Let’s leave the party….

child protection

 

Back in February 2014, I raised a question about ‘party status‘ in relation to private law proceedings concerning children – cases where parents disagree about the care and upbringing of their children. To save the reader returning to it, I was simply querying whether giving parents in conflict, the right to manage proceedings in relation to their children was right or appropriate for the twenty first century?

Since then, I have had a number of discussions with other lawyers about public law cases, and their responses have been surprising.

For the uninitiated, public law proceedings concerning children relate to situations where local authority children’s social services feel the need to be involved with families to protect children from harm. The harm may come from poor or inappropriate parenting, downright dangerous lack of care, or even an outside threat from extended family or friends.

As a civilised society, we need local authorities to be proactive in this role, as much as we may instinctively hate the idea of children being removed from their parents -and the only home they have known.

Under a regime introduced by the President of the Family Court, local authorities may have involvement with families for a substantial period of time before proceedings are issued in court. By seeking to work with parents, social workers may be able to achieve sufficient improvement in care that parents may provide good enough parenting and matters need not go to court.

As lawyers for parents and children, we become involved when all attempts to provide a safe home and upbringing appears to have failed. Then the local authority will issue an application in a family court for a public law order – maybe a care, supervision, or even a placement for adoption order. Only now is a guardian for the child or children appointed, and even here their active role is limited.

However, public resources are provided for the parents or carers of the child. Parents become ‘respondents’ to the application brought by the local authority, and have a right to publicly funded representation. The court then wrestles with the dichotomy between the rights of the parents to their family life, and the rights of the child to protection.

So, what is my concern?

Well, it is simple. At a time of limited resources and huge pressures on public funding, why are the parents appointed (and funded) to be drivers of the case? Why do we insist on an adversarial approach in every case involving local authority intervention? Why are parents pitted against social workers backed up by social services lawyers? With legislation that is supposed to be ‘child centred’, why is not the voice of the child – or the independent professional charged with representing the child – not calling the shots?

It would take a significant change in the intellectual/social/legal approach to child care cases to implement a new, totally child-focused system. We would need to go back and re-write the Children Act 1989. But how would it be if, in every case where a child was considered to be at significant risk, a properly trained, properly paid, experienced professional guardian was appointed to oversee conflict between the local authority and the parents from the point of view of the child or children?

Where proceedings were notified by the local authority, a Public Guardian Service with sufficient resources of lawyers and structures, would take over the proceedings. The parents would become compellable witnesses – having the right for their voices to be heard, thus attending to their Article 8 rights. But the case would be conducted by the Public Guardian’s Office with the needs of the child being central. The guardian’s legal team would received or obtain statements from the parents, and these – together with all the other evidence (including that of the local authority) would be considered by a family judge or tribunal.

Other lawyers will be quick to realise some of the implications of this concept. Yes, along with the loss of ‘party-status’, the parents would lose the right to be legally represented, save in cases where very serious findings against a parent may be made. Parents would become answerable to the court’s assessment of the needs of their children to be protected, rather than remaining as they are now, as central managers of the litigation. And we lawyers, who have made a living out of representing parents, would forfeit that work.

But the idea is not simply to save spending massive resources on providing representation for parents, it is to bring about a change in the culture of public law family proceedings. To get away from the adversarial, combative approach – and to substitute a system where everyone’s focus started and finished on the needs of the child. Competent guardians (supported by a Public Guardian’s Office) would encourage local authorities to engage more, and more positively, with families to secure good-enough parenting. They would determine when the whistle should be blown on parents and carers that had not responded to the chances given.

For the first time in the history of children’s litigation, the child would be centre stage – supported and resourced by those best equipped to see through the eyes of a child.

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Invent some futile work

FAS

Reproduced with thanks to the Legal Aid Agency

FAS Ex506. It sounds important, doesn’t it?

Writing this blog for a mix of readers, I had better explain. First, what is a FAS Ex506?

Well, it is a ‘form’ that barristers and solicitors are required to fill it in to get paid for publicly funded work. Not, I may add, for ‘fat-cat lawyers’ – those filling in such forms are at the very bottom of the food chain when it comes to remuneration, with rates frequently lower than those for a joiner or plumber.

So, what happens to the ‘form’?

Every ‘form’ that is filled in at court is handed to the judge at the end of the case. It may be a case lasting days – or only minutes. Frequently the judge asks for the forms to be brought up to their chambers by a court official when the case is over. The judge will sit and initial entries, making sure that their signature is appended to every variable on the ‘form’. There could be up to eight signatures needed per form, and there may be up to ten ‘forms’ to be signed. Once signed, the court official carries them back to court and distributes them to each advocate in turn.

Now this is just the beginning of a journey for FAS Ex506. The advocate takes their ‘form’ back to their barrister’s chambers or solicitor’s office. Numerous other documents are added to it, including the advocate’s instructions to undertake the case on that particular day, a copy of the court’s order requiring the advocate to attend at a given time on that day, a copy of that day’s order stating what happened in court, and the advocates hand-written account of the hearing.

We now have a bundle perhaps containing over 20 pages of information – recording in minute detail every aspect of the case: what was expected to happen, what actually happened; why it happened; why what was expected to happen differed from what actually happened; what was going to happen next; what the advocate thought had, might or probably would happen; and if it didn’t happen, why not.

The bundle proceeds to a fees clerk, who checks it in meticulous detail for the slightest error. A missed signature would cause a crisis – any problems detected result in the bundle being returned to be repaired – perhaps by going back to the same judge at the same or different court on another day, for a missing signature to be added.

If approved by the fees clerk, the bundle of papers is sent to the Legal Aid Agency. Here a clerk with a NVQ in paper administration sorts all of the bundles for each case and inspects each page of each bundle for mistakes. Do the legal aid clerks receive bonuses for each bundle they reject?…for the most trivial issue will result in its return to sender. A summary that has been prepared by the fees clerk will be marked for accuracy by the legal aid clerk, and only if it passes with full marks will the request for payment be approved.

So, what is my point?

It is impossible to quantify the amount of time that is spent by the advocate, the judge, the fees clerk and the legal aid clerk simply on administration. In an era when digital data recording is preferred, why is this mountain of documents prepared and transmitted? Why the repetition of the same document frequently submitted by each advocate? Why is a judge expected to certify the information, when much of it is, or could be readily evident from the court order?

The system was introduced with little forethought. The Legal Aid Agency created their own monster, which they now administer at considerable public cost. No single person has put their mind to review or remedy this mindless exercise.

I suggest that the Legal Aid Agency gets its house in order and scraps the futile FAS Ex560. If they do not, I propose that the judges should add a further 30 minutes to each timed hearing – to account for judicial time taken in administration on behalf of the Agency. Were they to do this, I bet you can quickly guess how speedy would be the response!