I wrote an article a while ago for Family Law Week about s91(14). There’s been another s91(14) case recently, once again a successful appeal against the making of a s91(14) order. You can read the article here and about the recent case of M (A Child) [2012] EWCA Civ 446 here on Family Lore.
What a shambles. It is hardly surprising the father lost his temper and sought to withdraw his application. CAFCASS were unable to comply with the order for supervised contact and the judge seemed to think it was up to the father to offer an alternative arrangement. It wouldn’t have been the first time a court made an order impossible to put into practice. Carr clearly puts the mother’s interests before those of the child.
She then over-reacted entirely – ‘her reaction exceeds the generous ambit of discretion and… it was plainly wrong’. As judicial admonitions go, this is strong language; Thorpe also directed that the CAFCASS guardian be replaced, which is also an unusual move.
Another exemplary case which illustrates much that is wrong with the system.
I agree it’s a shambles – but doesn’t it also illustrate that in part the system is working – in the sense that the appellate system is working (albeit with some pretty shocking delay)? It’s not really clear from the judgment why the Guardian was replaced.
Whilst it seems only to play a minor part in the reasons for this appeal…I was drawn to the mention that Cafcass were unable to supply resources to ensure that contact between the father and child were properly supervised.
After reading the case summary I suspect that Cafcass had declined to provide continuing supervised contact due to lack of resources, both human and financial, either to provide this using a Cafcass practitioner, or one from a Cafcass commissioned service. Cafcass Family Support Workers have been the group of professional Cafcass employees undertaking the majority of this kind of work in recent years.
Of course we know that around 55 of these FSW’s have been made redundant recently, and that Family Court Advisors are unlikely to be able, never mind willing, to pick up any more direct work with service users due to the volume of work caused by the increase in applications and the super-ordinate need to prepare reports for courts.
(after all the DfE monitors timeliness of Cafcass practitioners submitting reports to court by a KPI….but not the qualitative impact on children and families for any other aspects of their work they provide or fail to provide.)
One can only predict that service user engagement and judicial patience is going to come under further pressure in the near future,if Cafcass has only limited resources to promote the carrying out of court orders.
A FOI answer on the What Do They Know website from Cafcass indicates that the DfE has given Cafcass a separate budget to employ commisssioned services to undertake this work….what’s the betting that this budget will get used up fairly rapidly leading to further major dissatisfaction amongst service users and Cafcass failing to comply with court orders.
After all the Cafcass budget for commissioned services has proved lacking even when supplemented by Family Support Workers,in recent years…and now the majority of these are gone.
But how many cases actually get to appeal, and how many fall by the wayside because of the increased costs and difficulties? (rhetorical question)
Purely from my own experience, it seems to me that it can take a great deal of time – possibly years – before one reaches a level of court competent to deal with a case. By then often irreparable damage has been done to relationships. There are issues here about training (of judges and CAFCASS) and the adversarial system itself.
I agree that Thorpe’s judgement leaves some details obscure, such as why contact is supervised and why PR has not been granted.
Yep, Nick I take your point on the damage done getting to the point of a successful appeal. It would be far better if it were got right the first time round.
It doesn’t help when judges fail to take account of the fact that a parent is a LIP either; see Christopher Booker’s latest column on what appears to be bad behaviour by Mitting J arising from the LIP being incorrectly advised by the HMCTS staff.
I try not to read Christopher Booker as I invariably end up spitting feathers and writing intemperate blogs about him. I will try and read this article when I have time (not now).
“I agree it’s a shambles – but doesn’t it also illustrate that in part the system is working – in the sense that the appellate system is working (albeit with some pretty shocking delay)? It’s not really clear from the judgment why the Guardian was replaced.”
If the appellant system work the Judge would have been sacked, the Father would have received damages for emotional distress, loss and damage and an investigation into how such an event would have been stopped from occurring in the future. This is not justice and its a travesty that any defence of the actions of the Judge are made on this blog.
The reality is everything is put in the way of a parent from appealing (court bundles denied, transcripts edited, final judgements worded so that reputation of the litigant is harmed to deny access to legal aid). Even if an appeal is heard, it is often ignored when the case is one which might embarrass the Family Justice system.
Winston Smith,
Im not defending the actions of the judge nor the system overall. What I am saying is that the outcome of the appeal was the correct one, insofar as an appeal can remedy a defect in the court below (and as you point out in many respects it can’t).
In response to your tweeet the same WS in this article.
Winston there are at least 2 of you out there! 😉