A postcard from the President…

So I go away on holiday for a week and, whilst my focus is on knitting and farting around in the back garden, and the rest of the world is breathlessly tweeting about olympic medals, CAFCASS and The President slip out three distinct reform bombshells, all with a common purpose : managing the ever rising number of care applications in the context of the ever diminishing pot of funds. Like we wouldn’t notice…huh!

See The President’s 14th View here and CAFCASS in CYPNow here, and also here, in which local cash limited budgets for CAFCASS areas are mooted (see page 11 in which a pricing schedule for section 7 reports is mooted). I moaned recently on twitter about this idea, remembering the annual “we’ve run out of funds” hilarity for the poor sods who desperately wanted the access supervised contact via CAFCASS, who were told they had to wait a further 3 months until the next payday. I was then contacted by CAFCASS Comms and asked what my tweets had meant (I know – yikes, eh?). I told ’em that this was an annual event in my neck of the woods until at least a couple of years ago, and was told that hopefully this was now a thing of the past. It does indeed appear to be a thing of the past at present : it may, however, also be a thing of the future, based on the sketchy description of these limited cash budgets that we have been given. You know guys, if you make us guess what the plan is, we might imagine it wrong…don’t complain if we get in a flap.

The gap since the President’s last “View” is, by my reckoning, about a year. In the interregnum we’ve seen much happen, latterly Settlement Conferences appeared (as if by magic). The fourteenth view attempts a “Calm Down, Dear” to the hyperventilating ALC. “Settlement Conferences, it’s only a pilot dear!” says The Pres. Bound to be a Winner. We shall see. The President may protest that the ethos of these conferences is not to pressurise parents into capitulating, but that may not be how it feels from their end of the barrel. And it’s all well and good to say it’s a pilot, but what I’d like to know is who’s flying the plane? The President says this is something which is judicially led. There is no reason to think that is not so, although I suspect that not all judges are likely to enthusiastically embrace this pilot. But, to torture the aeronautical metaphor a little further – the judicial pilot still needs clearance to land from Air Traffic Control. This is a MoJ pilot, with MoJ funds. It is clearly designed to try and save funds through a reduction in expensive final hearings. This is no bad thing in itself. But whilst we all love an Easyjet price tag, it is still *quite* important that the landing gear doesn’t fall off and the plane lands safely at its destination. Who gets the final say as to whether this judicially led pilot is rolled out? And who decides the criteria? (On a parallel note, I am told that the MoJ (with no fanfare) have recently pulled the plug on the drug testing pilots that appeared to unstick so many cases. I haven’t seen any announcement setting out why, or any published analysis of the effectiveness and cost / efficiencies of the scheme and we’ve had no guidance issued on “the plan” going forwards or even formal notification the problem is going to re-emerge. I’m not sure yet what we are supposed to do with those cases involving LiPs who can’t pay for hair strand testing, but whose cases (and relationship with their children) are going to be once again held up or stymied with out it.) – but I’m pretty sure that wasn’t “judicially led”.)

What’s more Judges – particularly those with managerial responsibility – remain very obviously under statistical and budgetary pressure – average case duration, allocated annual budgets of sitting days etc. which the purists amongst us might suggest have the potential to impair judicial independence. Is it not understandable to worry just a little that these pressures bearing down upon the judges will transfer inadvertently or overtly to parents and their legal representatives who awkwardly insist on a trial? Yes I know, I should calm down dear.

Anyway, it’s only a pilot. Whilst nobody was consulted much before it started, the relevant professional bodies and interested parties are now in a position to keep an eye on this and feed back on how it has gone in due course – it may be successful, as reportedly it has been in Canada. So, watch this space.

The second stealth missile delivered by The President in his Fourteenth Postcard from Summer Hollibobs was the “the tandem model is sacrosanct, except when it’s not” bombshell. It’s all a bit confusing :

The tandem model is fundamental to a fair and just care system. Only the tandem model can ensure that the child’s interests, wishes and feelings are correctly identified and properly represented. Without the tandem model the potential for injustice is much increased. I would therefore be strongly opposed to any watering down of this vital component of care proceedings.

And then (with an interlude in which The President opines that we are brassic) :

The MoJ, with my support, is investigating whether there is scope for a reformed level of representation for children in public law cases and how a reformed model might work in practice. 

Say what? What is this “reformed level of representation” of which you speak?

From my perspective, the focus of this is the question of whether, at certain stages in the proceedings and at certain type of hearing, there could properly be scope for dispensing with the attendance of some, or even, in some circumstances, all, of the child’s professional team.

Oh. So you mean that the tandem model can be suspended at hearings that aren’t really that important. That would be those pointless hearings that we no longer hold because the PLO has streamlined the system so that only hearings that are really essential are held (in order to save funds), and each hearing should be a focused and purposeful demonstration of active judicial case management with collective participation and responsibility?

Maybe he means CMH’s? Where critical case management decisions are made and where a ball dropped at this early stage can lead to an evidence gap or ineffective final hearing and delay further down the line? Nope. Can’t be those. And anyway, where a Guardian cannot attend or it is accepted by all his attendance is not essential the court can and does (on occasion) excuse the Guardian’s attendance – because the lawyer will be there keeping an eye.

Maybe he means FCMH’s? Where a single CMH wasn’t enough and the court has decided that actually, this case is complex enough, or has got messy enough due to previous problems, delay or non-compliance to warrant a further hearing. As above, Guardian can be excused where justified…No, he can’t mean the child would not need to be represented at those, surely…

Maybe he means FoF hearings? You know, the split hearings we never hold any more (ssshhhh, don’t tell him – we really all do still hold them)? He probably doesn’t mean those because the Guardian rarely attends those hearings throughout in any event, and the solicitor for the child is usually the lead solicitor for any experts – so they kind of need to be present to chief the critical witnesses – and report back to the Guardian who is off doing four simultaneous final hearings and an EPO whilst juggling a plate on her nose.

IRHs? Surely not? The child has to be represented if the other parties are to agree a final disposal about that child’s life. Otherwise, what’s the point of the child being a party (as undoubtedly they have to be for the purposes of article 6). He can’t mean that.

Maybe he means Final hearings? At which the complexion of a case can completely change in a moment, during which the Guardian will need to give instructions in order that their representative can cross examine witnesses – and ultimately give evidence herself. Nope. Can’t mean those.

And let’s not forget that the LAA already require the solicitor for the child to conduct all hearings where humanly possible, meaning counsel is less often instructed on behalf of children than for the other parties. Or that the LAA is even more difficult to persuade that leading counsel is necessary in the case of a child party than a parent.

So, I confess I’ve not a scooby what this means or what exactly is being discussed privately at the MoJ. But I can’t at present think of any scenario in which the absence of a child’s legal team from hearings in care proceedings could be anything other than the “watering down” of the tandem model that the President is so averse to. Of course, it does not help that these things pop up out of the blue, blueprints half drawn before we even know they are afoot. It does not inspire confidence. Even now there is no information that I can locate on justice.gov.uk or gov.uk about the “data-collecting exercise in 12 courts” or the second phase (in which it is proposed that, with the involvement of the judiciary, there will be exploration of “how a reformed model of representation could work in practice”). Note that here there is no assertion that this is judicially led. One interpretation of this view is that the President is publicly laying down a marker to the MoJ that whilst they are exploring this particular issue, there is a line he will not let them cross : note the President’s “From my perspective” here :

From my perspective, the focus of this is the question of whether, at certain stages in the proceedings and at certain type of hearing, there could properly be scope for dispensing with the attendance of some, or even, in some circumstances, all, of the child’s professional team.   [my emphasis]

and his “so far as I am concerned” here :

so far as I am concerned, none of this can be allowed to prejudice the fundamentals of the tandem model. [my emphasis]

Goodness only knows what the MoJ have in mind – and again, its not reassuring only to hear of it via The President and once its already half baked. But the more I read the “View”, the more I think this may be a “By all means, take a look and see if you can find some savings – we recognise we have to help cut costs where we can – but don’t think you can mess with the tandem model!” coded message. I hope so anyway…

A personal sidenote : I’d like to see a stepping up by the minority of childrens’ representatives who still see a guardian brief as an easy brief and a passive or responsive role. It isn’t. It’s the hardest sort, and one bears a great responsibility as either solicitor or counsel for the child. When the wheels come off cases, it is sometimes legitimate to ask why, of all parties, the child’s team did not see it coming and raise it at the CMH or the advocates meeting? The role of solicitor for the child, when performed as it should be, is crucial and can have a significant postiive impact on case progression and efficiency. Its loss at any hearing, whether because an advocate is actually or effectively absent, is to introduce significant risk both of injustice AND wasted expenditure – as I think, at moments, the President’s 14th view acknowledges.

Anyway, hollibobs over tomorrow…Booo hoo.

A Christian Concern

The judgment following the rehearing in the case of M (Children) [2016] EWCA Civ 61 (02 February 2016) has now been published, see Re M  (No 2) [2016] EWHC 1658 (Fam) (19 May 2016), a judgment of Newton J.

You may recall this case – it was the one in which a christian adoptive couple were successful on appeal against care orders made in respect of their two adopted sons because, in a nutshell, the judge’s analysis was inadequate. In particular, there had been an agreed threshold, but insufficient analysis of the causal connection if any between the boys behaviour (they had been harmed and traumatised prior to adoption in the care of their biological parents) and the parenting received by them from their adoptive parents. And there had been insufficient consideration of whether adequate post-adoption support had been offered or whether if now offered it might enable a rehabilitation to take place.

The parents had been represented by Christian Concern, through counsel Paul Diamond, a familiar name in cases with a (Christian) religious discrimination flavour. The position of the adoptive parents in that appeal had been that the problems were caused by the failure of the LA to provide post-adoptive support, that the children had been unlawfully removed and that they asserted that they were being discriminated against as Christian parents. Remember that position. As a result of the inadequacy of analysis they got a second try on those arguments as the Court of Appeal allowed the appeal and remitted the matter for rehearing.

The rehearing judgment is something of an eye opener. The adoptive parents do not come out of it well. Their methods of parenting are described as “strict, to the point of being ritualistic, harsh and abusive”. The mother herself gave evidence of her belief in demons and the very physical and frightening methods she used to cast out those demons (some sort of exorcism involving holding the child down, speaking in tongues). Washing the child’s mouth out with soap was also another punishment method, and the judge did not mince his words about that :

I am sorry to say it, but how any civilised adult in a modern, decent society can really argue that washing the mouth out with soap, as it has been described to me, something which may have occurred half a century or more ago, but not now, or the forcible immersion in shower is a suitable or remotely appropriate punishment, is frankly beyond me. Those are behaviours which are in no circumstances ever acceptable.

He goes on to describe just how positively destructive they were for these children, with their history of trauma and rejection, and their desperate need for acceptance and nurturing. The judge said that “As a matter of common sense, the admitted way in which the boys were treated has frankly caused them emotional harm and has, I am sorry to say, overwhelmingly clearly re-traumatised them, because it has maintained and strengthened their own insecurities.”

Although the parents had conceded threshold at the original trial, it was apparent from the evidence that they gave and the position they adopted in the rehearing that they did not in fact accept that their parenting had caused significant harm or indeed that it was really inappropriate at all – although the judge is at pains to say that he accepts that they acted out of the best of intentions. He says :

  1. So the central question is, in fact, was there a causal link? Was there some link between the behaviour or the boys, as it transpired, and the parenting style? Does the evidence demonstrate that that is something which has caused or contributed to their behaviours? The clear, unequivocal and overwhelming answer is “yes”. The extreme nature and extent of the behaviours of the parents is such that it is obvious that the parents’ conduct has created this schism. I have no doubt that the parents had the best intentions. I have no doubt that, concentrating on the future, they endeavoured very much to try and provide a good home for them.

  2. When the matter was reviewed by the court, now nearly 18 months ago, the court was misled as to the extent of the factual acceptance, as the evidence before me has vividly demonstrated. From the outset, the father has never really accepted the threshold triggers and did not accept, neither did the mother, that he had caused any harm.

The judge also concludes that the parents misled professionals before and after the adoption – about their parenting methods and the extent of the problems – to such an extent that if the truth were known the adoption may well not have been approved. He says that the parents misled the court about the extent of their admissions on threshold (see above). Even more astonishing is the fact that the parents position at the rehearing was utterly inconsistent with that adopted by them on appeal – and it appears inconsistent with the case led on their behalf at the outset of the retrial. This much appears to have emerged from their evidence, where it became apparent that the parents had not sought any help and had actively resisted it (and thus could not and did not assert that the LA had failed to provide requested support) – and that they no longer asserted that the removal under police powers of protection was unlawful.

There is a limit to how useful / appropriate it is to speculate about what is behind this change of position – that is a matter between the parents and their counsel – but there are of course a limited number of explanations, which range from : a change in their instructions to their counsel at some point, to their advocate acting without or contrary to their instructions or significantly misunderstanding their instructions (apparently with the client acquiescing), through to giving instructions on an agreed strategy / position but being unable to adhere to that in the moment in the box. I don’t know which applies here and I make no assertion as to which is more likely (and there are no doubt some scenarios I haven’t thought of), but any of those explanations would be of note and concern for different reasons – not least because of the material published by, on behalf of, or with the involvement / apparent approval of the Christian Legal Centre and the parents prior to the change in position but still publicly available (see below). See this passage :

  1. At the start of this case, and indeed at its core, Mr. Diamond contended to the court on behalf of the parents, and starkly argued that the local authority had acted unlawfully and unreasonably, and had been entirely responsible for re-traumatising of the boys. A significant plank of his case in relation to support has, in fact, fallen away, in the sense that the evidence clearly shows that no report or request was ever made to the local authority, either Cambridgeshire or the originating authority, for assistance, help or support, other than a request to the general practitioner in April 2014, but was not, for one reason or another, pursued, and in any event, as counsel now accepts, is not part of the parents’ case.

  2. In fact, the parents made clear in evidence that they do not rely on the way the case was put by their own counsel; that is that the difficulties which arose were attributable to the removal of post-adoption support, because (a) they had never sought it, and (b) it was evident that the difficulties which they had or lack of post-adoption support did not form, as they told me, any part of their case. The court, therefore, does not have to consider s.4 of the Adoption and Children Act. Nor does it have to consider the major plank of the argument which was placed before the Court of Appeal and which led substantially to the order for a rehearing. It is not something that was pursued in final argument before me, or indeed was pursued by the parents during the case. Their stance was an entirely different one. Whilst forming no part of my reasoning for this judgment, the Court of Appeal in those circumstances may well not have allowed the appeal.

Who knows what the explanation is, but it does not smell very nice. And, one assumes that Mr Diamond had a few awkward moments in the course of this hearing.

Mr Justice Newton makes this slightly cryptic observation immediately after setting out the change in position :

  1. I should also record that a troubling and intrusive aspect of the case has, from time to time, surfaced, such that there were times when it seemed to me to threaten to obscure the court’s enquiry pursuant to the Children Act 1989, and indeed led to the mother interrupting the hearing, such was her anxiety about that line of enquiry; that is that the parents have an obvious and undoubted right to be assisted and represented by individuals or organisations of their choice; in this case, the Christian Legal Centre.

  2. As before the Court of Appeal, the parents maintained, not only that they feel that they had been treated differently from the way that any birth parents would have been treated within the care proceedings, as to which, in fact, there is absolutely nothing to indicate that that is so, but also that they were the victims of state suspicion of Christian parenting, both by the authority and by the family courts. They have sought to put their case at the centre of political campaigning by the Christian Legal Centre and an associated body, asserting that they were treated with suspicion and prejudice because of their Christian faith, that they were treated as if they were not the real parents, and that the secretive nature of the family courts means that these injustices are covered up.

  3. I am not sure that being advised and represented by a politically motivated group that believes that the courts are hostile to Christians and supports the rights of parents to behave in a particular way (particularly in relation to corporal punishment, and additionally opposing state interference in family life) has been entirely helpful to the parents’ case. There have been moments, as I say, when it appeared to take over this enquiry, but this case is not about that. This case is about the welfare of these two young, vulnerable and deeply disturbed boys, and whether or not they can be returned to the care of their parents if, as I would very much wish, the circumstances were such that the family could be reunited.

This is a familiar scenario for those of us who see parents represented or “assisted” by other sorts of campaigning groups – there is a legitimate concern (sometimes but not always realised) that the focus on the individual needs of this child will be lost amidst the need to make the bigger point. I hope that isn’t what happened in this case, and I particularly hope that it did not contribute to the parents’ inability to reflect on their own part in this very sad story, which was the determinative point in the judge’s conclusion that the children could not return home and any rehabilitation would be doomed to failure.

Screen Shot 2016-08-18 at 18.01.10Newton J makes reference to material published online shortly prior to the hearing. He is (I think) referring to two things : an article published in [sorry – paywall] The Times in January 2016 (shortly before the appeal hearing) in which the Father is quoted as saying that “Social workers do seem to be trying to socially engineer families to fit their idea of how families should be. No family can conform to that ideal, so they are all at risk.” (there’s that “bigger issue”), and where the Christian Legal Centre and Paul Diamond are each quoted along the lines of the appeal as run. And secondly, to a video which is still available at the time of writing on the Christian Concern website and on YouTube, and which shows the parents, their home, the children’s belongings, and photographs of the children wearing quite distinctive clothing (all with faces fuzzed out). It has had a significant amount of views. In the video the parents give an account of the removal and their experiences. Significantly for me, they are content to tell the world that their children are dishonest (they don’t use that word but that is their very clear meaning). I hope that the video is removed before the children identify themselves and are further traumatised – no doubt the parents could secure its removal should they wish to do so. I prefer not to include the link.

The judgments of the Court of Appeal and Mr Justice Newton are freely available, and the original judgment at first instance is substantially set out in the judgment of the Court of Appeal – the complaints of the parents that the secretive nature of the family courts means that these injustices are covered up” do not seem to hold water. This is not a case of secret justice, it is simply a case of two judges in succession rejecting the parents’ case as put by counsel of their choice.

Human Rights Act Claims in Family Proceedings – the costs catch 22 resolved?

This case just published : Re BB (A Child) [2016] EWFC B53 (26 June 2016), HHJ Murfitt.

In brief :

A Circuit Judge case, so not binding authority.

Care proceedings following s20 drift (1 yr +).

Child’s legal rep brought HRA claim – conceded by LA and damages £7,500 and declarations agreed.

BUT : the LAA would recoup from the damages not only the costs of the HRA claim (separate certificate) but also the care proceedings before any benefit were received by the child – so given the size of HRA damages awards this would mean basically no net benefit to child in this (and most other cases), meaning that the requirement for the court to provide “just satisfaction” or an “effective remedy” would not be achieved.

What to do?

Theis J dealt with a similar claim in Kent County Council v M & K (by her children’s guardian) [2016] EWFC 28, but it did not seem from that judgment as if this issue was fully aired, and possibly neither the advocates nor the court had appreciated the full breadth of the LAAs power (and duty) to recoup costs against damages through the statutory charge provisions – having looked into this it is pretty clear that the recoupment provisions and guidance mean that there is limited scope for the LAA to turn a blind eye to damages recovered where any costs remain outstanding – the costs of care proceedings are likely to swallow whole most HRA awards.

Annoyingly on a personal level, another Reed (no relative) got to argue a point I’ve been lining up twice now (but my HRA cases have gone off in other directions so it has not happened): that you either have to up the damages to cover the costs that will be recouped by the LAA OR make an award of costs of both the care proceedings AND HRA claim so there is nothing to recoup. In this instance (for various reasons some of which were specific to this case) the court preferred the latter course of action, by proper reference to what was permissible under the rules and authorities on a costs application – the LA’s pre-issue conduct (i.e. the HRA breaches) had not been blameless so it was conduct that could properly be taken into account AND the conduct of the litigation was also said to be not entirely reasonable (actually this is oddly expressed in the judgment as “I have not found that Thurrock Borough Council has behaved entirely reasonably in the litigation” which sounds a little bit like an improper reversal of the burden).

Anyway, is this a case of “happy days – a solution to the conundrum”? Yes, in this case at least. I’m not sure however that this case necessarily represents an answer to all such cases. As the court rightly points out this is an expensive business for cash strapped LAs – why should they have to pay the full costs of care proceedings even where the case they brought is justified and the orders they sought have been made? One answer of course is that they should not breach a child’s human rights in the first instance, and that any pain they feel in having to stump up is frankly not the child’s problem, who has an entitlement to proper redress regardless. But the regulations applicable to one public body (the LAA) and the need for a LA to preserve funds to meet the needs of other children are in real tension – and an award of costs should not be made simply because a receiving party is publicly funded or because the paying party is a public body.

In this instance, the culpable conduct of the LA in allowing drift, in failing to issue, in compelling the G to issue a HRA claim through its actions – were sufficient to found a costs order. In other cases it will be necessary for the court to look at the conduct which is said to have preceded the HRA claim and it is likely that this will be fact specific exercise rather than some sort of semi-automatic award of costs – the costs rules do not include a “costs follow the event” presumption that can be easily applied to every HRA claim or that can be easily transposed to connected but distinct care proceedings where the merits and “winners” may be different.

It seems to me that any LA advocate will be duty bound (in the absence of specific instructions to concede) to resist an application for a costs order of this magnitude, so these costs applications will need to be argued, and a proper balancing exercise / analysis carried out in each case. It is likely to be only a matter of time before such a case goes on appeal – which would be welcome if it produces some clear and binding guidance on the proper approach to take. Circuit Judge decisions are illuminating and helpful in terms of sharing ideas and thinking through possible approaches and pitfalls – but they are not precedent.

Also worth noting, although again not binding – this particular judge leaves open the possibility of an argument in other cases that the damages should simply be uplifted by an amount equivalent to the costs sting that will come in due course. That wasn’t appropriate in that case because the matter had been settled for a specific sum subject to costs, but it could still be run in other cases (and cases could be settled on the basis that damages include a notional figure for the statutory charge although I think it is unlikely any LA will agree such a package unless and until the High Court or appellate court has looked at this and it has been fully argued).

Apologies for any typos and the lack of graceful construction – wanted to blog about this but am racing against approaching zonking out having just spent 3 days “doing London” with the kids (gosh, isn’t Trafalgar square much nicer without the pigeon sh*t everywhere?).