A plea for thoughtfulness…

Two pleas for thoughtfulness actually.

Annie of Surviving Safeguarding spoke at the ALC Conference this week. She was like a female, geordie version of John Bishop, only with much darker material. And more swearing. She had a fan queue at the end. There was one thing I wanted to draw out from what she said (there was so much to take from it, but this one thing happened to resonate with my own recent experience) – it was her plea for professionals to think about how their chummy chats and giggles in corners look and feel to the client who is at court, bewildered and fearful of their children being taken – to the client whose only ally is gassing with the enemy”. We all do it. I do it sometimes, although I try to be very mindful of my client’s needs and perceptions. And, as Annie recognised, it is a natural and necessary part of our job – we have to communicate and we have to have functional working relationships with colleagues in order to do our job and achieve results for our clients – and black humour is something we need to get by in a stressful and depressing working environment. An opponent who trusts you is more likely to see your request as reasonable and respond to it, than an opponent who has experienced you as a miserable old cow day in day out*.

But the point is it has a really big impact on how a parent feels and on how they experience what is going on, what is being done to their family.

A client recently raised this very issue with me, having noted the guardian and her lawyer repeatedly spending time in the same conference room as the social worker and her lawyer. He was right to pick up on it, as all of us acknowledged. We were able to talk it through collectively with him and to reassure him. This was possible because the guardian in question was a fiercely independent guardian who is quite happy to give the local authority “what for” and who, I reminded the client, had done just that earlier on in the case, pooh poohing their ridiculous care plan. But actually, it is better not to provoke that anxiety about what’s going on because not all clients are able to articulate that anxiety or to respond to reassurance about it. And in some cases there IS too much cosiness between one team and another and it IS unhealthy. And from the outside both scenarios look and feel exactly the same.

As lawyers we do need to go and hole up with other lawyers to discuss and negotiate and draft, coming back to base to take instructions and inform our clients. But an explanation of what is happening and why, and regular check-ins with clients go a long way. Likewise, going into court on a “counsel only basis” is something I rarely do these days – and where I do I explicitly explain to the client why (usually : just to ask for time, because the judge has specifically requested it) and I often ask the judge to stop if I feel issues are being discussed that my client will want or need to be involved in.

So that is my first plea for thoughtfulness. To all lawyers involved in care proceedings. To social workers and to guardians. Please help parents to trust in the system and in your independence and professionalism. Don’t overdo the chummy thing or the private chat thing.

Second plea for thoughtfulness?

The Transparency Project published the results of a study on adoption targets this week. You can read about that on The Transparency Project blog or on Community Care. It’s tricky stuff. We don’t have all the answers. The study doesn’t lay to rest all those theories about babies being taken to meet targets or secure bonuses – but nor is it proof that those theories are right. It’s complicated innit? Some of the reactions to the study have been (predictably) to say that the study is “proof” of the distorting effect of adoption targets. It isn’t. This study REALLY requires reading beyond the headline. It IS proof that it’s a complicated topic and that more work is needed – and that’s all really. Thoughtful responses to the issues raised by the study are encouraged. How do we get more clarity? How do we reassure parents? How do we make sure that we aren’t inadvertently creating the system that the critics complain of, one that has systemic distortions in it?

 

*yes, I know I’m a miserable old cow much of the time. Moo to you…

fee paid mckenzie friends – finally some research

Finally, someone, somewhere is conducting some research about fee paid mckenzie friends.

A team at Cardiff University are carrying out a research project which comprises three strands – speaking to mckenzies, speaking to clients of mckenzies and observing hearings involving them and speaking to participants.

If you have used a mckenzie friend who charged for their services they would like you to participate :

We would like to conduct a short, confidential telephone interview with you to find out about your experience of using a McKenzie Friend. We are able to offer a £10 gift voucher as a thank you for your time.

If you are interested in taking part, please let us know by sending an email to McKenzieFriends@cardiff.ac.uk. Alternatively, you can telephone Leanne Smith on +44 (0)29 2087 4913.

I think that’s really important because a lot of us are quite worried about mckenzie friends and the harm they sometimes do to clients and their cases (both fee paying and non-fee paying) – but there is very little hard evidence about how widespread the problem is. If our anecdotal experience is wrong, we can relax a little, but if it is consistent with a wider pattern then it is really important this is demonstrated objectively so that the powers that be can take action to protect people.

The project is funded by The Bar Council (who have a particular position on this issue, although they (and I) would say for reasons of public rather than self-interest). However, whatever you think of The Bar Council’s position, the research is independent of them and being carried out by respected academics at a reputable university.

You can read more about the project here.

A postcard from the President…

So I go away on holiday for a week and, whilst my focus is on knitting and farting around in the back garden, and the rest of the world is breathlessly tweeting about olympic medals, CAFCASS and The President slip out three distinct reform bombshells, all with a common purpose : managing the ever rising number of care applications in the context of the ever diminishing pot of funds. Like we wouldn’t notice…huh!

See The President’s 14th View here and CAFCASS in CYPNow here, and also here, in which local cash limited budgets for CAFCASS areas are mooted (see page 11 in which a pricing schedule for section 7 reports is mooted). I moaned recently on twitter about this idea, remembering the annual “we’ve run out of funds” hilarity for the poor sods who desperately wanted the access supervised contact via CAFCASS, who were told they had to wait a further 3 months until the next payday. I was then contacted by CAFCASS Comms and asked what my tweets had meant (I know – yikes, eh?). I told ’em that this was an annual event in my neck of the woods until at least a couple of years ago, and was told that hopefully this was now a thing of the past. It does indeed appear to be a thing of the past at present : it may, however, also be a thing of the future, based on the sketchy description of these limited cash budgets that we have been given. You know guys, if you make us guess what the plan is, we might imagine it wrong…don’t complain if we get in a flap.

The gap since the President’s last “View” is, by my reckoning, about a year. In the interregnum we’ve seen much happen, latterly Settlement Conferences appeared (as if by magic). The fourteenth view attempts a “Calm Down, Dear” to the hyperventilating ALC. “Settlement Conferences, it’s only a pilot dear!” says The Pres. Bound to be a Winner. We shall see. The President may protest that the ethos of these conferences is not to pressurise parents into capitulating, but that may not be how it feels from their end of the barrel. And it’s all well and good to say it’s a pilot, but what I’d like to know is who’s flying the plane? The President says this is something which is judicially led. There is no reason to think that is not so, although I suspect that not all judges are likely to enthusiastically embrace this pilot. But, to torture the aeronautical metaphor a little further – the judicial pilot still needs clearance to land from Air Traffic Control. This is a MoJ pilot, with MoJ funds. It is clearly designed to try and save funds through a reduction in expensive final hearings. This is no bad thing in itself. But whilst we all love an Easyjet price tag, it is still *quite* important that the landing gear doesn’t fall off and the plane lands safely at its destination. Who gets the final say as to whether this judicially led pilot is rolled out? And who decides the criteria? (On a parallel note, I am told that the MoJ (with no fanfare) have recently pulled the plug on the drug testing pilots that appeared to unstick so many cases. I haven’t seen any announcement setting out why, or any published analysis of the effectiveness and cost / efficiencies of the scheme and we’ve had no guidance issued on “the plan” going forwards or even formal notification the problem is going to re-emerge. I’m not sure yet what we are supposed to do with those cases involving LiPs who can’t pay for hair strand testing, but whose cases (and relationship with their children) are going to be once again held up or stymied with out it.) – but I’m pretty sure that wasn’t “judicially led”.)

What’s more Judges – particularly those with managerial responsibility – remain very obviously under statistical and budgetary pressure – average case duration, allocated annual budgets of sitting days etc. which the purists amongst us might suggest have the potential to impair judicial independence. Is it not understandable to worry just a little that these pressures bearing down upon the judges will transfer inadvertently or overtly to parents and their legal representatives who awkwardly insist on a trial? Yes I know, I should calm down dear.

Anyway, it’s only a pilot. Whilst nobody was consulted much before it started, the relevant professional bodies and interested parties are now in a position to keep an eye on this and feed back on how it has gone in due course – it may be successful, as reportedly it has been in Canada. So, watch this space.

The second stealth missile delivered by The President in his Fourteenth Postcard from Summer Hollibobs was the “the tandem model is sacrosanct, except when it’s not” bombshell. It’s all a bit confusing :

The tandem model is fundamental to a fair and just care system. Only the tandem model can ensure that the child’s interests, wishes and feelings are correctly identified and properly represented. Without the tandem model the potential for injustice is much increased. I would therefore be strongly opposed to any watering down of this vital component of care proceedings.

And then (with an interlude in which The President opines that we are brassic) :

The MoJ, with my support, is investigating whether there is scope for a reformed level of representation for children in public law cases and how a reformed model might work in practice. 

Say what? What is this “reformed level of representation” of which you speak?

From my perspective, the focus of this is the question of whether, at certain stages in the proceedings and at certain type of hearing, there could properly be scope for dispensing with the attendance of some, or even, in some circumstances, all, of the child’s professional team.

Oh. So you mean that the tandem model can be suspended at hearings that aren’t really that important. That would be those pointless hearings that we no longer hold because the PLO has streamlined the system so that only hearings that are really essential are held (in order to save funds), and each hearing should be a focused and purposeful demonstration of active judicial case management with collective participation and responsibility?

Maybe he means CMH’s? Where critical case management decisions are made and where a ball dropped at this early stage can lead to an evidence gap or ineffective final hearing and delay further down the line? Nope. Can’t be those. And anyway, where a Guardian cannot attend or it is accepted by all his attendance is not essential the court can and does (on occasion) excuse the Guardian’s attendance – because the lawyer will be there keeping an eye.

Maybe he means FCMH’s? Where a single CMH wasn’t enough and the court has decided that actually, this case is complex enough, or has got messy enough due to previous problems, delay or non-compliance to warrant a further hearing. As above, Guardian can be excused where justified…No, he can’t mean the child would not need to be represented at those, surely…

Maybe he means FoF hearings? You know, the split hearings we never hold any more (ssshhhh, don’t tell him – we really all do still hold them)? He probably doesn’t mean those because the Guardian rarely attends those hearings throughout in any event, and the solicitor for the child is usually the lead solicitor for any experts – so they kind of need to be present to chief the critical witnesses – and report back to the Guardian who is off doing four simultaneous final hearings and an EPO whilst juggling a plate on her nose.

IRHs? Surely not? The child has to be represented if the other parties are to agree a final disposal about that child’s life. Otherwise, what’s the point of the child being a party (as undoubtedly they have to be for the purposes of article 6). He can’t mean that.

Maybe he means Final hearings? At which the complexion of a case can completely change in a moment, during which the Guardian will need to give instructions in order that their representative can cross examine witnesses – and ultimately give evidence herself. Nope. Can’t mean those.

And let’s not forget that the LAA already require the solicitor for the child to conduct all hearings where humanly possible, meaning counsel is less often instructed on behalf of children than for the other parties. Or that the LAA is even more difficult to persuade that leading counsel is necessary in the case of a child party than a parent.

So, I confess I’ve not a scooby what this means or what exactly is being discussed privately at the MoJ. But I can’t at present think of any scenario in which the absence of a child’s legal team from hearings in care proceedings could be anything other than the “watering down” of the tandem model that the President is so averse to. Of course, it does not help that these things pop up out of the blue, blueprints half drawn before we even know they are afoot. It does not inspire confidence. Even now there is no information that I can locate on justice.gov.uk or gov.uk about the “data-collecting exercise in 12 courts” or the second phase (in which it is proposed that, with the involvement of the judiciary, there will be exploration of “how a reformed model of representation could work in practice”). Note that here there is no assertion that this is judicially led. One interpretation of this view is that the President is publicly laying down a marker to the MoJ that whilst they are exploring this particular issue, there is a line he will not let them cross : note the President’s “From my perspective” here :

From my perspective, the focus of this is the question of whether, at certain stages in the proceedings and at certain type of hearing, there could properly be scope for dispensing with the attendance of some, or even, in some circumstances, all, of the child’s professional team.   [my emphasis]

and his “so far as I am concerned” here :

so far as I am concerned, none of this can be allowed to prejudice the fundamentals of the tandem model. [my emphasis]

Goodness only knows what the MoJ have in mind – and again, its not reassuring only to hear of it via The President and once its already half baked. But the more I read the “View”, the more I think this may be a “By all means, take a look and see if you can find some savings – we recognise we have to help cut costs where we can – but don’t think you can mess with the tandem model!” coded message. I hope so anyway…

A personal sidenote : I’d like to see a stepping up by the minority of childrens’ representatives who still see a guardian brief as an easy brief and a passive or responsive role. It isn’t. It’s the hardest sort, and one bears a great responsibility as either solicitor or counsel for the child. When the wheels come off cases, it is sometimes legitimate to ask why, of all parties, the child’s team did not see it coming and raise it at the CMH or the advocates meeting? The role of solicitor for the child, when performed as it should be, is crucial and can have a significant postiive impact on case progression and efficiency. Its loss at any hearing, whether because an advocate is actually or effectively absent, is to introduce significant risk both of injustice AND wasted expenditure – as I think, at moments, the President’s 14th view acknowledges.

Anyway, hollibobs over tomorrow…Booo hoo.