 serious case reviews received by Ofsted since April 2007 were inadequate, according to the
third joint chief inspectors' report into safeguarding children in England
, which measured performance from 2005-8.

Cardiff Law School are inviting legal practitioners and members of the public to complete a questionnaire about enforcing and controlling post-separation contact.

Comunity Care's has
analysed Cafcass's performance
in light of the publication of its annual report.

People who kill their partners after years of abuse would be able to use a new defence that they had acted in response to extreme "words and conduct", under government plans to change the law on murder as reported in the Guardian and see the paper's earlier coverage .

Divorce and separation are blighting the lives of millions of older people, a Labour think-tank said yesterday. It found that isolation among the elderly has been made worse by increasing numbers of couples breaking up. A report from the Institute for Public Policy Research said that the rising number of the aged and the tendency of women to outlive their husbands is also contributing to depression and unhappiness (reports the
Mail .

Social services failed to recognise the risk posed by a mentally ill woman who killed her two children after being allowed unsupervised access, an inquiry has found. Vivian Gamor was acting increasingly strangely towards her children before she bludgeoned 10-year-old Antoine with a claw hammer and suffocated daughter Kenniece, three, with cling film in January last year, reports the
Telegraph .

The Guardian carried an editorial on fee increases and care proceedings on Monday July 28th.

Hillingdon Borough Council in London, Leeds City Council, Liverpool City Council and Norfolk County Council have jointly lodged judicial review proceedings against the Government over the increase in child care proceedings fee.

Encouraging results from the Family Interventions Project Pilots according to this Community Care story . The complete evaluation is here as a pdf .

Tuesday, 29 July 2008

Blog Round up

John Bolch's excellent Family Lore sets the standard as usual with a selection of fab posts on murder law, spousal retribution, a podcast on children law, a podcast on divorce, pre-nuptial agreements and his take on the Camilla Cavendish articles. It's all I can do to keep up with his breadth of coverage and incisive comment. And what a blogroll.

Diane Benussi of Benussi Blog applies her discreet mind to the summer holidays, how not to get divorced, avoiding the credit crunch fallout & the work-life balance (but she still has no decent blogroll!).

Sophia Cannon's Child Lawyer >
is back briefly with a mention of pregnancy & depression. Also no blogroll - shame on you!

Divorce Solicitor is alive and well and blogs about forcing fathers to be named, the new domestic violence law & falling out of love. A links section low down the page but no mention of certain key blogs!!!

Judith's Divorce Blog covers Mr Dean's website, cohabitation law & the Dunmow Flitch! And a blogroll!

Laws of Love is tempted back to the blogosphere to comment on Re B, a case dear to my heart. All you need to know in a nutshell. And a top blogroll. (you may detect a theme and a bias re the blogroll thing and you may be right).

Marilyn 'the Barracuda' Stowe blogs about herself (Note to self: adopt tag line Jacqui the goldfish gilliatt or maybe not?). At least no one would ever accuse me of looking like Edwina Currie. Ann Widdecombe maybe - looking like, no other resemblance. Blogroll to be proud of! (Another thought to self: why do barracudas need blogroll? - maybe I should stop having these thoughts or seek treatment)

And last but by no means least Pink Tape who shares her thoughts on McKenzie friends, her jogging efforts (not that I am boasting but I did 10 k in a snap the other week and am running 10 miles for Voice with a bunch of people from 4 Brick Court on 26th October) & Mr Dean's website. And what a great blogroll!!!

The theme in case you haven't guessed it: blogs like families need a support network! Or people will think their authors are sad and lonely. And that is so far from the truth it is er ... not true.

The hidden untouchables: part 2

A small but powerful group of radiologists believe that certain types of greenstick fracture indicate abuse asserts Camilla Cavendish in the Times: I have not come across this phenomenon in relation to greenstick fractures (again I promise to research this more thoroughly and would be very grateful for feedback from anyone who knows different) although I am aware of it in relation to certain metaphsyeal fractures and rib fractures (particularly posterior in babies), for example. Greenstick fractures are almost exclusive to children. It may be that what the body of opinion believes is that greenstick fractures in babies ie non-mobile children or of a particular bony site (eg the femur) are usually NAI. If there is evidence to support a checklist approach being taken with little valid data to support it then it should be something that is raised with the relevant medical body. I have certainly seen this happen with regard to scalding injuries and certain bony injuries and with points being taken such as any delay in seeking medical attention is indicative of abuse.

One serious difficulty in this is area is that whilst unusual events do happen (see Plunkett / Geddes research) with some injuries the most likely ie more likely than not explanation is always going to be NAI and it can feel like it is then down to the parent to disprove NAI (Charles J is alive to just this point in the recent case of an alleged shaking injury where he rejected the expert evidence). In other words the medical experts assume, for example, that posterior rib fractures in babies are the result of NAI in say 80% of cases. They generally only accept an accidental explanation in the remaining 20% where there is an incident described which could account for the injury coupled with a level of distress being displayed by the child. Firstly, this presupposes that the statistics are accurate (and how much is known about how many children suffer rib fractures (when it depends on incident, presentation to hospital and bony imaging). It is often said that if minor incidents (eg older child throwing toy or stamping on younger child) caused serious injury A & E wards would see them all the time: but they do not necessarily carry out the investigations which would establish whether these injuries do in fact occur with rather less force involved. Secondly, even if a child has been injured by one carer, the other carer may only know that the child is distressed by something. It could be teething, colic, injection reaction, unsettled by environmental change etc. Experts are certainly quick to exonerate other medical professionals who do not spot serious injury (I have experience of a handful of cases where a femur fracture was not observed by a GP, physiotherapist (manipulating just that area) or health visitor (who had removed a nappy). Distress may be obvious but not the cause. A further operating assumption is as to the level of pain being suffered by the pre-verbal child (who may be being treated for some other presenting complaint by the administration of Calpol) and we can really only guess from the pain thresholds of adults and children who can articulate their pain how much complaining about pain would be normal. Often it is said that the child would have screamed the place down for several minutes to half an hour and then been constantly upset on handling in the affected area. Yet, as I have said, I have known a case in which a physiotherapist was manipulating a child's leg at a time when it had suffered a hip fracture, but this was not obvious from the child's reaction.

I absolutely agree that these issues need to be the subject of research and informed discussion. In order to achieve that there needs to be the right forum, maybe a panel of medical & other experts such as have produced numerous RCPCH publications. Case studies need to be made available to such groupings so that the underpinning scientific assumptions can be challenged. Disclosure for research is already provided for by the FPR: no doubt it could be strengthened. But what is really needed, I would argue, is a comprehensive programme of research which is properly funded and representatively scrutinised. I would particularly welcome some input from a philosophical type discipline as to how to assess fairly the possibility / probability of something being a cause when in the majority of cases it is not the cause. Do you get me?

Monday, 28 July 2008

The hidden untouchables: part 1

In Family courts: the hidden untouchables the Times continued its series by Camilla Cavendish about the family justice system. In this piece she talks principally about the lack of accountability within the system. She cites Munby J on EPOs as evidence of this. I take the point entirely that this case revealed a catalogue of errors which the system at first instance did not handle well. However, I would argue that the very fact of its ventilation before Munby J and the publication of the judgment provides precisely the sort of accountability she advocates. EPOS generally, and this one in particular, come up at the very last minute. What realistic chance would there have been that the press would have been available to report this story and able to understand (given that there was no evidence filed and this was part of the problem) from the oral evidence given, that there was a miscarriage of justice in the making?

She goes on to consider the other ways in which accountability is inhibited. First, she makes a good point about the lack of councillor regulation. This has always been a grey area and the light of democracy is perhaps not sufficiently shone on it by the amendment to the rules (FPR r 10(20A) allowing a party to disclose to an elected representative or peer the text or summary of the judgment for the purpose of enabling them to give advice, investigate a complaint or raise a question of policy or procedure. The judgment itself and alone, particularly in the case of justices' reasons, is not necessarily going to reveal the problem. I can also see that councillors & MPs are inhibited in raising questions of policy by the constant hiding behind 'data not centrally held'. It would be refreshing and informative if there were a co-ordinated research programme aimed at investigating the concerns raised by those who argue that there have been miscarriages of justice. I do not subscribe to the conspiracy theory that there are still vast numbers of unfounded allegations of MBSP but without information about how many cases in which it is raised I can only fight anecdotal fire with anecdotal fire. If at least one Judge had cast doubt on its very existence and numerous experts have written articles about the need for a clear analysis of the facts before reaching conclusions that a concern of fabricated illness is well founded it might be sensible to look into it.

I also agree with her concern that it is no easy business for parents to complain about local authorities. I think she is right that it takes a courageous parent to complain in the middle of care proceedings about the conduct of the social worker whose evidence to the court may well recommend the removal of children from the parents' care. I usually recommend that my clients wait until after the court case, even if I think they have a valid complaint about something. I do not find that it is a problem getting permission to release documents for the purpose of a complaint (the rules only say you cannot disclose documents without the permission of the court): rather that the chain of people to whom the complaint should be addressed usually involves the very people who are the subject of the complaint and that for understandable if not necessarily entirely valid reasons the response is often that the complaint cannot be investigated whilst proceedings are ongoing. I suspect she is right that many parents are not aware of the role of the General Social Care Council and I must admit to being fairly ignorant myself. A gap I will plug and blog about both here and on Bloodyrelations .

I will continue commenting on this article in a separate post.

Thursday, 24 July 2008

Camilla Cavendish continued

Taking just a few examples from the lead piece by Camilla Cavendish may show why there is understandable resistance to her clarion call for open access by the media.

She asserts in relation to a Court of Appeal decision: 'we know of that blunder only because the judge involved chose to make his judgment public'. Almost all decisions of the Court of Appeal are reported and most of them are on Family Law Week and freely available.

She talks of parents being refused documents by social workers and hospitals. It is now clear from the case law that parents and their representatives are entitled to documents from social work records and hospitals: R (Care: Disclosure: Nature of Proceedings), Re [2002] 1 FLR 755, FD (Charles J) and Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730 (Munby J). Both Judges emphasised the need for local authorities to disclose documents on a much more willing and extensive basis. Re L in particular sets out detailed guidance on the records which should be kept (of all relevant conversations or meetings between professionals, experts & family members etc) and documents which ought to be routinely disclosed, those which should be exhibited to social work statements (notes of relevant meetings, conversations or incidents) and the responsibility of the local authority for identifying documents and disclosing them. Munby J held that contact recordings, attendance notes of meetings and conversations and minutes of case conferences, core group meetings etc should be routinely disclosed or any objection to disclosure should be notified to the other parties at a very early stage.

In practice, copies of relevant documents are routinely circulated and filed with the court. Sometimes there is a small delay because of an ongoing police investigation. Some local authorities are more readily forthcoming with documents than others but the court can make orders for documents to be disclosed if the local authority is being difficult. In addition, Guardians are entitled to and do inspect the files in every case and are under a duty to tell the other parties if they discover on them any materials which might help the parents. In fact, in my experience, seeking too much disclosure from local authority files rarely does the parents any favours as it often reveals a whole lot more that goes against them. However, also in my experience, I have never been refused a request for documents to be disclosed.

There are a number of assertions she makes about care proceedings where it is right to acknowledge there is little hard data in the public domain. I can only go by my own experience as a family barrister with over 16 years' experience and those of my colleagues when I say that where she starts a sentence with many, for example, 'many [parents] had never been known to social services before' this does not accord with my experience. I would accept that this is most likely to be true in a case involving allegations of non-accidental injury. I would also support any call for more research into the nature of care proceedings.

She talks about Munchausen's syndrome by proxy cropping up too often in her conversations. First of all, she would do well to note the views of Mr Justice Ryder on this subject in A County Council etc [2005]: "For my part, I would consign the label MSBP to the history books and however useful FII may apparently be to the child protection practitioner I would caution against its use other than as a factual description of a series of incidents or behaviours. . .and then only in the hands of the paediatrician or psychiatrist/psychologist.. . ". Secondly, again from my experience, allegations of any such series of incidents and behaviours are and, indeed, always were, rare, albeit rather too much in vogue and insufficiently carefully analysed at one particular point.

Straight after this reference to Munchausen's she reports seeking information from various government departments. I appreciate that she should be allowed some artistic licence in conveying the not uncommon experience of being passed from government pillar to government post. But the Home Office has had precious little to do with running the family courts for some time, the Lord Chancellor's Department is now the Department for Constitutional Affairs & the Education Department's current incarnation the Department for Children, Schools & Families has only recently had primary responsibility for policy in this area.

She goes on to complain about the inability to report anything which might identify the child, asserting that this means that what can be written is thin. Here I have more sympathy in that it must be a very difficult point of interpretation as to what might lead to identification of a child when as she says the most pertinent facts are often very distinctive. I also take the point that the Unfortunately she almost immediately undermines her own argument in the same breath by complaining about not being able to publish humanising photographs of the sort that she says helped to secure the freedom of Angela Cannings & Sally Clarke with perhaps little thought of the impact on Angela's child of the photographs being plastered all over the papers. She sets up the contrast with publication of photos of children in adoption magazines. Access to these is very severely restricted to prospective adopters, although i take the point that the photographs are published because of their humanising effect. However, if what she wants to have us believe is that the media should be allowed to shine the torch on the iniquities of family courts by analysing the evidence, there is hardly a need for photographs.

A miscellany of points

Worse their children had no voice: children are represented by Guardians and solicitors

As soon as a care order is made the local authority controls all communication between parents and children: the court has power to make contact orders both before and after care orders are made and even when adoption orders are made, the independent reviewing officer oversees the implementation of the care plan

The [Children Act 1989] clearly states that there should be "minimum intervention in family life": actually no it doesn't, it says the court should not make an order unless to do so etc and this, the case law and the effect of the Human Rights Act is that this is a principle the courts recognise

The Government has been unable to give me a single example of a refusal [of a care application]: a) why should the Government be able to do this and who did she ask (the Home Office perhaps?) and b) I could give her several although it is right to say that the majority of care applications are granted

Parents are not always informed that an order is being sought: actually strictly speaking this is sometimes true in respect of emergency protection orders of which there are some 700 applications a year but not true in respect of any other order including care orders. However, they are more often informed than not and see the remarks of the judges in the EPO cases quoted in my article .

Monday, 21 July 2008

Divorce settlements and the credit crunch: The US perspective

Following a piece last week on the effect of the credit crunch on divorce settlements in the UK, I found a report in the New Statesman on the impact that is being felt in the USA.

The story quotes a court official from Miami-Dade County who states that divorces are down 18 per cent on the same period as last year; a figure which is apparently reflected elsewhere. According to a magistrate from the county, the cause is that there is not "much point in forcing a sale and splitting the negative equity."

However in New York divorces are higher than at any time since 1980. and the report cites a story of a financial trader whose fortune has declined from $20m to $8m. He claims he has been forced to borrow heavily to keep up with his wife's spending or risk divorce once she found out that he is worth much less.

Friday, 11 July 2008

Divorce settlements and the credit crunch

A short story in The Herald, the Glasgow Newspaper, hints that the credit crunch is affecting settlements in divorce cases. The story quotes Alan Susskind, a partner Ross Harper solicitors, as saying that, with finance in short supply, people are more likely to stay together longer. That view was supported by Marilyn Stowe.

The full story is available on The Herald website.

Wednesday, 9 July 2008

Camilla Cavendish

With The secret state that steals our children Camilla Cavendish of the Times launched a series of articles on the family justice system in the Times. The very title rather gives the game away that this is not going to be an objective or analytical piece. On the one hand the lack of knowledge displayed in the article about care proceedings might itself be an argument for greater access to the family courts. On the other hand the inaccurate reporting of matters which are in the public domain hardly inspires confidence in the accuracy of any reporting by her of actual court cases. She starts off with a description of a mother whose child has ended up in the care of her father whom mother believed was a sexual abuser. She asserts that the case (which ended up as a care case) started off as many do as a custody battle. In my experience, the vast majority of care proceedings do not start in this way although there are, of course, care cases which do and care cases where they have previously been private law proceedings. In talking of the particular case she comments on a psychologist who commented on the video interview of the child, concluding that the child had been coached by the mother. He had never met the mother, never appeared in court and who was not cross-examined by mother's representative. I do appreciate that Ms Cavendish is limited in what she can report and probably has only been told one side of the story. However, she does not even seem to consider the obvious possibilities. It might be true that the mother coached the child. There might have been other evidence to support this than the mere opinion of the psychologist. It might have been a bit more subtle than that. The mother may have jumped to conclusions. Even if she did not coach the child or jump to conclusions, it might not be true that the child was abused. The child might be lying or confused or upset with the father or have got the idea off television or a friend or all of the above. If there was no other evidence than the comments made by the child, it may have been very difficult for the court to make a finding on the balance of probabilities that the child had been abused. There may have been a good reason why the psychologist was not cross-examined. I accept that I am speculating. So is Camilla Cavendish. The difference is that she seems to accept the tales she is told by parents without any degree of respectful uncertainty. If one looks at this story with the eyes of the accused father it might be just as easy to get outraged on his behalf if he were to be found to have abused a child on the basis of inadequate evidence. In subsequent posts I will make more detailed comments about the particular issues she raises.

At the end of the series she makes some perfectly sensible suggestions for improvements in the system. Unfortunately even these suggestions are predicated on some inaccurate assumptions about what happens at the moment. Her first call is for open access to the courts by the media. The Times has recently succeeded in persuading the Court of Appeal in Medway v G to lift media restrictions in a particular case about which Camilla Cavendish has written. A great deal about the court's view of the actions of the local authority in that case can be deduced from the fact that there is not one word of criticism of the actions of the lower courts or the local authority in relation to the care proceedings whereas the account of Ms Cavendish is described as 'highly partisan'.

Tuesday, 8 July 2008

News Roundup

The Times reports on the BAAF initiative to urge social workers to approach ethnic adoptions flexibly. BAAF itself have just held a conference on the topic of the placement of black ethnic minority children.

DJ Crichton speaks out against the fee increases for care proceedings & Law in Action covered the same theme as does Community Care .

Eastenders is to feature a child abuse story line according to the Guardian .

Community Care reports on the ruling of the ombudsman that Essex County Council should pay compensation for its failure to offer proper financial support to a step-grandparent who became the primary carer for her step-grandchild.

Concern is also raised in Community Care about the adequacy of financial support to special guardians, particularly former foster carers.

The Open University & the Family & Parenting Institute held a joint conference on modern motherhood following on some major research carried out by the OU - the research can be downloaded from this OU website and Yvonne Roberts comments in the Guardian on the absence of policies to support mothers.

Thursday, 3 July 2008

Running away from it all ...

And while you've got your hand in your pocket (and before the pay cut starts to hurt) a few of us from 4 Brick Court chambers are running in the British 10k on Sunday 5th July. Our chosen charity this year is the
Neurofibromatosis Association
. Neurofibromatosis is one of our most common genetic disorders, affecting 1 in every 2,500 people worldwide including 25,000 in this country alone. It can affect any family, with no previous history of neurofibromatosis, through new gene mutation. As yet there is no cure.

We have a Just Giving page to make it easy for you to inundate us with financial encouragement.

An Unkind Cut: news from the NLJ

The /NLJ / New Law Directories carries this story about fees for family barristers:

Uproar over plans to cut family barristers’ fees

Government plans to slash the fees of publicly funded family barristers by £13m has drawn furious criticism from the Bar.

The proposed cuts are outlined in a newly published Ministry of Justice consultation paper—Reforming the Legal Aid Family Barrister Fee Scheme. The government says the reforms will narrow the gap between legal aid fees paid to barristers and solicitors for doing similar advocacy work.

Lucy Theis QC, chair of the Family Law Bar Association, says the proposed family graduated fee scheme will deny those going through the court system the expertise they have the right to expect.

“These are the very people with most to lose and the very people for which legal aid was originally devised to protect. The Legal Services Commission risks undermining the system which it has the duty to administer,” she says.

She says the proposed cuts will make it financially unsustainable for experienced family barristers to continue to do this work and potential new entrants to the family law field will be deterred.

“This haemorrhage of talent and experience will be at the expense of the most vulnerable in society. This haemorrhage will be made worse if the government seeks to implement ill-conceived plans to drive costs down further by the introduction of a single fee and competitive tendering,” she adds.

Julia Beer, chair of the Young Barristers’ Committee says the cuts could drive young barristers away from child protection work. She says: “The impact of further cuts on those junior practitioners already at the publicly funded Bar and servicing high levels of student debt will be extremely damaging. When it is considering its short term budgetary targets the government must stop and properly consider the long term consequences and the damage which will be done to the public’s access to justice.”

If fees continue to be eroded, she says, it will be financially unsustainable for even the most publicly spirited graduate to be called to the Bar with a view to undertaking publicly-funded work.

“The unavoidable consequence will be that quality will be driven out of the publicly-funded justice system—the ultimate losers will be the public who in the long term will be denied access to quality representation.”

Justice minister, Lord Hunt, says: “Currently barristers are paid more than solicitors for the same work in family law. We want a fairer system where all lawyers are paid the same, regardless of whether the advocate has a background as a solicitor or barrister.” He says increases in costs for family law barristers—from £74m to nearly £100m in the last five years— pose a serious threat to other areas of family legal aid.

The consultation paper is here on the MOJ website.

You can sign up for weekly law news emails from the NLJ here

Biking for Children in Care

Apologies for the lack of posts recently - last week I was mostly on a bicycle in Belgium! This is my third year riding with
Biking for Children in Care
to raise money for the
Who Cares Trust . This year 50 of us cycled 218 miles in a circle from Lille to Brussels including a quick sprint through Holland. Last year we cycled the Trans Pennine Trail (and it mostly rained) and we raised over £40,000 for the trust and we are hoping for similar results this year. The ride is mainly organised by the amazing Gill Timmis, a Children's Guardian & Independent Social Worker, who enrols a whole raft of amazing people to cycle, feed us & pick us up when we fall off. You can donate to the Who Cares Trust through Just Giving or send a cheque to me in my chambers ( 4 Brick Court) (made payable to Biking for Kids in Care) if you feel so inclined. Pictures of us in our natty t-shirts will be appearing on the Biking for Children in Care website soon - in the meantime you can have a look at last year's wet t-shirt competition.