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COMMENT:
Reading the comments together with your shepherds pie post (https://suesspiciousminds.com/2015/06/22/shepherds-pie/) sadly confirms the double whammy of confirmation bias facing parents, often already beleaguered and traumatised by care proceedings.
By double whammy I mean if another bar is raised from not only good enough parenting but, in effect, good enough representation in the first place. Absent effective legal representation the parents are crippled.
How should we realistically overcome this disadvantage to parents (and concomitant parental capacity to change) as a functional society?
Despite recently retreating from the high water mark of courts rubber-stamping LA’s on the scantiest of (often partial) opinion evidence meaning that the more draconian LA excesses are being curbed, now subject to greater judicial scrutiny, there’s still a conspicuous absence of successful applications to discharge care orders by parents for family reunification (not LA’s) and this surely speaks volumes for the way the odds stay stacked?
In short, many parents are worn down and forced to give up!
What is the remedy?
More shrewd litigants in person forcing judges to actually do their jobs?
Public sector equality duty?
Overriding objective not to waste taxpayers money in an age of austerity?
(reasoning being foster care placements are an expensive resource like hospital beds so must be allocated strictly by clinical need)
Surely fair access to justice, avoiding multi-generational parental/child alienation and overwhelming likelihood of state harm (statistically speaking) are all important public policy considerations?
Like I said, would love to see a similar post setting out a point-by-point exposition from a (reformed) parents perspective …
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Any update on this from 2010?
Re Application for discharge of care order
36. …. the application for a residence order and discharge of the care order are effectively the same and I am going to approach this issue as an application for discharge of care order. In considering such an application the court applies the following legal principles.
(1) The jurisdiction is discretionary from the outset. There is no obligation on a parent to satisfy the court that the threshold requirements no longer apply: see Re S (Discharge of Care Order) [1995] 2 FLR 639 per Waite LJ.
(2) Insofar as any party asserts a fact on which they wish to rely in support of a submission as to the exercise of that discretion, the burden of proof is on the party making the assertion, and the standard of proof is the balance of probabilities. Generally speaking, however, it is unhelpful and artificial to focus too much on such legal niceties because here the court is exercising an essentially inquisitorial jurisdiction.
(3) When determining the application, the court applies the principles in section 1 of the Children Act. The child’s welfare is paramount and the relevant factors in the welfare checklist in section 1(3) must be considered and given appropriate weight.
(4) In exercising its discretion, the court must have regard to the important principle, acknowledged both in English law and the European jurisprudence, that children should wherever possible be brought up within their natural family and, in particular, by their birth parents, and that, where families are separated by court orders, public authorities, including local authorities and the courts, are under an obligation to take measures to facilitate family reunification as soon as reasonably feasible: see e.g. K and T v Finland [2001] 2 FLR 707 and Re C and B (Care Order: Further Harm) [2001] 1 FLR 611.
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Pretty much. Whilst there might be a slight argument about whether paragraph 4 is quite as strong as that now (post Re W), someone else would argue that Y v UK and Re B make it even more solid. So there’s scope for lawyer omphaloskepsis on para 4, but the rest of it is indisputable.
Looked After Children are not children of a lesser God, nor are their parents (especially if genuinely reformed) yet the absence of a fair mechanism for 2-way direction of child travel is a damning indictment of a rigged system.
The dearth of case law for successful parent-led applications to discharge final care orders is itself another policy/socio-legal lacuna which the office of the IRO has miserably failed to bridge.
| truthaholics 
Reblogged this on World4Justice : NOW! Lobby Forum..
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