Photo by Gerard Van der Leun
“The worst aspect of care proceedings arises not from the unfair intervention of local authorities, but the unrealistic expectations of parents”.
How controversial is that? As barristers we spend a significant proportion of our professional lives exposing, or modifying local authorities’ incursions into the family lives of our clients, and sometimes with great success. The blogger recalls intervening in a recent case where the trial judge considered that both the local authority and the Children’s Guardian had got it very wrong, and ordered the return of the children to mother within hours of the judgment.
But quite often there is a fundamental issue with regard to parents’ care, or at least a real cause for concern that needs to be addressed. In such cases is the current adversarial process the best way of addressing it?
The Human Rights Act capture of Article 8 of the European Convention on Human Rights arrived some time after the then Mr Justice Judge said that ‘the difference between public bodies and individuals is that individuals are permitted to do anything not prescribed by law, whilst public bodies may only act as the law permits’. Both tell the same story – that individual rights and freedoms come first in a democratic system of law making.
Where then the question of party status for parents in public law children cases?
The ‘paramountcy principle’ which drives the Children Act 1989 arose as we know from a long history of trial and error in relation to child care and protection. Yes, we have moved some way from the corrupt Tudor Court of Wards, where Wardship was determined according to the value of the ward’s estate. The blogger recalls his long weekend in Windsor with the then Mrs Justice Butler-Sloss and the then Mistress of Girton College, Mary Warnock whilst some of the structure of the Act was considered. Putting the child first was its aim, but did the Act really accomplish this?
In the perennial tension of competing rights and duties, the voice of parents was retained as a constitutional and jurisprudential ‘must’. But is it essential to keep it in the form of party status?
It has recently been suggested that the controlling management of children’s cases by local authorities should be counter-balanced by an increased management role for the Children’s Guardian.
Imagine a case where, with early, properly resourced intervention, a Guardian working with the Children’s solicitor takes an overall management role in relation to care proceedings. Rather than the long line of different judges (or magistrates), it is the Guardian’s lawyer who ‘case manages’ the proceedings, convening advocates meetings, suggesting a proper approach to the instruction of experts where the parties agree, ensuring that the statements prepared and filed do not replicate each other, where positions are clarified and recorded at the earliest stage; and where recourse to a judge occurs only where the parties dissent from the Guardian’s steer?
With this alone, the five lever arch files could be reduced to two (0r better a small e-file), the number of time consuming and resource expending hearings could be contained to a minimum, and perhaps a less adversarial approach to care proceedings would be possible.
The next question would simply be “why not release the parents from the case management role as parties, and give them automatic (and compellable) witness status”?
In a child-centred system of care proceedings where the children are represented by a Guardian Case Presenter, the party roles could be almost invisible. Witness statements from the parents could be taken by the Guardian’s lawyer and these would become their pleadings in the case. Party status of the local authority could be modified, so that ultimate control was wrested away to provide the necessary balance of rights and obligations.
Clearly, there will always be a need for ‘party status’ for some parents – where serious allegations are to be adjudicated, or where significant harm as defined on Form Ex506 would justify an enhancement, but in so many cases parents would simply be relieved of an unmanageable burden contained in an adversarial process.
Over the next decade or so, will we see an end to the adversarial approach to family law? The signs are already there in private law cases, and the cost/time/stress reasons are becoming more prominent. Is this the last era of the lawyer-led family law dispute? Now, you must have your own thoughts about this? Why not reflect them here on the blog?