The underlying problem is evidence.
Because much of the evidence is opinion unreliable opinion from "experts" gives rise to unreliable conclusions. Professor Jane Ireland's report which is available here. concluded (inter alia): "Two thirds of the reports reviewed were rated as below the expected standard, with one third between good and excellent.". What this means is that 2/3rds of the decisions in the care proceedings are unreliable because the evidence was unreliable.
An additional difficulty is that the experts (which include social workers) who are giving their opinions are often subject to conflicts of interest. For example in the Court of Protection a social worker can conclude that someone "does not have the mental capacity to decide where they can live". This then allows the local authority to place that person in a care home and to charge for the costs of that from the estate of the "protected person". If the person was cared for in their own home then that would be likely to cost money to the local authority for any assistance. Hence there is a clear pressure on the social worker to conclude that the cheapest solution for the local authority is also the best. There is, of course, a question as to how to handle the interplay between budgets and care decisions, but pretending that budgets have no effect is turning a blind eye to injustice.
There are additional problems in that the local authority tends to control the purse strings of many of the partipants. Hence "independent" advocates are not actually "independent". The "independent reviewing officer" is also not independent. A good example of this failure of independence is A&S v Lancashire County Council. (click for judgment) Para 2 sums up the issue: "Over the years, the local authority defaulted on its duties towards the children and its independent reviewing system did not call it to account. The matter was never returned to court as it should have been and as a result the local authority's actions did not come under independent scrutiny. Statistically there were as at 31st March 2011 around 1,300 other children in the same legal limbo. I don't have the later figures yet.
The same problem exists with Deprivation of Liberty Safeguards where the local authority (or other commissioning body) also controls the incomes of the advocates. Wrongful removals of mental capacity are so frequent that the system really doesn't notice them.
The recently revealed case of the family barrister who has left the jurisdiction to protect her children (see here in The Telegraph). Demonstrates a number of things. She is not the only mother who has left the jurisdiction because she did not think that the courts would decide what was best for her children. It is clear from the evidence in her case that the local authority were wrong. I have asked the local authority for comment, but they have not as yet given any - I may update this later if they do comment.
In this case, however, it was someone with years of experience of what actually happens in the courts that decided the best thing to do was to go before legal proceedings were initiated.
As I said in my speech on March 26th the international aspects are particularly interesting. Professionals in other countries find the behaviour of the authorities surprising and in care proceedings damaging to the children. Professor Eileen Munro's comments that I quote from on my speech are available in audiohere.
The victims of the system
The victims of the system often are quite surprised at how it acts. What is seen by some as complacency is seen by those on the receiving end as corruption. Often they become quite agitated and as such it is relatively difficult to see through the agitation to the underlying problem.
However, the first step towards resolving the problem is to recognise that a problem exists and action needs to be taken.
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