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.

Saturday, 28 November 2009

Yes PM: I don't know why but this came to mind re Baby P

Jim: Five standard excuses?
Sir Humphrey: Yes. First there's the excuse we used for instance in the Anthony Blunt case.
Jim: Which was?
Sir Humphrey: That there is a perfectly satisfactory explanation for everything, but security forbids its disclosure. Second there is the excuse we used for comprehensive schools, that it only gone wrong because of heavy cuts in staff and budget which have stretched supervisory resources beyond the limits.
Jim: But that's not true is it?
Sir Humphrey: No, but it's a good excuse. Then there's the excuse we used for Concorde, it was a worthwhile experiment, now abandoned, but not before it had provided much valuable data and considerable employment.
Jim: But that is true isn't it? Oh no, of course it isn't.
Sir Humphrey: The fourth, there's the excuse we used for the Munich agreement. It occurred before certain important facts were known, and couldn't happen again
Jim: What important facts?
Sir Humphrey: Well, that Hitler wanted to conquer Europe.
Jim: I thought everybody knew that.
Sir Humphrey: Not the Foreign Office.
Jim: Five?
Sir Humphrey: Five, there's the Charge of the Light Brigade excuse. It was an unfortunate lapse by an individual which has now been dealt with under internal disciplinary procedures

Friday, 27 November 2009

Welsh Language Interpreters

Under the Welsh Language Act 1993 and Her Majesty’s Courts Service Welsh Language Scheme there is aright to use the Welsh language in legal proceedings in Wales. Welsh can be used at court hearings in Wales. As soon as it is known that the Welsh language is to be used at a hearing arrangements are made for Welsh language interpreters to be in court. Translation is by simultaneous translation. Her Majesty’s Courts Service has a list of approved interpreters who have attended awareness seminars that are chaired by the Liaison Judge for the Welsh Language. Her Majesty’s Courts Service is responsible for paying the interpreters fees.

Thursday, 26 November 2009

Interpreters for the D/deaf and hearing-impaired

The term “D/deaf” is used to refer to the whole range of deaf people. “Deaf” with upper case “d” denotes those who consider themselves to be linguistically and culturally deaf through use of a shared language (BSL) and culture. The word “deaf” with lower case “d” denotes those who have a hearing loss and do not use sign language.

I quote below from the court service website

Her Majesty's Courts Service will meet the reasonable costs of interpreters for deaf and hearing-impaired litigants for hearings in civil and family proceedings.

Many people have a friend or relative who usually interpret for them. If the deaf person wants such a person to interpret for them, they will need to ask for permission from the Judge. The Judge must be satisfied that the friend or relative can exactly interpret what is being said to the court and what the court is saying to the deaf person.

Unless the relative or friend has a recognised qualification in relaying information between deaf and hearing people, it may be better to use a qualified interpreter. The friend or relative may still be able to attend and provide support, but permission should be sought from the Judge first.

If an interpreter is needed, the court will make arrangements for an interpreter to attend.

I quote from the LSC guidance (pdf file) on payments for interpreters for deaf or hearing impaired clients (outside court situations).

In light of preparations for the public duty to promote disability equality to come into force in January 2007, the Commission will now bear both the ‘reasonable and unreasonable’ adjustment costs so that deaf clients are not denied access to language support where appropriately employed and where reasonable in amount.

As well as the cost of English/British Sign Language interpretation we will pay the reasonable cost of other Language Support Professionals (LSP), such as Speech to Text Reporters, Lipspeakers and DeafBlind Manual Communicators, if the engagement of such professionals is reasonable and necessary to communicate effectively with the particular disabled client. Further guidance may be developed on this.

In criminal cases the CPS advises that according to a court authority, the true record of a sign language

See Re S-A [2006] EWHC 2942 for a case in which communication by British Sign Language featured prominently.

Web Resources

The Community Legal Service has a special website with information & legal advice for those who use sign language.


National Register for Communication Professionals Working with Deaf & Deafblind People

British Deaf Association

Local authority policies: adoption, contact and care orders

I have been dealing with several cases recently in which local authority policies have created difficulties. In one case there was a local authority policy that where any child under 10 required permanent placement outside the family an adoptive placement should be sought. I have stumbled on this policy in other areas where slightly different ages - 9 being the most common. The policy was stated quite openly - in other words without even a token gesture in the direction of - there is a general rule of thumb but in an appropriate and unusual case we might take a different option. In one case it meant that the only way a foster carer could keep the youngest child of the sibling group of 3 she had successfully cared for for 3 years was to apply for special guardianship. This meant that she was immediately £600 a month worse off - there also being a policy that no remuneration element would be paid to a former foster carer even though it may be paid for up to 2 years. It also resulted in there being two children in her household the subject of care orders and one sibling only for whom she was the special guardian. It seems to me that such a policy is unlawful. Had I been involved earlier, I might have been minded to suggest a judicial review but I suspect my client would not have qualified for public funding and would not have wanted to take the local authority to court for fear of jeopardising her good working relationship with them and their support for her application. Nor did she want the mother to think that her offer to care for the child permanently was motivated by money. It is a particularly inapt policy where sibling groups are concerned and I cannot see that it can be justified as child centred. In another sibling group case, adoption was favoured by the local authority and evidence was given to the effect that it was a breach of the children's human rights and discriminatory not to seek an adoptive placement. This case involved children who on the local authority's own evidence would be extremely difficult to place given their ages and special needs & the likely need for face to face contact. Adopters for them would not only have to be approved for 3 children with special needs it was obvious they would also have to be wealthy and extremely well organised and able to meet the children's needs without any back up from the local authority. In that case the Child & Adolescent Psychiatrist had reported to the effect that the primary need of all 3 children was to be placed together and to be able to have face to face contact. In his oral evidence he referred to research which showed that with sibling groups of a particular age there was a wafer of difference between the placement success rates.

Another policy I ran into was in relation to contact between the birth family & the child subject of a special guardianship order and I have met it before in relation to contact to children in long-term foster care. Supervised contact is only supported twice a year. Again, I cannot see how this one size can possibly fit all sizes. In the same case mentioned above the Independent Reviewing Officer clearly recommended contact once a month to all 3 children but still the local authority were only able to offer to supervise this twice a year and it was fortunate that there was a care order in place for the other 2 children so that the contact which was thought to be in the children's interests could take place.

And finally - an old favourite - we cannot support a care order with children remaining at home. This one is at least usually said not to be an inflexible policy and I can much more easily understand the professional discomfort with it. If concerns are so serious that a care order is justified then it is difficult to see how the local authority can adequately protect the children without removing them. Obvious exceptions might arise - where family members need the ongoing support of the local authority to manage contact arrangements (particularly where the other policy of supporting contact only twice a year is also operating!).

Are there any more policies which drive family practitioners round the bend?

Wednesday, 25 November 2009

It's Just Not Cricket: Better than Average Parenting?

Interpreters in the courtroom

There are estimated to be 3 million people who live in the UK but were born in non-English speaking countries. The use of interpreters is understandably therefore becoming more common particularly in metropolitan areas. I have seen one estimate that the court service as a whole spends about £7m on interpreters annually.

Whereas there is specific reference in Article 6 to the right to a free interpreter when facing a criminal trial, there is no such absolute requirement enshrined in the ECHR in relation to civil cases. Even with regard to a criminal case, this does not necessarily extend to a right to have documents translated. However, it is difficult to see how a family hearing could be described as fair if someone who needed an interpreter did not have one. In a recent case of Kearns v France the ECHR ruled that there was no breach of Article 8 where a consent to adoption form had not been translated from French but this was in circumstances where the Irish mother (who had gone to France to give birth to take advantage of the possiblity of the birth being registered anonymously, which it could not be in Ireland) had had previous and lengthy discussions assisted by a lawyer and an interpreter and therefore it could not be said that she had not understood what she was doing and the consequences.

I quote from the court service website about foreign language interpreters.

Court staff will also arrange for language interpreters needed for civil and family hearings in certain circumstances where cases involve:

Committal cases

Her Majesty's Courts Service has a legal obligation under the Human Rights Act to provide language interpreters. They will ensure that anyone attending a committal case, has the free assistance of an interpreter if he/she cannot understand or speak the language used in court.

Domestic Violence and cases involving Children

Because of the sensitivity of these cases, Her Majesty's Courts Service will provide an interpreter if required. This is irrespective of whether solicitors are involved or public funding is available.

Non-committal cases

Her Majesty's Courts Service will provide an interpreter if that is the only way that a litigant can take part in a hearing. The relevant circumstances are:

Where the person:

  1. Cannot speak or understand the language of the court well enough to take part in the hearing.
  2. Cannot get public funding.
  3. Cannot afford to privately fund an interpreter, and has no family member, or friend, who can attend to interpret for them and who is acceptable to the court.

If the case is publicly funded, Community Legal Service funding may be available. If the case is privately funded parties have to supply their own interpreters.

All Courts

For foreign language interpreters in any court proceedings HMCS arranges and pays for interpreters in accordance with a standard set of terms and conditions (pdf file) which include minimum daily payment rates (£85 on a weekday, £110 at weekends and bank holidays) - applies qualification criteria from national agreement

The LSC encourage the use of interpreters who are on the National Register of Public Service - Interpreters Access to the register requires a subscription. Payment for interpreters is an allowable disbursement for licensed & controlled work according to funding code decision making guidance (at 3C 009 para 4a).

There is a good summary of interpreter qualifications in the national agreement for use of interpreters in criminal justice system . This also has a useful summary of other sources of interpreters if fully qualified interpreters not available including links to the professional bodies representing specific types of interpreters eg lipspeakers & information about sources of translators.

The National Register of Public Service Interpreters has approved a booklet full of good advice about working with interpreters.

Some practice points:

* If possible use a member of NRPSI or National Registers of Communication Professionals Working with Deaf and Deafblind People

* Avoid using an interpreter who has been involved in any police investigation (although sometimes this will be unavoidable because a very rare language is involved)

* It may be possible for 1 interpreter to interpret for more than 1 person in relation to what goes on in court but this will not normally be appropriate during any confidential discussions such as when taking instructions.

* Consider if one interpreter can manage the whole of a case - especially if sign language interpreter is being used

* Most of the codes of conduct for interpreters specifically request them to provide assistance with cultural issues particularly where relevant to interpretation and require interpreters to interrupt if they feel that there has been a misunderstanding of a linguistic or cultural nature.

* Ask your interpreter whether they will be interpreting simultaneously. The NRPSI booklet recommends that you help the interpreter by signalling as you move to a new topic and bear in mind that some languages involve the use of a lot of words to translate one word in English. Make sure that the interpreter is able to keep up and slow down if necessary. Take particular care when you are quoting from documents when your natural tendency is to speak more quickly than normal.

* If using an interpreter for a deaf client who is also a speaker of a foreign language or very rare language it may be necessary to use 2 interpreters - to interpret into 3rd language and then back into English or interpret into foreign language and then sign.

* ‘Facilitated communication’ (a technique used to assist profoundly disabled individuals to communicate) should not be used to provide evidence in support of allegations of abuse or to make diagnostic or treatment decisions (Re D (Evidence: Facilitated Communication) [2001] 1 FLR 148.

For some reason there is much more guidance on use and behaviour of interpreters in criminal cases through the national agreement.

The interpreter's oath is as follows:

I swear by Almighty God that I will well and faithfully interpret and make true explanation of all such matters and things as shall be required of me according to the best of my skill and understanding.

I have always thought that the ability to get through this oath is some kind of an English proficiency test in itself!

Other useful resources

The Association of Police & Court Interpreters publishes a code of practice and has a directory.

Institute of Translation & Interpreting

National Union of Professional Interpreters & Translators (NUPIT) (part of Amicus)

Thursday, 19 November 2009

Jack Straw Announces Further Reform to Family Courts

Jack Straw has announced further reform to the Family Courts System, by way of greater openness. The changes are contained in a draft bill and will permit much wider reporting of proceedings, on the proviso that anonymity will be maintained. It will be interesting to see how that works in practice. The Press Release can be found here on the Ministry of Justice website.

Monday, 9 November 2009

5 Outcomes : 1 Checklist

Increasingly frequently court reports from Local Authority social workers (and less often CAFCASS) are placing significant weight on the '5 outcomes' set out in Every Child Matters. They are:
  • be healthy
  • stay safe
  • enjoy and achieve
  • make a positive contribution
  • achieve economic well-being
Whilst these are noble aims and ones which one would hope arrangements sanctioned by the courts would meet, I have seen one too many reports where these five outcomes have distracted reporters from the task at hand when preparing a s7 or other report: to make recommendations to the court on the basis of the law, rather than government policy.

In fact the welfare checklist is a rather more sophisticated and subtle tool than the 5 outcomes, and is designed to be an adaptive tool to assist in the assessment of this child in this case. One factor which is often inadequately addressed by social workers reporting from a '5 outcomes' mindset is the impact of change. So, for example one may say that residence with Dad would satisfy the 5 outcomes better than residence with Mum, but the welfare checklist specifically reminds us to factor in the impact of a change from Mum to Dad. It's all about the questions one asks: whilst the law tells us that the impact of change is a factor to be considered, and authority tells us that the disruption of change must be offset by some particular benefit, a 5 outcomes approach can lead a social worker to simply compare the two proposed future care arrangements without reference to the status quo or the impact of disrupting that, and to underestimate the significance of change for the child or at least to fail to properly analyse that factor.

It won't be in every case that the two checklists produce different answers. But it is concerning that in the production of a statutory report the officers tasked with that piece of work are prepared so easily to treat policy documents as equivalent to or more important than statute. This can undermine a parent's confidence in the rigour of the report, and can provide a fruitful opportunity for cross examination.

None of this is to suggest that social workers don't know what the welfare checklist is, or indeed that the 5 outcomes should be ignored. But it is important for social workers to appreciate the statutory duty that they are fulfilling when they write a report, and I sense that - for some at least - somehow that understanding of the task has become hazier than it should be.

The welfare checklist is meant to help courts to promote the aims of the Children Act 1989: to ensure the best interests of the child. This all encompassing notion of welfare is something qualitatively different to the 5 outcomes and we should keep going back to it.