About the Family Law Week blog
The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.
Friday, 26 November 2010
Thursday, 25 November 2010
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.
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
* 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
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 , , ,  and  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  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)  EWCA Civ 18,  1 FLR 1279, at para :
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.
Monday, 8 November 2010
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.
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
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.
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
Thursday, 14 October 2010
Wednesday, 13 October 2010
(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?
Thursday, 30 September 2010
Tuesday, 24 August 2010
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?
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.
Tuesday, 17 August 2010
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.
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.
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)  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.”
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.
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).
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
Thursday, 5 August 2010
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
Thursday, 29 July 2010
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.
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
Tuesday, 20 July 2010
Sadly we are both heading towards Margate!
Thursday, 15 July 2010
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
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  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.
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
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.
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 email@example.com or if you would like to become a more regular contributor let me or Lucy Reed know.
Saturday, 8 May 2010
Wednesday, 5 May 2010
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
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.
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
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?