Not So Special Guardians

Since the conviction of Special Guardian Kandyce Downer for the murder of little Keegan Downer there have been reports that the government has tightened up the assessment process for special guardians in the hope of preventing this sort of thing happening again (see here for example in The Times [paywall]: Adoption Loophole Is Tackled After Baby’s Death. In fact although Keegan died last September, the review of SGOs was already underway before then, probably in part as a result of the tragic death of another child under special guardianship (Shanay Walker), along with representations made by adoption organisations (BAAF).

The review led to the tightening of regulations in February of this year, some months before the conviction of Kandyce Downer. The Serious Case Review about Keegan Downer’s death has yet to conclude, although it seems likely that the bulk of the work has been done and the reviewers have been awaiting the outcome of the trial before finalising their report.

Until the SCR has been published we don’t really know where the blame lies (if indeed it can be laid anywhere other than at the door of Kandyce Downer). We don’t know where the child protection system went wrong or indeed if this death was preventable in the sense of it having been possible for this to have been foreseen. Maybe the special guardianship assessment was weak, maybe not.

 

There has been a lot of rhetoric about the risks of SGOs in the wake of this case (not just in the wake of this case but especially so), for example :

Hugh Thornbery, chief executive of Adoption UK, has urged the Government to tighten the laws surrounding SGOs, which he said have increasingly been seen by local authorities as a “cheap option” even though it leaves children in “potentially risky placements”…

“Some may say SGOs are a quicker and less costly alternative to adoption at a time when councils’ budgets are cut to the bone but we believe this flies in the face of good practice and common sense,” said Mr Thornbery.

“By taking a child from birth parents and placing them with someone who is only ‘just good enough’ totally fails to understand the quality of parenting that these children will need.”

In the same article containing the above Adoption UK quote, we hear Coram BAAF making a similar complaint.

John Simmonds, director of policy research and development at Coram BAAF, said that a lack of time and resources leads to local councils making rushed decisions about placing children with special guardians. “There is a very real risk that by placing a child with a special guardian, the child can lose contact with the local authority very quickly after the order is made,” he said.

Whilst I welcome the tightening of the assessment process for SGOs these criticisms are criticisms of SGOs themselves not just the assessment process. I’m not sure of the logic in suggesting SGOs are inappropriate because they lead to a loss of contact with the LA very quickly – once an adoptive order is made the same applies and complaints about the lack of support for adoptive parents are commonplace (and acknowledged in recent government policy).

Although the subbie who wrote the headline for the Telegraph article I’ve been quoting initially made the slightly large mistake of referring to Kandyce Downer as a foster carer (thus rather missing the point of the article! It’s now corrected), the article correctly places all this in the context of the supreme irritation of some in the Adoption establishment at the impact of Re B and Re B-S, saying :

The National Adoption Leadership Board warned that the two judgements “resulted in inaccurate assumptions” drawn by local councils about where to place vulnerable children. Following the judgements, the number of adoptions has halved while the use of SGOs has rocketed, with 3,330 issued between April 2013 and March 2014, compared with 1,290 in 2010. This rose again to 5,300 in 2015.

Which leads me to ponder about something that ministers did NOT do in light of the SGO review (which I confess I am not completely au fait with) : they amended the guidance on assessment but didn’t amend the task set out in statute for the judges. This is interesting, because whilst an SGO assessor is now directed to have a more acute focus on the longer term capacity to care and meet a child’s needs as a SG, there is no equivalent refocusing of judicial attention. Of course a judge will be looking at a more honed and robust SG report (one assumes) if it has been written post Feb 16 and one would hope that would help a judge make better decisions. But it would have been open to ministers to take steps to require a judge to apply the expanded ACA 2002 welfare checklist to decisions about special guardianship as well as decisions about adoption. But they didn’t do that. And now I’ve thought of it I’m sort of wondering why…wouldn’t it have closed the loop and forced everyone to sing from the same hymn sheet? Perhaps the answer is that secondary legislation to amend the regulations is easy and quick, whereas amendments to primary legislation are more complex and slow – the SGO Review Report promises that the government will “Actively consider whether further changes are required to the legal framework that underpins decision making around special guardianship”. Perhaps that is not abandoned as much as it is just not yet actioned, but at the moment it seems rather anomalous.

A little professional restraint

There have been a number of times over recent years where I’ve been asked whether or not I (or colleagues of mine) could give some mini-advice via online forums or groups, responding to enquiries by providing short initial responses. I had such a request recently from one website. I declined, partly because of workload, but also partly because of regulatory issues.

There are many who would (entirely legitimately) see this sort of thing as high risk, and who would not see any good business case for giving one’s time up on this sort of thing. This is particularly so in light of a recent judgment from the Court of Appeal on the potential for a claim in negligence against a professional offering advice, see Burgess & Anor v Lejonvarn [2016] EWHC 40 (TCC) (15 January 2016) where Alexander Nissen QC (sitting as a Deputy High Court Judge) held :

In conclusion, it is established that in law a duty of care extends to the protection against economic loss in respect of both advice and any service in which a special skill is exercised by a professional. The duty can extend to negligent omissions as well as the performance of negligent acts. For present purposes, the relevant ingredients giving rise to the duty are an assumption of responsibility by the provider of the service coupled with reliance by the recipient of the service, all in circumstances which make it appropriate for a remedy to apply in law. The passages above make specific reference to the fact that a duty of care may be found to arise even in circumstances where services are performed gratuitously and in the absence of a contract. However, as identified by Lord Goff, in the absence of a contract it is important to exercise greater care in distinguishing between social and professional relationships.

There might be a business case for doing this sort of pro bono work (inevitably it would be pro bono) – it may lead to instructions further down the line – in theory at least – or may generate more nebulous reputational benefits. On the other hand quite possibly there is no such business case. But my post isn’t really about whether or not there really is a good business case for doing this sort of thing, or even about the moral case for doing it either. If I were bothered about that I’d try it and see if the business case was made out in reality.

No, what is irritating me is the fact that I couldn’t test this out if I wanted to. That I couldn’t even do this for altruistic reasons should I feel called to help out. Because our code of conduct prohibits it.

There are two kinds of legal services. There are the kind which are “reserved legal activities” – the conduct of litigation and the exercise of rights of audience – and those which are not reserved. Reserved legal activities are basically the things that only qualified lawyers can do. To carry provide litigation or advocacy if not authorised to do so is a criminal offence. That’s all well and good but there is a whole lot of stuff which can fall within “legal services” that is not “reserved”, in particular the provision of advice. Any old muppet, legally trained or not, experienced or not, insured or not, can provide legal advice. My 7 year old son can provide legal advice (I wouldn’t recommend him).

So any lawyer can provide snippets of legal advice through online forums or community groups, perhaps to help out an organisation that gets regular enquiries from desperate parents? Right? Wrong.

Rule s24  of the BSB Handbook says this :

You may only supply legal services if you are appointed or instructed by the  court  or instructed:

1 by a  professional client (who may be an  employee of the  client ); or
2 by a  licensed access client , in which case you must comply with the  licensed access rules ; or
3 by or on behalf of any other  client , provided that:
a the matter is  public access instructions and:
i you are entitled to provide public access work and the  instructions are relevant to such entitlement; and
ii you have notified the  Bar Standards Board that you are willing to accept instructions from lay clients; and
iii you comply with the public access rules; or
b the matter relates to the  conduct of litigation and
i you have a litigation extension to your  practising certificate ; and
ii you have notified the  Bar Standards Board that you are willing to accept instructions from lay clients.

You can read the Handbook here, if you like that kind of torture. Good luck navigating it – it’s utterly impenetrable, I think it is some kind of parody of how lawyers like their documents to be. Bring back the code I say.

So. Boiled down this means that I can only supply legal services if instructed by a solicitor, if I act through public access or through licensed access. I can’t just advise any time any place (I am not like Martini). This is why, when we set up our pro bono clinic in Bristol recently we had some difficulty getting cracking with a scheme that would work for barristers – ultimately we were able to operate only under the licensed access umbrella of the Bar Pro Bono Unit. We could not just rock up at court and advise people.

[EDIT : To go back to the online forum scenario – this effectively makes it impossible to help. It would be impracticable to do via public access because of all the hoo hah with assessing suitability and the need to send client care letters etc, even if one had the address details, and there is no other route available.]

This is not a problem that burdens solicitors. And what’s more it is not a problem that burdens McKenzie friends. And this what irks me. If I had the time and the inclination, I could be out there chipping in when able, offering (I hope) reasonably coherent snippets of advice (appropriately limited so as not to make my insurers’ hair stand on end no doubt), to the benefit of those individuals who might not otherwise have any support. So instead I suspect many community groups and forums are advised by McKenzie friends – perhaps some of whom are highly skilled and experienced – and no doubt some of whom are really not.

Why is our legal services market organised this way? To restrict the skilled, experienced, insured and regulated from helping out but leaving the unregulated and highly variable cottage industry McKenzies to offer dubious advice and identify vulnerable potential clients who they can charge more to provide “support” and “advice” than they would pay to a qualified lawyer who would throw in drafting and advocacy for the price? Not all McKenzies charge money, and not all charge more than a lawyer would – but I’ve certainly seen a few who do.

It feels to me as if in choosing to regulate one part of the market whilst leaving the other part to do as it pleases we leave litigants very vulnerable, and at risk of being diverted away from benefiting from legal services from qualified legal professionals. One of the first pieces of advice most McKenzies will give in my experience is that a litigant doesn’t need a lawyer, perhaps even that a lawyer will be an expensive waste of money (or worse). My recent experience on radio 4 was a reminder of how negative the views of some McKenzie friends can be about lawyers.

Frankly, I have enough on my plate without worrying about helping out on some advice forum. But others may take a different view. And I do wonder whose interests the BSB are protecting in preventing us from doing so if we wish. Certainly not the consumers of legal services or the bar either for that matter. If, as I suspect, this is the old rubbish about protecting the specialness of the bar as a referral service it’s rot. That ship has sailed. I’m no competition lawyer, but isn’t this a restrictive practice? Why do we have our hands tied behind our backs when trying to compete against McKenzie friends?

Do you have a question for a senior Family Law judge? Free family law session

Following the success of the first free family law session at the Bristol Civil and Family Justice Centre in October of last year, a second free Bristol family law session is planned to take place on Wednesday 20 January 2016 from 18:00-20:00 at the University of the West of England, Frenchay Campus, Bristol.

The event is aimed at anyone interested in finding out more about the Family Court, all professionals working in the field of family law, journalists and students.

Join HHJ Stephen Wildblood QC, designated family judge for the Bristol area, and a panel of experts to hear about the work of the Family Court and what to do if you are faced with a personal or family disagreement.

Following feedback from the first event, new topics and speakers have been added and the question and answer session will be extended to promote further debate.

The topics covered will include:

  • How to access help and support if faced with a personal or family disagreement
  • The role and work of the Social Worker
  • The role and work of the Guardian
  • How decisions are made about children

You will have an opportunity to ask questions about the practice of the Family Court. The panel of experts will include:

  • HHJ Stephen Wildblood QC, Designated Family Judge
  • Sarah Stott, Cafcass
  • Patrick Moreno, Senior Lecturer at UWE, specialising in children’s social work
  • Louise Tickle, Journalist
  • Judi Evans, Barrister, St John’s Chambers
  • Lucy Reed, St John’s Chambers
  • Sarah Phillimore, St John’s Chambers
  • Zahid Hussain, Barrister, St John’s Chambers
  • Emma Whewell, Senior Lecturer in Law, UWE

Register now

You may apply for a place here.

Registration and refreshments will be available from 18:00. The event will start at 18:30 and finish at 20:00.

For more information visit www.familycourtinfo.org.uk; the site is aimed at people who are involved in or may be involved in a case in the Family Court in this area (Bristol, Weston, Gloucester and Bath). It sets out the range of help that is available locally, and provides basic information about how the Family Court works.

Information about parking etc is on the UWE site.

Cost: Free
Contact: Emma Whewell
Telephone: +44 (0)117 328 3897
E-mail: emma.whewell@uwe.ac.uk