A note for the President’s meeting on Monday 22 April – this is about much more than changes in procedure.
We can all agree on many facts: Yes – many cases can be completed in 26 weeks –with the right resources as mentioned by the President. Yes – many cases currently take too long – although research shows this is mainly because of Local Authority inefficiency or lack of court time – both due to huge government budget cuts. Yes – there have sometimes been unnecessary assessments and experts, historically overpaid.
Most thoughtful and conscientious family justice professionals really are prepared to work hard to shorten cases where it is genuinely consistent with justice for children and families. But, firstly, many of usstill have some serious concerns that the plans will not deliver that and we are mainly not enthusiastic.
Secondly and more importantly some of us wish to flag up not just anger at past developments but much deeper concern and anger at the future directions and threats which are just becoming visible.
We need to discuss details but it is naive to focus only on details. We need to hear the basic message because these procedural reforms can only be understood as a part of a much bigger and more ominous process. And we are being asked to play a part in that bigger process – without protest and with enthusiasm. Our argument is not with the judges but with the government.
We need to notice and discuss this bigger process. This is the perfect storm in the coming together of a large number of other attacks: The astonishing and brutal decimation of legal aid in all areas, depriving large numbers of people from access to justice. The destructive cuts over many years to courts, judge hours and Local Authority budgets. The promised future cuts – with no real economic rationale. (See the IMF’s comments)
Perhaps most relevant for us – and the subject of astonishingly little public debate – The Children and Families Bill which contains highly ominous and totally unacceptable provisions including that if the Local Authority even thinks about adoption, even for a s20 child, then it triggers a Local Authority duty to place with ‘fostering to adopt’ – anywhere in the country. This means that a mother who signss20 shortly after birth (when her consent to adoption would be invalid) could have her child placed with a family who wish to adopt – anywhere in the country. This can obviously destroy any possibility of rehabilitation.
All this taken together discloses the fundamental attitude and plan of the government – not merely contempt and horror for what they see as the underclass but overt social engineering. These ugly words are now unavoidable. And if that is true should we not ask if the legal reforms we are involved with are in fact playing a part in that social engineering? Would that not alter our view of them?
To mention anything political sends a shiver through many people in the legal world. We try and keep law and politicsseparate. Using political arguments is usually a mistake. It is to trespass on a taboo. Judges have said they are prohibited from making political remarks.
This is very convenient for the government as well informed and influential voices are then silenced. But we need those voices. Judges and lawyers cannot and should not ignore politics. Nor do we have to:
1. Judges have spoken out recently : The previous President, Lady Butler-Sloss, on adoption and Lord Neuberger on legal aid. DJ Nick Crichton CBE on several subjects from the grass roots.
2. This whole process is embedded in the political. It is a part of cuts and the government’s war on the poor – and on ordinary people. Privatisation: Capita, and other big businesses taking over the role of the state. Funders of political parties buying the right to privatise.
How can we ignore this and pretend this whole process is not part of an extremely right wing agenda with the typical hallmarks of social intolerance and authoritarianism?
3. It is political with a capital P: it is a constitutional attack in a way that lawyersshould see and protest about. If not us – who? The Executive is grabbing power and manifesting its contempt for lawyers, including for judges. Indeed for the rule of law itself. Again – hallmarks of an authoritarian state.
In this context and with this awareness – let us come back to our area of law and look at the attack on Family Justice and the underlying political motives for that.
Firstly this reform seems to be driven by clear government threats articulated to the judiciary and now conveyed by them to us. Surely we are entitled to more information about that?
Secondly they are also founded upon certain obsessive, simplistic prejudices or gut instincts of this government and its employees in particular influential members like Gove, Timpson and Douglas, with personal histories and agendas and supported by the media, which have gone unchallenged:
Essentially Adoption is the Answer. Logic: 1. There is an ample supply of nice middle-class families waiting to adopt children. 2. Care cases involve the demonised, dysfunctional, squalid underclass, ‘the skivers who shouldn’t have had children anyway’. So you could happily put those two things together in a piece of neat social engineering except… 3. The lawyers and judges are spoiling this process, holding things up, making cases last too long and with unnecessary experts (and riding a gravy train.) So cut that obstruction down.
These are dangerous myths which we can and must challenge.
1. As has been pointed out before and been simply ignored, traditionally adoption has depended upon a good supply of childless couples. Even with current IVF that supply is drying up. Advances in assisted conception will probably, within a few years, abolish infertility. The traditional supply of adopters will vanish and the entire structure of the social engineering that is the hidden agenda of these reforms could be discredited. Children would in fact be in long term fostering at huge personal cost to themselves – and to their children in turn – and financially to the Local Authorities.
Possibly as a response the children’s minister, Edward Timpson, hassaid that councils ‘which take too long to find families for children in care would be stripped of their powers, the task handed over to private agencies and charities’. The £150m set aside by the education secretary, Michael Gove, to fund adoption support, has been taken out of council budgets for Sure Start children’s centres and family support projects leading to the possible closure of services designed to prevent children being taken into care in the first place.
So more children are to be taken into care more quickly – (with our help?) – so as to match more adopters. If this isn’t social engineering – what is? Indeed – Privatised, profit driven social engineering.
2 and 3. Cases like those of Sally Clark and Al-Alasshould remind people that any of us could be the subject of mistaken allegations of abuse. Al-Alas was the baby with rickets whose siblings would have been removed permanently from their family if there had not been many experts involved, including some from overseas, in a way that would now probably be considered excessive and disallowed under ‘robust and vigorous case management’
Experts may not be available anyway with the proposed arbitrary cuts to experts’ fees that have not been justified and which some observations of the President could be misused to support.
Turning to our immediate world – once in proceedings there is a danger that simply in order to meet the government’s 26 week deadline some cases will be refused fact-finding hearings or assessments which are fundamental to the case and which would have been insisted upon by the court a year or two ago. True – many cases can and are being dealt with in 26 weeks. The question is – how are the other cases to be identified and treated? What faith should we have? Already the 26 week rule is being applied rigidly. We have all had cases where a late, skilful ISW re-assessment of a family member has allowed a child to remain in their family. But not in the future?
There is also the undebated culture change that parents will not be given any real chance to learn and develop; vital for young parents, for those who do in fact come off substance abuse. Why not?
Crucially, well functioning family members may not be assessed if they come forward “too late to meet the target” through having been kept in the dark by the dysfunctional parents. Children will then be denied possible placements in their own families, freed for Adoption.
The President asserts we will need fewer ‘Experts’ because there are already two experts in court. These apparently are the overloaded, overwhelmed, under resourced and sometimes inexperienced social worker. Possibly the second or third during the course of the case. And the Guardian. The proposal is that ‘CAFCASS must be in a position by the first hearing to provide an analysis of what the case is about and to advise the court on evidence and assessments.’ Cafcass has been so compromised and debased that many excellent Guardians have left. Those that remain are being absurdly overloaded with more cases than they can properly or ethically cover – in order to meet targets. Many are not even available at first hearing. And later in the case – their Final Analysis and Recommendation? Guardians are currently being told they must limit visits to children and then only if the travel is not too great and that their enquiries and final reportsshould be much reduced. Are we really being asked to rely mainly on those two experts?
Why are we being asked this? By way of answer we are being given reasons which are a mixture of reassurances and barely veiled threats.
The upbeat reassurances are not convincing. Previous reassurances have included the public statement last year by Ernest Ryder LJ that the 26 weeks was not set in stone, was aspirational and that there would be real exceptions and discretion would exist in terms of a delayed hearing of placement order applications. The goalpost has now abruptly, officially been moved by the present statement by the President that this is a deadline. How many more reassurances will prove hollow?
Threats: The President tells us that we have no option and that if we do not obey and conform to the new regime,”the government and society will finally lose patience with us”. Andrew McFarlane LJ at a recent conference confirmed that there was a strong body of opinion supporting the idea that care casesshould be taken out of the courts altogether. HHJ Simon Oliver, CJ at Reading, has publicly made the statement “The Government will expect results and has had in mind for a long time the removal of the Public Law work from the courts to a tribunal. Indeed, the tribunal of which I was Deputy President (Care Standards Tribunal) has been earmarked to take over the work.”
Clearly the judiciary have been the subject of very clear private threats by government. Why private? Why are these not explicit? If this is what is driving the wholesale reform of our system which has hitherto been functioning effectively and dealing with the most serious cases that come before the English courts, then the threat should be explicit and examined democratically and be open to challenge.
Battles have apparently been ‘fought and lost’. We can trust that the judges fought their very best for justice and families but that was behind closed doors. Why was this not made public and an opportunity given for contributions from others who know and who will be affected?
To remove care cases from court would require primary legislation which would be debated properly in the country and in the House of Commons. As it is, such debate is being circumvented by this process of threat and responses by those who should be guardians of justice for children.
Another part of the obscurity and the veiled quality of the threat is that it may well be that some elements of the judiciary subscribe to this authoritarian, anti-justice stance. We are told that some years ago meetings were addressed by senior judges in which it was indicated quite happily that oral hearings might well be a thing of the past. What is the truth of that? Who supports this move?
However it may be said that there is no point in protesting against this programme of change, however dangerous and destructive it is for justice. It is just too late. Another ‘done deal’.
Maybe . But: there will be a swing back. Over the next few years, when the stories begin to emerge, when real injustices are seen to have been done in the name of hurried justice and to meet targets, then public opinion and the media will move rapidly and angrily in the opposite direction. A few years ago Camilla Cavendish from The Times was championing the interests of “innocent families wrongly accused by stupid social workers and prevented from having a fair trial.” The public, journalists and politicians will do so again.
Questions will be asked: When these reforms were pushed through did you protest and point out the dangers? Did you demand a proper debate? Or did you cooperate and collude?
Answers are needed now: What are these threats? What battles were lost in secret? Why were they not openly debated? Why are the current connections between these many different attacks not being made? And the underlying government prejudices, myths and social engineering agenda not being challenged by those who know the facts? Are we working with the government to implement dangerous and damaging reforms – introduced in a totally undemocratic way?
Are we being used? The virtuoussounding ‘war on delay’ could be effectively a part of social engineering. Not the modern meaning which is apparently about online hacking and fraud etc but the traditional one of intervening drastically to change the social makeup of a country.
Traditionally totalitarian regimes have removed children from ‘undesirables’ and placed with families approved of by the regime. Is this an outrageous, far fetched comparison? Too shocking? Really? Too close to the bone? Or a useful warning? Which may highlight the dangerous path we are being invited down?
It has been said that to criticise is unhelpful, obstructive. Not true. It’s not a question of either / or. It’s not that if we protest then we will not do our best. That is grossly simplistic. Our duty to children and their families requires us to do our very best with what we will have, to salvage, etc AND to protest, warn and resist further vandalism. That is not a difficult piece of intellectual inclusiveness.
We are not crying for the moon or for more and more money. To suggest that is unfair and irrelevant. We are simply trying to protect the interesting of children and families and preserve justice.
Many of us will continue to use what we are left with. For example one way of improving the system that has been suggested is the need for a more dynamic, proactive early action by Local Authorities in tracing promising family members rather than relying on the delaying problematic parents. (A response is awaited to thissuggestion.)
What can we do? While working together for this we should not acquiesce so meekly and accept further cuts so readily that the government is encouraged to see us and the families as soft targets. Let us say: “This far and no further.” We have been told to steel ourselves for more cuts. Should we not steel ourselves to fight cuts? Should we not work together to use and preserve what we do still have but also to expose thissinister and objectionable agenda , publicise and argue and protest loudly against the bigger vision?
“All that is necessary for evil to triumph is for good men to do nothing.” So what are we good people going to do to expose and challenge this agenda of social engineering and injustice? Can we hear the message loud and clear from judges, practitioners, from the ALC, the FLBA and The Law Society and BAAF, ADCS and others who know the facts and can see these new dangers?