Judge Dread – The Future

The Family Justice Review is calling for written evidence by the end of September (see here). Anyone who is considering submitting a response should consider this: at the recent oral evidence session I attended with other lawyers, the panel were asking serious and reaching questions about the extent to which the courts needed to be involved in decisions about care planning. Suggestions were made that in our search efficiency we need to seriously scrutinise whether or not there is a need for judicial sanction along the whole process we currently know as ‘care proceedings’. Although there seemed to be an acceptance that court involvement could not be avoided insofar as there were disputes of fact, the need for judicial scrutiny of Local Authority decision making was not necessarily approached as immutable: the implication being that once threshold is proven to have been crossed decisions to removal of children from their families could become decisions of social services alone (or possibly of some yet to be created tribunal?).

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Take a deep breath and wait for the significance of that to dawn upon you. Yes. They are really considering leaving these decisions to The Man, without the safeguard of The Judge. The full horror of it may be evident to you and I, but it evidently raises crucially important questions that do not appear on the call for evidence list of questions – but which need to be answered explicitly, directly and forcefully. Those of us who believe in a Family Justice System clearly need to make the case at base level for judicial scrutiny of state intervention into families. It will be vitally important for those responding to the call for evidence to give their views about this very specific and fundamental issue rather than just answering the questions as posed. To get you thinking I will post something shortly on the question of ‘Why do we need care proceedings?’ which you will be at liberty to plagiarise, develop or denounce as you see fit. But I’m afraid that now is too late in the evening for me to contemplate embarking on that little beauty. It will have to wait…

Rise in Child Abuse Calls

The NSPCC has seen a dramatic increase in calls about suspected child abuse since Baby P – referrals from the NSPCC to the police or social services are up by a third in two years. I was astonished to read that between April 2008 and March 2009 the NSPCC passed on 11,243 suspected child protection cases, up 3,063 on the previous year. Action in response was taken in 98% of those cases (although I would guess that in many of those cases ‘action’ might be as limited as a quick house call and then NFA). But that is almost 1,000 cases per month that the NSPCC has taken seriously enough to pass on to the authorities and according to the information I have read a large proportion of those cases relate to children not otherwise known to social services – so children that had been falling through the net. Its good to hear that something positive has come from Baby P – perhaps people are feeling the weight of their own social responsibility more and making that call where in the past they might have just considered it someone else’s business. But it’s also frightening to think of the numbers of cases of unseen abuse and unprotected children that these statistics hint at.

Access All Areas?

A piece appeared in the Times last week accusing Family Courts of hiding information from parents, in particular relating to social services file. I must admit to being rather puzzled by this slightly muddled article. In the first instance within care proceedings the Local Authority is under a duty to provide a wealth of information at the outset of a case and on an ongoing basis. If that duty is not complied with the court will order compliance. Secondly, family courts are able (and willing) to order specific disclosure against Local Authorities and other organisations like the Police where the standard information is inadequate. Thirdly, there is a quite separate legal duty upon Social Services to disclose information to a data subject (or to the parent of a data subject child until they are Gillick competent or thereafter with their Gillick consent) pursuant to a Subject Access Request under the DPA. That information must be provided upon request and within 40 days of payment of a fee of no more than £10.

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There are as one might imagine a number of exceptions to the DPA duty of disclosure which account for the frequent black marker pen on disclosed documents. In my experienced of both family and other types of cases (for example employment disputes) this is often indiscriminately applied to the point where the unredacted text is rendered unfathomable, with the problem worsening exponentially as the volume of paperwork to be redacted increases. But it is a corollary of the rights of the data subject seeking her information that the rights of other data subjects should not be trampled upon. A useful guide from the ICO’s office to the correct approach in DPA Subject Access Requests to social services can be found here.

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The DPA duties which apply to data controllers like social services (or GPs or health visitors) are not the source of the courts’ power to order disclosure, which is a discretion rather than a duty and which is exercised according to the demands of the litigation and the need to ensure fairness as between parties rather than the rights of any data subject.

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I’ve no doubt that there are cases where DP Subject Access Requests are ignored or dealt with slowly or where the redaction is done in a cack handed way, but the route for redress in respect of that is complaint to the ICO. This is little help when a court date is approaching. If a party requires information for the purposes of court proceedings an application should be made at an early stage within those proceedings rather than relying on compliance with the DPA – a properly made court order for disclosure of information overrides any duty of confidentiality or other objection on data protection grounds that an organisation may have, and may encompass all relevant information rather than only information relating to the individual data subject (so for example files relating to BOTH parents or documents containing joint information, where the two subjects are separated). Although in civil cases a DPA request may be useful to obtain pre-proceedings information (for example to help assess the merits of a prospective claim for discrimination against a former employer), this is generally not relevant to family proceedings.

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Although in family cases a two pronged approach may sometimes be helpful, it is usuall better to apply in the first instance for an order of the court which is more easily enforceable than a subject access request, and which can be dealt with in tandem with the ongoing court process. Judges may be reluctant to order blanket disclosure of things like social services case logs unless there is a any reason for thinking they may be necessary (knowing  as they do how lengthy they can be), but will do so where appropriate (for example where there is a factual dispute about something the social worker purports to have recorded contemporaneously).

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Those seeking disclosure – particularly via the DPA route – should be prepared to be drowned in reams of paperwork which may prove to be a distraction from the real issues in a case.  The danger of a DPA request is that it may be quite indiscriminate (and it is not unknown, in the context of more adversarial proceedings at least, for a DPA subject access request to be deliberately complied with to the letter in the hope of overwhelming the other side or that they will miss the crucial information). The task may be like finding a silver bullet in a haystack. Be warned – you may get what you ask for.