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Tuesday, June 17, 2008
  Children and Young People Bill Speech
The 2nd reading debate on the CYP Bill was yesterday. I wrote a speech that time prevented me from giving which follows. There was only 6 minutes when I was called so I spoke for 3 minutes because there was one other person who needed to be called.

This is, however, what I would have said had I had the time:

Honorable Members will be aware that I have concerns about the processes involved in Public Family Law within the UK.

These concerns are shared by a number of other Hon Members who have encountered surprising cases in their constituencies.

This Bill allows the opportunity to make some improvements to the processes of Public Family Law that are urgently needed today.

It is important to recognise that the culture established by the judicial process develops the administrative culture throughout an area of society. We have a strong tradition of accountability in civil law. This leads to a clear system of law which governs most activity in civil society.

However, in family law the level of accountability could be improved. Public Family law procedure in particular drives the culture in local authorities and CAFCASS which is recognised by many to be less than ideal.

As part of an all party group of MPs I, therefore, will be tabling two New Clauses to the Bill.

The first Clause increases the accountability of the judicial processes. It permits MPs full access to the proceedings and allows parties to obtain the evidence to substantiate their case. It is ludicrious that an MP is not allowed to pass evidence to a regulator or that court permission is required to pass evidence to the GMC.

This clause also deals with one of the key problem areas where large numbers of miscarriages of justice occur. A practise the courts have developed is to have joint appointment of experts. This means simply that the local authority has control over who is allowed to act as an expert. Because the parents have far less frequent contact with the judicial process all the cards end up being held by the local authority.

Last year a Social Worker came to me and explained how he had discussed with parents’ solicitors how to undermine the parents’ case. This is easily done by the appointment of the right expert.

It is then necessary to obtain the judges permission before the case papers can be shown to any other expert. There are many cases where there has been a real struggle to get an independent expert appointed and when the independent expert has been appointed the parents have won their case. There are other cases where an independent expert has been refused. The end result of this is potentially a miscarriage of justice.

By allowing case papers to be looked at by experts for advice it enables the playing field to be levelled and a reduction in miscarriages of justice. If we wish to obtain a proper judicial system whilst not simply reverting to the situation where each side has an expert then we need to move towards the court appointing an independent expert to consider the expert evidence and parties to be allowed to appoint experts to present evidence to the independent expert. What has to be the case is that the local authority has no ability to influence the income of the expert appointed by the court.

Social Workers are often known to pressurise experts into changing their reports. They call that “advocating for the child”. I call it “attempting to pervert the course of justice.” If we create a situation in which the local authority has no hold over the expert then we get an independence of opinion that is essential for a proper judicial process.

It is not, however, possible to fix everything that is wrong with the family courts in two amendments as part of this Bill. Sadly, therefore, the first new clause can only deal with partially levelling the playing field. Hopefully the government will think about this issue and bring forward proposals to deal with this issue fully at some stage.

The second clause makes some steps towards opening up the procedures used in the Family Courts. Interestingly Justice Ryder a senior judge in the family division was reported today in support of much of the contents of this clause.

I could not find the original speech, but I have the report from the Times.

In which it said:
Mr Justice Ryder said that the family courts system needed to lay itself open to scrutiny which, he said, was necessary for the public's reassurance and satisfaction. “Our judgments should be given in public and anonymised where necessary,” he said.
He urged the creation of a new “family court diversion scheme” and the adoption of a continental-style model where local community tribunals act as a gateway for family justice and deal with cases at an early stage, outside the criminal or civil courts.

I have seen so many really ridiculous decisions in the Family Courts. These decisions, however, have the reasoning (the judgment) kept secret. The problems in Public Family Law are also replicated in Private Family Law. Whereas the system is not always wrong, it is clearly badly broken. It also does a lot of damage to the people (particularly the children) who go through it.

One of the worst aspects of the system is how judicial processes are used to prevent children from instructing their own lawyers. We really should not allow the system to steamroller and silence children in the way in which the Guardian Ad Litem system frequently does.

For people to understand what is happening in the family courts it is not actually necessary for the newspapers to print the names and photographs of the individuals. We do, however, need to see the judgments and also the reports that substantiate the judgments.

The second new clause makes this part of the system.

There are many other things that should happen to make the system work properly. Far too frequently Solicitors refuse to give copies of their files to the clients. This is totally unacceptable and merely acts to shore up bad practise by preventing appeals.

I also agree with Justice Ryder that we need to get cases out of the Family Courts. I prefer the Family Rights Groups approach with a beefed up Family Conference as an independent variation on the Child Protection Conference for Public Law. This could be followed by a Childrens Panel. However, these cases should be kept out of the Magistrates Courts and County Courts if at all possible.

As far as private law is concerned similar proposals have merit. What the system needs to do is to bring ex partners together so that they work together to do what is best for their children. What it frequently does, however, is exacerbate the dispute between parents with the children as footballs kicked around by the lawyers.

Again here the proposals to bring in more scrutiny will help. However, we do need to look at a Family Conference without lawyers as a first step before going to court.

The evidence is quite clear as to the damage done to children that go through the Care system. It is also quite clear that a material part of that damage is done by the care system itself.

The government has not done enough research as to the effects of forced adoption on the children. I am told by practitioners that a number of children forcibly adopted end up back in the care system. I have worked with a number of parents who have be struggling to get their children back from the care system where the children want to return, but the system resists this.

This is massively damaging to the children. The lack of scrutiny of the decisionmaking process which is driven by the secrecy of the judicial process results in appalling outcomes for children.

It is important to remember that research done by Southampton University found that 70% of children on leaving care at 16 returned if only for a short period of time to their parents. Many of the children running away from care are trying to get back to their parents.

We really should not be surprised if children imprisoned in care to stop them living with their parents end up imprisoned in their later lives.

The culture of secrecy has allowed complacency and arrogance to develop in the system and we should not be surprised at the negative outcomes that result.

It is not just parents and children that suffer from bad practise, but also foster carers.

The measures proposed by The Fostering Network are to extend - where a young person wishes - their foster care placement to the age of 21, to ensure foster carers are treated fairly when facing allegations, and to ensure there is proper guidance to local authorities on when decisions can be delegated to foster carers - and I urge the Minister to support these measures.

However, we need most importantly to stop trampling on families. The system seems biased against families frequently splitting up siblings and moving children away from people that they know.

The two new clauses I will be tabling are not by any means the solution to all of the problems. They do, however, start progress towards a better system one which works with families and communities rather than fighting them.

We know that the current system is not serving children well. That being the case I ask the government to consider making it more responsive to children and families and more accountable to the community as a whole.
 
Comments:
http://business.timesonline.co.uk/tol/business/law/article4144440.ece

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