John Hemming's Web Log John's Reference Website
Friday, May 25, 2012
  Yesterday's debate on Family Law
here is the text of the debate.

I was pleased to hear my right hon. Friend’s speech, and to read his Committee’s report, but there are areas where we are still getting things badly wrong, and perhaps the direction of Government policy is making things worse rather than better. I declare an interest. I am involved in Justice for Families, which looks at public family law in the English and Welsh jurisdiction, although people from outside that jurisdiction also contact us. Parents are involved, not surprisingly, but we are also contacted by teenagers who are trapped in the care system and want to escape, but cannot find a way of doing so.

Recently, I worked with a number of care leavers to form an organisation called Care Leavers Voice. People tend to think of care leavers as those in their teens or 20s, but I am talking about professional people in their 40s and 50s. Having perhaps the best perspective of what it is like to be a child in care, and having gone on to have a professional career and the confidence to speak out, they feel that their voice is not being heard. The family justice review was dreadful because it consisted only of people who operated the system; no one on the panel represented the people who went through the system.

I hope that my right hon. Friend does not mind me being mildly critical. Although his Committee’s report is more balanced than the family justice review, it is not as balanced as the report of the Select Committee on Education, which took evidence from a much wider range of people on the operation of the child protection system. Whichever way we look at the matter, it is necessary to listen to both sides—not just those who earn money from operating the system, but those who go through the system and have personal experience. A great difficulty with a secret system is that there may be a bit of data about what is going on, but unless people are like me and have seen lots of individual cases, they do not know precisely what is going on.

I am also associated with the Grandparents’ Association, which is very good, and has said that grandparents find the system traumatic. I deal with grandparents who operate the system. If a grandparent wants to express their voice directly to the judge in a case, that is a challenge. They can apply to be a party, but if they want to use a lawyer to do so, they do not receive non-means-tested legal aid, and probably do not receive legal aid at all. It costs £5,000 to £10,000 just to try to be a party. My organisation and my contacts help people to be litigants in person so that the grandparent can go to court and talk to the judge. Grandparents will give evidence about what is going on to whoever is interested in listening to them, but if they are unable to speak directly to the forum where a decision is being made, they are excluded. Great-grandparents such as Phil Thompson are irate about how they and their families have been treated, but the system does not listen to them, because they are excluded from evidence sessions, and panels such as the family justice review take no account of them.

A group of adoptive parents who have encountered difficulties with the unresponsiveness of the system are working with Justice for Families. They have a slightly different problem, which has been reported recently in the Sunday Express by Ted Jerry, who is a very good journalist and specialises in this area. We must listen to the people who go through the system, as well as to those who earn money to operate it. As I said, the Select Committee report is more balanced than the family justice review, which might as well not have been started.

The integrity and scrutiny—and secrecy—of the system are a key part of the matter. One assessment is that about 1,000 children are adopted each year who should not be adopted. For example, a woman had 10 children taken away from her in one area, but had a child in another area, and when she was sent home a social worker’s assessment was that there was no risk whatever. She is doing quite well with that child, but why was the state spending £250,000 per child on having them adopted in one local authority area, when she went home with a child in another local authority area. Other than the local authority being responsible for the decision making, is the system sufficiently robust when something substantially different occurs? Is there any quality control on decision making? Clearly, there is not.

Although the Family Proceedings (Amendment)(No. 2) Rules 2009 were generally good, the part relating to journalists with a National Union of Journalists card in the court was futile because they were not allowed to report anything. Further, the reversal in 2010 of Clayton v. Clayton was completely garbled and a mistake. However, that does not mean there is no merit in greater public scrutiny, which is important in two areas. First, academic scrutiny is key. We have had only one report so far, by Professor Jane Ireland, who found that about two thirds of the psychologists’ reports that she encountered were rubbish: if the judge had relied on them, the decision would have been unreliable and should have been challenged through the appellant system. We have only one report because they must be authorised, but there is no reason why academic researchers should not have de facto, anonymous access to expert evidence in the family courts.

I was lucky to be drawn sixth in the private Member’s Bills ballot, and one proposal in my Bill will be to allow academic access to secret proceedings, so that in both the family courts and the Court of Protection, which is really a family court, expert evidence can be challenged. The Daubert procedure in the US is used to appeal expert opinion to experts, and that is a good process. Professor Ireland, with other professors, has recommended that for the UK. It would be one way of starting to get some quality into the decision making based on expert opinion, but we are some distance away from that.

A good example, published recently in the Daily Mail, is Lucy Allan. The same psychologist produced two reports on her. One, without seeing her, was for the local authority; in another, having seen her, she said completely contradictory things about the same person. In one she said, without seeing her, that the mother was a great danger to her child; in the other, she said that the mother was perfectly okay—that was because she was being paid to say that. Information from that psychologist was used to make a life-changing decision, and that is an absolute scandal.

Academic access to expert reports should not be subject to a complex and expensive approval process. It should happen almost de facto. Our care system does not do well, and other countries’ care systems do far better. Our system does not do well because of lack of accountability—not just public accountability, but academic accountability.

There is also merit in allowing retrospective review of the proceedings of family court cases. In one case, a mother was deemed to be a bad mother because she fed her baby on demand, instead of in a routine, so the baby was adopted. We should be able to talk about that. It is absurd that psychologists can reach conclusions about people and their merits as parents without even seeing them. I see a hell of a lot of such cases, and they are not acceptable. Such things need to be considered publicly, which fits with the evidence provided in the family court report. This is not about identifying people; it is about knowing what is going on and what is being done in our name. If we believe in parliamentary sovereignty we must know what is going on, even if we do not know precisely to whom it happened. That is important.

There is a rule in Parliament that a Member cannot criticise a named judge without having tabled a motion in their name. There is, however, no rule to say that one cannot praise a named judge, so I wish to praise Nicholas Mostyn and recommend that people read the published judgment of A County Council v. M and F [2011] EWHC 1804 (Fam). We do not know who M and F are or which is the county council, but under the circumstances, we do not need to know. By looking at that case, however, we see the challenges faced by the judges when dealing with expert evidence, particularly when that evidence is contradictory. The case I have mentioned shows an excellent judgment that all judges should read and consider because it goes into some really difficult issues.

I know of eight cases involving the issue of expert evidence and vitamin D, and I am working with the excellent solicitors Brendan Fleming in Birmingham to look at those. Again, the issue is scrutiny of expert evidence. In the Wray case in London, Jayden Wray sadly died from a mixture of shaken baby syndrome—SBS—and metaphyseal fractures as a consequence of vitamin D deficiency. In that case, it was proven that the triad of symptoms occurred not under the care of the parents but at a later stage, and that is critical. There have been many SBS cases, including that of Keran Henderson, which was a criminal case and is reasonably well known as it attracted quite a bit of publicity. It is an interesting area, but because these things have gone on in secret, we do not know about them. Recently, I have put pressure on the Government to review those cases that involve vitamin D deficiency. They have avoided the question, but we will see where it goes in the future.

I encounter quite a bit of private law because public law and private law can interrupt each other. My hon. Friend the Member for Mid Dorset and North Poole (Annette Brooke) spoke for the Liberal Democrats on this issue some time ago, and we are pleased to see her back in Parliament. She proposed that before anyone goes to court, the default position should be that if parents split up they do not have to go to court to establish a court order for residency. Delay is one of the difficulties—that is where the report is entirely right—and causes a problem. If we start with a default position that places a duty on both parents to keep in contact with the child—except for in really exceptional circumstances, which do occur from time to time—we would be in a much better situation than we are at the moment where people first have to apply for a court order.

One difficulty of mediation is that if people can get a better deal by waiting for the adversarial approach, why would they bother with the mediation and take it seriously? There must be something for parents to agree on during mediation, and the recent work on encouraging mediation by the Child Maintenance and Enforcement Commission was important. It is a mistake always to separate issues of finance and of the child in question. From the parents’ point of view, those things are not separate and indeed are associated. Often, the mother gets residency of the children and the father goes into a mood and says, “Well, I’m not going to pay if I don’t get contact”, and people get into a massive row. If we managed to bring those things together, that would be far better.

We are trying to do something therapeutic and, particularly in public family law—although it is the same in private family law—we have the therapeutic objective of trying to do what is best for the child or children under the circumstances. That is not best handled through an adversarial family court system where everything gets piled up and there are hundreds of sheets of paper. Anyone who has seen one of those cases will know the absurd amount of paperwork involved, which often merely repeats things from other documents. That does not help.

The report referred to the family group conferencing approach, which is far better. We need to strengthen case conferences so that the procedure is not abused by the practitioners. The Webster/Hardingham case from Norfolk is well known as a miscarriage of justice, but it started out as an abuse of process and procedure in the case conference at Norfolk county council. If that abuse had been picked up at that point, three children would probably not have been wrongfully adopted. It was a case where one of the family went off to Ireland—I think it was in about 2006. The case went to the Court of Appeal, which effectively accepted the likelihood that there had been a miscarriage of justice.

We must analyse where decisions are taken. Although rubber-stamped by the courts, often decisions are taken initially in the local authority during the case conference or adoption panel, or whatever. If we can improve the decision-making process at that stage, and provide a more therapeutic environment in which one can bring the grandparents without them having to pay £5,000 or £10,000 to get along in the first instance, we can start trying to work things out. That would be far better than the current system, which is dreadfully remote.

One care leaver who is in his 40s told me that when he was a child in care, he used to try and find out who was taking the dreadful decisions that affected him. He never could find that information, however, which is one of the difficulties in the system. The people to whom things are being done have no idea how the 24 May 2012 : Column 157WH

random decisions that affect them are being made. Early intervention is great, but we need to know what and how that is done, and ensure that it achieves positive things. A lot of this is an issue of detail, which is crucial.

Let me turn to the Children and Family Court Advisory and Support Service because I have some difficulty in public law proceedings with working out the added value of the guardian ad litem. A Gillick-competent child should have a solicitor and the guardian should fall away, although in practice that does not always happen. I was pleased to see that Julia Brophy gave evidence to the Committee. If we look at her work, there is an argument for what happens in Ireland where an independent social worker report is commissioned, rather than having the entire panoply of the guardian operation. That raises a question about private family law proceedings, in which I think it would not be a bad idea to do much the same.

We have got to the stage where CAFCASS is so over-worked that we are not getting a lot of continuity. Government policy is going the wrong way in trying to reduce the use of independent social workers; perhaps we should be getting rid of CAFCASS and using independent social reports instead. Given the cost of CAFCASS, that would make the Treasury happy. One difficulty with trying to speed up a machine for miscarriages of justice—which is what the system is doing at the moment—is that although it makes it run faster, it does not get any better, and there is great difficulty with that. We should be able to get better decisions taken at case conference level, and not have to worry so much about everything being done on paper.

Judicial continuity is an interesting question. Someone told me recently about one person involved in a vitamin D miscarriage of justice who was warned by her barrister that if she appealed to the Court of First Instance, that would upset the judge in her case and he may not look favourably on her in the future. There are questions about whether judicial continuity undermines the appellant process. If someone’s barrister says that they should not appeal a case because the judge will be upset, and they then have to go back in front of the same person, that raises an issue. In fact an application was put to the European Court of Human rights, about whether that prejudges a situation. Again, a difficulty is that we are trying to do therapeutic work, where continuity is crucial, in a legalistic environment in which an attempt is being made to work out whether what is being done is within what has historically been called the margin of appreciation—or, these days, the procedural protections of the European Court of Human Rights. The idea of the margin of appreciation seems to be coming back to a certain extent. As to what the courts should be trying to work out, my ideal solution would be akin to the Swedish one, which is driven by a case-conference-type mechanism—very much a therapeutic environment—which is subject to judicial review, rather than bunging a case in front of the magistrates, who generally just rubber-stamp what the local authority says.

The point about rubber-stamping is important. There are statistics on the outcomes of cases, and they almost always go the local authority’s way. We can take it two ways: we can say, “Well, actually, social workers and care professionals are so much better than the Crown Prosecution Service in their judgments that it is not surprising that things almost always go the way of the local authority.” When the CPS thinks that there is evidence in criminal proceedings, to support a verdict beyond reasonable doubt, perhaps half the verdicts in contested cases will be guilty, and half not guilty. In care proceedings there are different outcomes; a care order is sometimes given, or no order may be given, but the local authority’s thesis is rejected in only about 0.27% of cases, on, I think, the 2007 figures. That is a bit of an exaggeration, because other things can happen. The local authority can withdraw the application, as happens in many cases. If the local authority thinks things are going badly, it might withdraw.

We need, also, to consider section 38 of the Children Act 1989. It does not require evidence so much as reasonable grounds to believe that a child may be at risk; given that once an interim care order is given, a final care order is very likely, is that threshold acceptable? Should it not be changed to require an evidence test at some earlier stage? As to delay and its effect on children, the point is what happens if we have a system which, for all that it matters, is much cheaper and much the same in outcomes as rubber-stamping what the local authority wants, which is what happens most of the time. That has an effect on the child. If, say, a newborn baby is taken from the mother and put into foster care, that has a real impact. The work of Professor Michael Rutter is crucial in that area. He looked on the period between six and 18 months as the golden period for a baby. A large proportion of babies taken into care are taken into care well before then. If they get reactive attachment disorder, as many of them do, it is not caused by bad parenting initially but by what the state does—simply on the basis of the timing.

There is a long way to go. I congratulate the Committee on obtaining some representations from people affected by the system, but for this debate I would emphasise that in future, the Government and Select Committees—and I congratulate the Select Committee on Education—should, please, listen to the people to whom things are done, and not just those who earn money doing things to people.

 
Comments:
This has to be the best quote from you John

"I very much welcome the minimum standards for experts, which would be a good thing. I am not one of those who has gone around saying that there are too many experts. I have not expressed any view on how many experts there should be. I have said that independent social workers add value to cases. If we want to save money, get rid of CAFCASS"

Never a truer word spoken
 
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