I recently attended, as a legal blogger, a care hearing conducted in Wales by HHJ Gareth Jones. I’m not going to go into factual details of the case but will make some observations about process in virtual hearings from the point of view of a legal blogger, and about the way decisions are made about the necessity for a care order.
Attending a virtual hearing as a legal blogger
I emailed the court in question to ask if they would send me the joining details for a specific hearing, and attached all the necessary paperwork. I was then copied in to an email from the court to all the lawyers, the social worker and the guardian, so I thought I should explain who I was and I referred them to the TP legal bloggers information page. At the beginning of the hearing, the judge was able to ascertain from the local authority’s barrister that the parties had all been informed and asked if they had any objections to my attending.
No one objected, so that all went smoothly. The problem is that it’s only at the end of the hearing that the legal blogger can stand up (virtually) and apply to the judge to lift the automatic section12 reporting restrictions on publication, because it was only at that stage that I knew what I wanted to write.
There were quite lengthy delays at the outset of the hearing because one party and then one lawyer had technical problems, so I was loath to keep the participants in the virtual courtroom after the judgment had been delivered. However all the parties, of course, had to be consulted as to any objections or worries they might have about publishing. I explained briefly that I wanted to write about some legal issues, not about any factual detail and certainly not anything that might possibly lead to the child being identified.
I don’t know what the answer is to this – even if all parents’ lawyers regularly advise them that because a legal blogger is present, they might expect such an application, no one will know until the end of the hearing exactly what might be written about. I understand that this can usually be dealt with fairly quickly in a physical court room hearing, but it took quite a while in this case.
The decision made in this case about the necessity of a care order
Knowing nothing at all about the case before the hearing, I was at the early stages quite puzzled about the local authority seeking a care order in a situation where the threshold criteria had been established but, subsequently, the child’s mother (the primary carer) had been co-operating with the local authority. Everyone was full of praise about the mother’s progress in developing competent parenting skills. The child, who was still pre-school age, had always lived with her, although at certain times in a supervised setting. The local authority care plan, supported by a contract of expectations with the mother, with which everyone by this stage agreed, was that the child would continue to live with her under a ‘final’ care order, for the foreseeable future. The child had regular, reliable contact with the father.
In the light of the recent research about supervision orders, and also in the context of the current debates about whether too many care orders are being made, I was at a bit of a loss as to why the services this family needed could not be provided under a supervision order or a care and support plan (the Welsh version of a section 17 child in need plan in England). Just a few days earlier, Emily Dugan had published ‘The Welsh towns where 1 in 44 children are cared for by the state’ in The Sunday Times, generating more comment about the higher numbers of ‘placement with parents’ care orders in Wales than in England.
The submissions by the lawyers and the questions from the judge eventually clarified that this child has very serious congenital medical needs that require constant attention, monitoring and medication from adult carers. It was a concern about a historical failure to comply with all those demands that had led to the child protection referral. The local authority and the guardian took the view that the several sources of support and advice that the family need, from a range of statutory services, can only be ensured under a care order. They also thought it was still ‘early days’ in testing the mother’s ability and commitment and that, should there be a medical emergency, the authority would need to intervene rapidly. They emphasised that the obligations under the detailed contract of expectations worked both ways; the mother’s barrister confirmed that she was aware that the local authority was also signed up to responsibilities in that agreement.
The judge summarised these views in his judgment as the practical social work reasons for a care order being necessary. He then went on to explain the legal reasons for a care order being necessary and for the local authority to share parental responsibility. The reason for the proceedings was provision of adequate medical treatment. Under section 33 Children Act 1989, if there was a future need for emergency medical treatment, the care order puts the local authority in a position of shared parental responsibility through which they could apply under the inherent jurisdiction to the High Court to authorise that treatment. Coincidentally, section 33 powers have recently been explained at length in the Herefordshire case – where sadly, the local authority failed to make a court application when it should. Secondly, the judge said, under a care order, if there was an emergency that required the local authority to remove the child from the mother’s care, they could do so, and if there was a serious concern that fell short of an emergency, they could give the parents 14 days’ notice that the child would be removed.
Interestingly, the judge made some observations in his judgment on current debates about the need to reduce the numbers of care orders being made, through the use of the public law outline, the work of the President’s Public Law Working Group, and calls by Welsh Government. He said that he was aware of all that, but that this was an unusual case where, although the local authority’s plan for reunification with the mother was going well, the child’s particular needs meant that a care order was required.
When I asked the judge if he would lift the section 12 reporting restrictions so that I could write about the case, I was reassured when he replied that he thought there were matters of public interest in the discretion exercised by the courts in deciding between care orders and supervision orders. I agree, and I wish it was possible to do some research on such decisions being made across the country.
There was certainly no hostility or annoyance shown by anyone involved in this hearing to legal blogging. Although my presence didn’t seem to cause any disruption, as I mentioned above, my request at the end created delays while the parties were consulted. The last thing legal bloggers, and also journalists attending, want to do is add to the stresses and delays in hearings but on the other hand, we don’t want to listen and learn, but not be able to share that.
Being able to attend this entire hearing also made me reflect on questions that have been raised in the transparency debate about attendance at court. Are there risks that busy media representatives will drop in and out of a court, and get a partial picture? For the most part of this half-day hearing, the child’s needs were referred to in rather a generic way. It was not until the judgment that I actually understood how serious his condition is (although the judge took care to add some encouraging words about his good prognosis) and why the care order was proportionate.
This was my first encounter with the legendary CVP system, but it worked well my end. The hearing had originally been listed as a hybrid hearing with the judge sitting in court, as it had been understood that one party wanted to attend in person but in fact all parties attended virtually. Some participants could only join by phone but the judge paused regularly to check everyone was able to hear. I didn’t feel that anyone in this case was at a disadvantage through it being online. The court personnel and all the practitioners exhibited patience and flexibility.
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