No Apologist

I’ve posted a lot of material on this blog lately which is critical of prominent individuals who themselves campaign for reform of the family justice system. I’m increasingly conscious that this may begin itself to look like some form of campaign against them or that I may create the impression that I am some kind of apologist for the Family Justice System. This would be a false impression on both counts.

I support reform of the system, but I what object strenuously to is the manner in which some public figures and organisations pursue their agendas for reform. I do not think they are appropriate and I think that they run the risk of being harmful to the individual families caught up in the campaign fervour.

And I have made multiple postings about some individuals because I think it is important to have as complete a picture as possible – having started something, I feel responsible for updating the story as it were, when new events of significance occur. If they would only stop saying and doing controversial and provocative things I’d have nothing to write about! I’d quite like to stop posting about said persons now. It’s getting a little boring.

So what is wrong with the system? In fact you will see from the list below that many of the criticisms made by family justice reform campaigners are ones I accept (and have accepted and bemoaned on this blog in numerous previous posts). And I think many of those on my list would be criticisms that many many family lawyers and judges would sign up to also. There is a tendency for this debate to polarise, for reformers to suggest that everyone in the system is part of it and unable to see the flaws in it, and for those within the system to go on the defensive, repelled and wounded by the often antagonistic and vitriolic approach taken. I think a little respect is called for on both sides. I try to encourage that on this blog, not always successfully. Conceptualising the debate as “Crackpots v Money grabbing Lawyers” is corrosive and is a missed opportunity.

Criticisms of the family court system:

  • Transparency – the public need to know how the courts work, and they need to know when they don’t work. Miscarriages of justice should be open for public scrutiny. Safeguards for children need to be in place, in the form of anonymity and some (clearer) reporting restrictions. Anonymised publication of judgments is increasingly common and this is to be welcomed, including in cases which do not raise any point of law.
  • Inconsistent quality of social work and inadequate service from CAFCASS (delays – now improved in many areas – and variable quality of work)
  • Lack of support for parents from social services in order to parent successfully or improve parenting
  • Lack of timely and affordable therapeutic intervention that would enable parents to successfully parent
  • Lack of contact centre facilities or resources to supervise contact in both public and private law cases
  • Lack of Resources generally
  • Delay

I want to make a point of saying that there are some, indeed many, very very good social workers and CAFCASS officers. However there are too many who are not, most often because of lack of experience or understanding of the court system rather than innate inability. This is no doubt in part due to struggles meeting the ever increasing demand for social work and CAFCASS work through recruitment of newly qualifieds.

I don’t accept bogus arguments that lawyers are part of some corrupt system or conspiracy. I regularly challenge the position of the Local Authority and Guardian on behalf of clients and I do it thoroughly and fearlessly. Sometimes I succeed, sometimes not. I advise my clients, as is entirely appropriate, when they have no realistic prospect of success and will not suggest they should make an application if it serves no purpose other than to upset them. I always act on instructions and if a parent wants me to attempt an application which I have advised is hopeless I will do so, insofar as my professional conduct rules allow. I am not unique in this and I rarely see an advocate who I think is rolling over too easily. Sometimes though, the facts we have to work with present a very very steep hill for us to climb and it is difficult for parents to accept that.

I also don’t accept arguments about the need for a statutory presumption of shared residence or equal parenting time. I have posted my thoughts on that before and I don’t propose to repeat them (see here (incidentally I think this is the same survey referred to today by John Bolch here) and here). I do think however that the ditching of the epithets residence and contact in favour of specific issue orders has some attraction, although I need to fully think through the ramifications of it, particularly in respect of the different treatment of fathers with PR and those without.

19 thoughts on “No Apologist

  1. These are the ten reforms advocated by the Times newspaper following a campaign by Camilla Cavendish for which she shared the Paul Foot prize as journalist of the year; and who could seriously disagree?

    WE(the Times) believe that wholesale reforms are needed, which can be summed up in ten points:

    1. Open family courts to the press in all but exceptional circumstances (as recommended by the Constitutional Affairs Select Committee).

    2.Let any parent or carer accused of abuse call any witnesses they need in their defence. At the moment, they are routinely refused permission to do so.

    3.Give automatic permission for parents who are refused legal aid to get a lay adviser to help them present their case. This is routinely refused.

    4.Remove the restrictions that prevent families from talking about their case (as recommended by the Constitutional Affairs Select Committee).

    5.Review the definition of “emotional abuse” across local authorities, to make sure that it cannot become a catch-all for overzealous officials.

    6.Provide an automatic right for parents to receive copies of case conference notes and all evidence used against them in court, just as they would in a criminal trial.

    7.Create an independent body to oversee the actions of social services, with proper sanctions. If that body is to be the General Social Care Council, make it easier for parents to go directly to that body rather than having to face delays from the local authority.

    8.Let children in care waive their right to privacy if they wish to speak out. For gagging children is surely not consistent with promoting their welfare.

    9.Restructure CAFCASS, the Family Court Advisory Service, from being an organisation that reports on the parents to the courts to one that actively promotes the parenting needs of children. The primary focus should cease to be assisting the court process. It should be diverting parents away from contested hearings into the making of parenting plans.

    10.Review the recent legal aid cut-backs that are deterring lawyers from taking on these complex family cases. It is quite wrong that desperate parents are unable to find a lawyer to help them in their time of need.

    • Well, I could disagree with a number of them, as they are based on false premises (2 – not routinely refused, 3 – not routinely refused, 6 – such a right exists, 7 – exists) and others because they go further than I would, as I favour a system that can cater for the needs of individual children and families on a case by case basis (1, 4). 5 – granted it’s woolly, but it is a legitimate concern in some cases. Agree that we should guard against it’s overuse or sloppy use. 8 is a false logic – it might be consistent with promoting their welfare, it might not. 9 agree broadly. 10 agree wholeheartedly.

  2. Sigh!

    We do not appear to be making progress as Camilla Cavendish proposed these three years ago.

    We appear to have gone through that Einstein Bridge again to the Alternative Universe.

    I’m sorry, Familoo,

    but 2) and 3)

    ARE ROUTINELY REFUSED.

    It is extremely difficult for parents to get their witnesses approved, SS Depts and Guardians will oppose it and the judge and court office collude, even to the extent of returning witness summons.

    This also occurs when it is found that the evidence of Expert Witnesses has been suppressed, against all the procedures and is the unforgivable sin of the Family Court.

    Judges repeatedly refuse to allow families to have lay advisors to present their case against the Practice Guidance notes.

    I myself witnessed this in the Court of Appeal having been drafted in at short notice where the chief clerk announced a debate was going on about lay advisors speaking.
    I replied drawing his attention to the relevant paragraph of the Practice Directions which was still in force.

    6) this is frequently ignored by SS Depts as it may undermine their case

    7) the GSCC does not take complaints seriously enough, so families can do very little about , especially the keeping of inaccurate records.

    1) and 4) it is the secrecy of the courts and granting of injunctions which has developped since 1989 which is causing the injustice.

    In the SRA cases of 1989 the most comprhensive injunctions were imposed, including not allowing parents to speak to the Elected Members. it was only when thses were roken by a national daily eing able to put up the funds that the ludicrous scandal came out.

    8) every effort is made to isolate the children/teenagers and ensure their views do not come out.
    This includes “losing” letters written by teenagers to the judge, refusing to discharge Guardians when teenagers complain they do not listen to them and preventing them having Child Advocates and worst still giving evidence.
    This is done to bolster the SS Dept. case.

    The result is that the families can only lose.

    • I’m sorry, I don’t want to disagree for the sake of disagreeing but I just don’t recognise the picture you describe. It’s not what I see day in and day out in court. At all.

      Perhaps the sorts of witnesses that parents are seeking to call in the kinds of cases you are dealing with are of a different order to those they seek to call in the cases I deal with (the judge has to have some discretion about the limits of relevant evidence but I can’t remember the last time I was turned down when I sought a particular witness) – parents generally get to call any relevant witness and are permitted to have a McKenzie in court (unless there is some prior history of bad behaviour). Of course most parents in care proceedings don’t need a Mckenzie as they are entitled to legal aid. They only tend to have a McKenzie if they are refusing to instruct a solicitor.

      Letters and drawings from children to the judge are often shown to the judge and they are properly considered, in my experience.

      Have you considered whether the parents you are supporting are getting negative answers to requests because they are either bad requests or requests made in the context of a pattern of non-cooperation and suggestions of going to the press?? If the lay advisors are known to be advocating the kind of tactics that your website (and earlier comment) outlines it is perhaps less surprising if they are from time to time prevented from acting as McKenzies.

  3. the parents and teenagers are not making requests which are bad or part of non-cooperation.

    The lay advisors and our website are not advocating such tactics and our Chair would be most upset if they were.

    We normally send people to solicitors

    The witnesses refused include previous expert witnesses and family members.

  4. How about reducing the reforms to just a couple that would stop most injustices?
    1:- Parents freedom to speak (article 10) should be given priority over so called “privacy” (for new born babies!)article 8 instead of vice versa as enforced at present by judges who delight in suppressing all dissent.
    2:-any permanent separation of children from parents in a contested case should be heard by a jury not by a judge who too often goes along with social services to avoid the possibility of criticism if he overules them !

  5. On the point about lack of resources for parents and family carers – there is the Family Rights Group with good website and an advice line. Mencap provide good advice and support for parents with learning disabilities who are dealing with children’s services.

  6. EXAMPLES OF HOW RULES OF EVIDENCE HAVE BEEN DISCARDED IN THE FAMILY COURTs WHEN GRANTING INTERIM CARE ORDERS.

    1:- Statements from the local authority are shown to the judge but rarely to parents.Family and friends of parents are routinely excluded from the court but groups of social workers are allowed to stay in the court to listen to their colleague’s testimony whether they are witnesses or not.

    2:- Parents representing themselves are denied the opportunity to cross examine witnesses appearing against them.Judgements,reports from experts,and position statements are either witheld or given to parents at the last minute (too late to read and analyse them properly).

    3:- Parents are routinely refused permission to call for a second opinion when “experts” and Doctors have testified against them.If parents record contacts with their children, or interviews with experts or social workers judges routinely refuse permission for these recordings to be heard yet they always allow recordings and video evidence to be heard if produced by police or social workers.

    4:-Parents whose children have been taken are routinely and wrongly told that they may not talk to ANYONE about their case.

    5:-Parents are jailed if they protest publlcly when their children are taken.They are also jailed for “breach of the peace” or “harassment” if they dare to trace and then contact their own children after adoption.Parents are therefore” twice gagged” contrary to the Human Rights Act ,Article 10 entitling all persons “freedom of expression”,ie freedom of speech.

    6:-Local authority barristers in court often read out statements from absent persons as though they are themselves witnesses but they cannot be questioned.

    7:- Most solicitors refuse to let their clients speak and then agree to all care orders demanded by social services.

    8:-Judges routinely castigate parents who wish to speak or who represent themselves even though they have the right to do so;Their evidence and their arguments are usually ignored in the judgements.

    9;-Parents representing themselves are often given an hour or two’s notice to appear in court but solicitors are given weeks !

    10:-Parents are punished for “risk” ie not what they have done but for what they might do in the future! “Risk of emotional abuse” is favourite because there is no legal definition of this and it is usually impossible for parents to defend themselves against “predictions” by so called “experts”.

    11:-Judges give social workers the power to withold parent’s contact with their children” in care” as a punishment for saying they love them and miss them or that they are fighting to get them back .They use this power to gag parents and force them into complete submission !

    12:-Parents are in effect condemned for offences against their children on “probabilities” 51% instead of beyond reasonable doubt.

    13:-Parents who were themselves in care or who were abused in childhood are often judged unfit to be parents as a result.

    14:-Parents often forfeit their children for “failing to engage with professionals”

    15:-Parents faced with forced adoption lose their children for life, without being allowed a hearing by jury.

    16:-Under the UN Convention on children’s rights children have a RIGHT to be heard in court but are usually denied that right.

    17:-Solicitors routinely tell client parents to agree to interim care orders or they risk never seeing their children again.A lie !

    18:-Social workers are legally obliged to place children with relatives if possible but either ignore this or find pretexts to fail them on assessments

    19:-Human rights to free speech and freedom of movement are breached by gagging orders and confiscating passports.

    20:-Parents are routinely forbidden to call witnesses on their behalf contrary to human rights.Family and friends are wrongly prevented from entering the court.

    • I have to mark my disagreement with the factual accuracy of much of that 20 point list, but frankly have neither the time nor the inclination tonight to enumerate each and every inaccuracy. There are some points with which I agree, but by and large the list above bears no resemblance to my daily experience.

  7. Actually,despite our divergence of views I think you might be one of the “good guys” so I shall(shock,horror!),recommend yourself and your chambers when parent’s solicitors ask if they have preference for any particular barrister.

  8. As a child I had the misfortune to experience the family courts first hand. It was awful, and I’m sure there are many improvements that could be made. As a child I never even met the judge who ruled on our case, I felt unheard and patronised by the ‘Court Welfare Officer’, and now that I’m an adult I find myself unable to get hold of the court records to try to get to the bottom of what actually happened, and how I lost touch with one parent for most of my childhood (parental reports not being entirely reliable on this).

    However, I’m extremely suspicious of those who think that allowing parents to play out their disputes and allegations in the media will improve anything for anyone. I can’t think of anything that would have made matters worse for my sibling and I, than allowing either parent to bring their dispute to the attention of the wider public – a public that would have included my friends, their parents, my teachers. Schools and friendships are some of the only sanctuaries children in family court proceedings may have. And whilst a 10 month old baby would not be aware of any media coverage at the time, stories don’t suddenly disappear from the public domain when that child grows up. The right to privacy and protection of identity extends into the future as well.

    As for allowing children to speak out, under considerable pressure as a child I said many things at the time that I would choose to retract now. I am extremely glad they were not put in the public domain now or then.

  9. I advocate 2 reforms:

    1. Family courts should be open.
    2. The court must be more willing to enforce its orders, particularly where the parent with care withholds contact in breach of an order.

    If the system is filled with the true professionals, motivated only by their desire to serve the welfare of children then the court and the system has nothing to fear, and should silence its critics by getting on with the work in hand.

    If you want people to have confidence in the system, it must not only be exemplary (particularly when it is interfering in people’s private lives and the relationship between parent and child), it must go beyond that and must also BE SEEN to be exemplary.

    Family justice must also have teeth, and be unafraid to bare them when its orders are breached. In the case I have been privy to, every contact order made in the past year has been breached by mum. Every time dad has brought the matter back to court to try to maintain contact with his child, the court has refused to take enforcement action against mum, who has promptly breached whatever new order has been imposed, because she has no credible reason to think that the court will punish her if she breaches the order again.

    Proper enforcement when breaches occur would cut the number of cases which need to be referred back to court over and over again, and would free up those valuable resources to get cases dealt with in more detail and with less delay.

  10. I should perhaps qualify my comment (above) about resources for parents as I do of course think that first & foremost any parent who is engaged with a local authority regarding their child’s welfare should have good quality legal representation. I was just following up Lucy’s concern that there was a lack of sound accessible information for parents who may find it difficult to consult a lawyer.

  11. The UK is isolated ! The UK is the ONLY country in Europe (apart from Croatia and perhaps Portugal) to tolerate the barbaric practice of forced adoption.The severing of all contact FOR LIFE between children and their birth parents .In effect a LIFE sentence without the opportunity of being heard by a jury, often imposed on parents who have committed no crime but who are said to be a risk to their children following predictions by overpaid charlatans working closely with the local authority.
    Yes the UK family courts then mete out “PUNISHMENT WITHOUT CRIME” The ONLY people in the UK who are punished without crime are parents whose children have been “confiscated” by the hundreds, because those children are said to be “at risk” of emotional abuse!.
    Even worse the UK is the ONLY country in the world to GAG parents who wish to protest publicly when their children are taken.
    The right of all citizens to protest publicly against what they perceive to be oppression by the State is what separates democracy from tyranny.
    Long may it remain so !

  12. Provincial Solicitor

    This is a fascinating thread; Perhaps I might relieve Familoo from responding to the 20 points raised by Ian Josephs. By way of introduction,I am a family solicitor specialising in care proceedings and have 15 years+ experience.

    My comments are set out below the original posting.

    1:- Statements from the local authority are shown to the judge but rarely to parents.Family and friends of parents are routinely excluded from the court but groups of social workers are allowed to stay in the court to listen to their colleague’s testimony whether they are witnesses or not.

    Response:- I have never known statements not to be shared. Put simply the Court would not allow this to happen.Bits may be redacted to remove sensitive addresses etc but that is all. I agree that family and friends are generally not admitted to the proceedings, but that is the law as it stands. I have never known a ‘group’ of social workers be in court. Occasionally there will be the Social Worker’s Manager present.

    2:- Parents representing themselves are denied the opportunity to cross examine witnesses appearing against them.Judgements,reports from experts,and position statements are either witheld or given to parents at the last minute (too late to read and analyse them properly).

    Response:- This is not my experience. Generally,I have known Judges ‘bend over backwards’ to accommodate litigants in person. Clearly if the questioning goes too far’off topic’ (becomes irrelevant) or descends to abuse then the Judge may well step in,but that would be no different to any other advocate. Again, I say that documents are not witheld. I agree that documents can be presented late but this is usually the case in an emergency situation and is certainly not routine. This is when an experienced advocate can assist, and most parents will be eligible for public funding (legal aid) in care proceedings (at least for now).

    3:- Parents are routinely refused permission to call for a second opinion when “experts” and Doctors have testified against them.If parents record contacts with their children, or interviews with experts or social workers judges routinely refuse permission for these recordings to be heard yet they always allow recordings and video evidence to be heard if produced by police or social workers.

    Response:- Generally,I believe that parents do get the opportunity to rebut expert evidence. It is usually the case that experts are instructed jointly and are therefore independent – in those situations we would have to justify why we say that expert is wrong. Further,the new FPR suggests that expert evidence should not be allowed when a social worker /children’s guardian can report on the issue. I can see an issue with that because the social worker may not be able to approach issues with an independent view. I have to say that I am not keen on recordings being made, for various reasons. I have recently had an interesting argument about the reliability of recordings made by a concerned neighbour; I often do not find them of great evidential value.

    4:-Parents whose children have been taken are routinely and wrongly told that they may not talk to ANYONE about their case.

    Response:- There are booklets at my local court that set out very clearly what can be said to who. Judges, in my experience set out the rules very fairly and clearly.

    5:-Parents are jailed if they protest publlcly when their children are taken.They are also jailed for “breach of the peace” or “harassment” if they dare to trace and then contact their own children after adoption.Parents are therefore” twice gagged” contrary to the Human Rights Act ,Article 10 entitling all persons “freedom of expression”,ie freedom of speech.

    Response:- Any specific examples? In 15 years I have never known anyone in care proceedings committed to prison. There are clearly very good reasons that biological parents should not endeavour to breakdown adoptive placements.

    6:-Local authority barristers in court often read out statements from absent persons as though they are themselves witnesses but they cannot be questioned.

    Response:- Only ever known that if the statement is agreed. If it is not agreed and the Local Authority seek to rely on it, they produce the witness. Simple.

    7:- Most solicitors refuse to let their clients speak and then agree to all care orders demanded by social services.

    Response:- Nonsense. Clients may have to be given advice in terms of what is, or is not, relevant evidence, but no decent solicitor would refuse to let their client’s put their position by statement or in the witness box. If solicitors agree to all care orders, why are there so many contested hearings that have filled up my diary?

    8:-Judges routinely castigate parents who wish to speak or who represent themselves even though they have the right to do so;Their evidence and their arguments are usually ignored in the judgements.

    Response:- As above. My experience is that Judges go out of their way to help litigants in person. I simply do not recognise the suggestion that they are ignored in judgments.

    9;-Parents representing themselves are often given an hour or two’s notice to appear in court but solicitors are given weeks !

    Response:- Any examples? If the case is a true emergency notice might be reduced, but this is the exception rather than the rule. Court orders go out to all parties at the same time, represented or not.

    10:-Parents are punished for “risk” ie not what they have done but for what they might do in the future! “Risk of emotional abuse” is favourite because there is no legal definition of this and it is usually impossible for parents to defend themselves against “predictions” by so called “experts”.

    Response:- Is it suggested that we should wait until a child is ‘actually harmed’ before action can be taken? That is the logical conclusion of what you are saying. Let me give you an example – if a mother starts to cohabit with a known and prolific sexual offender, would you leave the child there until they have been abused, or say that the ‘risk’ is too great? Generally, I don’t see children being removed on the basis of risk of emotional harm. Often this is a secondary point to physical harm, neglect etc.

    11:-Judges give social workers the power to withold parent’s contact with their children” in care” as a punishment for saying they love them and miss them or that they are fighting to get them back .They use this power to gag parents and force them into complete submission !

    Response:- There is a duty to promote contact. I can say that resources are becoming a problem and this should not stand in the way of a parent having contact with his or her child. I cannot say that I have ever seen contact being withdrawn as a ‘punishment’as you suggest.

    12:-Parents are in effect condemned for offences against their children on “probabilities” 51% instead of beyond reasonable doubt.

    Response:- Yes, cases are decided on the basis of facts being proved on the balance of probabilities i.e. more likely than not. That is the civil burden of proof. There are many reasons why that is so beyond the remit of this column.

    13:-Parents who were themselves in care or who were abused in childhood are often judged unfit to be parents as a result.

    Response:- No, that is simply not correct. But it is a sad fact that parents who have had a poor or abusive upbringing may not be able to parent to a ‘good enough’ standard. I am afraid a lack or resource (i.e. surestarts closing etc) may only make this position worse.

    14:-Parents often forfeit their children for “failing to engage with professionals”

    Response:- I would say that this is more commonly seen as one element of care proceedings, not as a stand alone ground.

    15:-Parents faced with forced adoption lose their children for life, without being allowed a hearing by jury.

    Reponse:- Yes, that is true. But parents do have the ability to access free public funding and the right to be heard before an independent court.

    16:-Under the UN Convention on children’s rights children have a RIGHT to be heard in court but are usually denied that right.

    Response: – I do not agree with the idea that children are denied the right. In ALL care proceedings children are represented by a Children’s Guardian and a solicitor like me. I will always judge whether a child is competent to express an opinion and can think of many cases where the child has seen the Judge directly. However, it is complicated by many factors beyond the scope of this column.

    17:-Solicitors routinely tell client parents to agree to interim care orders or they risk never seeing their children again.A lie !

    Response:- Nonsense. If solicitors did that routinely I suspect they would get little work. I simply do not accept this suggestion; but you have to accept that there are instances when, tactically and practically, it would be poor advice to contest an ICO.

    18:-Social workers are legally obliged to place children with relatives if possible but either ignore this or find pretexts to fail them on assessments

    Reponse:- You are correct that family members must be considered; I think it is important to look very carefully at any viability studies that are carried out on family members. I think there is a danger,on occasion, that family members are ruled out too soon. Clearly, where possible,it is preferable for a child to be placed within the family.

    19:-Human rights to free speech and freedom of movement are breached by gagging orders and confiscating passports.

    Response: – I suggest that this is the exception rather than the rule.

    20:-Parents are routinely forbidden to call witnesses on their behalf contrary to human rights.Family and friends are wrongly prevented from entering the court.

    Response:- Do not agree. See 1 above.

    Which brings us full circle.

    Personally, I do not think the ‘system’ is perfect but it is not as bad as made out either.

    Please disregard any typos in my responses. It is late and I now have to prepare for court tomorrow. Incidentally, a case with a happy outcome!

  13. This is the standard list Mr. Josephs has drawn from his site.

    I regret I am unable to agree with Provincial Solicitor.

    Again we are in the Parrallel Universes.

    This became apparant at a meeting I attended earlier in the week on the Family Courts. Most of those at the meeting who worked in the F C system were unable to see anything was wrong with the system, only minor reforms were needed.

    This caused a certain amount of friction.

    On leaving the building at the end the comment was made to me they were even more pessimistic than before.

    The reasons for this are there is a conflict of interest, they make large sums of money in income out of the present system and do not want to rock the boat and offend people in it.

    Allow me to reply to his responses.

    1) the courts wink at and pretend they don’t know this is happening.
    Statements are frequently “lost”, “delayed in the post”, handed to families just before court or simply not given them at all.

    Solicitors frequently do not see the need to show them to families who thus cannot refute them.

    Large groups of SW’s, including managers, frequently “mob” hearings without comment from judges. This happens if evidence is being given of SW malfeasance or the SS dept. might lose.

    It is not the law and there is no reason why family supporters should not be admitted if judges chose.

    2) Judges frequently openly make it clear they dislike LIP’s, because of course it shows up the system that all is not well.

    They are frequently denied the right to cross examine EW’s and social workers as this would be “too confrontational”.

    Reports ARE routinely denied till the last minute as it gives the SS Dept. an advantage in the case. It is no co-incidence.

    The reason they are LIP is difficulty in finding legals wo will mount a fighting defence, usually existing ones have been sacked and may have reported the family to the LSC that they were being asked to mount an “unreaonable defence” with the result the legal aid certificate has been closed.

    3) It is STANDARD for parents to be refused a second opinion and be able to rebut evidence by EW’s not qualified in that area they have a “personality disorder” not detectable to NHS psychs. or turn out to be the partisan advocates for a controversial theory.

    “Jointly Instructed” experts ARE NOT independent as the SS Dept or CAFCASS will not allow the appointment on anyone who does not give the answer they want.

    They will use their position to block others and the judge and Guardian will go along with it.

    Usually however the Family’s legals go along with it and roll over.

    This is where the INJUSTICE in the system arises most.
    The clearly inaccurate or highly disputable “condition” (because it is medically contoversial) is used to condemn the family and is the basis of the kd/s not going home.

    it is of the highest significance that the FJR now wish to reduce the role of EW’s.

    “I am not keen on recordings being made, …I often do not find them of great evidential value”

    So do the judges who routinely refuse them to be heard in evidence.
    It is crucial they are made as the are prove that the SW is in fact comitting perjury and the EW was in fact hostile and agressive to the parent or the parent did not say whatever his opinion is based on.

    It is not difficult to see why judges refuse them.

    4) Families are ROUTINELY told they may speak to or show documents to no one, not even their MP or councillor even thought the Regs. say otherwise.

    5) Tons.

    Harriet Harman, as the minister responsible did, admitting in the Commons that 200 parents a year were being jailed and even she didn’t know the reasons.

    The leaflets have the effect of intimidating the fanilies.

    There is an obsession with “placements not breaking down” even though it is not what the kid wants and is not really succeeding anyway.

    6) it happens ROUTINELY. The SS barr may try this as well without agreement, or it may have been agreed by the legals without telling the parents.

    7) Nonsense.

    Sols routinely will not allow families to give evidence or put in statements.

    They agree ICO’s and even part of what is to be heard at Final hearings.

    The system works on agreement and negotiation but the families don’t know this.

    8) As above. Judges violently castigate parents for becoming LIP’s, even refusing to recognise the sols. have been discharged and claiming “they were well served by their legal team” even though this is not the case.

    They ROUTINELY ignore their evidence and statements in judgements, as can be seen by reading the judgements.

    This explains the totally unfair judgements.

    9) Lots.

    Parents, to give the SS Dept. an advantage, are given a few hours or even an hour’s notice to appear in court. They would not be able to get away with it with a sols’ firm.

    10) Children are sent to Forced Adoption or retained in Care on the basis of the even vaguer “risk of Emotional Harm”

    It is also used as the excuse for seeking the ICO in the first place.

    11) If parents at a Contact try to reassure a child by telling them they love them or they are trying to get them home the Centre staff under instructions will abruptly terminate the contact.
    You are not allowed to tell your child you love them as standard.

    12) families are found 51% or Probably Guilty
    which is wide open to injustice.
    It was deliberately introduced in the early ’90’s to make it easier to take kids into Care.

    13) This is CORRECT. Children will be sentenced to Forced Adoption or retained in Care on the basis that the mother was abused in childhood/ had a traumatic experience of abuse in childhood/ was in Care themselves.

    This is seen as a reason for doing so.

    14) this is seen as grounds for retaining a child in care or very frequently taking them into care in the first place.

    15) the family Court is NOT AN INDEPENDENT COURT so families cannot obtain justice there, the sols and barrs routinely fail to mount fighting defences for which they receive public funds.

    16) IT IS TRUE. Every effort is made to prevent the children/teenager from expressing their opinions and keep them isolated, because of course if they do the SS Dept. will probably lose.

    Worse still, giving evidence.

    The Guardian routinely ignores their opinion but deludes themselves into believing they know their views.

    Judges routinely refuse to speak to them.

    17) Nonsense. This is routinely said by the family’s sol to them, or they will never see the children again.

    The problem is that, as said, there is a conflict of interests as the sols’ firms get work from families, CAFCASS and the SS Depts. and their income is dpendent on these different streams.

    18) SS Depts. routinely rule out family members in statutary breach, for spurious or weak reasons or because they wat children for Forced Adoption.

    19) it is ROUTINE to use gagging orders or confiscation of passports if there is a danger of embarrassing publicity.

    20) as above.

    In this sitiation of conflicts of interest and those working in the system being unable to see what is wrong and all reassuring one another that all is well, it is not diificult to see how such severe injustice can arise.

    It has.

    It is not possible for families to obtain justice in the Family Court and this is why so few children go home.

    • I agree with almost everything Provincial Solicitor (PS) says.
      Like him, my comments are set out below the original posting and PS’ response.
      1:- Statements from the local authority are shown to the judge but rarely to parents.Family and friends of parents are routinely excluded from the court but groups of social workers are allowed to stay in the court to listen to their colleague’s testimony whether they are witnesses or not.
      PS’ Response:- I have never known statements not to be shared. Put simply the Court would not allow this to happen.Bits may be redacted to remove sensitive addresses etc but that is all. I agree that family and friends are generally not admitted to the proceedings, but that is the law as it stands. I have never known a ‘group’ of social workers be in court. Occasionally there will be the Social Worker’s Manager present.
      Dick’s response: the courts wink at and pretend they don’t know this is happening.
      Statements are frequently “lost”, “delayed in the post”, handed to families just before court or simply not given them at all.
      Solicitors frequently do not see the need to show them to families who thus cannot refute them.
      Large groups of SW’s, including managers, frequently “mob” hearings without comment from judges. This happens if evidence is being given of SW malfeasance or the SS dept. might lose.
      It is not the law and there is no reason why family supporters should not be admitted if judges chose.
      My Response: Agree with PS on statements. Dick’s use of inverted commas suggests a deliberate conspiracy against parents by court staff / legal professionals? There is sometimes more than one social worker in court, often allocated social worker and team manager. As employees tasked with working on the case they will be privy to the information discussed in court anyway, and are likely to be the authors of the care plan that is the subject of the dispute. They need to be in court. It might be desirable for family members to be in court but it is not necessary. And in fact in my experience family members who are supportive and not disruptive often are allowed into court unless another party objects (often the only objection comes from the other side of the family where parents have separated and there is acrimony). I agree it can be intimidating and confusing when an LA turns up mob handed, but the solution to this is to be careful to properly explain who is in court at the start of the hearing.

      2:- Parents representing themselves are denied the opportunity to cross examine witnesses appearing against them.Judgements,reports from experts,and position statements are either witheld or given to parents at the last minute (too late to read and analyse them properly).
      PS’ Response:- This is not my experience. Generally,I have known Judges ‘bend over backwards’ to accommodate litigants in person. Clearly if the questioning goes too far’off topic’ (becomes irrelevant) or descends to abuse then the Judge may well step in,but that would be no different to any other advocate. Again, I say that documents are not witheld. I agree that documents can be presented late but this is usually the case in an emergency situation and is certainly not routine. This is when an experienced advocate can assist, and most parents will be eligible for public funding (legal aid) in care proceedings (at least for now).
      Dick’s response: udges frequently openly make it clear they dislike LIP’s, because of course it shows up the system that all is not well.
      They are frequently denied the right to cross examine EW’s and social workers as this would be “too confrontational”.
      Reports ARE routinely denied till the last minute as it gives the SS Dept. an advantage in the case. It is no co-incidence.
      The reason they are LIP is difficulty in finding legals wo will mount a fighting defence, usually existing ones have been sacked and may have reported the family to the LSC that they were being asked to mount an “unreaonable defence” with the result the legal aid certificate has been closed.
      My response: Agree with PS. Late documents are generally permitted if essential but excluded or an adjournment granted if this is the more appropriate route to ensure fairness. Any judge will stop a witness asking irrelevant or inappropriate questions or would rein in an inappropriately confrontational cross examination. In my experience if you don’t ask inappropriate questions you don’t get cut off. I’ve never experienced a litigant in person being refused completely the right to cross examine and if they were they should appeal (there is a recent successful appeal by a LiP father who was refused the right to cross examine the Guardian which I don’t have time to locate now). Judges in my experience go as far as they can to assist a LiP to put their case and often ask or rephrase questions on behalf of the LiP.

      3:- Parents are routinely refused permission to call for a second opinion when “experts” and Doctors have testified against them.If parents record contacts with their children, or interviews with experts or social workers judges routinely refuse permission for these recordings to be heard yet they always allow recordings and video evidence to be heard if produced by police or social workers.
      PS’ Response:- Generally,I believe that parents do get the opportunity to rebut expert evidence. It is usually the case that experts are instructed jointly and are therefore independent – in those situations we would have to justify why we say that expert is wrong. Further,the new FPR suggests that expert evidence should not be allowed when a social worker /children’s guardian can report on the issue. I can see an issue with that because the social worker may not be able to approach issues with an independent view. I have to say that I am not keen on recordings being made, for various reasons. I have recently had an interesting argument about the reliability of recordings made by a concerned neighbour; I often do not find them of great evidential value.
      Agree with PS. I have yet to see or hear a recording which is actually helpful to the person who wishes to rely on it! However I am aware of cases where the veracity of social work evidence has been successfully challenged through the use of covert recordings. This is the exception rather than the rule however and generally making recordings can be a waste of time or actively unhelpful for a number of reasons which I’m not going to go into here.

      4:-Parents whose children have been taken are routinely and wrongly told that they may not talk to ANYONE about their case.
      PS’ Response:- There are booklets at my local court that set out very clearly what can be said to who. Judges, in my experience set out the rules very fairly and clearly.
      Dick’s response: It is STANDARD for parents to be refused a second opinion and be able to rebut evidence by EW’s not qualified in that area they have a “personality disorder” not detectable to NHS psychs. or turn out to be the partisan advocates for a controversial theory.
      “Jointly Instructed” experts ARE NOT independent as the SS Dept or CAFCASS will not allow the appointment on anyone who does not give the answer they want.
      They will use their position to block others and the judge and Guardian will go along with it.
      Usually however the Family’s legals go along with it and roll over.
      This is where the INJUSTICE in the system arises most.
      The clearly inaccurate or highly disputable “condition” (because it is medically contoversial) is used to condemn the family and is the basis of the kd/s not going home.
      it is of the highest significance that the FJR now wish to reduce the role of EW’s.
      “I am not keen on recordings being made, …I often do not find them of great evidential value”
      So do the judges who routinely refuse them to be heard in evidence.
      It is crucial they are made as the are prove that the SW is in fact comitting perjury and the EW was in fact hostile and agressive to the parent or the parent did not say whatever his opinion is based on.
      It is not difficult to see why judges refuse them.
      My response: The booklet is helpful. But the law is complex on this and I agree that advice is sometimes imprecise. The problem is that an attempt to explain the intricacies of the rules often results in complete confusion and clients are no more clear about what they can or can’t do – I suspect for this reason much advice is on a “better safe than sorry” basis, in order to protect the client (parent) from adverse comment.

      5:-Parents are jailed if they protest publlcly when their children are taken.They are also jailed for “breach of the peace” or “harassment” if they dare to trace and then contact their own children after adoption.Parents are therefore” twice gagged” contrary to the Human Rights Act ,Article 10 entitling all persons “freedom of expression”,ie freedom of speech.
      Response:- Any specific examples? In 15 years I have never known anyone in care proceedings committed to prison. There are clearly very good reasons that biological parents should not endeavour to breakdown adoptive placements.
      Dick’s response: Tons.
      Harriet Harman, as the minister responsible did, admitting in the Commons that 200 parents a year were being jailed and even she didn’t know the reasons.
      The leaflets have the effect of intimidating the fanilies.
      There is an obsession with “placements not breaking down” even though it is not what the kid wants and is not really succeeding anyway.
      My response: Numbers is not the same as examples. I would hazard a guess that the 200 parents a year jailed is a figure for committals arising from contempt of court and includes all breaches of undertaking and non-molestation orders and any other kind of family injunction (freezing order for example). It may even include suspended orders and fines under the heading “committal order”. I would be extremely surprised if the HMCS kept stats on the numbers of parents imprisoned for privacy breaches as opposed to any other kind of committal, since HMCS operates on the basis of paper folders held together with rubber bands and a big abacus.

      6:-Local authority barristers in court often read out statements from absent persons as though they are themselves witnesses but they cannot be questioned.
      PS’ Response:- Only ever known that if the statement is agreed. If it is not agreed and the Local Authority seek to rely on it, they produce the witness. Simple.
      Dick’s response: it happens ROUTINELY. The SS barr may try this as well without agreement, or it may have been agreed by the legals without telling the parents.
      My response: Agree with PS. LAs are often quite lax in terms of producing best and primary evidence (original case recordings etc), and it is fair to say they often rely on correspondence from treating medical professionals rather than reports or witness statements. The point being though that they don’t rely on them for opinion but for the facts of the examination. And if there is a serious dispute even the treating medics will be required to attend.

      7:- Most solicitors refuse to let their clients speak and then agree to all care orders demanded by social services.
      PS’ Response:- Nonsense. Clients may have to be given advice in terms of what is, or is not, relevant evidence, but no decent solicitor would refuse to let their client’s put their position by statement or in the witness box. If solicitors agree to all care orders, why are there so many contested hearings that have filled up my diary?
      Dick’s response: Nonsense.
      Sols routinely will not allow families to give evidence or put in statements.
      They agree ICO’s and even part of what is to be heard at Final hearings.
      The system works on agreement and negotiation but the families don’t know this.
      As above. Judges violently castigate parents for becoming LIP’s, even refusing to recognise the sols. have been discharged and claiming “they were well served by their legal team” even though this is not the case.
      They ROUTINELY ignore their evidence and statements in judgements, as can be seen by reading the judgements.
      This explains the totally unfair judgements.
      My response: To advise is not to refuse to permit. I often advise my clients to keep quiet in court. Having taken their instructions I’m usually in a good position to assess whether they are likely to pipe up and say something that will trash the points I’m trying to make on their behalf. And the whole point of having a legal representative is that you have someone to articulate your position for you, a judge quite rightly will permit one or the other but not both (although many judges often invite direct response from a parent). As PS says, when it comes to giving evidence at the end of the day if a client wishes to give evidence or put forward a particular view that is their choice and whether they have accepted my advice or not of course they must be given their say.

      8:-Judges routinely castigate parents who wish to speak or who represent themselves even though they have the right to do so;Their evidence and their arguments are usually ignored in the judgements.
      PS’ Response:- As above. My experience is that Judges go out of their way to help litigants in person. I simply do not recognise the suggestion that they are ignored in judgments.
      Dick’s response: – (none)
      My response: Agree with PS.
      9;-Parents representing themselves are often given an hour or two’s notice to appear in court but solicitors are given weeks !
      PS’ Response:- Any examples? If the case is a true emergency notice might be reduced, but this is the exception rather than the rule. Court orders go out to all parties at the same time, represented or not.
      Dick’s response: lots.
      Parents, to give the SS Dept. an advantage, are given a few hours or even an hour’s notice to appear in court. They would not be able to get away with it with a sols’ firm.
      My response: agree with PS. If a matter is brought before the court on the basis it is an emergency and this is not made out it will be put off until another day when the parents have had time to prepare.

      10:-Parents are punished for “risk” ie not what they have done but for what they might do in the future! “Risk of emotional abuse” is favourite because there is no legal definition of this and it is usually impossible for parents to defend themselves against “predictions” by so called “experts”.
      PS’ Response:- Is it suggested that we should wait until a child is ‘actually harmed’ before action can be taken? That is the logical conclusion of what you are saying. Let me give you an example – if a mother starts to cohabit with a known and prolific sexual offender, would you leave the child there until they have been abused, or say that the ‘risk’ is too great? Generally, I don’t see children being removed on the basis of risk of emotional harm. Often this is a secondary point to physical harm, neglect etc.
      Dick’s response: Children are sent to Forced Adoption or retained in Care on the basis of the even vaguer “risk of Emotional Harm”
      It is also used as the excuse for seeking the ICO in the first place.
      My response: agree with PS. I note that Dick did not answer the question.

      11:-Judges give social workers the power to withold parent’s contact with their children” in care” as a punishment for saying they love them and miss them or that they are fighting to get them back .They use this power to gag parents and force them into complete submission !
      PS’ Response:- There is a duty to promote contact. I can say that resources are becoming a problem and this should not stand in the way of a parent having contact with his or her child. I cannot say that I have ever seen contact being withdrawn as a ‘punishment’as you suggest.
      Dick’s response: If parents at a Contact try to reassure a child by telling them they love them or they are trying to get them home the Centre staff under instructions will abruptly terminate the contact.
      You are not allowed to tell your child you love them as standard.
      My response: contact might be affected if parents inappropriately talk about adult matters with the children (talking about court or telling a child he is coming home when proceedings have a long way to run can be extremely difficult for children to manage), but I have never heard of a case where contact was stopped simply because a parent told a child they loved them.
      12:-Parents are in effect condemned for offences against their children on “probabilities” 51% instead of beyond reasonable doubt.
      PS’ Response:- Yes, cases are decided on the basis of facts being proved on the balance of probabilities i.e. more likely than not. That is the civil burden of proof. There are many reasons why that is so beyond the remit of this column.
      Dick’s response: families are found 51% or Probably Guilty
      which is wide open to injustice.
      It was deliberately introduced in the early ’90?s to make it easier to take kids into Care.
      My response: Agree with Dick. The civil standard of proof applies to all civil cases (everything except crime) and was not introduced by the children act. Does Dick think we could properly protect children from harm if courts could only act on the basis of the criminal standard of proof? I know he says lots of parents are innocent of the things they stand accused of, but my question is about those cases where abuse has taken place but it cannot be proved to the criminal standard.

      13:-Parents who were themselves in care or who were abused in childhood are often judged unfit to be parents as a result.
      PS’ Response:- No, that is simply not correct. But it is a sad fact that parents who have had a poor or abusive upbringing may not be able to parent to a ‘good enough’ standard. I am afraid a lack or resource (i.e. surestarts closing etc) may only make this position worse.
      Dick’s response: This is CORRECT. Children will be sentenced to Forced Adoption or retained in Care on the basis that the mother was abused in childhood/ had a traumatic experience of abuse in childhood/ was in Care themselves.
      This is seen as a reason for doing so.
      My response: The primary issue in many cases is the extent to which a parent’s own background has impaired their ability to parent and the extent to which they are able to break that cycle. That is the key thing that we all focus on. In many cases the cycle sadly continues, but it is not a foregone conclusion. If it were care proceedings would be much shorter.

      14:-Parents often forfeit their children for “failing to engage with professionals”
      PS’ Response:- I would say that this is more commonly seen as one element of care proceedings, not as a stand alone ground.
      Dick’s response: this is seen as grounds for retaining a child in care or very frequently taking them into care in the first place.
      My response: agree with PS. In response to Dick, it may be the factor which prevents the LA from successfully working with the family outside court so in that sense I agree – it can precipitate proceedings. But not in the absence of a substantive issue that the parents need to be cooperating ABOUT.

      15:-Parents faced with forced adoption lose their children for life, without being allowed a hearing by jury.
      PS’ Reponse:- Yes, that is true. But parents do have the ability to access free public funding and the right to be heard before an independent court.
      Dick’s response: the family Court is NOT AN INDEPENDENT COURT so families cannot obtain justice there, the sols and barrs routinely fail to mount fighting defences for which they receive public funds.
      My response: Agree with PS. There is no basis put forward to support the suggestion that the court is not independent. I am not sure if Dick is suggesting that the only way to achieve independence would be to require all lawyers and judges to work for free thereby removing all potential conflict of interest? Dick’s suggestion fails to appreciate that advocates often get paid more for fighting a case than settling it (as I am only too aware having just had a three day trial go short meaning I will only get paid for one day’s work and will not get paid for today or tomorrow).

      16:-Under the UN Convention on children’s rights children have a RIGHT to be heard in court but are usually denied that right.
      PS’ Response: – I do not agree with the idea that children are denied the right. In ALL care proceedings children are represented by a Children’s Guardian and a solicitor like me. I will always judge whether a child is competent to express an opinion and can think of many cases where the child has seen the Judge directly. However, it is complicated by many factors beyond the scope of this column.
      Dick’s response: IT IS TRUE. Every effort is made to prevent the children/teenager from expressing their opinions and keep them isolated, because of course if they do the SS Dept. will probably lose.
      Worse still, giving evidence.
      The Guardian routinely ignores their opinion but deludes themselves into believing they know their views.
      Judges routinely refuse to speak to them.
      My response: Agree with PS. Only this week a judge in one of my cases ordered a child brought to court to speak directly with him.

      17:-Solicitors routinely tell client parents to agree to interim care orders or they risk never seeing their children again.A lie !
      PS’ Response:- Nonsense. If solicitors did that routinely I suspect they would get little work. I simply do not accept this suggestion; but you have to accept that there are instances when, tactically and practically, it would be poor advice to contest an ICO.
      Dick’s response: Nonsense. This is routinely said by the family’s sol to them, or they will never see the children again.
      The problem is that, as said, there is a conflict of interests as the sols’ firms get work from families, CAFCASS and the SS Depts. and their income is dpendent on these different streams.
      My response: again Dick does not understand how our income works. The fact that we are independent and self employed means that barristers are not dependent on any one source of income, and are not therefore aligned to any one part of the system. I am able to advocate for families better because I work for LAs and Guardians and know how they work.

      18:-Social workers are legally obliged to place children with relatives if possible but either ignore this or find pretexts to fail them on assessments
      PS’ Reponse:- You are correct that family members must be considered; I think it is important to look very carefully at any viability studies that are carried out on family members. I think there is a danger,on occasion, that family members are ruled out too soon. Clearly, where possible,it is preferable for a child to be placed within the family.
      Dick’s repsonse: SS Depts. routinely rule out family members in statutary breach, for spurious or weak reasons or because they wat children for Forced Adoption.
      My response: I do agree that LAs are inconsistent in promptly and thoroughly assessing family members. With the benefit of good legal advice and representation this can usually be remedied.

      19:-Human rights to free speech and freedom of movement are breached by gagging orders and confiscating passports.
      PS’ Response: – I suggest that this is the exception rather than the rule.
      Dick’s response: it is ROUTINE to use gagging orders or confiscation of passports if there is a danger of embarrassing publicity.
      My response: Agree with PS. May well happen where there is a threat of publicity that has not been sanctioned (i.e. would be in breach of court rules) and which may be harmful to a child.

      20:-Parents are routinely forbidden to call witnesses on their behalf contrary to human rights.Family and friends are wrongly prevented from entering the court.
      PS’ Response:- Do not agree. See 1 above.
      Dick’s response: as above.
      My response: as above.

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