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.

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 .

1 comment:

cristina said...

In Camilla Cavendish's defence she has some accuracy on her side when she says that children have no voice. It is open to question whether children really do have a voice and whether they have adequate representation. It is not enough to say that they have social workers and guardians. The experience my children have had being represented in court proceedings has been entirely negative. Guardians are often lacking proper expertise, background research, in-depth knowledge of emotional abuse. Very often they are not of the same intellectual calibre as other professionals, judges, lawyers, etc and lack the wherewithal to really fight a child's corner. There is also a conveyor belt approach which fails to address the needs of individual children. My own experiences and those of my children led me to write "Cinders v Charming," which includes an account of how and why children can be denied a voice in legal processes.