Biking for Children in Care

Apologies for the lack of posts recently - last week I was mostly on a bicycle in Belgium! This is my third year riding with
Biking for Children in Care to raise money for the
Who Cares Trust . This year 50 of us cycled 218 miles in a circle from Lille to Brussels including a quick sprint through Holland. Last year we cycled the Trans Pennine Trail (and it mostly rained) and we raised over £40,000 for the trust and we are hoping for similar results this year. The ride is mainly organised by the amazing Gill Timmis, a Children's Guardian & Independent Social Worker, who enrols a whole raft of amazing people to cycle, feed us & pick us up when we fall off. You can donate to the Who Cares Trust through Just Giving or send a cheque to me in my chambers ( 4 Brick Court) (made payable to Biking for Kids in Care) if you feel so inclined. Pictures of us in our natty t-shirts will be appearing on the Biking for Children in Care website soon - in the meantime you can have a look at last year's wet t-shirt competition.

Joint Birth Registration & Parental Responsibility

The Government have published a White Paper on Joint Birth Registration following responses received from its Green Paper on the subject last June. The new law will form part of the Welfare Reform Bill in the Autumn and proposes changes to make joint birth registration a legal requirement for all unmarried parents.

This is part of the Government's proposal to promote child welfare and parental responsibility where 45,000 children born each year are sole registered. The Government believes that in 45% of these cases the father has regular contact with the child. In Australia where there is similar legislation sole registration accounts for 3% of registered births.

The Times reports that under the new system the mother will be asked by the registrar to name the father and "the registrar will be obliged to pursue him until he signs." The father can take a DNA test if paternity is disputed and will be fined if he fails to co-operate. There is concern from Union of which most registrar's are a member, that adequate resources will not be provided to registrars to achieve this. There will be very little that the registrar will be able to do other than fining fathers who fail to respond to their requests. Under the new changes fathers will be able to registrar by post and will not need to go to the Registry Office as they have under the present legislation.

The new law will also give fathers the right to insist that they are registered and to have parental responsibility. In these circumstances fathers will be able to take a DNA test if paternity is disputed.

As the piece in The Times says there is nothing that can be done when the mother does not want to name the father. In cases where this is the case or the mother does not know who the father is the registrar will be able to use their discretion to make sole registrations where it is "impossible, impracticable or unreasonable" to obtain both names.

News Roundup

Young foster children with emotional or psychological difficulties are to get extra support to stop them getting into trouble at school and help them settle in care placements, thanks to a £3.8 million pilot project announced today by Children’s Minister Kevin Brennan in this press release .

Almost a million parents, children and practitioners nationwide have reaped the benefits from round one of the Parenting Fund run by the Family and Parenting Institute on behalf of the Department for Children Schools and Families (DCSF). The Parenting Fund gave £16 million to charities and voluntary organisations to boost parenting services across the country. It was spent on a wide variety of activities from employing extra outreach staff to help families in rural areas to creating family groups for teenage mums and parents of disabled children. See the Family & Parenting Institute press release .

The DCSF has published plans for the new social work practices for looked-after children. The prospectus includes details about how to get involved in the pilots.

An Ofsted report (pdf file) into the Children and Family Court Advisory and Support Service Cafcass) in the South-East has found the quality of practitioners' work with children and families in private law proceedings is inadequate, primarily due to the delay in providing services.

The Royal College of Paediatrics and Child Health (RCPCH) and the Royal College of Radiologists (RCR) have jointly published a document that sets out important guidance on radiological investigations into suspected non-accidental injury (NAI) in children.

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.

Taking on the Experts: Part 1

The main Family Law Week website has published an opinion piece by Dr John Fox of Lamb Building on 'Trial by Expert' . I am entirely sympathetic to his viewpoint which raises many interesting issues. I intend over the course of a few posts to deal with possible solutions to the difficulties he identifies.

Firstly, on Cafcass officers. The rules say (FPR 4.11) (4): A party may question the officer of the service or the Welsh family proceedings officer about oral or written advice tendered by him to the court. Cafcass Officers can be questioned. That means all of them, including a Children's Guardian.

You may need to ensure that the officer is available at the hearing (many courts direct that the Cafcass Officer should be available for the hearing but their actual attendance is to be confirmed at the pre-hearing review). You may also need to ensure that the Cafcass Officer is written to about the hearing dates as the notification to them by the court is not infallible.

The Cafcass Officer's evidence of opinion, including their opinion on the truthfulness of a witness, is admissible. However, this does not detract from the court's ultimate responsibility for deciding on where the truth lies. It is for the court to decide what weight to give the Officer's opinion and any evidence on which it is based. You may wish to consider asking for copies of the Cafcass Officer's notes of interviews to be produced rather than the summary which tends to make its way into the report. This is an unusual step and it is best not left to the final hearing itself.

The Cafcass Officer needs to consider the welfare checklist. This can be a good way of cross-examining. Has each relevant factor been given sufficient weight? Has some vital factor not been considered at all? What research base has the Officer relied on implicitly or explicitly (what, for example, is known about the type or quantity of contact which is beneficial for a child of any given age)?

The Cafcass Officer also needs to comply with Cafcass' own service standards & policies . This can be another line of exploration of the Officer's underlying thinking in cross-examination.

The Court of Appeal gave useful guidance on the role of the court & the Children & Family Reporter in the case of Re M (Disclosure: Children & Family Reporter) [2002] EWCA Civ 1199 .

Here are Thorpe LJ's views:

"(i) The relationship between the CFR and the judge is collaborative. Each has distinct functions and responsibilities in the discharge of which each exercises independently both judgment and discretion.

(ii) If in the course of inquiries in private law proceedings the CFR is alerted to the possible abuse of a child he should consider the following analysis:

(a) Is this either:

(i) a discovery or direct report; alternatively

(ii) is the CFR listening to an account of someone else's discovery or to a second-hand report?

(b) If the latter:

(i) Has the information been relayed to social services or the police already?

(ii) Is there a history or pattern of past complaints?

(iii) How plausible is the report?

(iv) Was the informant a party to the proceedings?

(v) If yes, has he put this statement in evidence?

(c) Would the abuse, if established, amount to significant harm or the risk of significant harm within the meaning of s 31?

(d) Is there a need for urgent action? What are the risks of delay?

(iii) The answers that this analysis elicits should help to decide the appropriate course of action. It will seldom be necessary for the CFR to relay second-hand reports to social services. Furthermore such reports are unlikely to be urgent. Accordingly there will ordinarily be no obstacle to consultation with the judge before taking any action.

(iv) The CFR should always be alert to the danger of being enmeshed in the strategy of the manipulative litigant. The independence and impartiality of the CFR are crucial and if one party perceives that the CFR has taken sides with the other the judge's ultimate task, both to promote the welfare of the child and to impress the parties with the fairness of the proceedings, is rendered more difficult.

(v) Where the CFR makes a discovery or receives a direct report an immediate report to social services or to the police may be indicated. In such a situation the CFR must exercise an unfettered independent discretion. The only rule is that he must inform the judge of the steps he has taken at the earliest convenient opportunity to enable the judge, who controls the proceedings, to consider the impact of the development and the need for consequential directions."

The italics are mine to emphasise yet another possible avenue of challenge.

Ward LJ on the court's powerlessness in contact cases

The Times reports on Ward LJ's remarks in a contact case as he agreed with a father in a contact case that the law was "sterile, impotent and utterly useless".

Suzanne Holdsworth appeal result

Babysitter Suzanne Holdsworth has won her appeal against conviction for murder the BBC reports on the basis of fresh medical evidence suggesting that his death might have been caused by an epileptic seizure. The full judgment is on Bailii . The case has been remitted for retrial.

A National Strategy on Neglect & Emotional Abuse

The NSPCC has published its research report on Developing an Effective Response to Neglect & Emotional Harm to Children (downloadable from this page as a pdf file or you can request a copy by email). The report outlines its case for a national strategy to be devised.

Children with Attachment Disorder

A thoughtful piece in the Times by Penny Wark considers the difficulties facing adopters raising children with attachment disorders, profiling in particular Melanie Allen's experience. Melanie has written a book about it - The Trouble with Alex - which I have ordered from Amazon and then review.

Parenting Plus for Professionals

Parentline Plus for Professionals has been launched as a website dedicated to professionals working with children & families. The website is already packed with useful articles on parenting & separation (a guide for parents can be ordered through the site) and on registration there is access to more.

Angela Cannings Foundation

The Angela Cannings Foundation website is now up and running though still in the building stage. There is an associated forum which is likely to make for lively reading, with Penny Mellor heavily involved. One case the team is tracking is the appeal of baby sitter Suzanne Holdsworth, who was convicted of the murder of a child in her care in 2005. BBC's Newsnight carried a feature on the appeal & the medical issues in which one of the officers who investigated the offence expresses concerns about the quality of the investigation, partly because important evidence about the child having a brain tumour was not put before the jury. The outcome of the appeal hearing is still awaited as judgment was reserved.

Public Law Fees Increase

The Ministry of Justice announces the outcome of consultation on the proposed fee increase for public law proceedings here and they do exactly what is says on the tin. The outcome is that they are going to increase the fees. They have consulted and they are still going to increase the fees. They will publish the responses to consultation in two months time. Any resemblance to Mr Mugabe's decision to delay the announcement of the actual results of the Presidential election in Zimbabwe is entirely coincidental.

Foster care assessment placements

Community Care starts an interesting debate on the anecdotal rise in mother & baby foster placements as an alternative to residential assessments. My experience is that some local authorities have been encouraging this alternative to residential assessments for some time if they have the right pool of professional foster carers to deal with the parents in appropriate cases. It can offer a lot better and less bruising experience to parents than residential but it is never available to couples. It would be fascinating to know what your experience is nationwide on the effect of the public funding changes on the use of residential assessment units? Comments please.

Child Protection Resources

A round up of useful resources is posted on Community Care .

Doctors and the diagnosis of abuse

Another interesting resource on this topic is this article by Dr Newberger from Massachussets & another one she co-wrote with Jane Snyder in which she discusses professional consensus or lack of it on what constitutes evidence of abuse with reference to research which shows that doctors tend to take a less serious view of possible signs of abuse.

On a related subject, the RCPCH has declined to pass a motion of no confidence in the GMC but has said 'the College continues to have grave concerns over the current GMC procedures in child protection.' according to the Press Association .

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 .

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 .

Welcome to the Laws of Love

A new family law blog - Laws of Love (a family law blog dealing with all aspects of relationships (legal and just plain odd) - from Mark Chaloner, a Southampton based family barrister, was launched on the same day as the PLO and made has made a very good start with a piece on contact. I am particularly glad of today's post on Coleridge J's speech to Resolution which tells us more about what the Judge had to say. Saves me a job!