An article in The Guardian on 26 October refers to a “Ukip policy paper on opening up the family courts” :
Family courts must open up to avoid ‘outrageous injustices’, warns Ukip. The article itself is selective and uses quite emotive language, and we think it is more helpful to focus on the policy paper itself.
The Transparency Project is not here to engage in politics, but we are interested in policies which relate to transparency from any political party or other organisation. Although the previous Labour administration set in train the Family Justice Review, whilst the subsequent coalition Government implemented its recommendations – and whilst the national press have recently published various remarks from David Cameron and ministers relating to adoption policy, we are unaware of any family court specific policy from any any other political party in England & Wales.
The paper itself can be found here : http://douglascarswell.com/downloads/family-courts-paper.pdf. It is undated but appears to be recent, as it references material in the footnotes that was only published a month or so ago.
Whilst there are a number of themes highlighted that we have seen raised before by individuals and groups concerned about the Family Court, there are some factual and legal inaccuracies in the policy document which we think are worth highlighting:
Part I : Summary
Firstly : custody. Custody has not been a current legal term since 1991. UKIP are not alone in continuing to use this term, but it is probably an indicator that the document has not had lawyer oversight / input.
In the introductory paragraphs is the assertion that :
“…in some cases, children are removed from their birth parents unnecessarily, resulting in emotional distress for both children and families, and on occasion instances of abuse in foster care.”
In every system there will be some failures, so we would not suggest that the first part of the assertion is inaccurate – but we are not sure whether there is any evidence supporting a causal link between abuse in foster care and failures in the system which authorises the removal of children. That is to say, there are sadly instances of abuse in foster care, but we are not sure why such abuse would be any more likely to befall a child wrongly removed as opposed to a child correctly removed from harmful parental care.
The introductory paragraphs also include the assertion that :
“These failures in the care and adoption system are made possible, in part, by a lack of transparency in family courts, which protects the testimony of professional (local authority) witnesses from public scrutiny, and denies families full knowledge of the evidence used against them.”
The testimony of professional (local authority) witnesses is always potentially open to public scrutiny, and should be given in the knowledge that it might be published, but it is right to say that it is not always publicly available / scrutinised. We are not sure why it is asserted that the lack of transparency denies families full knowledge of the evidence used against them. Parents are parties to the proceedings and are represented as of right, and any evidence relied upon by the local authority will be available to the parents and their legal representatives. The court does not see material that the parents do not. Where extended family members are directly involved they too will be entitled to see the documents and hear the evidence.
Finally, the introductory remarks assert that :
“There is also a danger that government pressure to increase adoption numbers causes local authority social workers to prioritise adoption rather than the best interests of the child.”
We have written about this issue elsewhere.
Part II Current Processes
“The basis for the issue of a care order is that the child is suffering, or is very likely to suffer, significant harm.”
This is almost, but not quite, the correct legal test for a care order. The VERY is not part of the legal test. This may stem from the fact that the document appears from the footnotes to be based upon internet research. The footnoted reference for this passage is an out of date url for the Citizens’ Advice network, although the current url seems to give the correct legal test.
Next, the document suggests that an Emergency Protection Order runs “in tandem with a care order”. It doesn’t. Then, it is suggested that breaches of terms [of a supervision order] “can cause this to convert to a care order, thus removing the child from the parents’ custody in many cases”. Although not stated, this cannot happen unless a local authority returns to court having issued a fresh application, and satisfies the court that a care order is necessary. The UKIP document makes it sound as if this is somehow automatic but in fact there is a clear legal process and safeguards for parents in place if a local authority wishes to convert a supervision order to a care order. As with any care order, it is not necessarily the case that a care order means removal (although in practice it usually does).
It is said that UKIP sent FOI requests to each local authority in England & Wales, asking about “the number of care orders, emergency protection orders and supervision orders asked for in each local authority, how many of these subsequently became adoption orders, the criteria used, and the processes in place for families affected by them.” It is difficult to comment on this without knowing what question specifically was asked, and when (we have asked to see the FOI but no response yet).
It is said that “East Riding of Yorkshire Council…had 82% of their care order requests approved between 2011 and March 2015”. We would expect to see a high “hit” rate in both of the following scenarios :
- local authority makes applications when evidence is strong and application is justified
- local authority applications are rubber stamped without adequate court scrutiny
We are not sure that the statistics on what proportion of orders sought are granted tell us about which of those scenarios is dominant / typical (if at all).
This section uses the terms “professional” and “expert” witnesses interchangeably, when they have specific and distinct meanings in the context of the Family Court. Without seeing the wording of the FOI request it is difficult to see whether or not the phrasing of the question or interpretation of any answers may have lead to inaccuracy or confusion.
Part III : Flaws in the current process
“The issue of an adoption order should require the highest level of evidence. However, the precise nature of the evidence on which such orders can be made is often unclear. A Court of Appeal judgment from 2013 expressed “real concerns…about the recurrent inadequacy of the analysis and reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments. This is nothing new. But it is time to call a halt.””
This is a quotation from Re B-S, in which the Court of Appeal did raise concern about the situation as at 2013. It is not clear what is asserted about the impact of B-S on the current situation.
The document correctly raises that there is a right to request the exclusion of the media, although it fails to set out the limited grounds for objection. It also correctly identifies that there are even more stringent restrictions on media attendance in adoption cases.
“Those who testify on behalf of local authorities, particularly social workers and medical professionals, can also generally expect to retain anonymity through the court process. This can hinder their being held to account. Even where identification is allowed in the limited number of judgments published, the generality of professional and expert evidence, as well as the written reports they cite, will remain hidden from public view.”
This correctly identifies that anonymity is de facto granted to professionals where the court does not publish a judgment. However, the Transparency Guidance issued by the President of the Family Division makes clear that judgments in a range of cases should be published, and that where they are published they should generally identify professionals and experts. The policy document makes no explicit reference here to the existence of this guidance or its implementation, or of the President of the Family Division’s outstanding consultation on Transparency, which we think is surprising, given the subject matter of the document.
The document goes on to cite the case of Fran Lyon, saying “The case of Fran Lyon highlighted that it is possible for an adoption order to be granted without the testifying medical professionals having met the family and child concerned”. We are unclear (based on information we have been able to find on the internet) of how the case of Fran Lyon highlights the possibility of adoption orders being granted without medics meeting the family, since this appears to be a case where the child was NOT adopted. We think that in this case there was a plan to remove a baby at birth, but the mother fled the jurisdiction. If this mother had stayed in the jurisdiction the local authority might well have sought to remove her baby – we cannot say whether or not that would have been successful or if her baby would have been adopted. In the experience of those of us at the Transparency Project who practise in this field, it is very rare for an expert such as a psychologist or psychiatrist assessing a parent or child to make a recommendation about them without first meeting the individual in question, and if an expert were to make such a recommendation we would generally expect a legal representative to challenge the validity of a purely paper-based assessment. In cases involving the identification of physical injuries and their causes, it may not add anything for a medical professional of a particular discipline to meet the child or parents, as clinical observation may not be part of the diagnostic process for that discipline or injury type (for example where the injury is resolved and there is no longer anything to observe, or where the diagnosis of some underlying condition can be made through analysis of blood or genetic test results or through brain scans).
There are references to sharp rises in forced adoptions. In fact, since 2013 (when the case of Re B-S was published), there has been a sharp fall in the number of placement orders made (placement orders are the point when a court approves a plan that a child should be adopted).
“A further problem in the system relates to solicitors’ potential conflicts of interest in the family court system. Solicitors may represent a family contesting a care order, as well as in other cases previously or subsequently representing the local authority opposing them in another case. The Law Society says that this is a permissible practice.”
Solicitors are unlikely in most cases to have previously represented the local authority where they now represent parents. This might occur where they have changed jobs, or (rarely) where a local authority contracts its litigation services to a firm of solicitors, usually due to lack of capacity. It IS more often the case that barristers, who are independent advocates instructed by solicitors in individual cases, will have acted on behalf of local authorities, children and parents. No lawyer, whether solicitor or barrister, can act in the same case for more than one party, but it is possible a parent could instruct a solicitor or could be represented by a barrister who has previously (and recently) represented the local authority. It is correct that this is not seen by the legal profession as a conflict of interest, and indeed some barristers would argue that it enables them to be more effective advocates for the client in question, because they are experienced in seeing a case from all perspectives. A political party may legitimately wish to change this system, but it would require some quite major changes to how the legal system is set up. We think that transparency is as much about helping the public to understand how and why the legal professions are structured and regulated as they are, and how the system operates, as it is about the mere publication of judgments.
On the finality of adoption orders, it is said that “…in October 2015, a couple who had their child taken into care and subsequently adopted were found not guilty of causing injuries to their child. This situation would not have arisen if the family courts had permitted evidence that would have cleared them, their barristers insisted.”
This relates to the recently reported case of a couple who were acquitted of injuring their child after his / her adoption. We are not clear how it is said that the increased transparency of the Family Court would have prevented this situation from arising. The restrictions on expert evidence in the Family Court were approved by Parliament in the Children & Families Act 2014 – although it is not clear whether these restrictions on the use of expert evidence were imposed before or after the case in question went through the Family Court.
It is said that “the family court system also makes relatively little use of Special Guardianship Orders (SGOs)”. This does not sit well with recent published statistics showing an increase in the use of SGOs since Re B-S, and concerns raised by CAFCASS / ADCS about the increased and sometimes inappropriate use of SGOs.
Part IV : Previous attempts to reform the system
Of Munby P’s Transparency Guidance : “However, this is not wholly reassuring, since publication will not be “mandatory” but at the discretion of individual judges”.
Of course, the discretion is necessary for three main reasons : 1. because ultimately it is for Parliament to legislate on this issue if there is to be wholesale reform, 2. because in each case the ECHR requires a careful analysis of both article 8 and article 10 rights and how they can be balanced and 3. because the circumstances of each case will require a tailored response, to ensure that children are properly protected.
Finally, the paper states that “We welcome the President of the Family Division’s latest consultation paper on transparency in the family courts. However, we believe that in some areas we should go further still, and we are concerned that it is over a year since it has been published with no follow-up to date. Therefore we propose….”
This document therefore appears to say that “we can’t wait any longer for the President. This is our plan”.
The proposals are :
- Promote more extensive use of Special Guardianship Orders, particularly where a child is made a ward of an extended family member, such as a grandparent.
- Open placement and adoption order proceedings to the media on the same basis as other family law proceedings.
- Introduce a presumption to allow reporting of Family Court proceedings on an anonymised basis (e.g. Child A, the mother of Child A).
- Mandate publication of all judgments (those from district judges on application and subject to a fee), except where the presiding judge seeks and obtains a contrary order from the President of the Family Division.
- Mandate that all local authority witnesses, including social workers as well as expert witnesses, be identified by name and position(s) held.
- Require expert witnesses to list previous court cases in which they have given evidence, on application and subject to administrative costs.
- Publish, on an anonymised basis, all statements of case, skeleton arguments, case summaries and other documents prepared and exchanged by the advocates in a case.
- Allow media access to expert reports on an anonymised basis, with reporting restrictions imposed only in exceptional circumstances.
- Allow unrestricted access to expert reports to academics for peer review on the condition that any research papers written as to the quality of reports are anonymised.
We think that some of these proposals are likely to have significant cost / resource implications, and may give rise to some quite significant practical / operational issues if any anonymity safeguards were to be reliably robust. Some of them are analogous to proposals made by the President in his own consultation, although they go perhaps further.
Going back to the Guardian article, we think there is something of a mismatch between the tone and content of the policy document itself and some of the quotes attribtuted to UKIP MP Douglas Carswell, for example
“We feel very strongly that the secrecy in the family courts is leading to some outrageous injustices. It’s the big cartel courts and the legal profession and the social workers riding roughshod against ordinary people. We think common sense is needed to address this. That means more openness in the family courts.”
We are not really sure from reading the policy document how it is said that secrecy is said to be “leading to” injustice, or what is meant by “big cartel courts”*, or riding roughshod. We think these assertions and causal connections need some clarification, because although they sound very frightening we are not sure what the actual criticism is.
Similarly, when Mr Carswell says,
“But at least the evidence should be tested in an open court. At least there should be some opportunity for people to know what it is they are being accused of … and at least the people who are preparing the evidence ought to have met the people they are giving evidence about.”
We are unclear what is meant by the witnesses having met the people they are giving evidence about. In our experience social workers and the professionals have usually met with the people they are giving evidence about. The exceptions to this might be where, occasionally, a guardian has not met a child or those sorts of cases mentioned above where a medical professional has not met a child or parent because it is not part of their diagnostic process. We think the cases where a professional would be giving evidence about someone who they have not met are quite rare, and it would be helpful to understand more about what this criticism is really aimed at.
Given the prominence given to the UKIP statements, we hope this analysis helps in furthering the debate in a constructive manner.
Mr Carswell asked a question in the House this week (see Parliament TV here) in which he again referred to the need to “break open the cartels surrounding the family court system”*. The Leader of the House, Mr Grayling, in response said that he agreed that subject to the need to be careful not to open up deeply distressing stories and family heartache to the tabloid media, there was “absolutely no real reason for the degree of closed environment that exists around the family courts”. Mr Carswell was encouraged to renew his question when the Secretary of State for Justice, who was said to hold this very important issue as a matter of concern, was in the House.
*The Dictionary definition of Cartel is “(1) an association of manufacturers or suppliers with the purpose of maintaining prices at a high level and restricting competition: the Colombian drug cartels. (2) chiefly historical a coalition or cooperative arrangement between political parties intended to promote a mutual interest.”