Laws of Love

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.

Every so often I’m reminded that I practice in the provinces (a romanticised turn of phrase which actually means anywhere other than London!). Reading The Times Law Reports this morning was one of those occasions when I realised how far removed from London I truly am.

I have never had the delight of appearing before the House of Lords (the highest court in the land, soon to be known as the Supreme Court), except for sitting behind my pupilmaster when he conducted a case there. I was astonished to read however that the Law Lords have felt it necessary to issue a note to counsel reminding them that when they are instructed to appear before their Lordships they are expected to both ‘be present at and throughout the hearing’.

I, stupidly, hadn’t realised it was possible to conduct a case other than by being there for the whole thing, particularly before the Law Lords - I guess I’m just not destined for greater things!

The Times this morning (3rd June), had two very contrasting stories about parents, both of which deserve comment.

Firstly there is the government white paper concerning birth registration (as noted by The Times) which puts forward proposals whereby Mothers must confirm the father’s identity at the time of a new child’s birth registration and both parents must sign the certificate (under the current law a married father’s name is inserted automatically but it is up to Mothers to register unmarried fathers). This joint registration will be obligatory, the White Paper proposes, unless registering the Father would be, “impossible, impractical or unreasonable”.

The scheme has already been the subject of useful comment by Family Lore  and as ever I agree with his observations. That said, one point raised is that seemingly Mothers are to be interrogated as to Father’s identities, yet the courts have recognised that in fact if a Mother refuses to give a name, little can be done (see Re C from 23 November 2007).

Equally, in assessing whether it would be ‘unreasonable’ to enter a father’s name on the certificate it appears the registrar will need to undertake a judgment as to the nature of the objections - the White Paper talks of, eg. rape of Mother or Father being on the Sex Offenders Register as reasons for omitting father’s name - this will be tricky ground indeed for registrars who, I am sure, will not appreciate the extra burden.

One might ask the relevance of birth certificates but following changes introduced by the Adoption and Children Act 2o02, if the Father of a child born after 1 December 2003 is named on the birth certificate, they automatically acquire parental responsibility.

Given this automatic acquisition of PR I have to say the prospect of getting more fathers on birth certificates must be welcome. The problem is that I see the scheme itself being hideous in operation (Family Lore commented on the ease with which Mothers will avoid giving Fathers’ name and equally the difficulty for registrars in chasing Fathers to sign).

Also, it would be easier to believe in the proposals if you got the impression that they were truly intended to enforce the importance of absent fathers, rather than simply to increase the number of absent father’s liable to pay CSA (thereby relieving the state). I owe this rather cynical view to an interesting if controversial article in The Times written by Germaine Greer. I certainly do not agree with everything she says, but as to the government’s motives - I fear she is right!

At the other end of the spectrum the Times then has an article on a little publicised topic - absent mothers. In fact I don’t particularly like the article as it does appear to take a Greer’esque view, namely that Mothers without children are somehow worse off than non-resident Fathers. The reality is that absent parents of both sexes can often feel hurt by such detatchment and shut out by the system. The article is useful however, if only as it shows that courts do tend to be more concerned with who the primary carer has been and is, rather than with their gender.

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.