The deadline for written submissions to the Family Justice Review call for evidence was yesterday. I have had an extremely busy couple of weeks and hence was up at the crack of a you know what to finish my answers before going to court. Apart from a little bit of sleeping here and there, a few hours in a traffic jam, and a good few hours knocking up my answers to the review I have done nothing but work since Sunday evening. This accounts in part for the rather tetchy tenor of this post. I am rather grouchy.
I can tell you that I felt rather deflated to see a tweet pop up on my screen as I put the finishing touches to my written response telling me that Family Justice Review Chair David Norgrove had already given an interview to Community Care about the panel’s preliminary findings (h/t @familylaw). I hadn’t even clicked ‘send’ on my submissions. I know it’s only an interview, but it doesn’t instil me with confidence that all options are being considered. Now I know how my clients feel when the judge gives a preliminary indication without warning or request.
My ‘about to be totally depressed’ radar never lets me down. I clicked on the link: David Norgrove reports a culture of institutionalised mistrust between professionals within the system, particularly of social workers. He said:
“It’s an institutionalised lack of trust and a vicious circle. Courts don’t always trust assessments by social workers and order more assessments. The whole process has become too drawn out.”
An institutionalised lack of trust? Mr Norgrove is not a lawyer. He is, according to the FJR website:
[former] Chair of the Pensions Regulator and the Low Pay Commission and has knowledge of reform and change management in both the public and private sectors. As panel chair he will operate independently and objectively with no preconceptions about the way in which the family justice system currently operates.
So, let me therefore give the man with no preconceptions the lawyer’s perspective on this. A little context if you will. The ‘institutionalised lack of trust’ notion slightly overlooks the fact that in our court system we rely on something called evidence. And we like to test it. We call this testing of evidence ‘justice’*. If you want to call this testing of evidence ‘institutionalised mistrust’ so be it, but if Mr Norgrove wants to move away from a culture of ‘institutionalised mistrust’ I can offer him several excellent pieces of terminology he might want to adopt to describe the new justice system that would result: anti-democratic, dictatorial or kangaroo justice. Maybe the latter is the best in terms of branding, it has a certain bounce to it.
Of course we want to cut waste. And we want to reduce the number of assessments that have to be paid for. But a significant minority of additional assessments are commissioned because the Local Authority have not carried out the work or not carried it out sufficiently well. And sometimes because a very particular kind of expertise is genuinely required. And I rather think that focusing on ensuring that evidence is of sufficient quality to be able to withstand a certain amount of testing has certain advantages over simply accepting local authority evidence as sound. That might raise a few tiny problems in relation to such minor matters as Article 6 and Article 8 ECHR. Just small ones mind. But then we do have a culture of institutionalised fairness. Is that dispensable too?
He goes on:
“Care plan scrutiny has increased. They are taking more time and effort because of more expert assessments. This is partly to meet adults’ rights but the risk is that this could be compromising the rights of the child.”
This, ladies and gentlemen, is what is known as a false dichotomy. To suppose that a parent’s rights are always in conflict with a child’s is to fundamentally misunderstand the nature of family and the role of the court. Speed is not of the essence – welfare is. But in any event, where the rights of the parent do conflict with the rights of the child, child’s rights win hands down. We have this thing called the paramountcy principle. Perhaps nobody has briefed the FJR about that. If a court thinks an expert assessment would compromise the rights of the child because of delay – it doesn’t permit it. If an expert assessment will help the court reach the right decision about whether a child can have an ongoing relationship with his own parents, who will benefit from that assessment being permitted? The child. If a care plan is not scrutinised and the court subsequently approves a flawed care plan, whose rights are compromised? The child. A child is entitled to a fair and thorough judicial process before decisions about his article 8 rights being made. Rigour and due process is the right of the child as much as anybody.
Mr Norgrove is right: there does need to be “better joined-up thinking between children’s services and family justice” and there does need to be a cutting of delay. But we need to do that primarily to enhance justice and to promote the welfare of children. Cost is a significant issue – but we cannot use means to achieve that end which defeat the primary purpose of the system itself. To strip away the very tools that the court relies upon to do that justice and to ascertain what is right for a child in the name of speed is to defeat that purpose. I am fearful that the FJS will be ‘change managed’ into an administrative arm of the state rather than a protector of justice. The cost of such an approach – both financial and societal – would be immeasurable. If the family justice system needs to save money it must start first with the quality of input. Local Authority evidence will always need to be tested as a matter of justice, but good quality evidence will be recognised as such and cases will proceed more quickly with less additional assessments being required.
* NB ‘Justice’ is not equivalent to a presumption that social services are rubbish and should be beaten over the head at every opportunity. Justice ensures that anybody who places flaky evidence before the court is similarly beaten over the head (metaphorically). And the good part about ‘justice’ is that when evidence is good and solid the court will say so too. Which is nice. It’s quite fair that way.