Tuesday, December 01, 2009
Do parents have rights in the family court
The link is to a recent judgment in which para 10 says:
I think it important to remember when one is looking either at the independent assessments by social workers or at applications under section 38(6) of the Act that one needs to be child focused. It is not a question of the mother's right to have a further assessment, it is: would the assessment assist the judge in reaching a conclusion or the right conclusion in relation to the child in question? And on this particular issue it does seem to me that the judge was exercising a discretion and doing so appropriately on all the facts available to him. He thus reached a conclusion which I cannot for myself say in any way is plainly wrong, and since he has based himself on the latest authority on the point and considered the matter carefully, I, speaking for myself, cannot say either that he has erred in law and would dismiss the appeal in relation to a further social worker assessment.
This is a decision of the court of appeal which says that the mother has no right to a further independent assessment. This particular mother has only had assessments done by the local authority or its employees since she gave birth to her 10th child. The court of appeal says that she has no right to an independent assessment.
It is Catch 22. posted by John Hemming ¶ 8:28 am
I think it important to remember when one is looking either at the independent assessments by social workers or at applications under section 38(6) of the Act that one needs to be child focused. It is not a question of the mother's right to have a further assessment, it is: would the assessment assist the judge in reaching a conclusion or the right conclusion in relation to the child in question? And on this particular issue it does seem to me that the judge was exercising a discretion and doing so appropriately on all the facts available to him. He thus reached a conclusion which I cannot for myself say in any way is plainly wrong, and since he has based himself on the latest authority on the point and considered the matter carefully, I, speaking for myself, cannot say either that he has erred in law and would dismiss the appeal in relation to a further social worker assessment.
This is a decision of the court of appeal which says that the mother has no right to a further independent assessment. This particular mother has only had assessments done by the local authority or its employees since she gave birth to her 10th child. The court of appeal says that she has no right to an independent assessment.
It is Catch 22. posted by John Hemming ¶ 8:28 am
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This case is one I site in cases, although slightly differnt aspects of the case to the one above it shows the Judges don't practice what they preach.
Re. GW and Ors v Oldham MBC and Ors [2005] EWCA Civ 1247
All though this case revolves around NAHI it is further emphasis for second opinions Consideration, on appeal allowed by consent, of court's reliance on single expert in care proceedings. “The purpose of this judgment, therefore, was to consider: (1) the advisability of the court relying on a single expert in care proceedings, when the issue that expert has to address is of central importance to the judge's findings; and (2) the propriety of permitting parents who deny abusing their child a second opinion”.
LJ Thorpe quoted “This judgment was not to be seen as an encouragement to a disappointed party to challenge pre-final hearing case management decisions; however, such decisions could, as in this case, throw up points of fundamental importance and, in such circumstances",
"a party should not hesitate to seek permission to appeal”.
The court also drew attention to the importance of timetabling in care cases, in particular the Protocol for Judicial Case Management in Public Law Children Act Cases [2003] 2 FLR 719. Further, it commented on the position of the local authority and the guardian respectively: the former is faced with a difficult position in contested care proceedings involving NAHI, requiring a delicate balance between the need to make out a case and the duty to place all relevant information before the court; and the latter has a proactive role to play in ensuring that a case is ready for hearing, and that all the appropriate evidence has been assembled; accordingly, if a guardian takes the view that a second opinion sought by parents is properly necessary to achieve justice, he or she should not hesitate to say so.
Re. GW and Ors v Oldham MBC and Ors [2005] EWCA Civ 1247
All though this case revolves around NAHI it is further emphasis for second opinions Consideration, on appeal allowed by consent, of court's reliance on single expert in care proceedings. “The purpose of this judgment, therefore, was to consider: (1) the advisability of the court relying on a single expert in care proceedings, when the issue that expert has to address is of central importance to the judge's findings; and (2) the propriety of permitting parents who deny abusing their child a second opinion”.
LJ Thorpe quoted “This judgment was not to be seen as an encouragement to a disappointed party to challenge pre-final hearing case management decisions; however, such decisions could, as in this case, throw up points of fundamental importance and, in such circumstances",
"a party should not hesitate to seek permission to appeal”.
The court also drew attention to the importance of timetabling in care cases, in particular the Protocol for Judicial Case Management in Public Law Children Act Cases [2003] 2 FLR 719. Further, it commented on the position of the local authority and the guardian respectively: the former is faced with a difficult position in contested care proceedings involving NAHI, requiring a delicate balance between the need to make out a case and the duty to place all relevant information before the court; and the latter has a proactive role to play in ensuring that a case is ready for hearing, and that all the appropriate evidence has been assembled; accordingly, if a guardian takes the view that a second opinion sought by parents is properly necessary to achieve justice, he or she should not hesitate to say so.
And another one
Re. B (A Child) [2007] EWCA Civ 556
The case was from appeal which was allowed in relation to directions made in care proceedings preventing parents from instructing an expert.
Lord Justice Thorpe stated that proceedings where the potentially permanent loss of a child is at stake must be seen to be fair.
“It is very important that parents who are at risk of losing a child forever should have the confidence in the fairness of the proceedings and that inevitably means the even handed nature of the proceedings”.
I use a further 6 case laws in appeals, all saying the same thing. makes no sense John as to why theses Judges don't seem to remeber their previous court rulings and judgments, maybe J Haines should have looked for cases by the same Judges who heard the RJ appeal,it might not have helped with this appeal but it might next time round.
Re. B (A Child) [2007] EWCA Civ 556
The case was from appeal which was allowed in relation to directions made in care proceedings preventing parents from instructing an expert.
Lord Justice Thorpe stated that proceedings where the potentially permanent loss of a child is at stake must be seen to be fair.
“It is very important that parents who are at risk of losing a child forever should have the confidence in the fairness of the proceedings and that inevitably means the even handed nature of the proceedings”.
I use a further 6 case laws in appeals, all saying the same thing. makes no sense John as to why theses Judges don't seem to remeber their previous court rulings and judgments, maybe J Haines should have looked for cases by the same Judges who heard the RJ appeal,it might not have helped with this appeal but it might next time round.
My friend was a top family lawyer in his field who worked for families and the local authority.A decent man who always did the best he could for clients
He said he wouldnt choose law again if he had his time again as the courts and justice system are appallingly corrupt.Says it all.
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He said he wouldnt choose law again if he had his time again as the courts and justice system are appallingly corrupt.Says it all.
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