Judge Dread – The Future

The Family Justice Review is calling for written evidence by the end of September (see here). Anyone who is considering submitting a response should consider this: at the recent oral evidence session I attended with other lawyers, the panel were asking serious and reaching questions about the extent to which the courts needed to be involved in decisions about care planning. Suggestions were made that in our search efficiency we need to seriously scrutinise whether or not there is a need for judicial sanction along the whole process we currently know as ‘care proceedings’. Although there seemed to be an acceptance that court involvement could not be avoided insofar as there were disputes of fact, the need for judicial scrutiny of Local Authority decision making was not necessarily approached as immutable: the implication being that once threshold is proven to have been crossed decisions to removal of children from their families could become decisions of social services alone (or possibly of some yet to be created tribunal?).

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Take a deep breath and wait for the significance of that to dawn upon you. Yes. They are really considering leaving these decisions to The Man, without the safeguard of The Judge. The full horror of it may be evident to you and I, but it evidently raises crucially important questions that do not appear on the call for evidence list of questions – but which need to be answered explicitly, directly and forcefully. Those of us who believe in a Family Justice System clearly need to make the case at base level for judicial scrutiny of state intervention into families. It will be vitally important for those responding to the call for evidence to give their views about this very specific and fundamental issue rather than just answering the questions as posed. To get you thinking I will post something shortly on the question of ‘Why do we need care proceedings?’ which you will be at liberty to plagiarise, develop or denounce as you see fit. But I’m afraid that now is too late in the evening for me to contemplate embarking on that little beauty. It will have to wait…

11 thoughts on “Judge Dread – The Future

  1. Even as a long-standing Local Authority hack (though I have represented all corners of care proceedings in my time), that prospect is greatly unsettling.

    Setting aside sexual abuse and major injuries ( finding of fact cases in which threshold is the crux of the case), nearly all of the litigation at present in care proceedings is about the care planning aspect; and this seems to me harsher than even “Let’s go back to Place of Safety orders”

    I hope this blog post will get a few people who would otherwise be overwhelmed with work, cynicism, a feeling of hopelessness or sheer fears about how the system will work with the LSC gutting the number of firms and CAFCASS officers being told by their unions not to toe the CAFCASS line; to make some time to prepare a response to the FJC.

    If we are in a world where the Supreme Court is told to cut so much from its budget that it will no longer be able to open its doors and hear cases, then reviews such as this really will be charged with “thinking the unthinkable” and worse yet, “delivering the undeliverable”

  2. “without the safeguard of the Judge” thank you Familoo.

    I advise all my clients that Social Services have no power except that which is court ordered. This is hugely important for Art6 issues and possibly even our non existent Art13 !

    The hapless people caught in the family justice net already have great difficulty understanding this. They rteat Social Workers like God and Social Workers act like God.

    Disputes of fact are one facet, there are also the ” I did it. I’m sorry, I was under stress, I won’t do it again” to be considered. Parents aren’t perfect and do stuff that they shouldn’t do. These need to be arbitrated in court too.

    Also any such decision as is mooted here, would give rise to a plethora of actions under Judicial Review possibly.

    My advice is to get as many issues in to the court arena as possible. provided the court has the jurisidiction to rule on the matters at hand.

    • Provincial Solicitor

      However, it is being widely reported that public funding for judicial review is one of the areas that will be cut…

  3. Nick Langford

    In Re G (R on the application of) v Nottingham City Council [2008] EWHC 152 (Admin) Munby LJ said,

    ‘Local authorities and social workers have no power to remove children from their parents unless they have first obtained judicial sanction for what they are proposing to do. Only a court can make a care order. Only if a court has authorised that step, whether by making an emergency protection order or by making a care order or an interim care order or in some other way, can a local authority or a social worker remove a child from a parent. And the same goes, of course, for a hospital and its medical staff.

    ‘As I said during the course of the hearing, no baby, no child, can be removed simply “as the result of a decision taken by officials in some room.”‘

    The mere fact that he needed to say this is evidence alone that a judicial barrier is required between local authorities and children.

    To remove this safeguard would be truly terrifying.

  4. If the funding for Judicial Review is to be cut, then what little public confidence there is left will be ended. Judicial Review is one of the main stays of legal action I advise people to go for; especially when the LA wades in for an EPO. I am staggered at the number of illegal EPO’s the LA’s routinely get because they haven’t adhered to MacFarlane or Munby case law.

    • Judicial review as a mainstay response to an EPO? I think in the vast majority of cases I’d rather save my energy and keep my powder for the ICO hearing. What practical purpose does JR serve? Interested to hear your views.

  5. Provided you get ir heard quickly enough, it provides an instant remedy for the parent and the LA must go through the process again of getting the child away from the parents. Also it puts the whole matter before a senior Judge which has to be a good thing . If over turned it sends a clear signal to the local authorities that they must play nicely and fairly.

    EPO’s and PPO’s are used as a routine way of getting a child in to care. It is a draconian method; overused by the local authorities and backed up by the courts who want to err on the side of caution. It is a kind of ‘shoot first, ask questions later’ strategy.

    The JR needs to be filed quickly and it can be issued against the LA and the Magistrates Court too. Both need to be subject to a JR: the LA for not giving the court the necessary info and the court for not asking for he necessary info.

    If you save your fire power for the ICO then inevitably time has elapsed; the SS will say that the child is ‘settled’ and the court will agree. (No matter that the child was settled with their parents…!) That is never accepted as a valid argument. JR is a technical application and there is less room for manoeuvre for the judge, whereas at ICO the judge has a wide range of judicial discretion which is difficult to refute at appeal.

    • There are no reported decisions that I can find dealing with JR of EPOs let alone any which are successful. There was one unsuccessful JR of a decision to issue in 2003. There are however any number of refused JR decisions in family cases saying that complaints procedures must be exhausted or that the appropriate route for challenge is in the care proceedings. Most JRs in family cases fail because they can’t pass the Wednesbury hurdle – the broad discretion in Children Act proceedings is in most cases more favourable to parents wanting to challenge a Local Authority’s judgment and planning. If you have any case citations for successful JRs of EPOs can you let me have them?

      I’m afraid I don’t agree that EPO’s and PPO’s are used as routine. Most cases start by way of s31 application and interim ICO application. EPO’s are almost always on notice, even if informal. They are not always granted.

      The ‘child is settled’ argument is pretty weak after an EPO since the longest it can last is 8 days.

      So all in all, I’m currently not persuaded that JR is very often a useful or practical remedy.

  6. Re X (Emergency Protection Orders)[2006] EWHC 510 (Fam) there is also another Munby JR (Council X) Which I can’t find at the moment but goes hand in hand with McFarlane’s above.

    I intervene too late to bring about a remedy via JR. When I get involved the damage is done and as the saying goes “possession is nine tenths of the law”

    In most of the cases I deal with, EPO’s are the order of the day quite literally, that is when the Police aren’t being used as Children’s Services porns or if the children aren’t being taken completely without court orders.

    The appropriate route to challenge an EPO is JR as appeal takes too long, and the complaints process is a separate process to be gone through . Besides the complaints process cannot over turn an EPO. But a JR can.

    Believe me, I’ve had the”the child is settled” routine in the most absurd of situations inc black kids with white FC’s !!! So why wouldn’t the LA use that as an argument at the end of the 8 days when seeking an ICO or an EPO extention?

    EPO’s may be on notice but not much at that and not enough time for the parents to prepare a defence. The courts in my experience always go with the LA position. When an ICO is gained it follows the EPO as a matter of course.

    I am speaking from experience of handling a large number of cases, perhaps people come to me because they are at the worst extremes of LA bad behavior.

    There should be very few situations where an EPO is needed, yet it seems the norm.

    • Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam) was not a case where an EPO was JR’d, although clearly was a case where the EPO should not have been made. I think the other case you are referring to is Re B; X Council v B [2007] EWHC 1622 (Fam), but again that’s not a JR, its an after the fact commentary on the correctness of the EPO in the course of a judgment on an application to name the Local Authority.

      You say that exercising the right of appeal against an EPO would take took long, but in fact there is no right of appeal against an EPO. I agree that the complaints process won’t secure redress in terms of return of the child.

      I’m not sure I follow the logic of what you say when comparing the cultural appropriateness of a placement to the question of whether or not a child could realistically be said to be settled after spending only a week in an alien environment.

      I agree that EPO’s are often on such short notice as to prevent preparation of a proper defence which is why when they are made they are made for the shortest possible time or refused if not genuinely urgent. Certainly the last EPO I resisted on behalf of a mother was refused – in fact the application was withdrawn after pressure was applied by myself and the bench. Mum kept her kids at least until the full contested ICO hearing.

      I don’t doubt that you may see a high proportion of cases which have been initiated as an EPO, but I don’t think that’s representative of the norm. EPO’s are pretty unusual, and mostly only sought where there are very young children at serious and immediate risk, typically where mum is threatening unexpectedly to remove a newborn from hospital and there is a really serious concern about the safety of that.

  7. […] August 7, 2010 by familoo Background to this post appears here. […]

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