Tag Archives: Family law

Baby P effect takes children in care numbers to 25-year high, says NAO!

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Baby P effect takes children in care numbers to 25-year high, says NAO ~  and agencies, The Guardian, Thursday 27 November.

Local authorities in England were looking after 68,110 children in March 2013 – a 14% increase since 2008
Six year old boy stands in corridor in pyjamas with teddy bear
Amyas Morse, head of the NAO, says most children are taken into care because of abuse and neglect – but too many are not getting the right placements the first time. Photograph: Don Smith /Alamy.

The number of children in care has risen to its highest level for nearly 25 years following the death of Baby P and recent child sex exploitation scandals, the government’s spending watchdog has found.

Local authorities in England were looking after 68,110 children in March 2013 – a 14% increase since 2008, a report by the National Audit Office (NAO) said.

The rapid rise in children in care followed coverage of Baby P’s death in 2007, the report noted. Almost every local authority said they were expecting or experiencing an increase in referrals linked to child sexual exploitation after high-profile cases in Rotherham and other towns, auditors said.

The NAO said that while demand for care continues to rise and varies “significantly” across the country, the Department for Education has not shown it is meeting its targets for improving care for foster children and those in residential homes.

There had also been “no improvement” in the last four years in getting children into the right placement first time, the report said.

Amyas Morse, head of the NAO, said: “Most children are taken into care because of abuse and neglect. But too many of them are not getting the right placements the first time.

“If their complex and challenging learning and development needs are not correctly assessed and tackled, the result is likely to be significant long-term detriment to the children themselves as well as cost to society. No progress has been made in the last four years.”

Peter Connelly, who was known as Baby P in court, died in north London, on 3 August 2007 at the hands of his mother, Tracey Connelly, her partner, Steven Barker, and their lodger, Jason Owen.

He had suffered more than 50 injuries despite being on the at-risk register and receiving 60 visits from social workers, police and health professionals over the final eight months of his life.

According to the auditors, the number of children in care is now the highest since records are available from 1990.

It found that nearly two thirds (62%) of children in care were there because they had suffered abuse or neglect. Three quarters (75%) of those in care were fostered.

In total, £2.5bn was spent supporting children in foster and residential care in 2012/13 – a 3% increase in real terms since 2010/11. The report found 34% of children in care had more than one placement in 2012/13 – the same proportion as 2009.

The government also failed to place children within 20 miles of their home in 14% of foster cases and 34% of those in residential care, the report claimed. Seventy nine residential homes were rated as inadequate by Ofsted in 2012/13, according to the report.

Educational achievements of children in care compare badly to the rest of the population, the report found. Some 15% of children in care achieved five or more GCSEs at grades A* to C including mathematics and English in 2012/13, compared with 58% of children not in care.

Meanwhile, 34% of 19-year-olds who were in care aged 16 were not in employment, education or training at the end of 2013 – compared with 15.5% of 18-year-olds, the watchdog added.

Edward Timpson, the children and families minister, said the report was fundamentally flawed. He said: “This report ignores the very real progress that has been made in transforming the life chances of children in care.

“It is a fact that since 2010, children in care are doing better at school and absences from school have decreased. Foster children can also now stay at home until the age of 21, and this year a record number of children found places in stable, loving homes through adoption,” he said.

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| Forced Adoption in the UK: Child Protection or ‘Punishment Without a Crime’?

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Forced Adoption in the UK: Child Protection or ‘Punishment Without a Crime’? ~ , International Business Times.

When a couple brought their newborn son to a hospital with a fractured arm, Coventry social services were called in on suspicion that the child might have been injured by his parents.

The mother was arrested, handcuffed and detained for nine hours, fearing her child might be taken away. Although not charged with any offence, the couple remain on police bail, preventing them leaving the country.

The child was taken by his Irish grandmother to Ireland, where is he supported by a family. Social services are still attempting to get an order through the courts for the grandmother to return to England.

This is just one case study of “forced adoption” – a term used by critics of the practice of removing children permanently from their parents and their subsequent adoption.

Aside from Croatia, Britain is the only EU member state that practices forced adoption and for some, it is a secretive system that allows social workers to separate children from loving families without proper justification and with little concern for their interests.

But for others, adoption is only carried out when it is in the child’s best interests to do so – and criticism of the social care system is merely a consequence of the incomprehensibly difficult task of removing children from their parents.

There are 92,000 “looked after” children in the UK – meaning cared for by the state – according to NSPCC. More than half of these children in England and Wales became looked after because of abuse or neglect between 2012 and 2013 but critics say they have had their sons and daughters taken away for less.

Ian Josephs, who runs the Forced Adoption website, has helped hundreds of families in this situation.

Speaking to IBTimes UK, he explained lots of parents feel they are punished without having committed a crime.

“No baby or child should be removed from parents and put into care unless one of the parents has committed, or at least been charged with a crime against children,” he said.

But the argument for forcible adoptions is that if left too late, the child may be at risk or serious harm or even suffer death.

However, another problem lies in determining if and proving that, particularly in cases of emotional abuse, there is sufficient evidence to take the child away.

Critics state there are a number of procedural issues surrounding forced adoption. Some argue that due to increased funding for social services units – that effectively place a greater number of children with adopted families – there are financial incentives for local authorities to secure adoptions.

Moreover, some argue there is a demonisation of parent’s embroiled in care proceedings. More than 90% of families where children are forcibly adopted live below the poverty line – despite counterarguments that child abuse and neglect are not class issues.

Around 45% of the parents have mental health problems, which often go undiagnosed, unassessed or untreated, before proceedings take place.

Once a child is placed for adoption, neither the parents nor child have any recourse open to them to reverse the process – even when evidence comes to light that shows that the reasons for the adoption were flawed.

Currently, families subjected to forced adoption may also be prohibited by court order from publicly discussing their case and attempting to contact their children.

“Most parents who contact me say they have done nothing wrong and if they speak the truth, they shouldn’t be punished by the state by having their children confiscated – nor should they receive gagging orders to stop them complaining publicly and breaching their freedom of speech,” said Josephs.

Speaking at a conference for the charity Children Screaming to be Heard, Josephs stated that when children are taken into care, gagging orders isolate children from family and friends.

“Even if parents have done committed a crime, the children haven’t – we shouldn’t treat them like them have,” he added.

Introduced in April, the Children and Families Act 2014 seeks to reshape the adoption system – in particular, to get children placed with adoptive families more quickly.

But while adopting is necessary for children in danger, there are a number of solutions that don’t punish the families of children who are not.

Such solutions include pre-proceedings intensive support, Child and Adolescent Mental Health Services (CAMHS) and specialist family support services.

Rather than bonuses for placing children in care, they could be used to support families remaining together.

Related

child shadow

Critics say forced adoption without criminal activity is “punishment without a crime” Getty

 

| UK family law shambles: Too many children are forcibly removed from their mothers!

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Too many children are forcibly removed from their mothers ~ , theguardian.com.

Helping unstable mothers raise the babies they love is surely sometimes a better option than the devastation of removal.

The emergence of court records revealing that 7,143 mothers have had 22,790 children removed in the last seven years is profoundly disturbing. It is traumatic enough for both mother and baby when this happens once – but horrifying to discover that the pattern is so often repeating itself.

The BBC has discovered that it is not uncommon for two, three or four children to be removed from the same mother, and sometimes many more. Why is it happening and what can be done to break this miserable and destructive cycle?

Mother and baby

‘Forcible removal of their children leaves mothers profoundly bereft: the only way to climb out of that abyss is to get pregnant again.’ Photograph: Bruce Ayres/Getty

Judges in the family court, though less visible than social workers, can face the same “damned if they do, damned if they don’t” criticism in these cases. The consequences of removing or not removing can rarely be predicted with scientific certainty. What is certain though is that many cases involve drugs, alcohol and/or mental health problems. Often the mothers have been raised in the same unstable and sometimes abusive environments that their babies are being born into. While there are cases of mothers who were brought up in chaotic environments who go on to be excellent parents, for many, a lousy upbringing increases the odds of repeating a destructive cycle.

It is also certain that many of the mothers who have their children removed love their offspring dearly, even if they are unable to provide adequate care for them. Forcible removal of their children leaves them profoundly bereft: the only way to climb out of that abyss is to get pregnant again.

Having a child forcibly removed can intensify the downward spiral in search of the oblivion that drink and drugs can momentarily provide. But conversely, forced removal can also be the only trigger that is effective in helping a mother to clamber out of the black hole. In her memoir of her time in prostitution, addicted to class A drugs – which led to the removal of her beloved children – Rhea Coombs said that the only factor strong enough to push her away from drugs and sex work was the incentive of being reunited with her children. She did in fact leave sex work and get clean: and she did get her kids back.

For mothers who have the odds stacked against them it takes time to turn their lives around, but time is the one thing that is often in short supply. If a child’s life is at risk, professionals cannot afford to adopt a wait-and-see approach. But the speed with which children, often those who have just emerged from the womb, are removed from their mothers, means that they only have the slenderest of windows to break a destructive cycle and give their children a good and loving start.

The US’s controversial Project Prevention takes the view that there is no point in giving mothers who have drug and alcohol problems a chance, because it’s a foregone conclusion that they will be rubbish parents. In a brisk transaction, the project pays drug and alcohol-using women to get sterilised or use long-term contraception so that they avoid bringing children into the world at all. To date they have paid more than 4,000 women in 50 US states to stop procreating. Critics accuse founder Barbara Harris of social engineering and eugenics.

In the UK, two initiatives give mothers rather more credit than Project Prevention for their ability to turn their lives around. The Strengthening Families Project, funded by Salford council, is run by a community midwife and a specialist social worker. They warn the women of the risks to themselves and their babies of abusing drugs and alcohol but, very importantly, also provide positive support and instruction, something that may be alien to them. The family drug and alcohol court has been running since 2008 and has had encouraging results – it has helped 35% of mothers to reunite with their children, compared with 19% in the ordinary family courts.

While programmes offering guidance and support won’t prevent all child removals, having many more of them on offer to troubled mothers could go a long way towards helping them successfully raise the babies they love. And for many of these women, who have not been dealt the best cards in life, it may be the first time they have had anyone encouraging them, believing in them and nurturing their confidence – giving them the support they need to become successful, loving mothers.

 

| Family court case spanning 13 years is ‘longest case’ in history, judge says!

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Family court case spanning 13 years is ‘longest case’ in history, judge says ~ , The Telegraph.

A family court case which has taken almost 13 years is believed by a judge to be the longest running in history.

The longest case in the history of the family division of the High Court has concluded in a teenager refusing to see her father after 13 years of court hearings, costing taxpayers £1 million.

The 14-year-old girl at the centre of the case, who cannot be named, has refused direct contact with her father and has been exposed to a discord between her parents likened to “toxic radiation” during the duration of the hearings, according to judges.

Eight judges, numerous social workers and psychiatrists have been involved in more than 80 court appearances that have “irredeemably marred” the teenager’s childhood, judges have said.

Last September appeal judges ordered another hearing into the protracted case and said the teenager had been “failed” by the family justice system.

In the latest hearing Mr Justice Moylan, a senior Family Division judge, refused to order the girl to have direct contact with her father after she said she did not want it. The case started when she was 18 months old, and she is now 14-and-a-half.

He had been asked to re-examine the case by the Court of Apeeal.

He said it was the “longest dispute of its kind” he had encountered during his years as a judge and barrister.

However he added that in spite of all the bitterness between her parents she had developed into a “very bright girl.”

He said the girl lived with her legally aided 50-year-old mother who had mental health problems and a paranoid personality disorder.

The mother and 63-year-old father, who represented himself, never married but began a relationship in 1991. They separated when the mother had a breakdown in 1996 , but resumed their relationship in 1997 and their only daughter was born in 1999.

They separated again in 2001 when their daughter was just 18 months old , and the “long standing and deep seated problems and conflict began,” said the judge.

The teenager has lived with her mother for most of her life but during her health problems lived with her father for eight months in 2007, and maternal grandparents.

Contact with her father has broken down and he blames the mother, seeking an order for direct contact to be resumed.

The judge said the girl had now made up her own mind that she did not want to have contact with her father and it would not be in her best interests to try and enforce it as she would simply not go.

But he said he had “great sympathy” with the father and ruled there should be indirect contact.

It has been claimed the mother has influenced her decision because she does not want her to have contact.

But her court appointed guardian has said she has made up her own mind.

After the latest hearing the girl’s father said he was sad but not surprised.

“It’s what I expected,” he said. “It’s not what I wanted. I will have to suck it and see.”

He said he wanted to see his daughter and build a relationship.

And he said indirect contact – which means that he can write letters and e-mail – was not enough.

He added: “This is what happens when the system fails you.”

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ALSO SEE:

Father’s negligence claim against Cafcass dismissed

In F-D v Cafcass [2014] EWHC 1619 (QBD) a father has failed in his claim for damages against Cafcass.

Full story: Family Law Week

 

| Top UK family judge adjourns father’s contact case amid legal aid impasse!

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Top family judge adjourns father’s contact case amid legal aid impasse ~ , legal affairs correspondent, The Guardian.

Sir James Munby calls for justice secretary’s intervention amid concerns that man’s lack of legal aid could disadvantage child.

The most senior family judge in England and Wales has asked the justice secretary, Chris Grayling, to explain how a case involving a father’s contact with his son can proceed without legal aid.

In a judgment that in effect challenges the Ministry of Justice’s policy of removing public funding for most matrimonial and separation hearings, Sir James Munby has had to adjourn a case because he has reached a legal dead end.

The decision, made last month but only published on Monday, comes shortly after a serious fraud case collapsed owing to cuts in legal aid; the court of appeal subsequently reinstated the trial.

Restrictions imposed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 have resulted in the family courts being inundated by unrepresented claimants because legal aid is no longer available for their claims.

In a family case identified only as Q v Q, the lack of legal aid for a convicted sex offender who wants to maintain contact with his son has emerged as a crucial factor preventing the court delivering a fair hearing. The unrepresented man speaks little English and requires an interpreter.

The MoJ disputed whether the removal of legal aid for the father had anything to do recent cuts. It may have been due an earlier policy on merit tests which may have been affected by the father’s conviction. The decision to remove legal aid is understood to have been upheld by an independent adjudicator.

After considering submissions, the president of the family division indicated that for justice to be delivered the father may need to be represented and possibly call expert witnesses. Munby said precedents from the European court of human rights showed “that there could be circumstances in which, without the assistance of a legally qualified representative, a litigant might be denied [their right to a fair hearing].

“The question then is what is to be done because, on one view, we have … reached an impasse, which is unthinkable. This case raises, in quite an acute form, a problem which is increasingly troubling judges sitting in the family court at all levels.” Either the mother, who is publicly funded, or the court itself might have to pay, he suggested, “in order to ensure a just and fair hearing”.

He continued: “It seems to me that these are matters which are required to be investigated in justice not merely to the father, but I emphasise equally importantly to the son, as well as in the wider public interest of other litigants in a similar situation to that of the father here … there is the risk that, if one has a process which is not fair to one of the parents, that unfairness may in the final analysis rebound to the disadvantage of the child.”

Munby concluded: “I propose to adjourn this matter for … a short time, inviting the Ministry of Justice – or it may be the secretary of state for justice or it might be the minister for the courts and legal aid – to intervene in the proceedings.”

Their submissions, he suggested, should address who should pay if funding for legal representation for the father is necessary.

The ministry has defended successive cuts, arguing that the legal aid system in England and Wales costs £2bn a year and is one of the most expensive in the world.

An MoJ spokesperson said: “We have only just received this judgment. However, it is clearly a complex case that requires careful thought. In his judgment, Sir James Munby references expert evidence that the child would not be safe in the father’s presence and that, given these circumstances, the father’s legal aid was terminated.”

This article was amended on 9 June 2014. The word “custody” was changed to “contact” in the headline and first paragraph to better reflect the circumstances of this case

A father and son

The judge said there was a risk that, if the process of deciding on a man’s contact with his son was not fair to one parent, that unfairness might ultimately disadvantage the child. Image posed by models. Photograph: Amana images/Alam
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*ALSO SEE:

LEGAL AID, JUSTICE AND THE COMPLEXITIES OF FAMILY LAW PROCESS

The judges do not go on the consider the two cases – Q v Q and A Father v SBC – in the light of Legal Aid Sentencing and Punishment of Offenders Act 2012 s 10 (exceptional case determinations under s 10(3): for a background to this legal aid jurisdiction, see http://wp.me/p4jaDx-5y). That must be the next step, since on their view of each case the President and Baker J both found a European Convention 1950 aspect: Art 8 and Art 6(1) (in the context of a fair trial in the difficult circumstances posed by both cases); Art 10 and Art 2 in the P case. And, it must be recalled, Art 14 (discrimination) might apply in both Q v Q and A Father v SBC.

| Lament to deteriorating UK Family Law: Collaborating with the enemy!

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Collaborating with the enemy ~ Philippa Dolan, Family Law.

I know that we family lawyers care deeply about our clients. So why didn’t we fight hard to protect them?

Our criminal colleagues seem to be made of sterner stuff with strikes and boycotts culminating in the recent Court of Appeal decision in the Operation Cotton case where the Prime Minister’s brother failed to persuade the Court to uphold the decision of His Honour Judge Leonard.

In the red corner was Alex Cameron QC standing up for the right of defendants to be represented by barristers of a similar calibre to those acting for the prosecution. In the blue corner was the FCA and Minister for (lack of access to) Justice standing up for….a duly elected Government’s right to slash its own budget.

This case hit the mainstream media largely because the Prime Minister’s brother was on the other side. Let’s face it, no one could accuse the British press of adopting an overly analytical or nuanced approach to the rights of the accused in criminal cases, or the remuneration of fat cat legal aid lawyers. But there’s nothing the media likes more than a family at war; the Kane and Abel Milibands or Cherie Booth QC championing the human rights denied her clients by her husband.

In this case HH Judge Leonard had decided that the PDS, Public Defender Service, was unlikely to have barristers available who could guarantee a fair trial to the five defendants in this VHCC (Very High Costs Case) fraud trial within a reasonable time. So instead of granting an adjournment as requested by the FCA, he ordered a stay. In other words, some oblique judicial support for the barristers who’ve stood up to the recent Draconian cuts in criminal legal aid, and a belief that they were not likely to cave in any time soon. And perhaps an endorsement of the view that barristers will feel constrained from joining the PDS because of the opprobrium they could face as scabs.

I have no idea about Alex Cameron’s politics, nor HH Judge Leonard’s. I’m sure there are criminal solicitors and barristers who are acting from self interest and only worried about the bottom line. Can they afford to continue funding a small high street practice if their income suffers a further diminution? Will young barristers on low incomes be able to afford their train fares to court when they’re already on state benefits? And they are understandable concerns. But, underlying it, I’d like to think, is a preoccupation with our justice system and what’s happening to it.

So how have we family lawyers performed in our role of safeguarding access to justice in the Family Court?

The attack has, of course, been two pronged: the removal of legal aid, and crippling cuts to the court budget. The first made victims of families who had previously been eligible for legal aid and can afford neither legal advice nor representation at court. The second has brought the already creaking court system close to collapse. So what should those who can’t afford a lawyer do now? Mediate, of course.

The Government has been trumpeting the advantages of mediation for years. As a mediator, I know that it can be a great way for couples to resolve their own issues without submitting themselves to the cost, indifference (sometimes) and inefficiency (often) of the family court system. But one of the reasons why mediation works is because we can point to the fate that awaits our clients if they can’t find a compromise and act sensibly. We talk about negotiating in the shadow of the court, not mediating in a vacuum so that the strong can bully the weak into submission.

And for those who can afford a lawyer but can’t face the chaotic court? Family arbitration. It’s a new development and there have been few arbitrations so far, but it received the President’s support in S v S (Financial Remedies: Arbitral Award) [2014] EWHC 7 (Fam), [2014] 1 FLR 1257, reported at April [2014] Fam Law 448 earlier this year. This nailed the concern that the court might challenge arbitrators’ awards because, unlike civil arbitrations, of course, there still has to be a consent order to bind a financial agreement in divorce.

Arbitrations and, to a more limited extent, private FDRs, are regarded as an innovative way of keeping control of the process (as opposed to the outcome) in the hands of the clients. I suspect there’s also a more negative story behind the gathering popularity of privately administered justice. A venue that doesn’t require you and your clients to discuss directions with three warring couples and two children under five in a tiny room? A competent tribunal where the arbitrator has had time to read the papers and they haven’t been lost somewhere between Gee St and High Holborn? A timeframe that doesn’t require clients to put their lives on hold for 2 years? What’s not to like?

But in some ways, it’s the equivalent of NHS surgeons talking with enthusiasm about charging patients for the use of an operating theatre set up temporarily in one of their houses. It’s all about disaster response, not righting the wrong.

Of course lawyers have to be pragmatists and we have to uphold access to justice as best we can in all circumstances. But have we family lawyers allowed ourselves unwittingly to help dismantle the entire system? Why did the Law Society, Resolution and the Family Bar not do more to resist the removal of legal aid? Why no marches or threats to withdraw representation in public law cases?

With a few honourable exceptions, we’re all culpable, particularly those of us who don’t have a legal aid practice and couldn’t have been accused of self interest if we’d stuck up for our legal aid colleagues. I should have cared enough to create a stink before it was too late.

The Criminal Law Solicitors Association, even the Prime Minister’s brother, have made far more of an effort to protect proper representation for defendants in criminal trials than we did to save legal aid. You could argue that family cases don’t involve loss of liberty at the hands of the State and, perhaps, a criminal conviction is more important than getting a smaller percentage of the second home or spending less time with the children over the Easter break.

But lots of family cases are of fundamental importance to the families involved. What about not being able to see your children at all? Or not being able to afford anywhere to live because the family home is in the name of your husband? Or being frightened of threats or violence if you try to stand up for yourself? And it’s not the quality of State funded representation we’re talking about. It’s no representation.

These are the victims of our inertia and pragmatism. Lawyers in other jurisdictions risk their lives to right injustice. Here the talk is of mediation, unbundled services, collaborative law and a little light pro bono work. Maybe all the talk about collaborative law has turned us into collaborators. New silk stockings anyone? Or maybe we should just shave our heads and be done with it.

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| Law, morality and religion in the family courts!

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Law, morality and religion in the family courts ~ Sir James Munby, President of the Family Division at the Law Society’s Family Law Annual Conference ‘The sacred and the secular: religion, culture and the family courts,’ JUDICIARY OF ENGLAND & WALES.

“Only a little over a century ago, in 1905, a judge in a family case could confidently opine that the function of the judges was “to promote virtue and morality and to discourage vice and immorality.” [1] So the purpose of the law was the enforcement of morals. And that morality was, of course, Christian. In 1910, the Divisional Court had to consider[2] whether a landlord was entitled to recover the unpaid rent on a flat let to a woman who was the mistress of the man who actually paid the rent. The decision was that the rent was not recoverable. There was evidence that the woman was in fact a prostitute and using the flat for purposes of prostitution, but that was not the basis of the decision. Darling J described her as “an immoral woman, being the kept mistress of a certain man” and the rent paid by him as “the price of her immorality”. He continued:

“I do not think that it makes any difference whether the defendant is a common prostitute or whether she is merely the mistress of one man, if the house is let to her for the purpose of committing the sin of fornication there. That fornication is sinful and immoral is clear. The Litany speaks of “fornication and all other deadly sin,” and the Litany is contained in the Book of Common Prayer which is in use in the Church of England under the authority of an Act of Parliament.”

 

 

[1] Constantinidi v Constantinidi and Lance [1905] P 253, 278, per Stirling LJ.

[2] Upfill v Wright [1911] 1 KB 506.

Further information…

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Human-Rights1A

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