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.

Party Animals

MUNBY

photo of Sir James Munby, President of the Family Division, courtesy of Brian Smith for the Telegraph

“Going to court about your children is almost as bad as accepting an invitation from Jeremy Kyle…you should have sat down quietly together and sorted it. Instead you go for broke and destroy your last bit of dignity in a courtroom drama?

Strong words, (I hasten to add, not from the President of the Family Division) and amusing in their invective; but containing that trace of truth that harbours an important point.

If anyone was to invent a process that was better designed to fan the flames of conflict and at times humiliate the protagonists, they may be hard pushed to beat the current ‘family court system’. Take two people who are at loggerheads, a judge who ‘has better things to do’, bring in two lawyers with their jerry cans of publicly funded fuel, strike a match and you’re sure of a big blaze. If you are legally aided, the taxpayer gets to pay for your day in court, and if you are not-so-sponsored, you can also add in a huge bill for all the damage that is sown and reaped.

For over thirty years I have played my part as a barrister in these cases. Often, there are no winners – apart from the lawyers. The adults leave court with the compromise they could or should have agreed many months before, and the children pick up the emotional tab of their parents’ conflict.

In my previous blogs I have explored the role of mediation to tame the tempest. Glance back to see my ‘mediation musings’. But in this blog, I want to explore the question of why we allow (and frequently require) the adult players to be the drivers of litigation concerning their children.

The Children Act 1989 was intended to put children first. Maybe it did, but the legislators did not seize the stinging nettle as to ‘who should manage’ competing claims. In 1989, the adversarial system was still in full flight, even in children cases, and family advocates were rated on being a “good fighter”, “doughty opponent”, or “a determined advocate”. It would have been unconscionable to remove from parents their cherished ‘party status’ through which they could both commence proceedings and seek to control them as litigators.

Now the climate has changed. The courts have felt the effect of global warming and frequently turn on the air conditioning, or even the sprinklers to cool the temperature of conflict. The Children and Families Bill seeks to remove some of the more divisive concepts concerning private law orders. So, is the right time to take that extra step – and withdraw party status from the protagonists?

Envisage a system where, when an issue arises in relation to the care or management of a child, the court is notified, and appoints a ‘children’s guardian’ as a matter of course.

Rather than allowing the adults to rush through the doors of the court, the guardian would mediate between the parties, aiming for the middle ground that is so often adored by judges. Where agreement was possible, it would be recorded as an agreement and submitted to the court as endorsed in AI v MT and re-affirmed in S v S.

Should agreement not prove possible, the guardian’s solicitor, owing an equal duty to the child and the court, would take over the whole case management. One of their tasks would be to obtain statements from the parents setting out their concerns, positions and requests. The parents /grandparents /extended family members would all remain witnesses, having a right to have their voice heard, but not to manage and control the case. Only in public law cases where serious allegations were made against a parent would the question of party status arise.

In the absence of party agreement, the Guardian’s advocate would present the contested issue to the court, calling the parents as relevant witnesses. That which had already been agreed could be outlined, and the remainder decided by the district judge.

Of course, we would have to move away from the adversarial process, and that would require cultural and legislative changes. This may already be awaiting in the wings with the advent of the Single Family Court. We would also need proper funding of guardians and their solicitors. But the saving of replicated costs of party status for parents would probably pay for a pretty good service.

The requirements of efficiency and institutional functionality would probably rule out CAFCASS as a service provider, yet with a large pool of funded, professionally regulated, independent guardians, this problem could be overcome.

European Convention articles 6 or 8 may be cited as an issue, but  the European Court in Rosalba Alassini & Ors v Telecom Italia SpA & Ors, a endorsed the introduction of compulsory mediation as a preliminary step to litigation. Here, the facilitative role of the Guardian would be a preliminary step before the right to be heard by the court.

Do you agree that the change is a timely and necessary step on the road to managing both public and private law issues competently and proportionately, keeping the child on centre stage?

But what about the poor lawyers who would lose work? …..Yes, you have a point there.