Local authorities & the PLO

Family practitioners in private practice may be well advised to make sure that the local authorities they regularly deal with are clued up about the PLO. I have just been in a case where the pre-birth conference minutes showed that the putative father in the case had no idea that he would be entitled to public funding (because he thought it would be means tested) (which misapprehension was not corrected) and from the recorded conversation it was obvious that no one present appreciated the significance of the pre-action letter in terms of securing public funding. A legal adviser was present at the meeting but did not contribute to the discussion. You may want to consider making sure that accurate information about the the entitlement to public funding is made available to all CPC chairs.

That fee increase

I am grateful to the Cafcass Google Group for drawing my attention to the remarks in a recent BBC broadcast, of Bridget Prentice MP commenting on the raising of court fees in care cases. She was asked why the government had disregarded the numerous views opposing the increase and referred to the institutional bodies such as the Local Government Association and the ADCS as 'accepting' that the changes would not place children at risk. She also commented that 'it must be right to resolve matters without going to court in the first place'. This small sentence is bristling with worrying implications. Does the government think that local authorities bring care proceedings because they have nothing better to do? How does this square with the number of applications which are granted by the court? Will this fuel the tendency which I have at least anecdotally noticed of some local authorities putting pressure on parents to agree to s 20 accommodation (or we will have to take the matter to court)? How many dead children will it be before there is an acknowledgment that any financial disincentive to issue proceedings aimed at child protection is a bad thing?

Here finally is the response to consultation (pdf file). The majority of responses were against the fee increase. It seems to argue that it is long-standing policy to charge fees for public sector services to any user of the service for good policy reasons so it is a policy that should be implemented in care cases regardless of the statutory obligations of the uses. However, it has never been the policy to do so in criminal cases to users such as the CPC so it should not be the policy now.

"In short, the principles of fee-charging policy apply equally to public sector bodies as to other users. Nor is it relevant whether the public body can be said to be acting pursuant of a specific statutory duty or its more general objectives. Indeed, it is axiomatic that court proceedings generally are, or should only be, brought in pursuit of some important objective, whether public policy or access to justice for an individual user. The significance of the issues at stake does not in itself provide a basis for differences in fee policy.
It has long been the case that fees are not charged at all to bring criminal proceedings. So the principles of the Fees & Charges Guide do not apply. There are no plans to change this policy."

Or am I missing something?

PLO: local practice

As a footnote to the post immediately below, I would be very glad to hear of any other local practice directions / plans for PLO implementation and to have a copy of them so that they can be publicised to other practitioners. I don't know why these important documents always seem to be so difficult to get hold of. It's rather difficult to follow a practice direction if you haven't seen it. I suppose it may be that it will be distributed to all parties when the application notice is served. I will try to find this out.

Public Law Outline: Initial Local Plan for London

Judge Altman, the Designated Judge for London, has issued an Initial Local Plan for London dated 10th April 2008in respect of the implementation of the Public Law Outline (which is already in force). It applies to the London Care Centre which means the PRFD & Barnet, Kingston & Croydon County Courts & is relevant also to cases transferred into those courts from the FPCs.

The guidance deals with:

• the documentation which the LA must file on application, what it is expected to file if practicable, that reasons must be given for non-filing of any required document, recognising that it is not always possible to have everything ready on issue and that proceedings should not be delayed for the preparation or collection of any document provided an explanation is given, and that the pre-proceedings aspect of the PLO may not be achievable in cases where there is urgency in getting before the court;
• the need to deal with disclosure from the police at an early stage;
• a new procedure for the renewal of interim care orders - in particular on application for renewal there is a form which the LA should complete notifyin the court whether case management directiosn have been completed or are at risk of non-completion;
• the need for the child's solicitor to monitor the progress of the case bringing any appropriate matter to the attention of the court and the other parties;
• the procedure on transfer from the FPC, including a standard direction that the instruction of experts should be considered and agreed if possible so that decisions can be made at the CMC where all parties should attend with full information about proposed experts & availability etc as well as information relevant to the listing of the IRH and final hearing, and notifying that there will be no allocation hearing on transfer - the first hearing will be the CMC which is expected to be listed within 14 - 28 days after transfer is ordered (FPC clerk to get hearing listed before transfer, the DFJ to assign the case to a Judge for the CMC);
• Advocates' meetings must take place at least 5 days before the CMC;
• PLO3 (draft template order) must be completed (on court service website in the forms & guidance - Children Act 1989 section);
• There will generally be no directions hearings between the CMC & the IRH;
• Potential alternative carers should be identified by the CMC so they can be assessed;
• Transfer to the High Court must involve consultation with Hedley J or the DFJ (again if transferred the first hearing is likely to be the CMC);
• guidance on single issue transfer;
• the need for expeditious planning of fact finding hearings to avoid delay;
• Target times for the listing of hearings - 12 weeks for a fact finding, 25 weeks for the IRH & 40 weeks for the final hearing;
• Barnet, Kingston & Croydon will not generally list the final hearing before the IRH. The PRFD will continue to list at the CMC but plans to move to listing at the IRH in time.
• Informal recordings of proceedings or judgments are not permitted in London;
• Professionals' meetings as opposed to chaired experts' meetings are not sanctioned;
• LAs should provide a genogram with the application.

At the moment this document does not appear to have been published online. If you would like a copy immediately please email me at jacqui.gilliatt@4bc.co.uk In due course it may be published online, possibly on the main website and this post will be updated and a new post published announcing its publication wherever that may be.

Assessing Risk

Last week I attended the annual London Family Justice Council’s Seminar on Risk Assessment. It was a highly informative day and attended by a wide cross section of those involved in family justice. Of particular interest was the talk given by Prof Don Grubin, Professor of Forensic Psychiatry from the University of Newcastle. In his experience the attitude in USA was very different in respect of experts where lawyers would know the area of expertise as well as the expert and would cross examine much more vigorously. Prof Grubin’s suggestion for the UK family courts was for a single court appointed expert in cases with each party being able to have an expert to advise them on the court appointed expert’s report and areas for cross examination. It was his opinion that lawyers should have a good enough understanding of expert areas to be able to cross examine effectively. When experts talk about “high risk” lawyers should be asking them what they mean by that – is it the same definition that the court is thinking of? He argued that lawyers must challenge standard stock phrases when talking about risk assessment. In particular he said he was an experienced expert and had never been asked in the UK courts (as he was routinely asked in the US) about the instruments that he had used in his risk assessments and it would be the first question that he would ask. What instruments have been used and are they valid? What is the data/evidence to back up that instrument? There are instruments being used for risk assessments which are supported by studies which don’t hold up to scrutiny.

Another interesting point which was raised was whether the use of polygraphs can help in the family courts? (see this link for a general overview). We were told that polygraphs have been used three times in the UK family courts and are 80% reliable. Would you recommend a polygraph to a parent with a success rate of 80%? This article by the Guardian examines whether polygraphs are reliable and discusses how they are being used more than we think. Professor Grubin has writen an article in the British Journal of Psychiatry on polygraphs in the testing post sex offenders. Most interesting was the evidence we were shown at the seminar from studies by Heil et al (2003) on polygraphs where questions were asked about the likelihood of re offending. The studies found that when being polygraphed people disclosed much more information voluntarily on their likely re offending behaviour than when they were not undertaking a polygraph. When convicted child molesters were asked whether they would sexually abuse relatives yes responses went from 16% when not being polygraphed to 65% when polygraphed. The speakers thought that polygraphs would be particular useful in family cases where the issues revolved around “he said, she said” types of allegations.

Dr Gillian Mezey asked the seminar for comments about what makes them chose an expert. Why do we choose X over Y? Is it reputation? Do they have a list? Is it because an expert has been on a particular course? She wanted to work with the Royal College of Psychiatrists to produce some sort of an accredited list of experts as she was concerned that experts could go on a course and call themselves an expert which would give the impression of them being more experienced than they actually were.

Fees Increase for Care Proceedings

More comment on the fees hike in yesterday's Times from barrister Stephen Cragg of Doughty Street.

Floating like a butterfly, not stinging anyone

I was recently in a case in the RCJ which should not have been floating but ended up doing so. For those of you not familiar with this predicament, in the RCJ you are usually given a fixture date ie a date where the court says you will be listed for hearing on such and such a date with a specific time estimate and barring Acts of God you will get on at the appointed hour or near enough. Or you can take an at risk hearing which means you turn up and hang around and hope to get a Judge if one of the other 50 million cases that day collapse. The RCJ has a relatively good track record of getting you before a Judge for at least some time even if you are listed at risk. But this is not much good when you need a whole day of court time. It is particularly galling therefore to turn up thinking you have a fixture only to find you are floating ie they haven't in fact got a Judge to hear the case but one might turn up. You only find out you are unexpectedly floating at about 3pm the day before. You are not generally given any explanation of the reason for this unless you specifically ask. You do not want to be the one jumping up and down about it as you are usually trying to negotiate with listing to get an alternative and one that fits everyone's availability so you need to be ultra-charming and not snarling about why you haven't got a Judge in the first place. Possbily your Judge went sick, possibly something else more urgent came along or something has overrun. In fairness to listing, I have not yet managed to find out what this is all about or the reason for the system they adopt to deal with floating cases but it is absolutely maddening and a huge waste of (usually public) funds. The other day there were 5 counsel, 2 lay parties, 2 social workers & a Guardian all hanging about. We go to court 33 and sit and wait. No one comes to speak to us to tell us what is going on or why we have been bumped off or when we might get heard. The pack of us had to troup up to the list office to find out when we might get another fixture (by this time our time estimate had expanded up to 2 days). Everyone is wildly inconvenienced - cases have to be returned to accommodate the new listing etc. In fairness, the court staff worked a miracle and are able to offer a date in 3 weeks. But who knows whether the same thing will happen all over again on the next occasion. Would it be too much to ask to install some kind of direct line to the list office from outside court 33 so that communication could be facilitated (a bit like the cab freephone in a supermarket)? Or that we could have somewhere to go an work while we wait or an indication of being released until 12 or something? And how do we then get the agreed directions approved and our wretched SIP form stamped. I will try to speak to the list office about this to hear it from their point of view and I appreciate they have a lot of their time taken up with Counsel having a hissy fit and managing the impossible but it does seem to me at least that in this day and age of technology, emails, mobile phones, & video links there must be a better way. Any thoughts?

The Physical Signs of Child Abuse

The Royal College of Paediatrics & Child Health has at long last published their revised guidance on the Physical Signs of Child Abuse which you can order here .

Nagalro & the PLO

In the News section on the NAGALRO site is a link to a speech by Helen James, the Nagalro Chair, on the PLO, Early Interventions & the Children's Guardian and another link to Nagalro's response on the PLO questionnaires.

Nagalro on the PLO

CHILDREN’S VOICES REDUCED TO ‘JUST A FAINT CRY’
UNDER NEW COURT ARRANGEMENTS

Speakers at a NAGALRO reception in London on 8th April warned that
children at risk of abuse and neglect will not be adequately safeguarded in the
crucial period before care proceedings are started under recently introduced
court arrangements.

Alison Paddle, the departing Chair of NAGALRO welcomed a speedier and
more flexible approach to court proceedings for children as a result of the new
‘public law outline’, but cautioned that ill-thought out changes to the complex
family justice system will bring unintended and risky consequences for
children.

Alistair MacDonald, co-Chair of the Association of Lawyers for Children in the
keynote address, ‘The Voice of the Child – Still a Faint Cry?’, pointed out that
the new court approach to care proceedings requires local authorities to work
more closely with parents when considering going to court for care orders.
Parents are entitled to legal assistance when they receive a ‘letter before
proceedings’ from the Local Authority, but children have no entitlement to
independent representation until a later stage, when a court application has
actually been issued. He called for the early appointment of a children’s guardian when this ‘letter before proceedings’ was sent, in the interests both of natural justice and to ensure children have independent representation to protect their interests andput across their views when crucial plans are being made about their future. Mac Donald said: ‘Vitally, the involvement of the Children’s Guardian following the letter before proceedings would also militate effectively against collusive agreements that satisfy an adult agenda at the expense of the interests of the child.’

MacDonald advocated access to legal help for the child too, saying: ‘The
concept of access to justice for children and young people cannot be limited
and must extend outside the boundaries of court proceedings.’
He concluded: ‘Sadly, whilst the central aim of the pre-proceedings process is
to fix safe and sustainable arrangements for the child, the voice of the child
within this process is a very faint cry indeed.’

Helen James the new Chair of NAGALRO today said: ‘The 3100% increase in
court fees that local authorities will have to pay to take a case of neglect or
The Professional Association for Children’s Guardians, Family Court
Advisers and Independent Social Work Practitioners and Consultants
abuse to court is a deterrent to vital safeguarding measures. Put that together
with the loss of specialist family lawyers who are leaving the field because of
cuts in legal aid funding and the late involvement of the children’s guardian
and solicitor and a very worrying picture emerges. The protective
mechanisms for vulnerable children are being seriously weakened, and their
rights are being undermined.’

Research on the Care System

Community Care carries an article by June Statham summarising and comment on the research below.

Title: The Pursuit of Permanence: a study of the English care system
Authors: Ian Sinclair, Claire Baker, Jenny Lee and Ian Gibbs
Institution: University of York, commissioned by the Department for Children, Schools and Families as part of a research initiative focused on the Quality Protects programme.

ABSTRACT

This study traced the "care careers" of more than 7,000 children looked after by 13 English local authorities. It analysed why children entered and left the care system, the reasons for movement and changes of placement within it, and the outcomes for different groups of children. It concludes with recommendations for how the care system should work and what it should offer.

Click here for the summary of findings from the research (pdf file).

Thermal Injuries

The NSPCC has published an information leaflet Thermal Injuries on Children based on a systematic review of the quality work in the world literature about scalds and burns sustained by children. It is one of a series of information leaflets on aspects of physical child abuse based on a collaborative project by the NSPCC and the Welsh Child Protection Systematic Review Group at the Department of Child Health, Cardiff University. Others in the series include Bruising, Fractures, Oral Injuries & Human Bites and are available on the Welsh Child Protection Systematic Review Group website .

All In a Day's Work?

As if social workers did not have enough today with the PLO in force from tomorrow here is an extract from the General Social Care Council's Social Work at its best: The roles and tasks of social workers .

Social work roles require a wide range of tasks to be performed. These can
include acting as broker to obtain the support people want through creative
use of all available resources; enhancing parenting and supporting the
physical, intellectual and emotional development of children and young people who need help, in line with the Children’s Plan; helping disadvantaged people of all ages improve their health and wellbeing; arranging good-quality alternative care for children whose parents cannot care for them, and for adults who can no longer manage in their own homes; and aiding people in poverty to improve their financial position, informing them about their entitlements, and supporting them to access training, work opportunities and benefits.





6 impossible things before breakfast?

An emotional abuse of process?

Community Care carries an interesting article on Alerting Professionals to Signs of Emotional Abuse in which it draws attention to the rather excellent model multi-agency practice guidelines on identifying and evidencing emotional abuse developed in Nottingham.

It is perhaps ironic then that it is Nottinghamshire City Council which was criticised for its action in unlawfully removing a child from its mother within two hours of the child being born and ordered to return the child immediately as the Times reports. The case came before Mr Justice Munby of Re X Council v B fame. Ouch.

Plainly Nottinghamshire had not read my article on the Interim Removal of Children from their Parents on the main Family Law Week site.

PLO / Children Act Guidance to local authorities

The DCSF has sent a letter to Chief Executives and Directors of Children's Services introducing revised statutory guidance about Children Act 1989 court orders, which comes into effect on 1 April 2008, alongside a revised Practice Direction (the 'Public Law Outline', which provides guidance to judges/magistrates). The new Volume 1 'Court Orders' guidance replaces the guidance issued in 1991.
The guidance includes the draft notice to parents of intended proceedings, a pre-proceedings checklist & draft directions.

The PLO

Congratulations to Anthony Douglas of Cafcass who received a CBE in the New Years Honours List. In an article in Community Care he sets out some thoughts on the PLO and the "implementation year" ahead.

Removing the children before the children get removed

Lots of media attention in the last couple of weeks about case of Fran Lyons. Her website Asking for a Chance gives the background. Press coverage includes a Daily Mail article , Woman's Hour, & ITV news .

Fran has had mental health problems earlier in her life and now she is expecting a baby. The local authority are apparently saying that they will remove the baby at birth, having been advised that Fran might harm the baby as a result of Munchausen by Proxy Syndrome. Fran was understandably terrified about what will happen. She moved into a different local authority area but has now decided to take herself off to Europe.

I don't know all the background details of the case but if half of what is written about the case is true, it is difficult to see how the local authority would have persuaded a court to grant them an emergency protection order or interim care order: see the article on the Interim Removal of Children from their Parents on the main Family Law Week site. In one of the cases referred to Mr Justice McFarlane specifically says that cases involving fabricated or induced illness with no medical evidence of immediate risk of direct harm to the child will rarely warrant an emergency protection order. In addition there is case law which suggests that Munchausens Syndrome By Proxy (MBSP) or factititious illness (a syndrome in which parents are thought to fabricate or induce illness in children) does not even exist. Mr Justice Ryder said this: "The terms ‘Munchausen’s Syndrome by Proxy’ and ‘Factitious (and Induced) Illness (by Proxy)’ are child protection labels that are merely descriptions of a range of behaviours, not a paediatric, psychiatric or psychological disease that is identifiable. The terms do not relate to an organised or universally recognised body of knowledge or experience that has identified a medical disease (ie an illness or condition) and there are no internationally accepted medical criteria for the use of either label. In reality, the use of the label is intended to connote that in the individual case there are materials susceptible of analysis by paediatricians and of findings of fact by a court concerning fabrication, exaggeration, minimisation or omission in the reporting of symptoms and evidence of harm by act, omission or suggestion (induction). Where such facts exist the context and assessments can provide an insight into the degree of risk that a child may face and the court is likely to be assisted as to that aspect by psychiatric and/or psychological expert evidence." Fran says that she has been diagnosed as likely to suffer from this syndrome by a Paediatrician who has not in fact ever met her. Further she says that the Psychiatrist(s) that know her do not agree. It is difficult to see how that diagnosis could possibly be made on a paper assessment before the baby has even been born and suffered any harm at all. Writing about diagnosing MBSP, Professor Tim David, a leading Paediatrician said: "This is one area where confusion can occur. The diagnosis is made in the same way as in any other case of physical abuse, and not by identifying certain parental characteristics, such as the mother being a nurse." And even if it were true that Fran did have the condition of MBSP this does not mean she could not be given support and Psychiatric treatment.

I appreciate that the public debate has been rather one-sided in that the local authority have not been able to contribute much by way of detail, but it does seem that Fran would have had a good case to put to the court. I can't help thinking that I might well have been tempted, if in her shoes, to duck out of all the stress and strain of combining first time motherhood with care proceedings by skipping off to live abroad. I do wish though that the public debate that there has been had included a little more about the legal principles and difficulty likely to be faced by local authorities when trying to justify removal & a little less on baby adoption targets which in fact have been withdrawn.

Stand by your man .. and his love child

From the Times comes a curious tale of a woman who is supporting her husband's bid to bring up the child of his affair with another woman, alongside the children of their relationship. The pair have been granted the chance of a rehearing by the Court of Appeal, following the County Court's earlier decision to favour adoption because of threats from the natural mother.