Thin Gravy

The latest installment of a case in which I have been involved is out. You may know it as Q v Q (although it isn’t). The judgment can be found here : C (A Child) (No 2) [2014] EWFC 44 (21 November 2014). As it is a case in which I am involved and which is ongoing I’m not going to comment on the actual case itself.

However – as is the fashion – I will give you a couple of pieces of information, without comment.

You can see from the judgment that Julien Foster, counsel for the Father, acted on his behalf for nothing as have other barristers before him. What you might not know (unless you are someone who does this sort of work) is that I will bill the Legal Aid Agency (LAA) a fixed fee of £206.87 for that hearing, including preparation of the skeleton argument (part of which is set out in the annex) and travel time from Bristol to London and back. I usually take home about 50p in the pound by rule of thumb, taking into account overheads etc. If the LAA decide to quibble over my train fare you can knock £60 or so off that figure.

Take me to your Leadership Board

Last week the Adoption Leadership Board published a “Myth Busting Guide” aimed at dispelling misconceptions of what Re B and Re B-S tell us about the correct approach to adoption. “The law hasn’t changed!” trumpets the guidance from a “top QC” (who was strangely anonymous, but who has now been confirmed as Janet Bazley QC). You can read an article about it here. You can read the Myth Busting Guide here. You can read Sir Martin Narey’s explanatory letter about it here. You can read an entirely unconnected *cough* article in the Telegraph in which the former Childrens’ Minister says that its all just because the judges are a bit minty.

I didn’t even know there was such a thing as an Adoption Leadership Board until last week. But I could guess who was heading it up without too much scratching of head. Yes, Sir Martin Narey has been elevated from Tsar to Chair. And is now issueing guidance for the lawyers and social workers amongst us who are persistently not getting the message about adoption. Next we’ll be getting “A View from the Tzar’s Palace” bulletins…

So what sort of beast is the Adoption Leadership Board? Well, it’s terms of reference are here and are pretty unobjectionable. It is not a body designed to promote adoption as an end in itself : only for those children for whom it is the “best way of achieving permanence”. It is not “adoption is a good thing” dot com. And yet…it strikes me that the title “Adoption Leadership Board” somewhat loses the nuance of the terms of reference and tends towards the idea that adoption is a good generally to be promoted. And the impression created is important. Coupled with the plain assumption that a fall in adoption numbers must be “a bad thing” the impression ain’t great. If you wanted to feed the “adoption targets” / “babies for sale” conspiracy theories this would be a good starting point.

Anyway, I’ve read the myth buster. It’s kind of a long winded way of saying that nothing else will do. But hey, what could help hard pressed social workers more than to give them more guidance and more verbiage? I don’t disagree with most of its statements about the meaning of Re B / B-S which are, as you would expect from a “top QC”, a clear and correct explanation of the law.

I do take issue with Myth number 5 though. Although it is correct in law to say that the 26 week statutory provisions brought in by C&FA 2014 do not apply specifically to placement applications, it is wrong in reality to say that 26 weeks doesn’t apply to placement proceedings. In effect it does because by the conclusion of the care proceedings the Local Authority must have formulated its care plan, and if that care plan is for adoption must have issued placement proceedings. There are cases where care and placement proceedings are uncoupled, but this is rarely appropriate and is not common practice for a number of good reasons of both principle and pragmatism. It isn’t just a question of ruling out parents and worry about what else you could put in their place later on. All realistic options need to be holistically evaluated. Ultimately, if a Local Authority is going for adoption it needs to know that within 26 weeks and so the imposition of a time limit profoundly affects decisions about adoption and placement proceedings also.

Leaving aside the actual “counsel’s advice” meat of the document, I do disagree with aspects of the underlying message and some of the comments made in the wake of the Buster.

Here is paragraph 2 of the preliminary remarks, where it is stated that :

..in the last 12 months we have witnessed a significant reduction in the number of placement orders made and in the number of decisions made by local authorities to pursue care plans for adoption. These changes risk reversing the substantial progress made. 

What I immediately wondered was whether the reduction in the number of placement orders was matched by a reduction in the numbers of care applications made or the numbers of placement applications made. Because insofar as its a trend, it doesn’t tell us much unless you put it in context. I thought that perhaps there was some better evidence than this quote, that for some reason hasn’t been published alongside the myth-busting document. Personally, I think that evidence is quite a handy tool when you are trying to myth-bust but perhaps I’m missing something. Anyhoo, the official statistics show this :

 

[NB Amended Table – original one is attached to the comment thread below. Here is link to downloadable version if your browser won’t show this]

I’m not the best with tables, but this is my stab at a comparison of the various trends, based on the stats I’ve been able to find. Given what a big deal adoption is politically, I was surprised that I could not find more than the odd figure for the numbers of placement orders made – I could only find Q3 13 and Q2 14 figures. The MoJ quarterly stat releases on the MoJ tell you how many children are the subject of public law proceedings and how many care orders / supervision orders are made (I’ve counted final disposals only), and how many individual children are subject to public law proceedings (including things like discharge applications and EPOs). I could find no figures for the number of placement applications versus the number of orders made, so it is impossible to tell how often adoption is being ditched because of judges (correct or incorrect) interpretation of Re B / Re B-S. [Found them - don't know how I missed them really! Thanks Andy Lee. I think the stats are consistent with what I was saying in the original post - Andy has linked to them in his comment.]

It’s important to appreciate some of the stats are disposal stats and some are “work in progress” figures. So when you see the apparent divergence between the numbers of public law applications (for care or supervision orders) and the number of both care orders and placement orders being made (see those lines parting?) you have to factor in that when a case is issued the disposal for that case will not show in the stats until some time later, now most often about 26 weeks later. So in fact what the stats seem to show is that broadly the drop in placement orders is exactly what you might expect as a corollary and consequence of the dip in issueing in late 2013 / early 2014 – it looks to me as if (broadly speaking) the drop off in placement orders is a result of a dip in issueing. And that folks is just as likely to be an entirely predictable side effect of tinkering around with the system (revision of PLO and introduction of 26 weeks etc) and distorting LA behaviour rather than as a result of B-S. The little pink line at the bottom does suggest a slight dip in the ratio of placement orders compared to numbers of children in public proceedings (from 23% to 18%) but I’m not sure how meaningful a figure that is bearing in mind the children in proceedings now are not the same cohort in respect of whom placement orders now are being made. I’d like to update my table to show better stats for placement orders made so if anyone can send me a link to them I will do so. Similarly i If I’ve glaringly misinterpreted these trends please let me know.

So that’s where I *think* we are on the stats front. It’s a bit irritating that this sort of thing is announced with great fanfare and criticism of professionals and without proper reference to the relevant stats, leaving those of us who can be fagged to trawl through the statistics (hence the delay in publishing this post). As a gut reaction I wasn’t satisfied with the wooly “Some of this feedback suggests a degree of misinterpretation of these judgments” and the “this appears to have resulted in…”. So I’ve done my best with such of the publicly available stats as I’ve had the time and energy to digest whilst working 9-5 misinterpreting appellate authority for my day job. Far be it for me to suggest that some public body should have done this job…some body like, oh I don’t know, the Adoption Leadership Board…Anyway, I’m happy to be correct on my bodging approach to stats, but it doesn’t look to me like there is a drop in placement orders by proportion, only in absolute numbers. Oopsy. I seem to have inadvertently busted Myth Number 6 : That Re B or Re B-S or the interpretation of them have any causative connection with the trends in the numbers of adoptions.

Anyway, Sir Martin Narey went on the Today Programme to launch the Myth Buster. Because obviously a document intended for professional guidance (as opposed politicking) is best promulgated to the relevant professionals by means of the mass media. Anyway, for those of you who do not complete your CPD courtesy of R4 and thereby missed it, I’ve set it out in full at the bottom of the post, and you can listen to it on iplayer for another few weeks here, 1h10m in. Make of it what you will.

So. On to my real bugbear. It is disingenuous in my view to send out a message to social workers that nothing has changed, the law is the same (and implicitly you can all stop getting your knickers in a twist and go back to how things were). Because everything has changed. Not the law. Anon QC is right about that. It’s not changed. And Re B and Re B-S don’t actually set out new law, or anything we haven’t been told before. But I think that things have changed pretty radically. And generally for the better.

It is our understanding of the law that has changed – and with it our practice. The authorities that emerged like machine gun fire from the Court of Appeal in the summer and autumn of 2013 were a wake up call, a reminder that sloppy practice and poor analysis are not “good enough”. A reminder that nothing less than our best practice – as lawyers, as social workers or as judges – will do. Yes, rigour is de rigeur.

Because you know what? Before Re B and what flowed from it there was a tendency to give up on parents a little too quickly, to rule them out early on and to autopilot to a plan for adoption as the best opportunity. If we are honest the analysis of this was often poor, the challenge from lawyers and from guardians too was sometimes less robust than it should have been, and the judiciary did not always proactively probe or highlight evidential deficiencies. After all, that’s why the Court of Appeal threw their toys out of the pram in Re B-S in the first place, wasn’t it?

So when we say that adoption figures are falling, maybe, just maybe that’s partly because too many children were being adopted before Re B? Maybe, just maybe its because cases are going through so quickly as a result of 26 weeks that Local Authorities are unable to properly formulate a plan for adoption or jump through the necessary procedural hoops? Or maybe, just maybe its because everything is happening pre-proceedings and by the time of issue a child has been established in the care of a grandmother for so long it’s difficult to justify extracting them. Or maybe its just a delayed statistical result of the drop off in issueing last year. Or maybe, just maybe it’s because LAs (and Judges and guardians) are now being required to actually give proper consideration to extended family members or to support and services that might make rehabilitation possible rather than just holding up their hands and saying “She messed it up before. She’s bound to mess it up again. The past is the best predictor of the future” and other such platitudinous crap? Maybe, just maybe things have changed because people understand what Re B said just fine, thank you very much. I don’t know which of those, or which combination of those factors is the reason behind the drop – but with the greatest of respect to Sir Martin Narey I don’t see ANY evidence in what has been published this week that supports the proposition that social workers not getting Re B is responsible for the decline in figures. Unless you count the anecdotal evidence (that consists of random people who have had held forth to Mr Narey). In which case why is my view any less good a basis for some hypothesis or other about what’s going on?

Oh. And there are a couple of other sub-rants I need to vent here too…

Firstly, read carefully the carefully worded reference to the President in the cover letter – and ask yourself whether the President has endorsed this myth-busting? I would suggest that if he had it would say so. And it doesn’t. Make of that what you will. In the way of the President himself, I simply state that fact and make no comment upon it.

Secondly, by my logic this is implicitly a criticism of LA lawyers – insofar as it is a document aimed at social workers and social work managers who are making decisions about care planning and whether or not to go down the adoption route. In providing legal guidance for the benefit of those social workers Martin Narey is saying there is something pretty dysfunctional about the provision of legal support to social workers. Because (goes the logic) if they were doing their job it wouldn’t be necessary. As to the provision of legal advice to social workers my guess would be that it is not the quality of legal advice that is the problem (insofar as one exists) but the rationing of it, and the culture of acting first and taking advice later. In some LAs social workers have to make a case before a panel before they can seek legal advice. In some LAs social workers blithely crack on and continue to make daft mistakes like accommodating a child for a protracted period of child purportedly or actually pursuant to s20 without proper assessment or progressive case planning – and without the issue of proceedings. Who is issuing guidance for social workers about that? Nobody. And that is a bloody scandal.

But when it comes to adoption, which is “a good thing” it isn’t because the social workers are confused about the law. They aren’t confused. If they know anything about the law it is the law relating to public law decisions where adoption is on the table. They know what has to happen but they are overworked and under-resourced and cannot do superhuman amounts of work with rigorous evidence based analysis and comparative balancing documents within the perilously pressurized timetables under which we are now operating (And sadly a few have been told time and time again and just don’t get it). So yes, adoption stats have fallen. But not because social workers mistakenly think the law has changed.

Thirdly, the appellate courts are actually quite capable of issuing their own guidance about the law thank you very much. What do you think B-S was? It was guidance to those in the system who weren’t apparently cognisant of the law and evidential requirements as they should have been. I wonder if the Supreme Court or Court of Appeal think its a bit presumptious for the Adoption Leadership Board to be saying “Move over Judges. Let us help explain what you meant! You meant : adoption? Go for it!” And even more so when the Court of Appeal has issued some “refining” guidance of its own in the last weeks, as to which see Suesspicious Minds blog here : Why is there something instead of nothing (about Re M (A child : Long-Term Foster Care) 2014) and here : Nothing Else Will Do – Court of Appeal Clarification (about Re M-H (A child) 2014). So, whether or not the judges were minty before (or to use Tim Loughton’s term “resentful”, they might be a little more so now.

I mean, I concede that the fact that the Court of Appeal has had to clarify it’s own guidance gives succour to the argument that it perhaps wasn’t optimally clear, or that it was in some quarters being misunderstood (as does the fact that the Re B-S b*llocking was necessary in the first place) – but that’s part of the process of evolving understanding of the law and of our appellate system of precedent. They issue guidance, we work it through… I remain firmly of the view that what is happening in our proceedings in our courts is rigorous testing of options – sometimes (although still not often in my experience) that leads to a plan for adoption being rejected by the court. But anyone who attempted to argue that any option no matter how rotten is better than adoption will have been shut up pretty quickly after B-S. In the vast majority of cases LAs are still putting forward a plan for adoption where appropriate, but are putting forward better evidence and argument to support that outcome. And there are less knee jerk placement applications than there once were. What’s the problem with that?

All in all it feels like adoption is being inappropriately politicised here. And I don’t like it.

And if that longwinded rant wasn’t enough for you, you can read Suesspicious Minds rather more coherent post here.

 

 

Martin Narey on r4 Today, 11/11/14 (my own note, might have some minor errors in it).

What exactly are the court decisions and consequence of what you think is their misinterpretation? 

The first thing to say is that neither myself nor anybody else on the leadership board take any issue with the court judgments, they are entirely sensible but for reasons that I don’t quite understand they’ve led a lot of practitioners and Local Authorities to believe that the law on adoption somehow has changed and very many fewer children suddenly being put forward.

There has been a drop from end last year going into beg this financial year. The drop primarily is in Local Authorities deciding adoption is the best option for child, its then being compounded by the refusal of some applications at the court.

What are councils taking from judgments that is causing to put fewer up?

Two things primarily. There’s a phrase “Nothing else will do” and some councils seem to have taken that to suggest that if a child can remain in foster care then that will do.

…So councils can’t make a discretionary choice that this is the best?

Yes and actually the judgments and other judgments make plain that the best interests of the child must be pursued and an option which doesn’t meet the emotional or physical needs of the child mustn’t be pursued.

I think the other problem is that some Local Authorities believe that until every single alternative has been fully explored planning for adoption must not begin. Now it already takes twenty months after entering care for a child to be adopted.

So if you make last option its mean a lot of children miss out?

We could have children who even when they get adopted might have been in care move foster placement to foster placement for three or more years.

So what are you trying to point out? That the law has not changed. If councils believe best option for a child for that child’s physical and emotional needs is for the permanence that adoption can bring then they have to pursue that choice and they then have to argue that very coherently before the court. One judgment was properly critical of some analysis from Local Authorities which wasn’t good enough. They’re right to make that criticism. LAs must have the confidence of doing what’s best for the child.

No search results found for your query ‘indirect contact’

This blog post is a guest post by Sarah Phillimore.

In past few years I have had a number of cases in child arrangements disputes where only indirect contact is ordered at the conclusion. I sometimes represented fathers, sometimes mothers but 100% of those orders for indirect contact were against fathers. Some had findings of fact against them, that they had behaved badly and given their children reason to fear them. Others had no findings made or were even deemed ‘unimpeachable’ but the mother’s consistently aversive reaction to any suggestion of their direct involvement in the children’s lives was considered sufficiently serious to rule them out of any direct contact.

My growing sense of frustration and unease with this approach is underscored by the fact that no body ever came up with any evidence to support various assertions along the lines of ‘this will keep the door open for the children’, or ‘in time they will be curious about their father.’ No one ever had any statistics for how many orders for indirect contact eventually blossomed into direct contact or how many simply withered on the vine.

My suspicion was that an order for indirect contact was a more polite way of kicking the father into the long grass, and the reality behind such orders was that he would not see his children during their child hood.

Of course I agree that violent or other abusive behaviour from one parent to another is a serious failing of parenting and there should be no question of permitting unsupervised direct contact until the abusive parent understands that and can demonstrate he (for it usually is he) has changed his behaviour.

But what of those cases where a mother has irrational, albeit genuine reasons for not wanting the father involved in the children’s lives? Or where the father has behaved badly but has shown genuine insight and a wish to change and make amends, for example, by engaging with a domestic violence perpetrators programme? Shouldn’t the courts then be doing all they could to protect the Article 8 rights of the children to have a relationship with their father? We are continually told that to deprive a child of knowledge about one half of his genetic identity is a serious deprivation and can have significant consequences throughout a child’s life.

So I was pleased when re W was decided. (Re W (Direct Contact) [2012] EWCA Civ 999). This seemed a clear exposition of the existing law, that orders for only indirect contact were a serious thing and while the court should not easily give up on trying to make contact work, it offered a helpful reminder at paragraph 70 that both parents have a responsibility to make contact work.

Encouraged by Re W, I attempted to appeal the next case where I acted for a father who was offered only indirect contact, on the basis that the recommendation of the guardian appeared to be based on no evidence or analysis of how this would actually meet the children’s needs, save for the expression of the hope that the children’s own ‘natural curiosity’ would bring them in time to ask about their father and wish to to see him.

I expressed considerable skepticism about the likelihood of that; it was clear that the atmosphere in the mother’s home would not promote to curiosity in young children who had not seen their father for several years and probably had no independent memory of him. The children were strongly allied to their mother who was implacably opposed to any form of contact.

McFarlane J echoed what he had said in Re W about the importance of parents taking responsibility for their children’s relationship with both parents: at para 59 Re D (A Child) [2014] EWCA Civ 1057,

It is they [the parents] who, on those findings, hold the key that might unlock matters for B. It is not going to be easy for B in his own way, in his own time, unaided to say that he wants to see his father. He needs every encouragement from his mother to deliver what she says is her position which is that he would benefit from seeing the father and that she, as she told us through her counsel today, accepts, not just in the forensic sense, but genuinely accepts, the findings that Judge Hornby made.

I was not successful in my appeal, the first instance decision being deemed ‘unassailable’ despite the lack of any evidence to support the assertion that the order for indirect contact was one that would meet the children’s needs in the short, medium and long term.

But where is the evidence? What informs us that indirect contact is a realistic option? Are my suspicions correct? Is it just a more palatable way of kicking a father off into the long grass.

I asked my instructing solicitor about her experience. She said:

I have had several cases over the years where indirect contact has been ordered as a final order. A handful have come back to me to seek an order for direct contact. The circumstances of these cases varied but, in my experience, if the mother was unsupportive of direct contact (which they invariably were) then the children didn’t want direct contact either. There is clear evidence that the resident parent has enormous control over children and, of course, the longer the children don’t see a parent then the less likely that they want to, either of their own accord or because of potential retribution from the resident parent if they did show any interest/indication that they did want to see the other parent. The pressures that are put upon children of all ages is enormous (emotional/psychological). Our current court system, being adversarial and not inquisitorial, does not facilitate enquiry into potential solutions.

It is a desperate situation that is unlikely to be resolved unless the Judiciary takes a firm grip and shakes the current system.

I asked via the guardian’s solicitors if Cafcass kept any statistics about indirect contact orders and the rate at which they ever translated into direct contact. I did not get any response but I will assume that this is because Cafcass do not keep such statistics – in fact no one appears to be monitoring these cases and reporting on the success or otherwise of their outcomes.

Section 11H of the Children Act 1989 was inserted on the 8th December 2008 by the Children and Adoption Act 2006 to provide the court with the power to impose a ‘contact monitoring order’. The court can ask Cafcass to monitor whether or not an individual is complying with the contact order and request a report about an invidual’s compliance.

It says something either about my own competence or the efficacy of these orders that I was only barely aware of their existence.

It does not seem that anyone is collecting any data about how often contact monitoring orders are made and what are the outcomes, but I would be very interested to know if I am mistaken about that.

So I turn to google. I don’t pretend to have carried out any meticulous research into this issue but I thought if there were clear evidence to support the often made assertions about even very young children’s ‘natural curiosity’ being strong enough to override the obvious hostility of their resident parent, I would surely find some mention of it.

I spent an hour. This is what I found.

1. Alison Perry and Bernadette Rainey of Swansea University discussed a Nuffield Foundation study of 2006 about indirect contact. They concluded:

  • Indirect contact is an outcome of last resort rarely used by the courts.
  • Cases in which indirect contact tends to be ordered can be broadly categorised as those where the non-resident parent is seen as presenting a risk to the child’s safety or well-being, and those where direct contact is not a realistic possibility, usually because of incarceration or geographical distance. In each type of case weight was given to the children’s opposition to contact.
  • The experiences of the parents of indirect contact were largely negative.
  • The parents had experienced the following main difficulties with indirect contact:
  • lack of compliance, the resident parent failing to pass on letters or provide an up-to-date correspondence address; and unwanted contact with their former partner.

2. Clive Baker, a family law barrister said on his website in 2013, in answer to a query from a parent (see http://www.familylawquestions.co.uk/page1/)

I also appreciate how difficult indirect contact is. Many clients have described to me how it feels soul destroying sending a card, not knowing whether it will be given to your child and not knowing his or her reaction, with very little or no feedback. However, it is worthwhile keeping in mind that you will always be your son’s father and that as he grows older it is very likely he will be very grateful for the effort you put in at this stage to keep in touch with him and to show him that whatever the reason for him not living with you, you still love him. My experience and indeed research shows that the vast majority of children who are cared for by people other than their parents often make contact with their parents as they grow older (although that is a whole other post).

In answer to the question ‘what guarantee is there your son will get the cards?’

The short answer is, very little. The Court will expect that your son’s carers will let him read them and let him keep them (providing they are appropriate). The Court will expect your son’s carers to give them to him in a ‘positive’ way and also in all likelihood encourage him to reply, at least with a ‘thank you’ card or letter (depending on his age). I know that in reality and for all sorts of reasons this often does not happen.

3.The Family Lore clinic said in 2013 in answer to a query from a parent who wished to challenge an order for indirect contact (see http://www.familylore.co.uk/2013/11/family-lore-clinic-cafcass-recommends.html)

The other point to make is that the indirect contact may only be temporary. For example, in a case where there has been no contact at all for a while indirect contact may be seen as a way to reintroduce the parent to the child(ren). If the indirect contact goes well, it may then be varied to include direct contact. Obviously, in this case it may be better to be patient, rather than to try to challenge the welfare officer, which would involve everyone having to go through a contested court hearing.

So far, so unreassuring. I wonder how old these ‘vast majority’ of children are when they go looking for the non resident parent – and who copes with the fall out if and when they discover this parent was not quite the monster described as they were growing up.

I looked on the Families Need Fathers website; a search for ‘indirect contact’ revealed ‘no search results could be found for query: indirect contact’.

So here’s the thing. If indirect contact is clearly of benefit to children; if it keeps a door open that they can one day step through to a happy reunification with their father, that’s great. But if instead promoting ‘indirect contact’ is in reality nothing more than trying to soften the blow of saying to a father that his chances of seeing his children during their childhood are slim to none, please lets be clear about that.

I would be delighted if someone could point me to a solid piece of peer reviewed research about the likely outcomes following a final order for indirect contact, that will enable me to advise my clients properly. Is it worth spending time and money on anger management/counseling/therapy?

Because giving false hope is both unfair and unkind. And pretending we have a solution to a problem when we really don’t is a fool’s game. Avoiding difficult problems is rarely a good strategy in any field of human endeavor but particularly not when you are dealing with the long term emotional health of children.