Category Archives: family-justice-review

The presumption of parental involvement ten years on

‘Now is the time to reassess presumption of parental involvement’, writes Lea Levine in the April issue of the journal[1].

That’s what the Harm report said in 2020[2], and the Government agreed before commissioning an ‘urgent’ review of the legislative provisions in s1(2A) Children Act. That review has still to be published some four years later[3]. I assumed when I read the title that the article would relate to the review and its strangely slow paced ‘urgency’.

this is a picture of a flower to lighten things up

This is a picture of a flower to lighten things up. If it doesn’t load properly you aren’t missing anything crucial. Carry on reading…

But my assumption was incorrect. Levine’s piece isn’t about the history of the statutory presumption, or its impact, nor about the extraordinarily protracted process of its review after less than a decade on the statute books. Instead, the article talks at length about the pro-contact culture, the threshold of ‘cogency’ or ‘compelling reasons’ that is said to apply to ‘no contact’ decisions, and the failure to properly balance the ongoing impact of domestic abuse when making decisions about contact between perpetrators and their children. In doing so, it locates s1(2A)[4] as the source of problematic attitudes and decisions, identifying reform of the statutory presumption as the solution to that problem. All the more surprising then that the 2020 recommendation for its review and the review’s perpetually pending status is not mentioned at all by Levine. (Those who are interested in its progress of the Review can read a series of posts by The Transparency Project site, based upon FOI requests and responses to those requests – given that at the time of writing Parliament has just been dissolved and an election looms it seems unlikely the review report will see the light of day any time soon, if at all[5])

Whether the family courts consistently protect victims and children from the wider harmful effects of domestic abuse is contentious. Many would say not.  The harm that children suffer from seeing, hearing, being exposed or subjected to domestic abuse and coercive and controlling behaviour is now well established. The rippling after-effects and the potential for continuing subtle, abusive behaviour to find its way back into the lives of children and their carers through contact is also, I think, beginning to be better understood by family court judges, lawyers and social workers. But whether one’s view is that more work is to be done or that the pendulum has swung too far, it is useful to consider: how significant a role does the statutory presumption actually play when we are thinking about making sound, safe, welfare based decisions for children?

To answer that question, it is necessary to go back and understand how the statutory presumption actually came about, to think about what it does and does not do, and to analyse what is really going on when courts are making decisions about contact against a backdrop of proven domestic abuse. That history is not covered in the Family Law piece, so I want to recap on it here for those who have forgotten or who are comparative newcomers to the long running debate around how best to approach contact post-separation. I want to suggest that the current focus on the statutory presumption is the wrong target.

The statutory presumption followed on from the 2011 Norgrove Review[6], and was introduced through the Children and Families Act 2014. Rather than changing the law (for example by creating a presumption of shared care as father’s rights groups had argued Norgrove should recommend), the new provision effectively codified the longstanding approach of the family courts that contact between a child and both of her parents was generally a welfare benefit to the child – a prior de facto presumption underpinned by and expounded in years of appellate authority and human rights law (i.e. Article 8, no contact as an interference in the child’s right to family life with her other parent). For those who do not know this history, it is easy to assume the statutory presumption is the source of the attitude of the family court to contact with non-resident parents. It is not.

The new statutory presumption didn’t say how much contact should happen, in fact it didn’t even mention ‘contact’, preferring instead the very flexible concept of ‘involvement’, which could embrace direct or indirect contact or even potentially involvement in decision making without any contact at all (i.e. the grant or exercise of PR). From the fathers’ rights lobby’s point of view this was all a very damp squib and did not advance their cause one iota, because it just said what had already been happening. The wording is cumbersome and worth reminding ourselves of, since it is often inaccurately summarised or paraphrased:

‘A court…is…to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare’.

That is the bare bones in s1(2A). But one also needs to cross refer to other subsections that were introduced and which define the parameters and operation of this provision. The presumption applies only to certain applications / decisions (essentially s8 decisions (including contact) and decisions about the grant of PR), and only applies where the ‘parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm’.

A parent is deemed as being able to be involved without putting the child at risk of harm i.e. they can rely on the presumption, ‘unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement’.

Let’s work that back: If there is there is some evidence that suggests that any form of involvement would put the child at risk of harm then the parent is not a qualifying parent and the presumption doesn’t apply. End of. So, this ‘unless’ provision isn’t triggered in cases where direct contact would be inappropriate but where indirect contact or non-contact involvement would be safe.

But then the statutory presumption itself says only that this ‘involvement’ (however meagre) is presumptively beneficial. It does not require the court to prefer one form of involvement over another (direct over indirect for example), or to prefer more contact over less, frequent over infrequent contact. Like any presumption, it can be rebutted or disapplied by the evidence and the facts. And in domestic abuse cases, post fact-find, that evidence is largely before the court and uncontestable. Where contact – or involvement, or a particular type of contact – is not in the child’s best interests (because of domestic abuse or any other factor) the paramountcy principle bites and the presumption can be disapplied.

In fact, when the (overcomplicated) text of the section is closely read, the presumption is only actively engaged where there is a live contention that there should be no involvement at all (put another way – where the dispute is around what sort of involvement the presumption is uncontroversial and adds nothing).

Cases where a party argues for no involvement at all (no indirect contact, no grant of PR / termination of it) are still few and far between – although I wonder if in recent years more parents observing a shift in attitudes towards domestic abuse have been emboldened to argue for no contact to abusive parents and removal or restriction of their PR[7]?

Boiled down, all the statutory presumption says is that some (unspecified) involvement is in a child’s best interests (unless it’s not). And nothing about it impinges upon the paramountcy principle – welfare trumps all. Objectively read then, it is an inconsequential provision with very little range and bite. And yet it appears it hold great symbolic power (just as the longed for presumption of shared care or equal contact held great symbolic power for the fathers’ rights lobby). This is because it has become a proxy for the underlying issue, which is the so-called ‘pro-contact culture’, which it is suggested by Levine and others (including the Harm panel) that the presumption somehow reinforces. That pro-contact culture is articulated and repeated in both pre-and post-2014 caselaw: essentially that contact is almost always a good thing and will almost always be ordered in some shape or form[8] – a far broader proposition than the statutory presumption.

It’s easy to dismiss complaints about a pro-contact culture by saying ‘well, it’s just the law’. But such retorts demonstrate a failure in understanding of what the pro-contact culture is and how it operates (in fact they are a failure to see that it actually exists). A compelling explanation of the pro-contact culture is given by Olive Craig of Rights of Women:

‘The pro-contact culture … is a description of the assumptions professionals in the system make, whether consciously or not, that contact is going to happen anyway, so ‘let’s just get on with it’. It is the way in which we assume the law will be applied. It leads to a minimisation of the harm caused by domestic abuse and therefore hinders the proper application of the welfare principle. It also leads lawyers to focus very heavily on the rights of the parents to see their child and of the child to see their parents while ignoring the other parts of the United Nations Convention on the Rights of the Child that make clear a child also has a right to be protected from all forms of violence. It leads to a system that overlooks the resident parent’s right to a private life, free from violence and abuse and the state’s role in protecting individuals, both adults and children, from violence and abuse.’[9]

Thus, the pro-contact culture leads to a distortion of the law and a shift in litigation behaviour in response of that distortion. Reading the post that Olive’s quote is taken from made me really reflect on my own practice, and the role I had played in years gone by in decisions by women not to pursue allegations that had profoundly impacted them and their children but where, having received frank advice, they felt it was pointless or too difficult or dangerous to pursue their allegations to proof. We all know what happens to those women in the longer run: ‘it’s not proved ergo it didn’t happen ergo there must be contact’ and we all know what happens when that contact doesn’t work (relentless litigation, criticism of emotional abuse or alienation, transfer of residence). THAT is the pro-contact culture in action.

Whilst the statutory presumption may be an attractive focal point for the energies of campaigners, and whilst abolishing or reforming it would remove any validation effect that it may have, my own view is that its amendment or repeal is highly unlikely to bring about cultural change without more. Moreover, the slow but steady shift in attitudes that is evident from an increasing number of published judgments concerning domestic abuse and consequential s8 orders over the last few years is evidence that research, campaigning, awareness raising, training, and the publication of judgments showing how it can be done are having (and hopefully will continue to have) a far more meaningful impact than tinkering with these few lines in the Act ever will. Change is like a rolling stone and it feels like it is now well and truly rolling, though I dare say there is a distance still to travel.

A thoroughly unscientific search on BAILII (still the repository of the greatest number of first instance family judgments, including those at Family Court level) for cases referencing the presumption provides a high number of results, and it is clear that certain judges routinely incorporate reference in their judgment to the presumption, as they summarise the law[10].

However, a large proportion of the hits across all judges recite the presumption in bare terms and never return to it to or engage with it at all. Many refer briefly to the statutory presumption alongside a summary (of varying degrees of detail) of familiar pre-2014 (and often pre-Human Rights Act) case law, and paragraphs 35-37 of PD12J.

Typically, references are to Re O (contact: imposition of conditions) [1995] 2 FLR 124 at 128 where Sir Thomas Bingham said:

‘…it is always in the interest of a child that he or she should have contact with the other parent…the separation of parents involves a loss to the child, and it is desirable that this loss should so far as possible be made good by contact with the non-custodial parent.’

and often cases such as Re J (a minor) [1994] 1 FLR 729 (‘contact with the parent with whom the child is not resident is the right of the child, and very cogent reasons are required for terminating such contact’) and Re M (a minor)(contact: conditions) [1994] 1 FLR 272 (‘no Court should deprive a child of contact to a natural parent, unless wholly satisfied that it is in the interest of the child that contact should cease, and it is a conclusion at which the Court should be extremely slow to arrive.’)

By and large, it is this caselaw (and PD12J) which judges do engage with (where relevant) explaining how they have applied it and why in this particular case they are making an order for contact or – increasingly, but still infrequently – why they are not making a direct contact order, are imposing a s91(14) order or are restricting or removing PR. Whilst the welfare checklist and paramountcy principle are a useful set of tools and guiding structures for judicial analysis and evaluation and presentation of a judgment, the presumption it seems is not. Other judgments base decision making in light of domestic abuse findings upon the exhortations in paragraphs 35-37 of PD12J to consider the harm suffered and risk of future harm as a result of domestic abuse by parent and child, and (para 37) to make an order for contact only of the court is satisfied that ‘the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact’ and ‘ that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent’. These paragraphs are in materially different terms (and territory) than the statutory presumption. A court can quite properly follow PD12J and decline to order direct contact, without trespassing on (or rebutting) the presumption of ‘involvement’ at all.

Rarely, if ever, does a judgment deal at all with a) whether the presumption applies in light of the issues in the case or b) whether it has been rebutted as a result of the evidence, and his is likely to be at least in part because in reality in most cases it doesn’t add anything to the mix. Even in the Fragile X case (MacDougall v SW & Ors (sperm donor : parental responsibility or contact) [2022] EWFC 50) where the facts were extreme and unusual, the presumption does not appear to substantially impact on the evaluative exercise or the ‘no involvement’ outcome. Lieven J explicitly took into account ‘the overall presumption in s.1(2A)’ (and in the case of one child a history of some contact), but concluded that ‘these factors do not outweigh the level of harm that would be caused’ by the grant of PR and contact. For the other children who had never had contact to the F, making either order would be ‘highly detrimental’ to them and indirect contact was specifically considered but ruled out because the benefits did not outweigh the disbenefits.

In G (Children : Intractable Dispute) [2019] EWCA Civ 548 the Court of Appeal describe the presumption of parental involvement as ‘very strong’, they also confirm that ‘it is not absolute. As in all matters relating to the upbringing of children welfare prevails’.

In Griffiths v Kniveton & Anor [2024] EWHC 199 (Fam) Lieven J stated that the presumption ‘is only a presumption, and necessarily will involve considering the facts of the particular case justify departing from the presumption, or the degree of restriction on any parental involvement.’ before concluding that ‘I think it is in XX’s best interests not to have a direct relationship with the F’. By way of (important) aside, it is of course the mother in this case, MP Kate Kniveton, who is now campaigning for the presumption to be reversed, in part as a result of her lengthy and painful experience of domestic abuse and the family court process – it took her many years to get to the position described in the judgment referenced here, an illustration of how hard one has to work to rebut the presumptive benefits and importance of direct contact even after serious abuse has been evidenced[11].

What recent published first instance judgments demonstrate to me is that neither the statutory presumption nor the caselaw presumption prevent judges from being quite able to disapply it, or from refusing contact (or PR) when the facts and welfare require it.

One further illustrative example – in R (no order for contact after findings of domestic abuse) [2020] EWFC B57, HHJ Vincent cites Lady Butler-Sloss in Re L (A child)(Contact:  Domestic Violence) & Ors [2001] FLR 260, (now a markedly less frequent feature of submissions and judgments than pre- H-N And Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448, [2021] 2 FLR 1116) that there is no presumption against contact as a result of domestic violence (as it was then labelled), but that ‘the facts of a specific case … the degree of violence and the seriousness of the impact on the child and on the resident parent have to be taken into account’ and that  ‘the court has the task of weighing in the balance the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors (if any), of contact between the parent found to have been violent and the child. In this context, the ability of the offending parent to recognise his past conduct, be aware of a need to change, and make genuine efforts to do so, will be likely to be an important consideration.’ I think this case is less often cited post Re H-N, and perhaps it is sometimes overshadowed by H-N. It is nonetheless good law. Whilst some contend for a presumption or even a bar against contact in cases involving domestic abuse, Re L in light of Re H-N is a powerful tool for encouraging judges to properly consider the benefits and risks of contact in domestic abuse cases rather than falling back on generic pro-contact propositions.

I’m not arguing here that we should not strive for better and more consistent application of PD12J, and for welfare decisions that take proper account of harm and risk of harm arising from domestic abuse. Without arguing that every case involving domestic abuse should result in a no contact order, or the forfeiting of all parental rights (as some do), and without adopting the mantra of ‘contact at all costs’ as an accurate description of the judicial approach, I do suggest that it is incumbent on us all to think hard about what is meant by a ‘pro contact culture’, whether it is in play, and whether or not our practice is contributing to it.

Even ignoring the presumption, Court of Appeal guidance, based upon the core provisions of the Children Act and human rights principles, must and should be followed. Contact is generally beneficial to children. But neither caselaw nor human rights law requires a court to order contact where it is not possible to do so safely or in a way which is not consistent with a child’s best interests. And as attitudes to and understanding of domestic abuse and its effects on adults and children evolves, so must the circumstances in which courts decide to depart from the ‘norm’ of an active involvement with both parents. That may still not involve many ‘no contact’ outcomes, but lawyers must be prepared to argue for, social workers to recommend and judges to order such outcomes where the facts and the risks support that. By assuming and advising that ‘judges almost always order some contact’ we perpetuate and precipitate that outcome.

I would suggest there are more effective ways to tackle the so-called ‘pro-contact culture’ than by expending energy on the statutory presumption (and in any event, I would not recommend holding one’s breath for the Review or any action to then follow on from it). Instead, we can focus on our own roles as legal advisers, as advocates and as judges and how we can develop our approach so as to avoid inadvertently perpetuating a ‘pro-contact culture’ that sometimes disempowers survivors and produces self-fulfilling prophecies.

We can read, disseminate, and learn from those judgments where the judicial analysis demonstrates a depth of understanding of the enduring harms of domestic abuse and of the potential court process to perpetuate or exacerbate that harm when not properly controlled by the court. They may not all be citeable authority, and most are fact-specific, but they are instructive nonetheless. Why did the court accede to an argument against direct contact in this case, but reject a similar argument in another? How was the result achieved? What about the facts and evidence and the framing of the case made the difference in that particular case?

We can use our self-reflection and learning to call out and challenge professionals whose welfare recommendations or decisions are not rooted in the evidence and findings, or which lack a proper acknowledgment or assessment of risk and of welfare in light of domestic abuse.

Since I never thought it made much difference to anything, I’m actually pretty agnostic abuse the presumption being reversed (though we will have to wait and see what it is to be replaced with, if anything). I don’t think that it is the solution that campaigners are looking for and nor is it a prerequisite for achieving their goals of safer contact, even if it would somehow ‘send a signal’. We do not need to eradicate the presumption (statutory or otherwise) that contact with both parents is generally a good thing. We need to persuade judges (or as judges be open to the idea) that proven domestic abuse, harm suffered and ongoing risk of harm are good reasons to restrict or even preclude contact (or involvement) perhaps in more cases than has hitherto been the case, and that the process of persuading the court that this is so can be a difficult burden for victims to bear. We need to use our enhanced understanding and skills in relation to domestic abuse to rebut the presumption, where it applies, and where it is justified, and to argue for truly welfare based outcomes which properly take into account the harm caused by domestic abuse itself and sometimes by the family court process itself. I think that fundamentally is a task for the family court community not the statute books.

A post script

I initially embarked upon writing a response to the article because it wrongly attributed remarks about parental alienation to me, which I wanted to correct. Whilst I was correctly quoted in the source article by the BBC, making a few remarks about the increasing use of jargon and terminology around ‘parental alienation’, comments about a ‘national scandal’ were not mine, but were made by the author of the study the article relates to (Dr Elizabeth Dalgarno), as the BBC article makes clear (that’s here by the way, if you care to read it https://www.bbc.co.uk/news/uk-66531409 ). I have asked Family Law to make a correction, which they have kindly agreed to do. UPDATE 9 Jun: Neither the BBC piece nor the Family Law article reference the research study by Elizabeth Dalgarno, who is an academic at Manchester. You can read it here (not noted in the article is the fact that participants weren’t asked about parental alienation). I couldn’t locate the link yesterday but have now dug it out, for those interested.

 

 

Footnotes

[1] Now is the time to reassess presumption of parental involvement in cases involving domestic abuse, Family Law [2024] Fam Law 393, Lea Levine.

[2] The report said that the presumption ‘detracted from the focus on a child’s welfare and safety – causing harm to children in some cases’, and that an urgent review was required. https://assets.publishing.service.gov.uk/media/5ef3dcade90e075c4e144bfd/assessing-risk-harm-children-parents-pl-childrens-cases-report_.pdf

[3] In an implementation update in May 2023 the government promised publication by the end of the year. https://assets.publishing.service.gov.uk/media/646e0e577dd6e7000ca9b2f8/harm-panel-delivery-update.pdf. Some report suggest publication is imminent, but it is unclear if the election will affect that e.g. https://www.tortoisemedia.com/2024/05/13/children-at-risk-of-enduring-harm-from-abusive-parents-if-family-courts-dont-reform-say-campaigners/ .

[4] along with related amendments to s1, namely s1(2B), s1(6) and s1(7).

[5] See this post from Feb 2024, https://transparencyproject.org.uk/the-moj-review-of-the-presumption-of-parental-involvement/, which links back to earlier posts.

[6] https://assets.publishing.service.gov.uk/media/5a7c4b3ae5274a1b00422c9e/family-justice-review-final-report.pdf. In fact, Norgrove recommended in the interim report that ‘a statement should be inserted into legislation to reinforce the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm.’ but by the time of the final report was recommending no presumption at all, stating instead that ‘the core principle of the paramountcy of the welfare of the child is sufficient and that to insert any additional statements brings with it unnecessary risk for little gain. As a result, we withdraw the recommendation that a statement of ‘meaningful relationship’ be inserted in legislation.’ Nonetheless, in due course something not dissimilar to Norgrove’s interim recommendation was implemented, albeit the can of worms relating to ‘meaningful involvement’ which had caused much difficulty in Australia as a result of similar legislation, was deliberately sidestepped.

[7] It has to be acknowledged this is an unevidenced suggestion on my part, based on my own anecdotal experience, given the paucity of granular statistics about family court applications and outcomes.

[8] Though often in the context of resistance by a parent or child where the court has concluded that contact is otherwise safe and beneficial, typically where allegations aren’t proved.

[9] https://transparencyproject.org.uk/the-domestic-abuse-appeals-a-missed-opportunity-for-cultural-change/

[10] Lieven J, Russell J, HHJ Vincent for instance, although these judges are regular publishers and it is not possible to compare their output with those who publish less frequently or never.

[11] https://www.tortoisemedia.com/2024/05/13/children-at-risk-of-enduring-harm-from-abusive-parents-if-family-courts-dont-reform-say-campaigners/ (and note inaccurate reference by Tortoise to the presumption of contact).

 

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, [edit Aug 2015 – see explanatory post here 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.

Judicial Bovver Boots

“Separated mothers must not get away with ‘Catherine Tate justice’ and ignore dads’ rights, says Appeal Court judge”. 

This is the Mail’s take on McFarlane LJ’s recent speech (The 10th Hershmann Levy Memorial Lecture). Not only do they inexplicably fail to use the mandatory phrase “Top Judge”, but they also miss out a lot of the content of a really interesting speech. However, if you were wondering, they are entirely correct in saying that McFarlane did quote Catherine Tate “am I bovvered?”, saying that this sort of attitude to contact applications will no longer wash (not news to lawyers). The article does not disclose whether his Lordship did the voice. I like to think he did. Badly, no doubt.

Anyway, for anyone feeling a bit “bah humbug” about 22 April, for those who are teetering only the cusp of a meltdown rather than anything more momentous, and who are rather cynical about the significance of CAP and a few new labels – this speech is a powerful argument for it all being about the beginning (revival?) of a substantive cultural and societal change rather than some superficial rejigging of the nomenclature.

What is rather telling of course is the acknowledgment in the speech that the public are not quite on board with this movement, even after more than twenty years – and indeed are largely unaware of it, lagging behind with their newspapers full of stories about “custody”.

This speech, with all its popular cultural references, is explicitly directed not just at lawyers but also at the public. The reference to Catherine Tate has been effective in getting the story reported (and the Mail article has been shared almost 3,000 times) but, entirely predictably, the Mail focuses on the Catherine Tate references and neither links to the speech nor reports fully the wider issues raised – in particular the reassertion of the imperative to put the responsibility back in PR.

McFarlane says the key to the success of the reforms is “Education Education Education” rather than “Enforcement Enforcement Enforcement”. And there’s the rub.

Sadly, the article in the Mail gives the impression its all about judicial bovver boots and enforcement, and the mechanism of judicial speeches as filtered through the mainstream press’s “newsworthy” filter is not the most subtle or efficient educational tool any more than the court is a subtle or efficient tool for fixing families. Wouldn’t it be better if the government, having made substantive changes to the law and process, and wishing to change the behaviour and expectations of families, would fund a proper public legal education campaign (by which I mean more than a couple of websites), complete with tv ads and all? a proper public legal education campaign that finds people rather than waiting to be found when the right search term is entered in google. It really should not be left to the judiciary to divert litigants from the door of the court.