Ryder’s Rider

I’m confuserated.

First of all the ALC website reported Ryder’s apparent acknowledgment at the NAGALRO conference that the 26 week limit was only currently achievable in about 30% of cases. And then it disappeared. Except of course you can’t disappear something you’ve published on the internet “juslikethat”, Tommy Cooper stylee. Family Law Week had already reported it. And so there was an odd void on the ALC website for a period. A post with no content…Begging the question.

Now it has been replaced with a post that says (I paraphrase) “this is what we reported was said, this is what the Judicial Office say was in fact said, and just for good measure here is Ryder J’s rider “for the avoidance of doubt”.

This is what was originally reported:

Practitioners from different parts of the country raised concerns about courts rigidly implementing the 26 week timetable. One child care lawyer asked Mr Justice Ryder if he was aware that in the experience of many lawyers, the 26 weeks requirement had been written “on tablets of stone” – even if it led to a denial of justice for children and parents. Ryder J responded that the 26 weeks was not written in stone, that it was aspirational, and that in his view it may be achieved in two years’ time.

Both he and McFarlane LJ were very clear that there was “no missive from on high”, and no direction given to impose 26 weeks. The family modernisation programme did not have the status of a practice direction. Ryder J went on to observe that early data being collected from courts showed that the 26 week timetable was only achievable in about 30% of cases.

This is what the ALC now supplement that with:

“Following exchanges with the judicial office for the family modernisation team, we understand that the following revised note has now been agreed by McFarlane LJ and Ryder J as a more accurate account of their remarks:

“The NAGALRO conference on Monday 15 October was addressed by Mr Justice Ryder and Lord Justice McFarlane. Practitioners from different parts of the country raised concerns about courts rigidly implementing a 26 week timetable. Lord Justice McFarlane, recollecting the recommendations of the Family Justice Review panel of which he was a member, said that 26 weeks was aspirational and that the review anticipated it may take a period of time to implement. Mr Justice Ryder confirmed that there had not yet been primary or secondary legislative change nor was there guidance which had the effect of a ‘missive from on high’.””

And this is Ryder’s rider:

““Proposals for legislative change have already been published by Government and the period that we have before their projected implementation allows us (i.e. judges and practitioners alike) to prepare for those changes in the way that was anticipated by the Family Justice Review. Courts already have an obligation to timetable each case and the timetable for the child may anticipate proceedings being completed in up to 26 weeks or more dependent on the facts of the case. That is why the Case Management System records the timetable for the child which is set by the court. Data will continue to be collected so that we obtain a better understanding of the duration of cases and the reasons for delay.””

Marilyn Stowe reported it here, saying that

“The 26 week timetable was a key proposal in Mr Justice Ryder’s Judicial Proposals for the Modernisation of Family Justice, published in July. This set out:

“…a timetable track which will presume that nonexceptional cases can be completed in 26 weeks. These will be known as pathways and they will describe in permissory language how to achieve the objective i.e. making the best decision for the child within the welfare timetable set for the child.”

This report, however, does have the status of a practice direction , said Mr Justice Ryder, and in any case, early data suggested that the 26 weeks was only achievable in about 30 per cent of cases.

Marilyn records the Modernisation Programme being described as having the status of a Practice Direction, where an earlier report from Family Law Week  stated the opposite (i.e. it DIDN’T have such status) – which I think must be right (perhaps Marilyn has taken her information from FLW and a typo has crept in?). The FLW site has now been edited to remove the original text, and now has the “approved” version as per the ALC website : but unlike the ALC does not record the fact that the item has been amended. Naughty FLW for editing without acknowledgment.

So what’s going on?

The statement agreed by the Judicial Office notably omits the 30% achievability remark. It’s not clarified or corrected. It’s not there at all. There is no assertion that the report was inaccurate.

Meanwhile at Parliament this week the ALC, FLBA and others have been giving evidence to the Justice Select Committee – and they have been very very frank about 26 weeks : “it won’t work”. They are voicing what the judiciary cannot.

Protecting Our Children

Episode 2 of Protecting Our Children aired on BBC2 tonight. And if it didn’t bring a tear in Episode One, Episode Two will definitely do it for you. I only caught the second half of Episode 1 last week, and was left wondering whether there might be some gaps in coverage (above and beyond the necessary editing of a massive amount of information into an hour’s tv viewing). But I made a point of watching the first half of Episode 1 on replay tonight, and I’ve got to say I’m now totally converted and overwhelmed by this brilliant series.

Tonight’s episode struck a real chord – those cases where clients make a remarkable turnaround are so fantastic, and so awful. Because you are hoping against hope it won’t go wrong. But sadly, most often, it does. It is no surprise that the social workers who bear the responsibility for making the judgment call to terminate those mother and baby foster placements drop like flies. Its a terribly stressful job, especially if you put your heart into it like the social worker in today’s case. Some social workers become hardened, no doubt to protect themselves, but the best are warm and sympathetic – and of course all the more vulnerable because of that.

It was a surreal experience watching the #protectingourchildren hashtag on twitter tonight. It cascaded down my screen almost to fast to read – faster that #bbcqt. It seemed to be a mixture of “that social worker / foster carer is amazing”, “social workers do such a hard job”, “heartbreaking”, messages of hope that the mother would succeed, and angry comments about how irredeemably awful the parents were: “they should be sterilised” and “disgusting”, “how could she choose drink over her baby”. These latter display a lack of understanding of just what a big achievement it was for the mother depicted to break free from her unhealthy relationship, remain dry and parent apparently very well for the first five weeks of the baby’s life – albeit that it could not be sustained. 

I’m really pleased that this series seems to be generating a certain amount of goodwill to social workers, and it certainly is a reminder that what we lawyers scrutinise and criticise in witness statements and in cross examination, was a real lived experience for the social worker – with all the shouting, crying, noise, smell, emotion, hope, frustration, stress, danger, responsibility and fear that goes with it. Lawyers criticise and defend their client – they bear responsibility for doing a job well or poorly, but the burden of decision making rest elsewhere. Social workers must bear responsibility for making decisions in the field and then often have to defend themselves in court. I wish I could say that the kind of social work demonstrated is a reflection of what I see day in and day out in care cases I deal with. In truth it’s not. The picture of social work we see is far more inconsistent than that. But this series is a reminder that the court based professions must constantly remind themselves of what it’s really like to be out there, working against the tide. And on top of that, what the show has yet to tackle is the chronically high caseload and lack of resources that most social workers struggle with.

At court recently we were all struck by the young social worker who, having weathered quite an attack in cross examination from myself and another counsel, chirpily joked “thanks for going easy on me”. It was his first experience in the witness box and he made a point of being polite and friendly throughout the rest of the trial. Often social workers are ill prepared for cross examination, and misperceive the experience as personal attack – this is partly a product of inadequate training about how the court system operates and what a lawyer’s role is, and partly because social workers as a profession are used to being under attack. David Norgrove was partially right when he identified a dysfunctional relationship between the social work and legal professions, but this young social worker was a breath of fresh air. I hope he doesn’t bring the barriers up and become like so many of his stony faced colleagues. He will be a poorer social worker for it.

For anyone who has not seen this series there is a useful guide on Community Care, as well as on the BBC website.

Losing the Thread – Hemming and Mumsnet

Twitter recently alerted me to the existence of an interesting discussion thread on Mumsnet concerning adoption and care and John Hemming (Hat tip to @carlgardner, who in turn got his heads up from @thesmallplaces). I have also found another equally interesting thread concerning and involving Hemming.

As a preliminary point let me say that I can’t comment on whether or not the comments contained in these threads are true or accurate. But I can comment briefly on their potential significance if true.

In the first thread the points of most interest are contained in the account given by user Trippy, who describes having been encouraged by Hemming to adopt a stance of non-cooperation and to flee the jurisdiction. She is admirably able in hindsight to acknowledge her own failings as a mother, but appears to feel that Hemming’s advice to flee the jurisdiction and to adopt a stance of non-cooperation with social workers may have adversely affected the outcome in her case, or at any rate was not helpful. She also suggests offers of assistance with travel abroad were made. If what Trippy describes is accurate it would be both shocking and concerning behaviour from an MP. However, I am not in a position to verify or investigate these matters, and I can only flag them up for others to consider. Note, as I have been writing this post the comment in question from Trippy has been removed and marked “Message withdrawn at poster’s request”. I don’t have a screen capture, but if I did I would have to consider carefully whether or not to post it or to respect Trippy’s privacy. As it is I have decided to go ahead with the post and use it as a starting point for a discussion about the issues it raises rather than an analysis of the individual case.

The second thread is interesting for a number of reasons. It contains in places some very well argued points in defence of the current system, or at least rebuttals of some of the points made by Hemming and other posters, and gives the perspective of foster carers, adopters and parents rather than lawyers. The comments and assertions made by Hemming in this thread do not in large part appear to be backed by evidence, and although he does at one stage draw on statistics which he has obtained by asking written questions in Parliament he appears to have a non-conformist view about what represents “the majority” (see posts on the evening of 8 May).

Both of those threads refer to a number of posters who regularly post “guidance” to parents involved in care proceedings, apparently in the vein of Hemming and organisations advocating non-cooperation stances, guidance which is of concern to some Mumsnet users.

Reading those threads did remind me that there is little information out there for parents about the other side of the “secret corrupt child snatching family courts” coin, so I’d like to take a first step towards redressing that balance [Edit – see also Kate Gomery’s excellent post on Family Law which makes a similar point rather better than I have here]. I think it’s important that information is out there so that parents can make properly informed decisions about how to conduct themselves. There is a lot of noise about how awful the system it is and how to fight it. It is in that context that it vitally important that parents faced with care proceedings and the possible removal of their children are made aware of just how high risk the strategies apparently recommended by Hemming, Ian Josephs and the like can be.

So let me deal with it in the hypothetical:

If a parent adopts an approach of non-cooperation, resisting social work intervention, refusing to give information, fleeing the reach of the court or publicising their case through the press or other media (all of which have been either put forward by Hemming or are guidance attributed to him), they could well adversely damage the chances of keeping or securing the return of their children. There may be high profile cases in the press which appear to demonstrate that such tactics are an effective way to protect your family (see Booker articles for example), but my experience suggests that the far more likely outcome is that a parent will only succeed in creating a further set of concerns that will need to be allayed in addition to the original concerns before a child can be safely returned. They leave a parent open to criticisms that they are focusing on their own needs rather than the child and are prevent parents from demonstrating that the original concerns were not well founded. They cause delay, which can end up being determinative of successful rehabilitation. That is not to say that parents should not determinedly resist the removal of their children, or that they are not entitled to do so, but generally the most effective route is a lawful route, and a route which involves being open and cooperative. It is also absolutely right that lawyers representing parents should fearlessly defend their client as they are mandated to do, and that they should be rightly criticised for failing to do so, or for failing to act on instructions.

However, it would be very concerning if parents were fed information suggesting that they should not trust their own legal representatives (as a number of commenters on this blog have regularly suggested), because this can render them unable to benefit from good legal and strategic advice about how best to maximise their chances of a good outcome for them and their family. Parents in care proceedings are vulnerable and generally not well equipped to tell good advice from bad. They are likely to rely upon advice from person in a position of authority, or perhaps to accept advice which lays the responsibility for their predicament at someone else’s door, or which gives them the answer they wish to hear. I would be very concerned to think that any person, but particularly an MP (well intention or otherwise) was conducting himself in such a way as to interfere with the proper legal process and with the relationship of trust between lawyer and client, to the ultimate disadvantage of parents. I would not in any way want to prevent an MP and his constituent from communicating freely, but I would expect an MP to avoid giving potentially inaccurate or misleading information or guidance to parents in matters which are legally and factually complex.

Postscript: hat tip again to @carlgardner for alerting me to this judgment in respect of the Goodwin injunction case, in which Hemming is criticised for misleading comment, and the prospect of referral to the Attorney General is raised.

Postscript 2: this post really ought to be read in conjunction with this really really excellent post on Ministry of Truth: The Hemming Agenda.