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.

Friday, 26 November 2010

All Party Parliamentary Group on Family Law & the Court of Protection

The next meeting of the All Party Parliamentary Group on Family Law & the Court of Protection is to take place on 30th November 2010.  The speakers are from the Family Justice Review Panel and include David Norgrove of the Family Justice Review and the topic is the Family Justice Review in Action.  This is an open event and all are welcome but you have to request an invite as seats are limited.

Thursday, 25 November 2010

Narnia 3D Charity Screening 9th December

I am a keen supporter of the Who Cares? Trust

which helps some of the 74,000 children in care in the UK and for the past 5 years we have been part of the Biking for Children In Care group (involving a number of Guardians, family lawyers & other child care professionals as well as supportive friends0 which has raised over £350,000 in the 9 years it has been going so far.

Apollo Cinemas Picadilly Circus (Lower Regent Street) are kindly hosting an exclusive screening of Narnia 3D (The Chronicles of Narnia: Voyage of the Dawn Treader) on Thursday 9th December 2010 to help us raise money for the charity. Twentieth Century Fox are kindly donating the film itself.

Tickets cost £30 per adult (for seat & refreshments) & £15 per child (under 14). A drinks reception will be served at 6.30 pm and the screening will start at 7.15. You can order tickets here

Friday, 12 November 2010

HAT tricks

Judgment has now been delivered in a case involving Hair Alcohol Testing (LB Richmond v B & W [2010] EWCA 2903). You should be aware that I appeared in that case for Trimega Labs as intervenor. I will be doing my best to draw some practice lessons from it in further blogposts but the headlines are:-

* hair tests should be used as part of the complete evidential picture
* greater use of the Experts' Practice Direction when hair tests are commissioned or at least when interpretative analysis is sought
* the tests are reliable to show excessive alcohol use ie above 60gm alcohol per day or just under a bottle of wine / 2-3 pints lager
* the test results cannot yet discriminate between people who are abstinent and those who are social drinkers
* if reliance is sought to be placed on any result other than consistent with excessive use / inconsistent with excessive use experts must be able to justify this
* test results purporting to show alcohol use month by month are not approved by the Society of Hair Testing
* testing for both FAEE & Etg is more reliable than testing for one batch of markers only.

Tuesday, 9 November 2010

Once more without conviction

The case of Re L-W [2010] EWCA Civ 1253 is getting a lot of blogging attention (Family Lore, Researching Reform).

This was an intractable hostility type case with an unusual gender role reversal in that the 10 year old child lived with his father and was refusing to have contact with his mother.

The court (Munby LJ in the lead) states in the case:

Nothing in this judgment should be seen as a charter for avoiding enforcement of contact orders in whatever is the most appropriate way, including, where appropriate, by means of committal.

However, anyone trying to persuade a court to use committal as an enforcement tool in intractable hostility cases involving children who express firm views that they do not want to have contact will now have an uphill struggle.

In the case the usual contact order terms: allow the parent to have contact and make the child available for contact were used. The court has emphasised that this is not the same as being ordered to achieve contact or make it happen and that it will not be contempt unless contact an be made to happen and is not made to happen. If something prevents the contact from happening eg a volcanic ash cloud then the question of breach never arises and the parent who does not achieve contact does not get to the point of arguing reasonable excuse because force majeure stops the contempt charge in its tracks. Reasonable excuse only comes into when contact could be made to happen but does not, for example because the childe is ill.

The father's obligations under each successive order were to "allow" contact and "make M available" for contact. To "allow" is to concede or to permit; to "make available" is to put at one's disposal or within one's reach. That was the father's obligation; no more and no less. But that is not how Judge Caddick treated the orders. Running through all his judgments is the assumption, indeed the repeated assertion (see the passages I have set out in paragraphs [26], [51], [60], [66] and [67] above), that the father's obligation was to "make sure" or "ensure" that M went and that contact took place. The father's obligation, according to Judge Caddick (see the passage set out in paragraph [60] above), was to "make sure that he did all that was necessary so that that child would go" and to take "whatever other steps within the exercise of his parental responsibility were necessary to make sure that he went". The father may have been under a parental or moral obligation to do these things, but on the wording of these orders he was not, in my judgment, under any legal obligation such as to render him in breach of the orders for failing to do them, let alone for failing to achieve – to "ensure" – that contact actually took place. Nor, with all respect to Mr Walden-Smith, was the father under a legally enforceable obligation to take such steps in the exercise of his parental discipline, guidance and encouragement as were reasonable in all the circumstances to ensure that contact took place.

The court did not strike out all the findings of breach of the contact orders made by the Judge but in considering the question of sanction for those breaches emphasised the obvious drawbacks of imposing a custodial sentence on a parent and the thoughts of Dame Elizabeth Butler-Sloss P in Re S (Contact: Promoting Relationship with Absent Parent) [2004] EWCA Civ 18, [2004] 1 FLR 1279, at para [28]:

the sanction of prison for mothers who refuse to allow contact is a heavy one and may well be a self-defeating one. It will hardly endear the father to the child who is already reluctant to see him to be told that the father is responsible for the mother going to prison. Prison is a sanction of last resort and there is little else the court can do. At this stage also the court may have the evidence that the continuing efforts to persuade the mother to agree to contact are having a disproportionately adverse effect upon the child whose welfare is paramount and the court may be find it necessary, however reluctantly, to stop trying to promote contact. That is a very sad situation but may be necessary for a short or for a longer time if the welfare of the child requires it. One aspect of proportionality which has to be weighed in the balance is the length to which a court should go to force contact on an unwilling child and on the apprehensive primary carer. At this point the factor of proportionality becomes all-important since there is a limit beyond which the court should not strive to promote contact and the court has the overriding obligation to put the welfare of the child at the forefront and above the rights of either parent.

On the facts of the case the court considered that it was probably too late for a prison sentence to have any real likelihood of achieving contact.

Here are Lord Justice Sedley's concluding remarks:

There are at least two morals. One is that before deciding that a parent is the author of a child's resistance to contact and so can be made the subject of a coercive order, the court needs also to be sure that the parent, by one acceptable means or another, can still reverse the child's attitude. The other is that even then a court, despite the affront to its dignity, may have to be prepared, if it comes to the point of committal, to accept that the predictive premise on which it initially acted has turned out to be wrong: that, for example, the child has internalised the custodial parent's hostility, so that punishing the parent can no longer produce the intended outcome and may produce its opposite.

This last point brings me to something which I venture to say less as a judge than as a parent. The critical attitude which M has acquired or developed towards his mother is not one of simple hostility. He wants her to be the mother he remembers when he was little. There is a real pathos about this in a boy, still only ten or eleven years old, who has had and is still having to live through an acrimonious family rift and realignment. If instead of seeking to restore relations with his mother by letting her see him for a few hours at a time the courts were to abandon the blunt instrument of coercion and were to let time take its course, it seems to me much more likely that M will in his own time find his own way back to the affectionate relationship with his mother which both of them wish for. It may not happen, of course; but if we continue down the present road it will certainly not happen. The law does its best in the absence of other means, and modern legislation has done what it can to make the law's own means practical and fair; but the law is not omnicompetent, perhaps most of all when, equipped only with its received or inherent powers, it is called on to intervene in the subtle and unpredictable business of child care and human relations.

The case is, however, to remain in the court of first instance to deal with the mother's application for a residence order. I would put money on it being back in the Court of Appeal before long.

All Party Parliamentary Group on Family Law & the Court of Protection

Over on Researching Reform Natasha Phillips has a number of posts about the newly formed All Party Parliamentary Group on Family Law & the Court of Protection to which she is the Secretary (& possibly co-founder). Mostyn J gave the opening and entertaining speech on What is Marriage? and you can link to the full text of it from Natasha's website. It is s great initiative and I am sure will be a valuable contribution to the debate about the family justice system.

Monday, 8 November 2010

Ishaq Serious Case Review

The full SCR has also been published in the case of Khyra Ishaq who died of malnourishment. All of her surviving siblings also suffered from malnourishment. Her mother and her male partner was convicted of manslaughter, causing / allowing the death of a child and five counts of cruelty.

The history of the case shows that mother separated from the children's father and then started a new relationship with a man who had suffered severely himself as a child, with one of his siblings being killed by their father & was diagnosed as a schizophrenic. Mother had previously been a protective responsible parent. Concerns began to arise with the professional and educational network about her eating and that of the children. Shortly afterwards all but one of the children were taken out of school to be educated at home. At her criminal trial it was eventually accepted that mother was suffering from severe depression in the run up to Khyra's death. The mother was extremely avoidant of intervention, articulate and well-versed in legislation affecting home education and made formal complaints about social services who in turn were not familiar with the home education assessment process assuming it to be more in-depth and comprehensive than in fact it is.

As with the Baby P case, the new partner's background was not checked out although there was no concealing of the relationship. His mental health deteriorated fast and he came to believe that Khyra was possessed with spirits and to punish her by withdrawing food. He also increasingly imposed a wide range of extreme punishments on all the children for relatively minor misdemeanours.

The main legal issues arising from this case relate to the monitoring and assessment of children being educated at home and this will need to be addressed at national level.

Baby P Serious Case Review

Serious Case Reviews are carried out under Regulation 5 of the Local Safeguarding Children Board Regulations 2006 which requires Local Safeguarding Children Boards (LSCBs) to undertake reviews of serious cases in accordance with procedures set out in chapter 8 of Working Together to Safeguard Children (2006).

From the 2nd SCR into the Baby P case, it is clear that Haringey were aware of the presence in the home at least on occasions of Mr H (the mother's boyfriend) but it was always said that he was a friend and there was no evidence that he was living in the household, even from interviews with the children themselves. However, the mother's own account was simply taken at face value. There was no adequate follow up when the father suggested that Mr H was in fact a boyfriend. Mother was asked but denied it - although she did say she would like to date him. The rather obvious conclusion is reached that it should be standard practice to investigate the role of any man who is involved with a family where children are in need / known to SSD and that the wider agency network must report any such suspected involvement.

Following an injury resulting in hospital admission in December and said by the Paediatrician to have been caused non-accidentally the children were placed with a family friend of the mother's choosing. This placement gave the wrong message to the mother about the seriousness with which injuries to the child were viewed. While family members and friends should be seriously considered in many cases in injury cases considerably more caution should be exercised.

An early Paediatric view that injuries were non-accidental and the explanations offered for them was not given sufficient weight at the first CPC. Regrettably the Paediatrician did not attend the CPC.

After the CPC LB Haringey was given advice that the threshold for care proceedings was met although the older children of the mother were not placed on the at risk register. Proceedings were nonetheless not issued and they should have been.

The CPC was not reconvened when further serious head injuries were discovered in March, again resulting in hospital admission. No strategy meeting was held. Very little investigation of the mother's account was carried out. The police were not informed. Proceedings were not brought and they should have been. The SCR comments that the onus should have been placed on the mother at this stage to prove that the injuries were non-accidental in the light of the history and previous s 47 investigations.

After a further episode of injury to a child at the beginning of June (multiple bruising & scratch marks but including what looked like grip mark bruising to the legs) there was disagreement between the police and SSD about bringing proceedings, the police thinking that an EPO could and should be granted. The police did not, however, investigate themselves but left it to the SW to do. The injuries had not been reported but were picked up by the social worker on an unannounced visit. SSD did not take legal advice and implemented a plan involving the family friend moving in to ensure there was not unsupervised contact between mother and the injured child. When the CPC Review was eventually held a number of key agencies were unrepresented and there was no legal adviser present. The Review meeting was told that a legal planning meeting would be held within a week. This did not happen and it was 7 weeks before it did. At a subsequent visit to the home Mr H was present but again no alarm bells seemed to ring. However, over the next few weeks the observed interactions between mother and the children were all fairly positive. The child was noted to be unhappy at school and the mother continued to be neglectful and hostile although she participated in a parenting programme (attending 9 out of 13 sessions but only taking the child on 4 occasions). She also absented herself and the children from the borough for a couple of weeks supposedly to look after a sick uncle.

By the time the legal planning meeting had taken place there were further medical issues - the child had a sore ear thought to be caused by an infection, though mother did also admit to causing bruising while trying to clean it. He also had serious head lice and an infected scalp. He was reported to be head banging though not when in the care of the family friend.

The SCR's conclusions on the legal planning meeting are set out below and I have highlighted the particularly important section about potential disagreements between LA lawyers and their instructing social workers.

The long awaited legal planning meeting eventually took place on 25 July. The lawyer was relatively inexperienced in advising in care proceedings and it became clear that the SW and her TM were reluctant to consider care proceedings; they did not see the necessity for them. The conviction demonstrated at the child protection conference on the 8 June had dissipated. Despite the long delay the lawyer was without the medical report of the injuries on X XXX. The background information was incomplete. On that basis the lawyer did not think they could advise on whether the threshold was met at that time. In any event, even if the threshold had been met, it was the TM’s decision whether to initiate them or not. The threshold was met. The original injuries to child A met the threshold for care proceedings and that carried through alongside any subsequent injuries. Legal services accept completely that the service in this case was inefficient and did not meet the standard required, and they have made improvements to prevent a recurrence. They also accept that they have an independent safeguarding responsibility to any child, and that if they disagree with the decision of a TM then they have a duty to make representation to managers responsible for them.

3.22.6 It can be an unfortunate feature of the understandings in the work that whether the parent is prosecuted or not can become conflated with the degree of risk to the child, and whether care proceedings should be initiated. They are different considerations with different thresholds for action. However they can be become unhelpfully misunderstood around the injuries to the child and the medical opinion. The police are concerned with evidence and place importance on the indications of injuries and the weight which doctors will give to them. Other services can also place importance on the medical opinion of the injuries, too much importance, and they wait for the outcome of the police and CPS’ view of them. If they are not to lead to a prosecution the cause of the injuries can become regarded as uncertain and even accidental. The police accept that it took an unacceptably long time to resolve the position on the original injuries to child A.

3.22.7 The delay was due to a combination of administrative failure, a change of jobs, collecting evidence at the time, and the very long time it took to obtain a second medical opinion. That opinion was that the injuries were probably non-accidental but the CPS judged that it was not strong enough for a successful prosecution.

Interestingly the child stayed with his father for an overnight visit in the last few days of his life.

Continuing concerns about the child's physical presentation and scalp infection but seemingly not in relation to suspected injuries.

2nd August - the police confirmed no further action on prosecutions.

3rd August the child died.

The SCR identifies the failings in this case as being the lack of an authoritative response to very serious concerns about the care of the child, an approach treating incidents as a series of unrelated and unfortunate episodes rather than linked or forming a pattern, a lack of any real challenge to the mother's accounts, a failure to take care proceedings, and an incorrect assumption that proceedings could not be justified unless there was evidence of non-accidental injury which satisfied the criminal standard.

Comparing the First SCR and the second reviews, the first review contains a lot more detail and makes some very specific recommendations of good practice in future. Both reviews are critical of some of the professionals involved in the case, although the first one also recognises that there was good practice in the mix. The main difference is in the overall conclusions set out above and the overall conclusion that expectations of parenting standards in Haringey were too low. In fact the second review, whilst describing the first as unsatisfactory did not dissent from its specific recommendations for improving practice. For the benefit of LA lawyers the relevant paragraphs in the first review are at 6.8, 6.24.12, 7.4.33- 36 & 8.3.31-37.

Sunday, 7 November 2010

Adoption & Fostering round up

Many news stories have covered the thoughts of Tim Loughton on enabling white couples to adopt black & Asian children including the Telegraph. The DfE press release is here. Part of the reason for revisiting this issue is that adoptions have dropped by 15%. The charity Adoption UK has responded saying that it is actually age at placement is the most important factor determining whether children are found adoptive placements (but not disagreeing that trans racial placements may be appropriate). The figures do show that 1 in 5 children waiting for adoptive placements come from ethnic minorities and they typically wait 3 times longer than white children. The Telegraph also carried a piece linking the fall in numbers to the opening up of adoption to same sex couples (& the consequent closure of Christian adoption agencies). I can't help thinking that delay in finalising care proceedings caused by the upsurge in caseload must be contributing to the overall drop in numbers.

Martin Nairey of Barnados makes another plea for early intervention to ensure the best success for adoption.

Tracy McVeigh makes her plea for better support for adoptive parents picking up concerns recently expressed by Adoption Uk and the Observer reinforces the message in an editorial today.

A Christian couple are asking the High Court to rule on the question of whether they should be barred from fostering because they would be unable to be on-message about homosexuality as the Guardian and the Mail. The judgment does not seem to be available yet.

A judgment which is available on the main site is M (A Child) 2010 EWCA Civ 1160 in which a mother successfully appealed an order refusing her leave to oppose an adoption. She was able to show change in circumstance based on the improvements in her life. Ward LJ held that the next question for the court to consider was whether it was in the best interests of the child for a case for opposition to be heard when it was not hopeless.

Obviously all cases will be different, but an application to oppose should involve an exercise of assessing to some extent the prospects of success of the opposition. But it should be viewed more perhaps -- and this is the issue the court will have to decide -- in terms of whether this is an utterly hopeless case, or whether this is a case which is at least arguable in the sense that, even if there is not a better than even chance of success, there is some realistic prospect of success in much the same way as we decide whether to grant permission or not.

He also took the opportunity to emphasise the importance of full judicial consideration of the welfare checklist, particularly the potential harm to a child of being permanently separated from birth family.

Also on the main site is T & M v OCC & C (2010) EWCA 964. The facts are particularly unusual involving a lesbian couple from Nicaragua & the USA who had adopted a child each when living together in a family unit of 4 because adoption as a couple had not been legally possible in Nicaragua. By the time their application to adopt one of the children jointly in this country was heard they were living separately though very close by because of the behavioural issues of one of the children. Hedley J held that they could still be described as "living as partners in an enduring family relationship."

Here the parties live in a committed and exclusive relationship recognised by our family law and spend significant time as a unit of four. The background to the case and the shared care arrangement is entirely consistent with the concept of a family of four. In my judgment, the parties in this case bring themselves within the ambit of Section 144 (b) and thus Section 50 of the 2002 Act. They are thus entitled to make a joint application to adopt C.

Technology round up

Nick Holmes over at Binary Law laments the Social Meeja Blues and I have to confess to occasionally feeling a bit overloaded by technological possibilities and I will do a post soon on the most useful resources for family lawyers and those which can help you keep up without sinking. In the meantime I thought I would do a round up of some interesting snippets on technology and law.

The Bar jumps into the modern age with tweets from the Bar conference & Inner Temple tweets too.

The Fourth Emergency Service has set up an online legal business and the Guardian reports that more than half of firms surveyed expected to lose work to these sorts of legal providers. At the moment the actual legal business is referred on but as the Guardian says the AA is looking ahead to the now fairly near future when non-lawyers will be able to invest in firms directly.

Facebook is cited in almost 1 in 5 online divorce petitions the Telegraph reported some time ago & Matthias Mikkelson reports on his blog about peak break up times according to status updates on Facebook.

The American Academy of Matrimonial Lawyers say that 81% of their members have used evidence from a social networking site in the last 5 years. I am finding a growing number of cases involving information from Facebook in particular - indiscreet references to heavy drinking and hangovers, threats of violence, comments on what happened or will happen at court, new boyfriends etc. Top tip to our clients: make sure that you block your ex and look carefully at the discretion of your mutual friends or just DON'T POST IT. Along the lines of don't do anything you wouldn't like photographed. Similar advice from Scottish Lawyers Gibson Kerr in relation to Twitter: resist the bitter twitter urge!

There are a number of facebook pages dealing with family law issues including this one on Divorce and Divorce Online. Family Law Week has its own facebook page but so far not much on it. There are also a number of campaign groups such as Social Services: the stolen children - you can find these groups by using the search facility - try family law, care proceedings, social services, parental alienation.

The same is true of You Tube which has a number of short films particularly covering the secret court debate for example, Bill Maloney reports on his attempts to get into the Inner London FPC. The Government is also making use of You Tube - for example, Tim Loughton announced Eileen Munro's review of child protection

Skype contact has recently been ordered in a US case
and is obviously a useful way of facilitating contact in relocation cases or case where parents live at some distance from one another. See this comment piece from Anita Ramastry, Professor of Law, on Parenting in Cyberspace in which she sounds a note of caution that contact using new technology should not be seen as providing an adequate substitute for face to face contact.

This Online abuse investigation report on Community Care warns of the dangers that still linger long after an initial posting (in this case of photographs).

All that said do go and see the film The Social Network - it's fab and some good litigation scenes. Interesting commentary by Zadie Smith about it being a film about 2.0 people made by 1.0 people. And if you don't know what I mean you are definitely a 1.0 person! And now even the most obvious 1.0 person, Her Majesty the Queen, will have a facebook page from tomorrow.

Thursday, 21 October 2010


The long awaited judgment in Radmacher v Granatino has been handed down by the Supreme Court. 8 of 9 of the panel of Judges held that the pre-nup should be enforced. Only Lady Hale dissented, unhappy with the idea of putting a gloss on s25 MCA 1973 and of the court making law where that is more properly the role of Parliament.

You can find the judgment here, and FLW commentary here.

Other bloggers comment here: Family Lore, Marilyn Stowe, Afua Hirsch at The Guardian.

Thursday, 14 October 2010

Washington Declaration on International Relocation.

On 23-25 March 2010, more than 50 judges and other experts from Argentina, Australia, Brazil, Canada, France, Egypt, Germany, India, Mexico, New Zealand, Pakistan, Spain, United Kingdom and the United States of America, including experts from the Hague Conference on Private International Law and the International Centre for Missing and Exploited Children, met in Washington, D.C. to discuss cross-border family relocation. The full text of the Declaration is here

Wednesday, 13 October 2010

Fabricated illness: case management lessons

The judgment of HHJ Clifford Bellamy in Re X, Y & Z which we now know involved Coventry City Council covers a wide range of important points about case management, permission to withdraw proceedings and the duties of an expert asked to report on suggestions of fabricated illness. He summarises the lessons to be learnt as follows:

(a) An allegation of FII is a very serious allegation to make against a parent and one that should not be made lightly. Before making an allegation of FII a local authority should be rigorous in satisfying itself that the evidence available, if accepted by the court, is capable of establishing to the requisite standard that there has in fact been fabricated or induced illness.

(b) In reaching the decision to allege FII in circumstances where the allegation is of fabrication of signs and symptoms, it will rarely be appropriate for a local authority to rely exclusively upon the report of an independent expert. The local authority should normally also seek the views of health professionals involved in the care of the children. This should be achieved by convening a strategy discussion as recommended by the 2008 DCSF Guidance.

(c) When instructing an expert to prepare a report in a case of suspected FII the letter of instructions should make it clear that the expert is expected to have regard to 'Fabricated or induced illness by Carers (FII): A Practical Guide for Paediatricians' published by the Royal College of Paediatricians and Child Health in October 2009 and should also draw the expert's attention specifically to the guidance on 'Content of the Expert's Report' set out at paragraph 3.3 of the Practice Direction: Experts in Family proceedings Relating to Children.

(d) As stated by Charles J in Re R (Care: Disclosure: Nature of Proceedings), all those involved should consider and review the report of an expert when it is received and, where relevant, raise points with the expert and other parties relating to the performance of the expert's instructions, his or her reasoning, the factual basis of his or her views and the relevance of his or her views to the proceedings.

(e) In any case in which a local authority applies under FPR rule 4.5 to withdraw proceedings it should state whether or not it accepts that the child is a child in need for the purposes of s.17 Children Act 1989. If it does accept that the child is a child in need the application should be accompanied by a schedule outlining the needs that have been identified and detailing the support and services it proposes to make available to that child to meet those identified needs once the proceedings have been concluded.

To underline the messages the local authority were ordered to pay £50,000 towards the costs of each parent. The Judge estimated the total costs of the case at over £400,000 and it involved over 20 lever arch files.

I have recently come across something called 'abnormal illness behaviour'(AIB) (FII lite?) a term apparently coined by Pilowsky (as long ago as 1969) to characterize syndromes of excessive or inadequate response to symptoms, including hypochondriasis, somatization, and denial of illness. At least one expert uses this term as being synonymous with FII whereas Pilowsky himself focusses on maladaptive illness denial (ie there is an illness which is denied rather than there is not an illness but symptoms are invented) although he advocates these syndromes being grouped together. AIB is not itself a recognised specific diagnosis but refers to a cluster of somatoform disorders and is sometimes used to include FII. It is variously used to cover a symptom, syndrome or dimension. Approach with care!

Two important documents are referred to in the judgment:

Safeguarding Children in whom illness is fabricated or induced

Royal College of Paediatrics & Child Health Guidance on Fabricated Illness

Should we perhaps coin a new term: abnormal or fabricated threshold criteria syndrome?

Children's experience of the care system

I have to confess that I am not normally one of Panorama's biggest fans but I was pleasantly surprised to watch the recent programme on Kids in Care which is still available for online viewing here.

Spotting abuse is child's play?

The Guardian reports on research by Action for Children who have found that 44% of children under 12 have seen other children who were dirty and smelly, while nearly two-thirds of children have seen suspected signs of neglect among their peers in classrooms, playgrounds, neighbourhoods and activity clubs. Its survey of over 3,000 eight to 12 year-olds revealed the scale of absenteeism. Just over 40% had noticed pupils being late or missing school, while 34% said they were aware of children not appearing to have friends. The charity has issued a press release and a media pack.

European court challenge to care proceedings

The Mirror reports on a group of parents taking a case to Europe challenging the UK care system. The group behind the class action has its own website: Freedom Advocacy & Law. The case seems to have been accepted - by the International Criminal Court in the Hague.

Shaken Baby Syndrome

Excellent post by Marilyn Stowe summarising this subject and a recent case.

Thursday, 30 September 2010

Law Society Judicial Review

The Law Society has been successful in its judicial review against the Legal Services Commission in respect of the family contracts - see the BBC. The Law Society's comments are here

Tuesday, 24 August 2010

'Forced Adoptions': behind the Iron Curtain

The Guardian carried an interesting article about forced adoptions in East Germany. Clearly cases that went on behind closed doors and where people are still not able to get straight answers to straightforward questions. From a West European perspective it is almost impossible to get one's head around such systemic abuse - not saying it not possible here - but my theory is that concerns in the present UK system are more about mess up than conspiracy - discuss?

Spare time: here's what I do in it

Spent a fascinating part of this evening with a Consultant Psychiatrist in Psychotherapy - one of the good guys in my view - talking about the service they offer, the questions the local service professionals have about the care proceedings / psychiatric interface - what should they worry about - should they get involved as experts in court proceedings etc. Really impressed by the commitment I was hearing to client care and the awareness of responsibility to the court process.

I would like to see more interdisciplinary opportunities like this. Why is it not a fundamental part of a lawyers' training or at least one offered generally by CPD training? Could not the GMC / RC Psych / Bar Council organise some joint training opportunities?

If not maybe I will. Any offers?

Panorama: interesting care case on experts

Watch again - Panorama on an interesting case involving experts and parents accused of NAI - Professor Tim David comes out smelling of roses - as I would expect from his careful approach in all cases especially to the differential diagnoses issues.

David Marsland to recommend sterilisation for abusing parents

Social workers should be able to recommend irreversible sterilisation for parents who abuse their children, according to a top academic.

Professor David Marsland, emeritus scholar of sociology and health sciences at Brunel University and professorial research fellow in sociology at the University of Buckingham, claims sterilisation is the only way to prevent abusers from continuing to harm their children.

Marsland will defend his controversial views during a live debate on BBC Radio 4's Iconoclasts tomorrow at 8pm.

LSC contracts: Law Society challenge

The Law Society is taking on the LSC over the family law contracts.

Solicitors' websites

What is this one about? Thanks to Charon QC

Tuesday, 17 August 2010

Advocacy tips

Fun top tips on advocacy site from across the pond

Winning Trial Advocacy

I will add a few:

* Do research your expert - more than 3 in 4 of us don't and take it on trust. Check out what your expert really knows about children
* Listen to the throw away lines and phrases - when I fished the video out from among my children's Disney dvds denotes a certain lack of reverence for the court process - but it is the phrase that slips out and the witness tries to distance themselves from that can be the most telling
* think about the answers to the questions - not the questions themselves
* listen to the answers - don't stick to your script slavishly
* stop when you're ahead - you don't get paid by the question - less is usually more
* watch for the witness straying out of their field - get them back to what is clinically or forensically provable
* listen for the 'I would have' done X point - did they or did they not?

More thoughts to follow.

Shopportunity: round up

Thanks again to my sister's sister-in-law (mine too?) Kim for the shopportunity word!

Some places are just a total shopportunity.

Kingston is one. Bromley is another. Just fab all round.

I will just mention that Kingston has a collection of designer shops called Pie which are all fab. Also Bentalls, Heals, Russell & Bromley etc etc.

Bromley has a TK Maxx - I cannot get enough of TK Maxx. Bras & knickers at £2.99 a pop what more could a girl want for in life.

Chelmsford - I will at some point put in a plug for my favourite shop but there is a great little stretch of shops in Moulsham Street (opposite court - go under underpass and turn right) including a Cooperative Department store (the Quadrant) with fab concessions though rather an old lady air about it - worth a hunt through especially if there is a sale on - to top designer outlets. The top tip will be worth waiting for - the sort of shop where you get offered a glass of champagne or a coffee and a sympathetic ear, no pressure and I defy you to leave with a clothing need unmet.

Peterborough - strangely lacking in a TK Maxx - anchor John Lewis store in the main centre - but another strangely good Cooperative (the Anglia Regional at the back of the Westgate).

Remember though - a bargain is not a good bargain if it is merely something you can't use at a price you can't resist.

LSC contracts.

Good post on Nearly Legal about the LSC contract debacle.

Less supportive post by John Hemmings (August 6th) - I have posted a comment - join in do! I am puzzled by his reference to parents being refused legal aid. Perhaps he knows something we don't? I am also disappointed by his reference to lawyers rolling over in the face of care proceedings. I am sure some do a very bad job but I think most of us give it a good go. It is true that one doesn't win very often at a final hearing if you are representing a parent. In my experience if you are going to win in the sense of children returned home to parents you will usually have done so before the final hearing which is then compromised with a supervision order or the LA withdrawing. I do not agree that most care orders are made without justification but I do agree that some are made without sufficient justification and because one judge takes a view that another one would not. I would like to see more involvement of the higher courts in the general administration further down the line - the occasional Court of Appeal Judge in the magistrates court? Some sort of random review / spot checking of judgments? A point for the Family Justice Review perhaps?

I would also like to see this quote from Hedley J inscribed somewhere in every court room:

Re L (Care: Threshold Criteria) [2007] 1 FLR 2050:

“…society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event it could simply not be done.”

Cafcass: Why? The value of Children's Guardians

The leader of Surrey Council recommends scrapping Cafcass according to this article in Community Care -he suggests the responsibilities are transferred to the local authorities. Back to square one then with LAs funding GAL's Panels - I remember one GAL telling me in the olden days that she had to be careful what she said in evidence because if she was too often critical of the LA she would be dropped from receiving work.

I have been thinking more about the cases involving GALs and why their role is so essential. A colleague spoke a heresy out loud which has been knocking around my meagre brain for a while. Why is there so much emphasis on cases involving babies? It seems to us that from a forensic viewpoint these are the cases with arguably the least active role for the GAL and the least demanding since wishes and feelings cannot be ascertained. That said I can think of one recent case where a GAL's stance in relation to a very young child was pivotal because she went and observed the contact - more than once - and was so impressed with the father's handling of the child and his relationship that she argued very hard that he should not be ruled out. And he wasn't and the child is now placed with him. We could probably have got there without that since there were glowing contact notes but it would have been very much more difficult and the GAL's direct observations could become part of the evidence in a way that submissions from the solicitor could not have matched. Generally speaking, however, I wonder whether the baby cases should really get the priority they do.

I am happy to report that in my long running saga without a GAL since November that a GAL has been appointed. Immediately on holiday and unable to come to court till February but at least a step in the right direction.

Eyes for Lies Blog: Naomi Campbell

Not strictly family law I know but if you need any expert assistance to decide whether you prefer the evidence of Naomi Campbell or Mia Farrow take a look at the Eyes for Lies Blog. The blog is written by one of the so-called wizards who are able to spot a lie in a nano-second. It's a fascinating concept backed by a lot of science and research and brought to popular culture through the excellent Lie to Me starring Tim Roth. The series is inspired by the life and work of Dr Paul Ekman who is the scientific adviser to the show.

That said, I am not sure that it requires a wizard to reach a view on this one - see this excellent blogpost - Diamonds Lies & Videotape - of White Rabbit (aka criminal lawyer Andrew Keogh).

Family Justice Review: scope refreshed

Justice Minister Jonathan Djanoglyhas written in Community Care about the need for a cheaper family justice system based on mediation. He has apparently 'refreshed the scope' of the FamilyJustice Review accordingly. The Review is currently conducting a call for evidence and this part of the process is open until 30 September 2010.

LSC Family contracts

As I travel round the country I am picking up news of the firms who have not been given contracts to continue with some or all of their family work and my heart goes out to all those affected. I understand that the net effect of this contract round is that 47% of firms have been refused contracts. The Independent carries a story about Dawson Cornwell being refused the contract to take on forced marriages work. 'Bonkers' as the lady from the Henna Foundation succinctly puts it.

More on the contracts in the Guardian following a Resolution survey

I have heard that someone is judicially reviewing the LSC but am unable to track down any reported cases. Does anyone know of one?

Friday, 6 August 2010


Forgive my ignorance fellow bloggers but I have learned a new word today. Splog I knew the concept having had to delete a number of supposedly helpful comments to my blog posts which seemed to suggest that the blog was the greatest thing since sliced bread whilst secretly trying to get readers to go to a website promoting something usually of no relevance to readers of the blog - at best - and often promoting friendships with ladies from the Ukraine or supplies of certain performance enhancing drugs.

Thursday, 5 August 2010

Cafcass: Why? The value of Children's Guardians

I have posted a lot recently on Cafcass and the failure to deliver the service we had got used to. I am still struggling with a case involving a 12 year old girl with proceedings issued in November last year and no Guardian in sight and the child becoming increasingly distressed that no-one is advocating her views. Back in court next week and fairly difficult to know how to take the case forward - can the foster placement contain her when she is saying she desperately wants to go home to Dad? Should she? What steps should the local authority be taking to explore this option?

The Law Gazette reports on the grave concerns of the Interdisciplinary Alliance for Children (membership including the FLBA, the AIRE Centre, ALC, CRAE, BAAF, Voice, RCPCH, NYAS, BASW) and their call to the government to take urgent action and not wait for the conclusions of the Family Justice Review. The Family Law week site also picks up this news item.

The Gazette also reports that family lawyers’ group Resolution suggested to the government’s family justice review panel last week that the burden on Cafcass could be reduced if courts directed parents to obtain private social work reports where they could afford to, instead of having them prepared at public expense. It seems to me that it is a rare case where the parents can themselves afford to pay for social work reports and they are in grave difficulties assessing the competence of particular social workers to do this job. I understand the impulse but it would not help in my case where the father is unemployed (and even if working would be unlikely to earn enough). The court can already appoint ISWs to do the work at public expense.

I started to think about the sorts of cases where a GAL's view is critical and helpful taking account of my own recent cases and conversations with solicitors appointed to represent children without the benefit of GALs.

* cases where the solicitor needs to consider whether a child is competent to give their own instructions
* cases where an interim removal decision is finely balanced - particularly with groups of children, older children, children with learning disabilities
* cases where the local authority set off from the outset with a clear view against the parents and continually fail to acknowledge the strengths of the parents or the challenges they face
* cases where the child might have something to disclose such that the solicitor will run into grave difficulties in having these conversations without another appropriate professional present
* cases where someone with social work training needs to consider whether the support plan proposed will provide sufficient support / service levels
* cases where social work practice is below par or contaminated by the management view (not that we have a policy but we very rarely support interim care orders where children are to remain with parents or are placed with relatives)
* cases where the parents and the local authority have become polarised about the nature versus nurture debate - is it parenting or ADHD / ASD?
* cases where the parents need the independent view of the GAL in order to move to a place where they can understand what is in the child's best interests and start to support it, however painful
* cases where a perfectly competent solicitor / advocate cannot meet the children or does not have the social work skills to interview them and facilitate easy communcation and lacks the time to do so (often they would not be paid to do so)
* cases where someone with those social work skills needs to understand the local resources and whether they can offer the child a service which they need

Not an exhaustive list but one which points up to me that we are missing out on vital informed advice in family cases and it starts to look like there is no case where the input of a GAL would be redundant or unnecessary. If there is a secret plan afoot to do away with Guardians and allow the lawyers to dictate the process it is a backwards step for children, in my view. It may be the case that a competent lawyer with lots of experience can do a very good job without a GAL in some cases but this is usually because they have had years of debate and discussions with good quality Guardians who enable them from time to time to manage without that specific input.

Friday, 30 July 2010

Imerman - Hildebrand Documents Clarified

The Court of Appeal has given Judgment in Imerman: Husband's documents to be returned to him. Hildebrand v Hildebrand does not authorise use of wrongfully obtained documents. Permission to appeal to the Supreme Court has been refused by the Court of Appeal, but it may yet be sought from the Supreme Court.

Judgment here.

Thursday, 29 July 2010

Cafcass: the National Audit Office

Seemingly I am not the only one to have noticed the inadequacies of Cafcass. The BBC reports on the conclusions of the National Audit Office inspection of the service.

The report is summarised as concluding:

The Children and Family Court Advisory and Support Service (Cafcass) could have responded more quickly and cost effectively to the large and sustained increase in care cases from local authorities following the Baby Peter tragedy, had it fully resolved known organisational challenges, according to a report today by the National Audit Office. But Cafcass’s management could not have predicted the sustained increase in care cases from November 2008. In April 2009 they realised that the flow of care cases was not slowing and that they had to act.

Cafcass had to deal with an extra 200 new care cases each month from November 2008 – around 40 per cent more. Simultaneously, the courts needed advice on hundreds more children involved in family breakdowns. Consequently, the allocation of dedicated family court advisers to children’s cases slowed, and delays in providing advice to the courts increased. Between November 2008 and July 2009, the number of children involved in care and other public law proceedings without a dedicated family court adviser grew from around 250 to 1,250. Delays in allocating family court advisers can cause stress to children and families.

Cafcass was not well placed to respond efficiently and effectively because it had only partly resolved known organisational challenges around management information, IT systems and staff engagement by the time demand started to increase.

Cafcass increased its capacity and, between August 2009 and June 2010, reduced the proportion of children without a family court adviser, from 10 per cent to 2 per cent in care cases and from 34 per cent to 5 per cent in family breakdown cases. The Department allowed Cafcass to bring forward £4.6 million from the 2009-10 and 2010-11 budgets and gave Cafcass an extra £4.8 million. The cost increases do not represent a failure of value for money.

Cafcass continues to face enormous challenges in meeting the needs of vulnerable children and has responded with a major rethink of how it manages their cases. It is now implementing a £10 million transformation programme that should allow it to improve how it deals with future fluctuations in demand. In order to be successful, these changes will require greater organisational cohesiveness and improvements in staff morale.

Openness in the Family Courts: news roundup

Christopher Booker in the Telegraph raises concerns about some specific public law cases in his ongoing campaign against closed family courts. Another article in the Telegraph reveals that a group of 100 mothers have launched a class action at the International Criminal Court in the Hague.

The Solicitors Journal summarises Mr Justice Munby's views on the subject given at the Hershmann-Levy Memorial lecture delivered to the Association of Lawyers for Children. The complete text can be found here

In the spirit of openness many will be pleased to see that Birmingham City Council has published the full report of the Serious Case Review in relation to the death by starvation of Khyra Ishaq. The story is full covered by the BBC and the page links to the full 180 page report. I understand John Hemming MP (for Birmingham Yardley) was on Radio 4 not so long ago trying to make an argument that closed family courts were at the root of the problem in this case??

Interesting post on a author Heather Brooke's blog about 'open justice' and records of hearing

Justice Secretary to slash Legal Aid budget

Ken Clarke has started to indicate where the cuts will fall on the Legal Aid budget in this article in the Telegraph . Divorce cases are mentioned but no specific reference yet to cuts affecting private law contact cases or public law.

Tuesday, 20 July 2010

Shopportunity: Canterbury

On the train with a colleague (Helen Knott) and she is telling me about The Goods Shed - apparently an organic food market shop with an attached cafe and restaurant right next door to Canterbury West station which she thoroughly recommends. My personal favourite in Canterbury is Fenwicks - I know there is one in London but the one in Canterbury is particularly handy as it is very near the Magistrates Court and on the route back to the station from both Magistrates and County Courts.

Sadly we are both heading towards Margate!

Thursday, 15 July 2010

Divorce website by Josiah-Lake Gardiner

I am grateful to Bryan Reed of Josiah-Lake Gardiner (a London firm) for drawing my attention to their new online service www.justdivorce.co.uk which aims to help people to obtain their own undefended divorce without using a solicitor, at an affordable rate. They work on a fixed charge basis ranging from £259 to £339 including VAT (not including court fees). The site is fully regulated by the SRA, unlike many other online sites.

The website contains a large amount of helpful free information about divorce and related issues on the front end of the site, which visitors find useful in any event as an information resource. This content enables potential clients to make an informed decision as to whether or not they are entitled to a divorce, and whether justdivorce.co.uk is right for them. If a client decides to go ahead she (or he) then registers for free, and completes an online questionnaire which captures the information we need to prepare the court papers etc. The questionnaire also contains further helpful guidance as to what details are required, and can be completed at a pace which suits the client. A free guide to divorce will be given to all clients who register to use the site.

After completing the questionnaire the client then orders and pays for the service, and so there is no financial commitment until that point. The lawyers at Josiah-lake Gardiner then begin work on the file. They prepare all of the required court forms and all letters to the court, from issue of proceedings to the final divorce decree. They make full use of technology so that these documents can be drafted very efficiently, and then checked by the client via the internet. The forms and letters can then be downloaded, printed off and sent to the court by the client from anywhere in the world. A full explanation of what is required is provided.

Justdivorce.co.uk also provides other related services such as Financial Clean Break Orders, Divorce Decree Searches, and Marriage Certificate Translations. If a client’s situation is too difficult or complicated to be handled online, then they can offer expert in-house advice on a more traditional basis via Josiah-lake gardiner. They promise not to farm work out to third party solicitors for referral fees.

Much of the above comes from the description Bryan sent me but I have checked out the site - it is very user friendly and easy to negotiate, has a useful glossary and understandable explanations of basic information about divorce. it struck me as a great marketing initiative which also offers helpful free content to the lay client. I look forward to seeing the promised developments to the site.

Tuesday, 13 July 2010

Money: when is it relevant to children cases?

I am grateful to Peter Ryder, solicitor, for the following thoughts on residence, parental responsibility & relocation. He writes:

"I do think we family lawyers need to start connecting the court's power to make orders under s. 8 CA 1989 with judicial unwillingness to link those powers to the imposition upon non resident parents of responsibility as parents. In the case of T v B [2010] EWHC 1444 the court recognises that, in a case where unmarried parents jointly enter into an AID programme which results in the woman (or one of the women in a same sex situation) giving birth to a child, it lacks the power to treat the mother's former partner in that joint endeavour as a parent despite having earlier made a joint residence order in favour of that former partner. The net effect is that the mother with the child is left to provide for the child and the ex partner with joint residence escapes all contributory financial responsibility, at least in law. No ordinary person would see that as justice and neither should we.

The problem encountered in T v B can only be resolved by legislation but not so other, similar situations.

The same disjoinder of the law and justice can also apply to opposed relocation cases, whether within or outside the jurisdiction. The case law on relocation is generally silent on the question of whether or not the parent who objects to relocation has been providing child support to the best of (usually) his ability. This is, of course because the courts have imposed a de facto embargo on that issue being raised in cases where s. 8 orders are sought. I have encountered numerous cases where a non contributing father's opposition to relocation inside the UK was listened to with great sympathy by the courts whilst the mother's evidence on her economic struggle became a source of judicial irritation when the father's failure or unwillingness to provide child support was raised. Mothers in such situations may feel entitled to conclude that the court favours the interests of the feckless freeloader over those of the working parent.

Since it is nearly always the mother whose relocation is opposed I wonder how long it will be before someone argues that fettering her right to live where she chooses is discriminatory of women. After all there is no reported case of an absent parent being refused permission to relocate even though there must be some cases where a child has suffered as the result of a cherished father deciding to live drop out of his or her life."

A timely thought - Clare Renton in her as usual excellent article on Relocation clearly identifies a certain sea change in judicial thinking on relocation with courts showing slightly more support for the non-resident parent. I don't suggest that the sea change is wrong but I am involved in advising a mother with regards to relocation where the father is on benefits (for reasons which are not clear he seems not to have worked for a very long time and is on DLA but not somehow having any difficulties managing contact etc) and making no contribution to the child's maintenance (although he somehow seems to manage to pay for flights and related costs to get to contact) and is also therefore entitled to legal aid. The mother has relocated partly for work prospects having lost a job and needing to requalify which she could not do where she was originally living. She has been a student teacher for the last year but is now qualified and hopes to have a job soon which will impact on her qualification for legal aid. The court has allowed her to change location but will not yet confirmed that the permission is permanent and the father keeps pushing the case back into court requiring her to take time off, travel to the hearing with associated costs and make complicated arrangements for the care of his child as well as her other older child. As Peter suggests she is often at least impliedly rebuked by the courts if she raises any issues about money and is left feeling that the court considers her relocation to be in the lifestyle choice category rather than as she sees it an economic imperative if she is to provide her children with a stable and comfortable home environment.

Of course, the courts attempts to separate money and children are admirably well-intentioned. Some non-resident parents are genuinely unable to better their financial position and obtain employment and it cannot be right therefore to hold it against them that they cannot make a contribution. Equally some resident parents are in the same position and the courts are rightly reluctant to say that the fact that one parent can offer a higher standard of living to the child is a reason for depriving the less well off parent from looking after the child. It may, of course, present advantages in that a non-working resident parent can offer the child full-time care. It may be heresy to say this out loud but the truth is also that parents who know that litigation is looming with regards to children (not to mention divorce) deliberately place themselves in a position where they are not in employment in order to qualify for legal aid (obviously if they do so obviously we would have a duty to the public funding authority to spill the beans but most parents who do this are clever enough to do so without making it obvious). How often have you been in a case where the Judge will say with a sigh when dealing with a particularly irritating contact dispute which he might have expected to settle by agreement - and I suppose both parties are in receipt of public funding? Experienced and sensitive judges will take on board that the fact that they are not supposed to pay too much attention to financial contributions in cases involving children does not mean that it is necessary unreasonable for one parent not to view the other one as 'responsible' when they are not making a financial contribution or to refuse to make financial contributions when they are not being allowed contact for no good reason. The trick, of course, is to work out the difference between the genuinely can't pay as opposed to the not willing to pay for all the wrong reasons.

Contact Centres Protocol

A new protocol on the use of contact centres has been published with the endorsement of the President of the Family Division.

Contact Centres Protocol

Guidance on McKenzie Friends

The Master of the Rolls & the President of the Family Division have issued new Guidance on McKenzie Friends . The previously issued Practice Direction of 2008 has been withdrawn. The guidance spells out what McKenzie friends may and may not do, when they should and should not be allowed, that they cannot recover costs and that the court should consider whether they should be invited to attend advocates' meetings.

The following factors should not be taken to justify the court refusing to permit a litigant receiving such assistance:
(i) The case or application is simple or straightforward, or is, for instance, a directions or case management hearing;
(ii) The litigant appears capable of conducting the case without assistance;
(iii) The litigant is unrepresented through choice;
(iv) The other party is not represented;
(v) The proposed MF belongs to an organisation that promotes a particular cause;
(vi)The proceedings are confidential and the court papers contain sensitive information relating to a family’s affairs.

A litigant may be denied the assistance of a MF because its provision might undermine or has undermined the efficient administration of justice. Examples of circumstances where this might arise are: i) the assistance is being provided for an improper purpose; ii) the assistance is unreasonable in nature or degree; iii) the MF is subject to a civil proceedings order or a civil restraint order; iv) the MF is using the litigant as a puppet; v) the MF is directly or indirectly conducting the litigation; vi) the court is not satisfied that the MF fully understands the duty of confidentiality.

I would add to that list that the McKenzie friend may be a witness in the case or may be proposed to be involved in contact facilitation or is the new partner of one of the parents (and the other one objects for proper reasons which may include the potential witness point) or where there is a particularly hostile relationship between the McKenzie friend and the other party.

The guidance also deals with the circumstances in which it may be desirable to allow the McKenzie friend to have rights of audience which the court should be slow to grant.

Monday, 12 July 2010

Cafcass: advocates duties when there is no Officer appointed

One of the most regrettable casualties of the increase in workload has been the availability of Cafcass Officers to report in cases. I posted a while back about having seen my first case begin and end without a Cafcass Officer. Another fellow cyclist (Claire Holland of Lawrence Davies solicitors) told me that she was just approaching an IRH / possible final hearing in a public law case in which she was acting for the children but no Guardian had been allocated. The other parties in the case were heading towards a reunification plan with parents who needed a great deal of social work and other support and wanted the case to be concluded at the IRH. She was fairly confident that the plan was a good one but felt particularly concerned that the devil was probably in the detail of the support package which was just the sort of thing she would prefer to rely heavily on the Guardian to scrutinise. She was minded to ask for the case to be adjourned but had no idea by when Cafcass could allocate and do any work. At the last minute a Guardian was allocated but could not come to court. The court had hoped that the GAL could spend the day at court and be ready later in the day to make a recommendation. By the time it became clear that the Guardian could not attend the court agreed that the case should be adjourned although it insisted on a very tight timetable for the newly appointed GAL to complete their work (less than a month). The court indicated, however, that had they known at the outset of the day that the GAL could not attend they would have been minded to deal with the case on a final basis.

Another cyclist told me about a difficult hearing where the court was having to decide on interim removal in a finely balanced case without the benefit of input from a Guardian involving a mother with a poor track record but very considerable recent improvement such that it was on a knife edge whether there should be early separation followed by assessment or placement together with assessment. The court felt it had to err on the side of caution but would have very much welcomed a considered view from a GAL.

I have just met a Cafcass Guardian for the first time in a case which has been going on for some months. She was not appointed for several months but was still so deluged with work ( she reported having 29 cases to deal with) that she had not felt able to prioritise the case and therefore had not met the parents or seen the child. The child was very young and placed on an interim basis (before proceedings) with a member of the friends & family network and was having extensive contact to the parents. The case concerned an injury to the child but the fact finding is not for months and the parent's have accepted they have no choice but to agree that the child should be accommodated on an interim basis. The Guardian came to court on the last occasion for the first time because issues had arisen leading the local authority to seek an ICO having managed the case to date with a s 20 agreement.

I was told at court today about a Cafcass Officer somewhere north of London who had been dealing with 54 cases and imagine our surprise has now gone on long-term sick leave.

The President's Interim Guidance asks the following(arguably dangerous) questions re public law cases with a view to easing the workload of Cafcass.

* Does a Guardian need to be appointed at all?

* Can the Guardian's attendance at particular hearings be excused? They should normally be excused from attending fact finding hearings.

The court is supposed to make a directions stating by when a Guardian should be appointed, taking account of the timetable for the child and the specific needs of the case (for example, as to when welfare issues may be before the court). I would comment that firstly, many courts do not seem to be aware that this is what they are being encouraged to do and secondly, it does not make much difference because the workload of many Cafcass Officers is frankly overwhelming. Often a named officer will have been allocated but because of their individual case load they will not actually be able to complete any useful work.

This is certainly one of the issues which I will be dealing with in my response to the Family Justice Review's Call for Evidence (responses are due by 30 September 2010).

Duties of Advocates

The Bar Council has published the following advice for barristers:

"It has come to the attention of the Bar Council that Counsel are at times appearing in court on behalf of children even before a Guardian has been appointed. Frequently, the child's solicitor is not at court. Counsel finding themselves in that situation are reminded that they may not make submissions on the child's behalf and hold no more than a watching or noting brief in such circumstances. More generally, Counsel are reminded that their active participation in such proceedings depends upon their having clear instructions which will be given by the Guardian through a solicitor."

The Law Society website containst two useful documents :

In the Practice Note on Acting in the Absence of a Children's Guardian they say:

"In default of instructions you should represent the child "in furtherance of the best interests of the child" in view of Section 41 of the Children Act 1989 and Rule 4.12 of the Family Proceedings Rules 1991. What work is necessary will be a matter of your professional judgement in the individual case. You should not, however, undertake the Guardian's professional role. You should not make welfare decsions and recommendations based on personal feelings. While you should act in accordance with the particular child's best interests, you are not in a position to advise the court what those interests are but you make make the court aware of all the available options, without specific recommendations".

What that advice seems to me to indicate is that solicitors without Guardians can only go a little bit further at court than their barrister counterparts. In other words they can perhaps express a stronger view about assessments, directions & case management but should refrain from commenting directly on, for example, whether or not a child should be removed from parents on an interim basis (assuming that the child is not old enough / competent to give instructions directly). In fact the Law Society Guidance spells out that advocates should not recommend that an interim care order be made. They can make submissions reminding the court of important evidence and facts which support the argument for removal but they should also be sure to acknowledge any counter arguments. They can also make submissions as to whether the evidence passes the threshold test.

Regrettably I am encountering many cases where advocates go much further than this and start making representations as to welfare (often adding the offending words 'I think') which can tip a case away from parents, particularly in the magistrates' courts. The Law Society Guidance specifies that if urgent and specific welfare advice is needed the advocate should consider applying to the court for leave to consult an expert social worker or other appropriate expert to advise the court. This may be easier to say than to implementand the court has to be mindful of the burden on the public purse. No doubt the LSC would have something to say about it too and it could cause problems later on in a case if the independent then took a different view from the Guardian. Such an appointee would also not have the powers vested in the Guardian by the Act and the rules. That said, this is an option and arguably a better one that straying into US style partisan advocacy habits.

It was au revoir not adieu

I am rather embarrassed by the lack of posting on the blog particularly when, as recently, I receive compliments about it (from fellow family barrister & cyclist Dorothea Gartland (last year's winner of the ALC Newcomer of the Year award) as I peddled my way 200+ miles around Northumberland & the Borders recently with the Borders Marauders raising money for Biking for Children in Care. I have to admit that the cycle ride came at the back of a long holiday which I had been promising myself for months to recover from an extraordinary year of a heavy workload. I also have to admit that I am now very well rested - and very grateful to be able to take a holiday like that - and have come back with renewed vigour to apply to this blog.

The plan for the blog is to move away from a news item based approach since there are news item on the main Family Law Week site and on many other blogs including Family Lore to develop more analytical and practical content. This will include the development of some new series of posts, for example, tips for beginners, reviews of family solicitor websites, mini case libraries & questions & answers etc. And on a more frivolous note - Shopportunities (thanks to my sister for this word) when I will tell you about great shops near far flung courts.

It would be really great to have contributions from others - it is now much easier to post comments so if you were previously defeated come back and have another try. If you have any ideas for posts as a one off you could email them to me at jacqui.gilliatt@4bc.co.uk or if you would like to become a more regular contributor let me or Lucy Reed know.

Saturday, 8 May 2010

If only we had a magic wand...

I recently stumbled across a US website called 'Our Family Wizard' which really interested me. OFW provides a service for separated parents to manage their communication and arrangements relating to their children. We have all dealt with those contact cases where 'he said' this and 'she said' that, where there are repeated complaints that dad was late or didn't turn up or that mum cancelled at the last minute or that one parent has been inflexible about contact or downright abusive. And they are always denied by the other party. And with this type of case there are two certainties: 1 there will not be any verifiable evidence of what has really happened and 2 a lot of time and money will be wasted by lawyers dealing with the tedious to-ing and fro-ing of allegation and counter allegation played out either in correspondence or in the court waiting room. It goes thus: Lawyer A: 'My client says your client [insert inappropriate behaviour]'. Lawyer B 'I'll take instructions'. ... Lawyer B 'My client denies what your client alleges. He says your client [insert inappropriate behaviour]'. Lawyer A: 'I'll take instructions'. ... Lawyer A: 'No, that's denied. And my client says [insert allegation]'...Repeat until called into court by irritated judge.

Parents who sign up to OFW can use the website as their exclusive means of communication: they can email each other via the website without revealing their personal email address, utilise a contact diary system which enables them to make requests to swap or change arrangements, to notify each other of appointments or events in the child's own diary and even to request and pay for specific items needed by a child. There is space to record all the child's basic information so that it is readily available to both parents (doctor, school, emergency phone no etc). What I think is great is that with parental consent both parties' lawyers and even CAFCASS can be given access to the records of who has said what and when, who has behaved reasonably and who has not, even enabling them to print out reports of activity via the site, including when each parent has logged in.

OFW provided me with several sample orders made by courts in the US, which show that courts there have ordered parents to use this website as their sole means of communication.

For something like £65 per parent per year this is really good value for money when you think of the legal expenses that could potentially be saved. No need to argue about 'he said' 'she said', and a means of communication that is visible to both parties' lawyers is likely to have a calming effect on previously fraught relations. Of course it won't be suitable for all or even many cases, and for many parents even £65 per year is prohibitively expensive (shame legal aid wouldn't pay) but I can see this working really well for some families. Both parents would need to have basic computer literacy, regular access to the internet and be prepared to check in regularly - for US phone networks the site will send a text message to notify if a new message is received, but this is not currently available for UK phone networks.

There are drawbacks - whilst the services are available to parents wherever they are the product is clearly designed for a US market. A UK version would be good - irritating features such as the US mm/dd/yyyy format and financial tools which are not really in tune with the English arrangements for child support are two things which added to the lack of text alerts make this a less than perfect service.

I suspect that the majority of Judges and even lawyers would be initially skeptical about this sort of arrangement, but I do think that in the right case it may have an important part to play. Next time a case crosses my desk that requires something more than a contact book I will seriously consider suggesting the parties consider signing up.

Wednesday, 5 May 2010

Panel Minutes

I had a salutary reminder recently of how useful it can be getting hold of minutes of internal meetings held within the local authority which are not routinely disclosed. Thanks to the Guardian in the case who badgered the local authority to produce the minutes of the Adoption Panel the court was able to see the natural and unvarnished attitude of the social work team towards a parent in the case. I can think of a number of other cases in which these sorts of minutes have been useful. In one instance an Adoption Team Manager gave evidence that a child could be placed for adoption within 6 months. The following day we received the minutes of the adoption needs meeting which showed that her realistic time estimate in relation to the particular child was actually that it would take at least a year to place her. In two other cases the Panel minutes revealed that blatant lies were told to the Panel by social workers (for example, that a child had been injured when they had not and that the care plan approved by the court did not involve a recommendation for direct contact post adoption). Strategy meeting minutes can also be useful in identifying the approach of professionals to a case from the very outset. Running records and documents which follow the trail of internal decision making within the local authority can also be extremely helpful. There is clear case law reminding local authorities of their duties to disclose documents and in theory, according to Munby J, a suitably experienced legal practitioner from the local authority should identify any relevant records from the files and disclose them. When this case was first reported there was a flurry of requests for extensive and arguably unnecessarily burdensome automatic disclosure. Whilst things have settled down it is always worth seeking specific disclosure if you start to get a feeling in your bones that strange decisions have been made or that a social worker has formed a view that does not seem to marry up with your impression of the client.

Cafcass & fact finding

Speaking as one who is having enormous difficulties managing my own caseload I was interested to learn yesterday of a novel approach being adopted in the Stoke area to managing the deluge of cases in which domestic violence allegations are made and which would ordinarily be listed for a fact finding hearing. The pressure on the courts is such that Cafcass Officers are apparently being instructed to express an opinion on allegations and counter-allegations made by parents in order to assist the court and avoid the need for a hearing. In my view this is very dangerous territory. This is an effectively judicial function for which Cafcass Officers have no training and unless they are extremely careful they run the risk of making judgements without having the full facts or the skills to challenge the evidence being presented to them by one or other parent.

Has anyone else come across this approach in other parts of the country? The District Judge in the case in which the issue emerged expressed disapproval of the practice for reasons which will be obvious to family practitioners. He also picked up another important practice issue: the welfare checklist has been deleted from the new style analysis & recommendations pro forma with the obvious danger that the statutory criteria may end up being ignored by those charged with advising the court.

Saturday, 13 March 2010

Resolution conference

and for the more astute of you who immediately noticed that I was posting on a Saturday evening! I am choosing to spend my valuable free time in Manchester at the Resolution annual conference. Mr Justrce Moylan achieved no mean feat in summing up 10 years of human rights in a family law context .

I am also happy to report that family lawyers are a sociable lot who like to dance! I will be awarding prizes later. I am even happier to report that Manchester has great shopping facilities and lots of grovelling a la Pretty Woman seems de rigeur. All round a great experience.

Workload issues

I a sorry to have been neglecting the blog recently but contrary to any pronouncements you may have heard on the radio myself and my colleagues are not noticing any discernible drop in our workloads. A slightly different pattern seems to be emerging involving much later instructions which is a real problem for barristers to accommodate. We are also suffering from an increase in cases being either taken out of lists at the last minute (I have twice turned up to court recently to find this has happened and once got told on Friday evening at about 6 that Monday's case had been removed by the Judge for lack of court time).

I was dismayed to be told in a care case in South London last week - which had been ongoing since November at least - that a Guardian had not been appointed. Not only that - the solicitor for the children had written asking about allocation towards the end of November and only received a response on 4.3.10. The response was that there are once again 399 unallocated cases in London. In the particular case there is no likelihood of a Guardian for several months.

In a private law case in Reading recently the DJ said frankly that there was no point even asking Cafcass to report. If they did it would take at least 6 months. Although the child was very young so that information about wishes and feelings in a general sense were not likely to assist the court there were issues about what was happening during supported contact and the child's reaction to contact which, of course, the contact centre was not willing to provide a formal report about.

How is it going in your neck of the woods?

Thursday, 21 January 2010

Private law reform proposals

Jack Straw has announced a review of private law cases which clearly envisages taking them out of the court system altogether.

MOJ Press Release

The review will be carried out by an appointed panel of 4, assisted by departmental representatives and a stakeholder group of experts, academics etc. The identity of these individuals is not yet known, nor the method of their selection.

The review report is planned to be completed and published in 2011.

The Times headline is 'Divorce Courts may be a thing of the past"

Meanwhile Ed Balls announces that the need for grandparents to apply for leave to apply for contact is to be abolished as the Guardian reports & see the DCSF press release.

Giving with the one hand and taking away with the other?