Family Justice Review Interim Report

The interim report of the FJR has been published today. This post represents very much an interim analysis of that interim report (is it hyperinterim, adopting the style all the most fashionable injunctions?). I’m pleased to say that quite a lot of what is in the report was contained in the paper presented to the FJR by myself and Stephen Cobb QC for the FJR, although no doubt many others echoed the same sentiments.

The headlines are:

The creation of a Family Justice Service (managed by a Family Justice Board) with overarching responsibility for the management and funding of the system as a holistic entity, and with a consolidated budget to cover CAFCASS, Courts, Legal aid, funding for mediation and support for contact. CAFCASS to be subsumed within the new FJS.

There will be a single family court in which both magistrates and judges will sit, allocation depending on complexity (how will this differ in practice from the current system apart from removing the need for formal transfer and more coordinated listing and therefore better use of court resources?). Except it won’t be single because there will still be the High Court. Which I think makes two.

A move away from reassessment to make good deficiencies (perceived or real) in social work and care planning and a move away from the role of the Guardian and the court in scrutinising these things.

I pause to insert pa 72 of the report, which made me squirm as I read it:

Too much time is being spent trying to predict the child’s future welfare needs through the examination of the detail of the care plan. Yet circumstances change over time and so do children, in ways that often cannot be foreseen when care order decisions are being made. Courts should focus on the fundamental question whether a care order is in the child’s best interests. Other means are in place to assure the welfare needs of children who cannot live with their birth families once a care order is made.

Time is short, so I will sigh deeply and audibly *SIGH* and move on. To paragraph 78:

The court should not examine detail such as:

    • whether residential or foster care is planned;
    • plans for sibling placements;
    • the therapeutic support for the child;
    • health and educational provision for the child; and
    • contingency planning.

…Local authorities will of course continue to be expected to develop and implement high quality care plans for children.

Expectation? Why would we expect (or accept) that to happen given the existing and likely future pressures on the system and if the courts are not breathing down the necks of Local Authorities? We might expect that to happen some of the time, in some of the best Local Authorities, but across the piece?

In fairness, the FJR has somewhat passed the buck back to Eileen Munro here, relying on her to come up with a plan to improve the “quality, particularly the analysis of the issues, presented to court. The consequence should be a reduced need to commission additional reports from others, and to give judges greater confidence in the decisions they make” (pa 88). I love it when a plan comes together, and it is only fair to await the report from the Munro review before being too intemperate about the apparent notion that one can separate the substance (“detail” is the pejorative descriptor for “substance”) of a care plan from the best interests decision.

Revision to the tandem model – not scrapped as many thought, but “more proportionate” with less focus on quality assuring the work of LAs. Possibility of tandem solicitor / guardian employees under the same employer. The obvious difficulty with this would be where a competent child separates from the Guardian and their solicitor would not be independent. They would then need to build a relationship with a new solicitor, which is not helpful to any teenager.

The report says that “No legislation should be introduced that creates or risks creating the perception that there is an assumed parental right to substantially shared or equal time for both parents”. But there is a recommendation that there should be “a statement in 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.”

The requirement for grandparents to seek leave of the court before making an application for contact should remain. This was misreported by The Telegraph this morning, who reported (and it still says this at 6.30pm this evening) that:

“Grandparents will get legal powers to guarantee them access to their grandchildren after divorce battles under new proposals.”

and that there is a proposal to create

“legal rights for children to decide which parent they want to live with and when they should see other family members.”

There simply isn’t. It’s just bad legal reporting from the Home Affairs Correspondent.

What is quite radical I think is a proposal, tentatively set out, that we should abolish the residence : contact dichotomy and simply create a single specific issue order, the issue being the time that is spent with each parent and how it is divided. There are some slightly confused proposals (I think) about what happens where a father doesn’t have PR, which I think amount to the idea that he has to first apply for PR before then applying for a specific issue order, but that in the meantime he could apply for a residence or contact order. I confess on first brief reading I’m perplexed by this, and possibly don’t understand it properly – it seems retrograde and arbitrary to me (but then the law on PR for dads as compared to mums is pretty arbitrary). Someone with more time to read through this in detail can post a comment below on this – what does it mean??? It’s at pa 112-113.

No change to FHDRA in private children, cases to be allocated to simple or complex tracks (that was an FLBA idea).

“Where an order is breached, the case should go straight back to the court, to the same judge. It should be heard within a fixed number of days, with the dispute resolved at a single hearing. If an order is breached after 12 months, the parties should be expected to return to Dispute Resolution Services before returning to court to seek enforcement.” I think that’s all well and good on paper, but suspect that many cases will not fit neatly into that template and will not be capable of being resolved at a single hearing within a fixed number of days.

Pa 127 is interesting: “We firmly believe, in the interests of the child, that there should be no automatic link between contact and maintenance. However, when contact is continually frustrated and it is in the child’s best interests, we think there is a case for providing an additional enforcement mechanism for the courts to alter or suspend the payment of maintenance via the Child Maintenance Enforcement Commission.” Crumbs. I don’t see how the first sentence is consistent with the second. I think that it raises all sorts of issues, for example how can the court make meaningful orders about maintenance when it knows nothing about what maintenance is being paid or the financial circumstances of the parties. Inevitably this will muddy the clear water between contact and maintenance whatever the intention.

Divorce to be dealt with administratively.

Fees in private family disputes should reflect the full cost of services. This is caveated (pa 132), we will see how far it survives as a proposal.

Oh, and better case management, interdisciplinary working, judicial continuity, promotion of mediation…blah blah. All good, sensible, unsurprising.

There you go. That’s my first run at it – and it was a run. I haven’t read the full report, so would appreciate any corrections via comments. But those appear to be the headlines. Some sensible, some I’m thinking about, some I think are a bit barking or naive. It could have been a lot worse, and it does contain a lot of food for thought.

6 thoughts on “Family Justice Review Interim Report

  1. Two things struck me when I read the exec summary today.

    1. The treatment of the HIgh Court is a bit odd. Is it just cases involving foreign jurisdictions which would retain a separate HC identity? I couldn;t really see the plausible justification, felt like a bit of politics to me. Let’s keep the HC judges off Ken Clarke’s backs. But maybe that’s just a bit of unjustified cyncisism from me.

    2. The idea that this is/will be cost neutral or better seemed to me to be wishful thinking. They didn’t even sound convinced themselves, or am I again reading with jaundiced eyes?

    • Agree. Have tried tried tried not to be jaundiced and not to see things through a haze of pessimism, but it is quite hard. I haven’t read the whole report yet so am going on the exec summary, but I’m struggling to see what a lot of it will MEAN on the ground. I go a bit “blah blah” when they start talking about new committees, new job titles, and moving the pieces round the board. But I have to say I was keen on the family justice system being under one roof to stop the resources buck constantly being passed.

  2. Regarding your question about PR and section 8: the proposal is that a father without PR should apply for PR and a specifc issue if he wants the child to live with him but if he only wants to spend time with the child he does not need to apply for PR. It is part of the idea of dropping ‘residence’ and ‘contact’ in favour of Paenting Agreements. Odd then that the report still refers to a contact order in the second case. (paras 5.97-5.98)

  3. Avril Williams

    I wonder how many people are aware that people get PAID to adopt children…….?

    Because of media publicity surrounding the abuse of children by birth and step parents, people who haven’t had experiences to the contrary ASSUME that children only end up with foster or adoptive parents or in Children’s Homes if abuse or neglect has been proven via a fair trial. This is NOT necessarily the case but noticeably groups and organisations that have spend years trying to bring injustice and professional malpractice into the open do NOT feature amongst the list of organisations met by the review team.

    This is hardly surprising given that it took decades for complaints of widespread child abuse by child ‘care’ professionals to be taken seriously.

    To return to my initial question…..Thirty seven years ago my child ended up in several of those places that have been breeding abuse, educational under-achievement and prison inmates, as a direct consequence of POVERTY.
    Consequently my submission to the Review Panel included my findings in respect of the financial help available to low income birth parents and the financial help given to foster and adoptive parents. I obtained information about their fostering allowances from over 60 councils.

    In summary – the amount of money, (including state benefits), that the state thinks low income birth parents need to cover food, clothes, fuel, other household expenses, holidays, christmas, and birthday presents,pocket money, activities and school trips for their children is 40% BELOW the national average. State benefits, other than child benefit, is only paid AFTER a means test, whilst the child allowance rate DECREASES when the child attains their first birthday then remains static.

    In contrast the National Fostering Network’s recommended Foster Child Allowances are 50% HIGHER than the alleged cost of maintaining a child in its own home. However the latter cost is HIGHER than state child allowances. Foster Child Allowances are paid WITHOUT a mean tests and INCREASE as a child gets older. Furthermore the NFN recommends that Foster Parents be paid an extra week’s allowances/child for Christmas, and extra week’s allowance/child for birthdays and two extra weeks’ allowances/child for holidays.
    Actual amounts paid vary between counties.

    Adoptive Parents are subject to a means-test, (although not necessarily the one recommnded by the DES) to determine how much financial help they should be given. HOWEVER – Fostering Rates, NOT state benefit rates, are used as a base.

    Past research has found that most children who end up under Local Authority jurisdiction come from financially deprived backgrounds.

    One aim of the Family Justice System review was to reduce its cost. One day maybe the cost of paying an increasing number of Foster and Adptive Parents child allowances that are far high than those paid to low income birth parents will lead to another review.

    • Fostering a child with special needs or a traumatic background is a full time job, and most of the kids who are in foster care are more demanding than your average kid and need a carer who is available to them round the clock, so its right that fostering allowances should reflect that. It is now the norm that foster carers from a child’s wider family are paid the same rates as “professional” foster carers. Adoption is different on one level, because an adopter becomes legally responsible to the exclusion of anyone else, but the same observations apply to the characteristics of this group of children. I would guess that the parenting demands (including financial) on a foster carer or adoptive parent are very likely to be higher on average than for children in the general population (which the level of benefits to parents represents). So perhaps a straight comparison of the two sets of figures doesn’t tell us very much.

      Even allowing for the fact that some children may be wrongly removed from their families, children within the care system are often very difficult children to care for for a variety of reasons. I wonder what would happen to abused kids if there were a ban on foster care or adoption allowances? Probably a lot more kids in children’s homes or damaged more as a result of a string of placement breakdowns.

      None of this alters the desperate need for families living in poverty to be able to access a range of support to help them and their children survive and thrive, and for my part I think we could do much better than we do. The closure of things like Surestart and the general lack of therapeutic input for parents who themselves are survivers of abuse are two examples of very concerning state of affairs that does make it much harder for poor parents to be “good enough”.

  4. avril williams

    familoo, (24the April). Fostering payments comprise Child Maintenance Allowances, Foster Parent Fees, and ‘extra’ money. There are over 100 county and metropolitan borough councils. Each has its own policies and rates. State Benefit rates are standardised.

    The cost of food, clothes, fuel, household items, transport, holidays, christmas, pocket money, birthday presents, activities and school trips are independant of a child’s behaviour.

    July/August 2010. National Fostering Network’s recommended Child Maintanence Allowance rates. Foster Parents with 4 able-bodied foster children, – 1 in each of the NFN’s 0-4, 5-10, 11-15, 16+ age categories, – would receive an average of £25.48 per child per day to pay for the above items. Since this figure is 50% ABOVE the alleged cost of maintaining the same 4 children in their own homes, the average cost of the latter would be £16.99 per child per day.

    In 2010, according to CPAG, 2 parents with 2 children aged 5 and 14, on a poverty line income, (including state benefits), would haver £10.0 per person per day to pay for the above items. Families on poverty line incomes included those with no parent working, those with 1 parent working and those with 2 parents working.

    Children from financially deprived backgrounds receive free school meals. Foster children don’t. However between them Councils give Foster Parents ‘extra’ money for a variety of items, – most of which the above low income parents would have been expected to pay for out of their £10.0 per person, per week income, – or go without.

    Poverty breeds an inability to fully ‘meet children’s needs’, parental stress, – and its consequences, – and anti-social behaviour amongst youngsters. The above factors can lead to children ending up under Local Authority jurisdiction.

    I write from person experience. 37 years ago, despite not even being accused of abuse or neglect, I lost my son as a direct consequence of poverty. I was working full-time and am educated to Degree level. My son’s behaviour deteriorated under LA jurisdiction and he became one of the many youngsters in Children’s Homes to end up in prison. One of the homes was later closed after two members of
    staff were covicted of child abuse.

    Second, of course children, especially younger ones, removed from their homes, placed with strangers, denied contact with their parents because social services intend applying for Adoption Orders, and sometimes told that their parents are dead or don’t love them any more, will exhibit distressed behaviour!

    Third, ‘Carers’ from a child’s wider family usually receive LESS than external Foster Parents, – but MORE than low-onome birth parents, – and DON’T receive ‘extra’ money for birthdays, christmas, holidays etc.

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