Laws of Love

As yet another Children’s Services Department comes under pressure from a damning report (see BBC story), it’s worth sparing a moment for the Social Work profesion. Despite a new TV advertising campaign, the profession can’t seem to get any respect and the disincentive for quality candidates to choose Social Work can only serve to worsen the current crisis.

I act for Local Authorities on a fairly regular basis and have recently conducted with colleagues a 4-day training course for Social Workers. The reality is that, whilst there are some bad social workers, as there ae bad lawyers, shop assistants and doctors, the vast vast majority work over the hours in the hardest of circumstances with those in most need. The pay of social work is not good (save perhaps for Directors!), the clients are never grateful for the intervention and the work prssures placed upon them due to chronic under-funding of the departments over many years, is terrible. That is to say nothing of the red-tape that leaves many social workers longing for the days when they could actaully focus on service-users.

The relaity is that whilst mistakes are made and things are missed, it is not due to individual failings but an inevitable consequence of an under-funded system where many are de-moralised and unable to focus on the key tasks. Another review and yet more threats of ’special measures’ will ensue, but what is really required is a government that takes social care seriously and is willing to put more resources behind these over-worked professionals. 

I always worry about writing posts condemning budget cuts in family law, but yesterday’s article in The Times, if true, tells of yet further concerning cutbacks. 

The alleged proposals are concerning for family lawyers (and family court clients) for three reasons however:

- Closing court centres and cutting court staff can only lead to poorer access to justice. The reality is that outside London and other major urbanisations, it is important to have a local court. Often family clients have extremely limited resources and serious childcare needs. The prospect of forcing parents etc. to travel 30 miles + just because their local court was closed will have serious implications (I’m ignoring the fact that owing to legal aid cuts clients in rural areas may have to go similar distances just to find a specialist lawyer!). 

- Equally further redundancies among court staff will only lead to a poorer service at court. Court Service employees are not paid large sums as it is and they are, for the most part, dedicated to their jobs. The system is, sadly, coping with far more work than it is truly fit for, and fewer staff can only lead to greater delays and a higher proportion of cock-ups.

- The article appears to state cuts will be made in “double representation” in public law (Care) cases. The very idea that there is double representation is a fallacy. A wheeze of CAFCASS legal has been for some time that if, in a care case, a Guardian is supporting the Local Authority they do not need separate representation. This is untrue. A Children’s Guardian may well support the plans of a Local Authority but they may well do so for different reasons and arrive at decisions from an entirely different perspective (that of the child), and it is lunacy to say that the court is not entitled to have that differing perspective enunciated by a dedicated representative to make sure the court takes on board what is said.

- The other avenue for “double representation” may be to prevent parents having different represenation if they run the same case. The difficulty is that there are truly very few care cases where parents do run the same argument. Any case in which domestic violence is a live issue (a huge proportion of care cases), is a case where separate representation is needed. Likewise cases involving sexual abuse or non-accidental injury require separate representation (invariably even if both parents admit such acts one will claim they were co-erced by the other). Equally in Care Cases the key decision is usually eventual placement of the child and parents (assuming they are separated), almost always have different strengths and weaknesses and  these need to be put forward vigorously. 

Ultimately in relation to family law (and particuarly care), it is understandable that the government will feel pressured to cut costs; however it must be realised in Whitehall that family law delivery ‘on the cheap’ will lead to huge injustice (and in Care cases it is strongly arguable wrongful permanent removal of a child is far more serious than a period of wrongful imprisonment). Further, when so many social problems are said to be due to children being given poor / unfortunate parenting, a small cut in the Ministry of Justices budget may well require huge increases in other areas of government activity, not to mention a further loss of social cohesion.

When will it be realised that court staff and family lawyers are, on the whole, dedicated and hard-working professionals desperately trying to ensure the system remains fit for purpose.   

I’m grateful to Pink Tape and Family Law Week for alerting me to the decision of the House of Lords yesterday in Re B. It is not often that family cases of any type make their way to the Lords, still less Care cases, so a careful analysis of their judgment will be necessary. Having said that it appears that the following main points arise:

Proof the child is suffering or is likely to suffer significant harm

The requirement to prove significant harm or a likelihood of significant harm has become known as ‘threshold’. Without such matters being proven, the court is not entitled to intervene by making Care or Supervision Orders under the Children Act. In relation to actual suffering the law is simple in that it must be proved acts did occur for that to be made out (as to what constitutes proved - see below). The difficulty arises in relation to what is required to substantiate a likelihood of harm.

In Re B, Baroness Hale makes clear (and the other Law Lords agree) that where a likelihood of harm is based on certain facts it must be proven by the court that those preceding events did take place - it is not sufficient to found a likelihood of harm, to say that there is a real possibility certain events took place. (see paragraphs 22 & 54). The Judge notes that the potential for a real possibility of events having taken place founding a likelihood of harm is at great risk of reversing the burden of proof and is not to be tolerated.

The Standard of Proof

There has been confusion for some time regarding the standard of proof in Care Cases (i.e what we mean by “proved”). Traditionally English Law recognises two versions of the standard of proof, the civil standard - balance of probabilities, ie something is more likely that not to have occured - over 50% ; and the criminal standard - beyond reasonable doubt or so the ct is sure - ie in the region of 99%.

The problem arose however that owing to the way various Judge’s formulated the test in Care and other proceedings, a judicial gloss was put on the civil standard so that the more serious the allegation the most cogent the proof required. This risks the conclusion that 51% would not be enough.

Baroness Hale however makes it quite clear that 51% IS enough. The civil standard pure and simple is to be applied and the judicial gloss is to cease (see paragraph 70). 

Split Hearings

Baroness Hale also makes interetsing observations regarding split hearings noting that they are simply one tool within the court’s armoury and really should only be utilised in cases where there are certain issues capable of speedy resolution; or in cases where work might be required between hearings (see paragraph 75). The Judge also expressly disapproves the elements of split hearings being heard by different judges (see paragraph 76).

The roles of the Local Authority and Court

There are some interesting comments on the differing roles of the LA and court with the LA being seen as acting to prevent and the court being the arbiter as to what steps are in fact justified to protect. (see paragraphs 57 & 58) 

Judging

Finally there are some choice quotes on judging:

“In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence” (paragraph 32)

And  in relation to the first instance Judge in this case failing to be able to make firm conclusions on certain allegations:

“My Lords, if the judiciary in this country regularly found themselves in this state of mind, our civil and family justice systems would rapidly grind to a halt. … The task [deciding, often on oral or non-documentary evidence] is a difficult one … But it is the task which we are paid to perform to the best of our ability” (paragraph 31)

 - hmmm - i must say I’ve had days where these principles haven’t quite been put into practice!!! 

Frequently in practising family law we criticise the parenting of others. Indeed, I do so without even having children of my own. Yet I do think that as family lawyers we need to bear some responsibility for the extent to which those criticisms are actually valid.

A very interesting article in today’s Times was about the so-called “worst mom in America“, who had let her child ride the subway home from school on his own. This act appears to have enraged America, where fears of abduction etc. haunt every parent. I don’t want to comment particularly on her specific attempt at ‘regaining children’s independence’ in allowing her son to do something she used to do as a child all the time some twenty years ago; but it does make you think. What is the appropriate standard of parenting? Where does protection of children end and smothering begin? In Care cases we frequently use ‘good enough’ parenting, but what does that mean? As I say, a plethora of questions, but take a look at the worst mom’s blog for an interesting perspective on whether we are actually taking children’s freedoms away and instilling fear within them in the name of keeping them ’safe’.   

On a similar theme an interesting news story is the vegan child who appears to have medical difficulties as a result of the dietary choices made by her parents on her behalf. Seemingly Social Services are about to intervene and this story also raises questions of line-drawing and the extent to which modern society should or can regulate parenting, that most intimate of activities. Neglect is often taken to include failing to feed your child appropriately, but is ‘impropriety’ a particular choice of diet (include within this obese children eg)?

Finally in the trio of artcles there was an insightful piece on counselling and the extent to which psychotherapy and the like actually helps or hinders people. There certainly was a change-over between the UK and US whereby counselling appeared to be protrayed as the answer to all problems. Now it is  recognised that sometimes letting people deal with things internally can actually be more beneficial. Once more the question must be asked - to what extent should or can outsiders intervene in very personal affairs and is such poking and prodding helpful or right?

None of these articles provide answers but they do ask interesting questions and ones worthy of consideration by a profession where being critical of parenting styles and personality-types is often encouraged by emotionally wrought clients and the lawyer needs to act as a reality check for parents’ expectations and standards.

There are, without doubt, incompetent and lazy social workers. However, there are equally incompetent and lazy lawyers, managers and plumbers. The difficulty is that the press in recent days has given the impression that the proportion of unfit social workers is higher than that of bungling individuals in other walks of life.

Mistakes have been made in the past and Children’s Services Departments (as Children’s Social Services now tend to be known), have been refining their procedures for many decades. The most recent wholesale review of national practice was conducted by Lord Laming in the Victoria Climbie Inquiry and that highlighted, amongst other things, the need for closer co-operation between agencies.

The recent death of Khyra Ishaq in Birmingham, a 7 year old who seemingly starved to death, has brought trenchant criticism of Social Services within the press and indeed from Khyra’s absent Father. Further it has lead to several commentators shouting from the rooftops that the lessons from the death of Victoria Climbie have not been learnt, a point made this week by Victoria’s Mother.

On a similar theme, The Times today noted an innovative project by CSV (Community Service Volunteers) whereby volunteers are paired with families whose childen are on the at risk register. This scheme appears thusfar to have had superb results in two pilot areas and is set to be extended. The article itself however raises the view that this role should be fulfilled by social workers not an ‘army of amateurs’.

The tide appears to be turning though with a comment based article in the Sunday Times noting that in fact whilst Victoria Climbie’s death plainly raised questions of Social Services it also raised questions of her own Mother’s conduct. A similar standpoint comes through in a reader’s letter entitled: “Parents must bear the blame“.

The truth of the matter, it seems to me, is that such diametrically opposed approaches miss the point. Social Workers deal on a daily basis with those most in need. These parents are to some extent ‘to blame’, but the majority of parents in difficulties have themselves had apalling childhoods and are often weighed down by their own problems. On the other hand the stresses on Social Workers are huge and the vast majority of these professionals are commited to their jobs and truly care for children they come into contact with. The difficulty is that they are poorly supported (the system simply can not cope with the number of referrals), snowed under with obligatory paperwork (the need to record all interactions and write lengthy reports leaves many simply tied to the office) and hugely demoralised (often knowing that they can’t undertake the job in the way they would like and that they are paid less than the average plumber).

Social Services do owe the public a duty of care and failings in the system causing children at risk to go unnoticed must be rectified, but it is rarely appropriate to criticise and castigate Social Workers in general. Rather, deficiencies are often due to those in overall control of the system and the allocation of local authority resources (Children’s Services is rarely a high priority for the electorate and therefore an easy target in cutbacks).

Equally, in many cases the Social Workers on the ground are dealing with the residue of society’s wider problems - drugs, poverty, lack of community. As noted in the Comment in the Times dealing with the CSV project described above, it is often the lack of a postive role-model or support network that fails to protect such families from falling into dysfunction.

In conclusion, there are certainly some inadequate social workers, but it simply isn’t appropriate for the press to castigate Social Services at every turn before even establishing all the circumstances. Society as a whole must look at itself and though Social Services’ role is that of a ’safety net’, they can not be expected to save the day on every occasion given the huge tasks we ask of them, though that will always remain their objective.

Well, it’s 1 April, April Fools Day, and what an auspicious day for the national roll-out of the new Public Law Outline for Care Proceedings (full details here) .

This new procedure for conducting care proceedings has been a long-time in coming and has in fact been trialled in some courts for months. One of the trial courts is Portsmouth where I practice so I’ve been dealing with this now for some time.

The three main focusses of the PLO appear to be:

• more work pre-issue (ie before coming to court)
• greater judicial case management
• greater emphasis on efficient proceedings and a weeding out of ’hopeless’ cases 

All these aims are of course laudable, however will the PLO achieve them?

The honest answer is it’s early days and only time will tell. In fact in my area I suspect the PLO will have a limited impact owing to the committed professionals who work locally and have always striven to serve both their clients and the court to the best of their abilities. That said reading the law reports it is plain that in some areas cases are run in the most bizarre and haphazard fashion (without meaning to be harsh, cash-strapped metropolitan authorities seem to have particular difficulties), and for them the PLO should be a useful tool.

On a more practical note however, the PLO standard directions such as the Case Management Order (PLO3) are unwieldy to say the least. As above I applaud the idea - that everyone sets out their issues early and action plans are agreed at the first opportunity - however much extra work is being put on professionals and to a certain extent if decent professionals are involved this should not be needed.

Overall much of what the PLO involves has been best pactice for some time and the ’spelling-out’ now required, appears to be a product of the decline of appropriate professionals in this arena owing to the governments stupidity regarding legal aid reform (about which I am sure there will be future posts!). The PLO is a good idea, it is perhaps just a sad sign of the times that 5 or 6 page orders must be mandatory in order to ensure that people do their job properly - maybe if the government wasn’t so determined to drive committed professionals out of publicly funded family law we wouldn’t have needed yet another initative.