David Jockelson

Thoughts and ideas

Page 3 of 3

Newsnight programme on Expert Witnesses in Care Cases

Newsnight on 9 Dec 2013

BBC Newsnight’s Sanchia Berg investigates whether expert witnesses will refuse to continue appearing in court, because the money they’re paid to do so has been cut by the government.

I tried to make the point that it is not just the hourly rate of payment but the fact that the Legal Aid Agency is restricting the number of hours that an expert is allowed to spend. For example 20 hours on the assessment of a complicated family.  And that some good experts are saying that it is not possible to do the work properly and it would be unethical to agree to take the referral.

I also mention a recent case where I was for a mother and the social workers wanted to separate her from her baby.  The baby was 10 day and had been cared for very well by her in hospital and was breastfeeding.  The court ordered them to go into a mother and baby assessment centre, a form of expert witness, where she was doing very well.

A review of where care proceedings have got to. ALC conference 2013

A review of  where care proceedings have got to.  

26 weeks –v- Re B-S –v- Children and Families Bill. The power struggle over adoption.  

Practising lawyers have a strange relationship with real politics. The courts and those who work in them pretend that we accept the laws made by Parliament and are simply interpreting or enforcing them. Clearly something quite different is happening around the subject of adoption.

First comes the 26 weeks rule – partly driven by a genuine dissatisfaction with delays and partly as a result of government threats to remove care proceedings from the court system altogether. However the government’s attitude is explicitly and powerfully driven by an ideological commitment to increase adoption. This drift towards social engineering has alarmed a number of commentators and one assumes has alarmed the senior judiciary.

So this was countered by the cases commencing with Re B and going through most famously to Re B-S with the hugely important explicit message that adoption is the last resort and that all other option should be carefully considered at the same time as the assessment of the parents’ capacity.  In some senses the emphasis on “frontloading” of cases in which far greater preparation is required from Local Authorities squares the circle or solves the apparent paradox between the first two elements. Pre-proceedings have to be not just PLO compliant but Re B-S compliant.

So what is the 26 week court process then about?  Emergencies and other disputed thresholds?

Sexual and physical abuse / NAI – Late discovered acute and serious physical neglect. If evidence warrants it, immediate removal is required.  If disputed then forensic investigation is court business.   But in non emergencies – emotional abuse and chronic neglect are on spectrum and are opinion matters about parental inability to provide good enough care.

Distinguish two very distinct aspects of “Re B-S compliance” – compliant assessment of parents  ie to establish threshold or compliant future care planning ie what happens if the court find threshold established.  Have all alternatives to adoption been fully assessed?

B-S compliant assessment: Is this a stitch up?  Parents and children are not represented in pre-proceedings. The current pre-proceedings letter triggers some basic legal aid for advice, some minimal involvement in the pre-proceedings process. But not for the child and there is no Guardian input.  And so far there is no protocol for minimum standards – eg how the assessment is chosen or set up. No time for parents to be advised by those they trust to engage. No time for parents to change even in terms of hearing the concerns. If they are failing at the outset – then that’s it.


Decision by experts. ‘Social workers are experts?’  Really?  Some are 18 months qualified, overloaded, trained in another jurisdiction.  And the issue of what could be done to assist the parents?  A social worker who is set on removal – is this the right person to elicit co-operation and good motivation?

The factual basis of these sorts of thresholds is rarely in dispute. The court becomes a retrospective assessor of the social work practice – the allegedly Re B-S compliant assessment.

Problems: The lack of time allowed to Guardians to investigate parents and social work practice and be able to advise the court.  The loss of many of the most experienced Guardians.  The limitation on ISWs. The ‘necessary’ rule and the LAA. The 26 weeks. So – no full solution.

But all this ignores the government trump card: Clause 1 of Children and Families Bill tells local authorities not to prioritise placing a looked after child with a suitable wider family member over a prospective adopter. Once adoption is even considered local authorities must consider placing a child with prospective adopters (who are temporarily approved as foster carers) Including placing the child out of their local area. This includes s20 children for whom no judicial decision have been made. We can anticipate the dynamic privatisation of all of this.   Re B-S would be negated.

If the President in unable to protest  – Should we not hear it from this conference?

An email to the President for the ALC conference 2013

Opening up the Family Courts.           

The battle of adoption and the government’s attacks of justice (including the proposed abolition of the already weakened Family Justice Council) is a situation where we are on the defensive trying to protect what we have got from a destructive government.  But your desire to “Open up the Family Courts” – to increase the transparency of the court – may be prove in the end to be a self-inflicted wound.

Your lecture on 11 November was to the Annual Conference of The Society of Editors ‘Freedom to Inform’. You say that your motivation is to improve the quality of justice by exposing the proceedings to the jealous vigilance of an informed media which you associate with “the disinfectant power of exposure to forensic sunlight”. However you go on to acknowledge that the actual reporting may well be exaggerated, provocative and distorting. The protection you mention through actions for defamation you will know is a hollow one for all but the very rich.

In fact you make it clear in your conclusion that a major part of your motivation is to avoid criticism.: “I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice”.

I appreciate that you have a long history of valuing the importance of a free press and you may have a belief in the ultimate impact of publicity being benign notwithstanding the immediate damage done by sensationalist stories.

However we have to ask if your commitment to this value system is overriding your often stated and your undoubted commitment to the welfare of children and to the improvement of the process of care proceedings.

As you well know, in 2010 work was commissioned by the Office of the Commissioner for Children; it explored the views of children and young people in private and public law proceedings (Brophy et al, ‘The views of children and young people regarding media access to family courts’, OCC, 2010).  The findings present a clear challenge to your plans.

Almost all respondents (79% in the public law sample, 91% in the private law group) were opposed to the decision to permit reporters into family court hearings. The major reason was that children/young people said court hearings address issues that are ‘private’. They concern events that are painful, embarrassing and humiliating for children and an overwhelming majority said this detail was not the business of newspapers – or the general public.

Even more important perhaps is that almost all young people (96%) also said once children are told a reporter might be in court [or obviously if documents are disclosed] they will be unwilling/less willing to talk to a clinician about ill-treatment or parental disputes about their care, or about their wishes and feelings.

The proposal to allow documents to be disclosed to the press will have an evcn greater adverse affect on the welfare of children, their ability to be open with clinicians, to heal the wounds of abuse and on the proper conduct of care cases.

It may have other more dramatic consequences. With the recently revealed tactics of the press it is fair to anticipate ruthless behaviour by the press. You may go down in history as the judge that opened up the courts and documents to sensationalist media-led witch hunts leading to the harassment, even assaults of not only alleged abusers but of social workers, foster carers and adopters, which will have a devastating effect on recruitment of these vital people.

That leaves aside the same treatment towards expert witnesses, lawyers or even judges.

Please reconsider your total commitment to opening up the courts and publishing documents – and abolishing the privacy that the children and families have asked for, need and deserve.

David Jockelson  (writing as a private citizen – not on behalf of my firm or any organisation.)

A note for the President’s meeting on Monday 22 April

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?

Letter to senior judges about the closure of Wells St Family Court 15 June 2012

David Jockelson

c/o Miles and Partners

88-90 Middlesex Street

ellLondon E1 7EZ

DX: 124407 CDE



15 June 2012


Sir Nicholas Wall

Mrs Justice Pauffley

Mr Justice Ryder

HHJ Altman

Senior District Judge Waller


Via your DX addresses



Dear Judges

We are writing to you because of the news that Wells St is to close and the Inner and City London Family Proceedings Court (Inner London) is to be absorbed into the PRFD.

We are a group of child care solicitors both in private practice and in Local Authorities as well as Guardians and counsel who work in this court. We are anxious to see how the identity and special qualities of Inner London can be preserved following the transfer; and even to hope that the Registry would be prepared to adopt some of Inner London’s many qualities.

Most people appreciate the enormous strains on the MoJ and court service to save money and that the premises in Wells St must be expensive.

That needs to be put into the balance with the fact that Inner London has rightly been hailed by many people, including international observers, as a centre of excellence. It is a great worry that its strengths and qualities could be lost if Inner London is simply absorbed into the Registry.

The Registry itself has great strength in the experience of the judges and the ability to deal with the longer and more forensically challenging cases. The staff – associates, ushers and counter staff – are helpful and sympathetic although clearly working under great pressure.

However there are qualities of Inner London that people are very keen are preserved following any move and these are some of the comments we received.

Please forgive the detail but we fear some of those who decide these matters will not be aware of the real practical facts that may seem trivial but we, as practitioners, know make a real difference to the quality of justice. To follow a client through the process:

  • At Wells Street clients arrive and security staff screen them and check their details. They refer them politely to the correct court – and refer them to the office or the duty solicitor if appropriate. The duty solicitor system has been functioning for years to the great benefit of clients and the court and at no cost – because the ethos of Inner London encourages volunteers.    
  • The waiting rooms are pleasant and – a very small detail some may think – have magazines on the tables.  
  • There is a pleasant well equipped children’s play room. This compares with the many rather bleak and empty ones at the Registry which do not reflect a child centred approach. 
  • Ushers are polite and helpful. The legal advisers come out and interact with us and can often get cases progressed or even sorted out smoothly. Litigants in person, an ever- growing issue for the court, are properly assisted. The office staff, under enormous pressure, remain polite and helpful.   
  • The magistrates and judges are respectful: receptive, polite and showing a real interest in the cases.   
  • In court the clients sit next to their advocates so they can be helped to understand and feel a part of the proceedings. This enormously aids their comprehension and therefore the legitimacy of the process. That legitimacy is surely central to the purpose of the court? 
  • One highly significant and symbolic matter is FDAC: this is an example of a humane, proactive, creative approach which gives parents a real chance but also puts strong, robust pressure on them so if they fail, they fail quickly – which is in the interests of the children. It has won awards and applause. 

Surely it fits perfectly with the modernisation ethos of powerful case management and swift progression?

Modernisation without resources and without this ethos could produce a mechanistic, crude process which reduces the chances for children of remaining with their parents or wider family in a rush to adoption – in parenting terms a cold, hard, authoritarian model.

Modernisation with the right ethos would in parenting terms be an example of that combination of warmth and firmness that is properly called authoritative.

DJ Crichton was the initiator of FDAC and we have heard it said that it relies largely on his personal qualities. However that argument is belied by the fact it worked perfectly well during the six months he was away when he was ill. .

That leaves aside the immediate questions everyone asks: how can seven courts, with waiting rooms, interview rooms, FDAC rooms, magistrates’ rooms and library be accommodated at the Registry?

Many people feel it is vital that FDAC and the qualities of Inner London survive and flourish at the Registry and we would hope to work with you to ensure this.   We look forward to hearing from you with your response to this letter and proposals for such work.

Yours faithfully


David Jockelson Miles and Partners

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Rebekah Wilson Tooks Court

Christopher Poole New Court Chambers

Dinali Nanayakkara New Court Chambers

Ranjit Singh New Court Chambers

Stephanie Hine New Court Chambers

Pauline Troy 42 Bedford Row

David Bannocks 4 Brick Court

Tali Michaels New Court Chambers

Henry Drayton Garden Court Chambers

Rachael Rowley-Fox Garden Court Chbrs

Paul Murray Garden Court Chambers

Liz Veats  Garden Court Chambers

Judith Trustman  Garden Court Chambers

Angela Bennett 3 Dr. Johnson’s Buildings

Malcolm Macdonald 36 Bedford Row.

Geraldine More O’Ferrall Renaissance

Gill Honeyman  Coram Chambers

Fiona Edington Thomas Moore Chambers

Malek Wan Daud Garden Court Chambers

Amina Ahmed  Renaissance Chambers

Neil Bullock Coram Chambers

Chris McWatters Garden Court chambers

Ravinder Rahal Garden Court Chambers

Smita Shah Garden Court Chambers

Ed Elliott Garden Court Chambers

Celia Graves Garden Court Chambers

Julia Gasparro Renaissance Chambers

Jenny Boswell Tooks Court

Matthew Fletcher Renaissance Chambers

Mark Calway Renaissance Chambers

Paul Cregan Renaissance Chambers

William Metaxa Renaissance Chambers

Shiva Ancliffe Renaissance Chambers

Chris McWatters Garden court chambers

Mark Twomey Coram Chambers

Rona Neathey 6 Kings Bench Walk 

Guardians present or past, social workers.

Susan Bindman

Eva Gregory

Christine Holleran

Beverley Clarke

Jaswin Kaur

Alison Paddle

Kathy Butcher

Shannon Smart

Lara Bloom

Sheila Pankhania-Collins

Elizabeth Heap

Diane Jackson

Raya Tibawi

Kathy Pring

Michael Griffith-Jones

Gill King

Patricia Morrison

Magdalen Fry

Janet Walker

Jane Powell

Jo Murphy

Titibele Ncube

Gill Timmis

Jane Dambe

Pat McLoughlin

Julia Hughes

Aminah Husain

Colette Curran

Anne MacKenzie

Nicci Murphy

Paul Levy

Rose Dagoo

Gerith Eden

Joanna Smiths

Lilian Odze

Khalil Campbell

David Abrahams

Article in Family Law September 2010

A Dual Role: Psychotherapist and Solicitor
DAVID JOCKELSON, Consultant, Miles and Partners

At the award ceremony for winning Legal Aid Family Lawyer of the Year the fact that I am a practising psychotherapist and parenting coach was referred to. In reply to a question and without time to think, I said that I like to ‘work therapeutically with clients’. That sounds rather grand now and I have wondered what it means exactly; how realistic is that for me and for other solicitors? What benefit has there been to my practice from having qualified in both roles and is there is anything I can suggest for others?

I trained with Spectrum in North London as a counsellor in 1994 and as a psychotherapist from 2000 to 2003. I currently have a small practice of five clients who I see in the mornings and evenings. I trained as a parenting workshop facilitator with Parentlineplus in 2000. I run occasional workshops at schools, solicitors’ offices and, on one memorable occasion, at the conference of the Association of Lawyers for Children.

In our office, the training I give consists of 12 pages of notes and a 90 minute workshop. At least some important and powerful skills with clients can be learnt intellectually quite easily from written material or a short workshop or course. A second stage would be to examine and work on our motivation and blockages in actually using those skills. The third stage is emotional self-care so that we do not become burnt out.

Listening to Clients

The most important thing to grasp is the power of listening rather than doing. Lawyers may see themselves as clever, rational, analytical, dynamic, full of good advice and eager to impart it. But when a client comes to see a solicitor, they are often in a state of high emotion. They are simply not able to deliver the information we require in a quick or reliable way and they are certainly not capable of absorbing information or advice, let alone acting on it.

Especially in care law, clients may be angry and in denial, usually because they are very frightened. They may have been humiliated, shocked and battered by engagement with children’s services and the legal process. There is likely to have been a long history of dysfunction and struggle in their family as well as a whole childhood and lifetime’s history of emotional disturbance and damage.

Although I work with and talk about care clients, private family disputes and money claims may also generate very powerful emotions which need many of the same techniques. To work effectively with such clients, they have to be treated with some simple but conscious emotional, not just legal, skills.

The first thing to grasp is the sheer power of ‘giving the client a damn good listening to.’ You could be the first person that they feel has ever really heard what they have to say without being uncomfortable, without interrupting, commenting, advising or judging.

Let them start with what is most urgent for them even if it seems legally irrelevant. Otherwise you will not get the legally relevant material dealt with efficiently. If they want to rant about social services or their children or their partner, then let them. You do not have to challenge what they say. Silence does not imply agreement or collusion. Preferably do not make notes at the very outset but totally concentrate on maintaining a powerful engagement by facing them directly, with good eye contact, occasional nods and encouraging noises, and just being solid, un-distracted and attentive. This is the key moment. It is extraordinary: even five minutes of this sort of intense listening and being taken seriously can really have a powerful impact.

Next find something that you can agree with. It does not need to be factual; it can simply be what they feel or agreeing with them what their target is – presumably the return of the children, a contact order, etc. Then make a note of that.

You can then start making further notes but you may still need to take things in the random order that the client gives them to you; because they are not in fact random: they are what their priorities are and if you ignore something as irrelevant it will keep coming up and make the whole process less efficient. Note down what they say even if it seems trivial and irrational. Let them work through that until they feel engaged. Note the difference: your attendance notes or proofs of evidence need to be organised in a conventional, linear fashion. But you do not need to impose that style on the whole interview.

Later you can explain that, in order to achieve the result that you both want, you are going to have to go through things in quite a slow, systematic way. Then aim for a full life history; listen to the facts and to the feelings.

Classic counselling techniques include carefully summarising what a client has said and checking back with them that you have understood it properly. Again the impact of this on clients is enormous and very beneficial.

And, crucially, if you have listened to them, they are far more likely to listen to your advice on what they now need to do to change so they can achieve the agreed objectives, ie win the case. Also you may be able to help clients to notice and name and accept their emotions; realise they can legitimately feel them and express them assertively rather than just acting them out in what may be an aggressive or self-destructive way.

However, unless you respect the clients, then what I have suggested is simply false, play-acting. You do not have to like them but in the workshop we look at respect and empathy – really seeing things through the eyes of clients. First, dare to feel your way fully into their histories with your heart not just your head. There is a French saying, ‘To understand fully is to forgive’ or at least to stop condemning and start respecting.

Also appreciate their present situation and the gross inequalities they face. They see us at court, familiar, comfortable, paid to be there, pally with each other, laughing. They are often broke, needing to borrow the money to get to court. They are unsure, deeply anxious, defensive/aggressive and may seem objectionable and unreasonable.

Notice this: that being powerless makes a person hyper-sensitive, possibly over-sensitive to accusations, even implied ones, to mistakes, to injustice; but also to praise and appreciations. Being powerful can make a person insensitive – including ourselves. Awareness of that in yourself could offset that tendency.

Self Awareness

There is a second stage: At some level people may hear the above and may agree with it but in fact they cannot or do not put it into practice – or not for very long. It is therefore worth looking at exactly why that is – at our own behaviour and emotional needs – to see what is interfering with our potential skills. First, we may not be comfortable with other people’s powerful emotions. Their anger or distress or anxiety may cause us considerable stress. And that may unconsciously deskill us, making us revert to the habitual ways of working in a defensive, literal minded, unreceptive way.

If you feel that clients are wasting your time is that really true or is it a function of your impatience because of your discomfort? At court, you see some lawyers being quite brisk, even perfunctory, with clients but then somehow having time to gossip and chat with colleagues.

There is one technique I use with therapy clients: I ask them to talk about or write down their immediate response to the word ‘emotional’ or what they were told about emotions as a child: and then about ‘anger’, ‘fear’, etc because at some gut level this is what they still believe. You may like to try using this with yourself – become aware of what happens to you when confronting emotions, other people’s and your own, and then be more able to work with that with calmness and creativity.

Self Care

Just like the clients, we need to be heard, understood, appreciated, and admired. We may think that we will get those things by being a good (ie a clever) lawyer because that is our training and expectation. It requires considerable, conscious and continuing efforts to put those skills and needs on hold and give equal prominence to the skills which I have described.

So you may need to establish systems for your emotional needs to be met. You may be able to arrange good, regular, emotionally intelligent supervision or arrange co-supervision with a colleague and/or agree with colleagues generally that you can offload the distress, anger, frustration or exhilaration that you may feel after an interview with a client or after coming back from court. Because in court, to be effective with colleagues and judges, you also have to hold back your need for approval – your egotism.

You may find it useful to agree with your home partner, if you have one, to have time to listen to each other’s day’s events in this quite intense way. You may find it useful to keep a journal or diary in which you offload and give yourself appreciation and acknowledgement. Ideally you would have counselling or therapy to explore and possibly resolve your own issues and needs.

What I have described is a part of self-care. That is necessary if you are going to engage in an intense, human, personal, emotional way with clients – and indeed with colleagues and judges – without burning out after a few years.

The techniques I describe can work surprisingly well with clients but they can often fail which is disappointing – even painful. Therefore you need the supports I have just described but you also need physical and emotional health care. The tensions and the emotions which the job generates will be reflected in your body and they need to be released (or more interestingly, explored and experienced) by exercise: possibly intensive Western-style gym or running but also in traditional, slower and more mindful things such as yoga, massage, meditation or Tai Chi: and breathing. In the workshop we explore the value and sheer pleasure of proper breathing.


This may all seem rather ambitious and possibly a bit precious. Can a legal aid solicitor really afford the time with clients I am suggesting? The simple answer is that these techniques are quick, effective and ultimately both speed up and improve the quality of the strictly legal, factual task. They also greatly increase the chances that clients will come out of their adversarial bunkers, engage with the process and change in the way that they need to change. It is both time efficient in the office and efficient in terms of satisfactory outcome. It is incidentally very much more likely to lead to a negotiated agreement and progress with considerable saving in court time and legal costs. I hope the LSC will read this.

This process and approach can also allow parents who are in a hopeless situation to accept that fact with dignity. This again can save futile contested hearings and may salvage something – for example some ongoing contact and possibly avoid disruptions of placements or an immediate ‘defiance repeat pregnancy’.

This whole approach is essentially a human one or as some would say ‘humanistic’. That label makes more sense if it is seen as in contrast with the inhuman, de-humanising nature of care and other family proceedings. We take it for granted but it is worth noticing that parents are expected to read documents and sit in court quietly while horrible, intimate details of their own histories, conflicts and of their family lives are discussed in front of strangers as if they are simply not there. And then we expect them to behave calmly and reasonably.

Perhaps we could all be a bit more sensitive and skilful than we currently are?

Second Submission to the Family Justice Review – also published in Seen and Heard – the journal of NAGALRO – the publication for Children’s Guardians

Family Justice Review Submission. 

The practical economic case for what may seem uneconomic procedures. 

Someone coming new to family proceedings especially with a business background might be appalled at what he or she sees. Why do cases take so long? Why is there so much paper, so much duplication? Why do people need to come to court so much? Why is there so much hanging about at court?  Why can’t more be done by e-mail? And in court – why so much ceremony and ritual? Why is it so slow? So pompous and long-winded?

That person would have half a point and it is important to explore that; to explore the savings that can be made. And then to explore the other half – the less obvious aspects where some of this procedure is a part of the fact that it is a painstaking process for very good and possibly unobvious reasons, including economic reasons.

To go with the protester:  Let us be critical at each stage and ask ourselves was this action really necessary?

Let there be fewer papers:  Many documents get repeated, the details cut and pasted over and over.  Care plans are often the same for each of four children; what is wrong with saying that? – or just specifying those aspects which are different?

Guardians often do two reports at the end of a case – one for the care order and one for  the placement order.  90% the same content. Challenge that surely.  Reports quote other reports; sometimes they could simply refer to them?

Let there be fewer hearings: Some of the administrative hearings we have could be definitely done by e-mail or conference calls and there would be considerable savings. Video conferencing is usually an unnecessary luxury which involves the participants going to various video suites – just so we can see each others’ faces. If there is a witness, then there may be some mileage in that.  Although judging veracity and reliability by video is questionable.

But if it is just lawyers? Fond though I am of many of my colleagues, I do not always need to see their faces. Telephone conference calls means nobody has to leave their desks; no travel; no equipment hire; people can use mobiles if they can’t get back to their offices etc etc.  You can even get a verbatim transcript quite quickly and easily from BT.

If there is a live hearing – at the end there should be a standard question from the Judge – was this really necessary? Could it have been done in another way?

Let there be less hanging about at court: Anyone from outside of the law coming to the court will also probably be shocked at the apparent inefficient use of resources and the leisurely way the proceedings are conducted.

There is some connection between these two but it is not 100%.

There is one very obvious apparent inefficiency – that lawyers, parties and witnesses ‘are hanging about outside of court’. But consider: some cases are often resolved by negotiations at court. The time has in fact been put to good use; indeed we often have to beg the court for more time to allow successful negotiations to conclude.

You may ask – couldn’t those negotiations have been conducted earlier and away from the expense of court?  Is this a good use of court resources?

But it is not just negotiations between lawyers – the negotiations in fact require the presence of all the parties – the social workers, the parents and other family members, the Guardian and sometimes other witnesses.

In theory meetings could have taken other place at some time earlier with all these people to hand. But – if they didn’t succeed in resolving matters, then we all reassemble and come to court another day?  That is not actually very efficient.  Using the door of the court as a negotiating situation has in fact worked for hundreds of years, and may be the most efficient use of resources.

But sometimes the delays are due to a simple lack of judge time. That is the real waste of all of our time and resources. In a number of other cases, when we have negotiated a solution and are all ready to go in, there is no court ready to take us.

So a useful question might be – Is it possible to predict which case will fall into which category?

And / or encourage the more common use of the order “Parties to attend one / two hours early to hear the current information and positions, negotiate and draw up agreed orders so they go into court at the time allotted.”

Once we are in court: The pomposity and long-windedness of some lawyers and Judges is real and should be addressed and needs a culture change. It is beyond this note (and my skill) to suggest how that can be done but the new President looks like being our best bet for such a culture change.

That is the reform that could be implemented; fairly obvious in a way . 

Let me now put forward a balancing point of view: I want to protect some aspects that may seem to an observer to be old fashioned and wasteful.

Let me make some preliminary remarks which may sound defensive but in order to justify the rest of this note I need to persuade you I am not some hidebound traditionalist.

I am keen for modern technology to help in cases and in court.  We certainly love it in our offices. How else would we survive being paid the same rates as 11 years ago without hugely increased efficiency?

In my office we all have remote access and work from home early, late and weekends. We all have Blackberries and work when at court or travelling. We all do a great deal of self-servicing on e-mails and shorter documents. We use voice recognition. We outsource our longer typing by digital dictation to South Africa or to an ex-employee in the UK. At court we can send dictation direct from our Blackberries.

Yes, we love innovation and efficiency. So this submission is not coming from a place of conservatism or love of tradition for its own sake.

But the other half of the picture does not support the sort of modernisation of family proceedings that may seem the obvious way forward to a business person, or which fits with this modernisation of our business procedures.  Modernisation can achieve immediate, measurable, visible, surface efficiency.

But we need to go back to the basic facts which I hope to show are totally relevant to the deeper efficiency – the less obvious, longer term efficiency of the system. We need to consider them if we are not to fall into considerable error.

Two aspects:  1. The cost of a wrong decision. 2. The cost of a right decision.

In my area of work the state is taking away children from parents.  That is the most devastating act imaginable.

1. In many cases these are not forgone conclusions.  Social workers are not always right. Many parents succeed – or in another language, many children are reunited with their parents because of the painstaking approach of care proceedings.

Remembering always that a mistake one way means a child is removed from parents who can in fact care for them and a mistake the other way means a child is exposed to abuse and neglect. Please see my earlier submissions on this.

There are hideous costs in human terms of course. But also in financial terms: children unnecessarily in care cost huge sums of money.  Children wrongly returned home may lead to later expensive proceedings, leaving aside the long term outcomes of abuse and neglect – at the extreme end, deaths and criminal charges and enquiries. And in many less extreme cases, children growing up with mental health problems, anti-social behaviour, crime, repetition of failed parenting.

We cannot afford – humanly or financially – to get these decisions wrong. It is worth being painstaking.  And that word highlights the problem.  Taking pains.  It is painful. That is how we may experience the fact that it is expensive in the short term. And it may be pain that we have to learn to bear.

2. But if the right decision is taken… and it may be a case where the outcome seems obvious?  However, even here, there is more going on that a cold, mechanical weighing of the evidence. Even when the decision is right, the process needs to be right as well – not just Justice being seen to be done as in the old maxim but for good, if unobvious economic reasons.

Consider:  In almost any parent the act of removing a child or threatening to do so would produce fear and anger; flight and fight behaviour. Remember we are dealing with many parents who have very little education and, often, mental health problems. The obvious reaction is to take the baby and run – or to fight the social workers, physically.

And yet there is in fact very little extreme action.  Very few cases of parents running away with children.  Very little violence or physical resistance.  Few real fights at court. Few social workers attacked (enough for it to be a serious issue, not enough to be a common phenomenon statistically).

And, crucially, few examples of parents tracing foster carers or adopters and harassing them or attempting to remove children. I am sure you appreciate that now, with the internet, it is easier and easier to trace people.

If any of those things happened the result could be horrifying and I suggest we need to look at them carefully.

In the actual court, physical attacks mean justice would be blocked, for this case and many others in the building. It would generate the need for greater security staff.

For social workers it would also make their whole jobs much harder with a cost to all families and a financial cost to the Local Authority.

If foster carers were attacked then the supply of foster carers, which is already insufficient, would be massively reduced. The children placed with them would be traumatised.

And assuming now that the case is proved and a final order made – If adopters were traced and harassed or children abducted, even one or two, then the supply of adopters would be very adversely affected. Lack of adopters is one of the great blockages in the system, with children remaining in care for far too long waiting for adoption – and at great emotional cost to the children and financial cost to the Local Authorities.

In this context, a point I am surprised not to have seen elsewhere is that assisted conception has only just started and yet it is making infertility more and more avoidable. The supply of childless couples keen to adopt may be shrinking already.

These are real risks and costs.  So why hasn’t any of this happened up until now?

The answer is because parents in fact accept the verdicts of the court. They accept the legitimacy of the act of removing their children.

That is extraordinary. We have got so used to it that we take it for granted. I suggest we should not take it for granted and we need to look at this carefully. It is a precious resource that need protecting.

Why do parents accept this? Because however dysfunctional they are, whatever mental health problems or educational deficiencies they have, they can see that the case has been dealt with fairly and fully.

The evidence of the Local Authority has been fully presented and challenged by their lawyers. Their own views have been put across in a way they can follow. They have been given a fair chance with full assessments. This has been done very thoroughly and slowly over months.

The parents see the court actually hearing the evidence.   The very slowness of it all – outside court and during the actual hearings has given them time to absorb what is happening. For some it means they really believe they need to change and they do so with positive results.

And where they fail – although it sounds bizarre to say so – the process almost allows them to get used to it. To sound almost cynical but with no disrespect – most parents in our cases have much more limited powers of concentration than the professionals and are almost overwhelmed and numbed by the proceedings in court. I am amazed at how they sit there while the most intimate details of their lives are laid out in front of strangers and they are criticised and judged to be failures.

I have started cases where, at the outset, parents have been acutely and seriously threatening to others or themselves. Security staff have been on standby. But by the end, if they lose the case, they are simply sad and resigned.

None of that process will happen if the proceedings are made ‘quick and efficient’ – if things are done at a speed they cannot follow. If judges go off and read papers in their offices and then send out their judgments by e-mail.

If I say that parents have a great awareness of justice, people might doubt that. If I say they are very alert to seeing any injustice, then that may be more convincing. It is very true. Being attacked and criticised makes parents very quick to spot any mistakes or deficiencies in others or in the process.

That is all true of care cases, my main area of work.  But another main area of Family Court work is disputes between parents or partners.

Domestic Violence requires the violent partner to respect the orders of the court. An outsider may assume orders are respected because they can be enforced.

But actual enforcement in the face of defiance is extremely expensive – in money and resource terms and in terms of the effect on the adults and the children. In practice the state cannot have a police officer involved to arrest anyone who breaches an order.

The violent person has to have an internalised respect for the order.

Less dramatically but just as importantly, orders about who the children live with and what are the contact arrangements also need to be respected. If a child is not returned at the end of contact – you don’t call the police; you have to go back to court and issue an application for enforcement, all with costs and delays which can be devastating to the children.

The authority of the court cannot rely simply on enforcement. Enforcement is only one half of the authority. The other half is the respect for the court which is the earned authority of legitimacy.

If you simplify and speed up courts and proceedings too much then that legitimacy and authority are lost.   If you reduce the legitimacy and therefore the authority of the court then it is a recipe for an expensive disaster.

What are the practical implications of this? It is not simply keeping things as they are or keeping them complex and slow for its own sake.

It does mean preserving some crucial, apparently inefficient and wasteful aspects.  It does mean making sure parents are well represented.  By solicitors who actually deal with the person, taking time to meet and talk and listen and then actually deal with the case – not by paralegals who send a different barrister to court for each hearing.

It means preserving the fact that Local Authorities spell out matters fully in their statements and care plans. It means that assessments are planned and carried out. It means experts are brought in to check the evidence, especially medical evidence.

It means not rushing to judgement, in spite of the universal, unchallenged mantra that delay is always not in the interest of the children. Sometimes it is.  Sometimes giving parents the chance to change works; under pressure from the court they can change genuinely and children can return home safely.  A rush to judgment, a worship of targets would have robbed them of that chance.  .

It means having hearings which in some cases last for several days. It means that the Judge should give a full and clear judgment, showing the evidence has been considered carefully and explaining the decision. And the lawyer dealing with the clients has time and the situation in which to explain it and discuss it with them.

These are things that may seem wasteful and self-indulgent on the part of the legal profession.  As a high street legal aid solicitor for many years I am somewhat removed and have little vested interest in the higher levels of pomp and circumstance of the law.

But I know my clients and I know they need to respect the decisions of the court. They need some belief in the authority of the court and the legitimacy of the progress.

To modernise and over simplify that would in due course incur great costs and great suffering for adults and children.

This will also generate horror stories in the media about hurried, inhumane miscarriages of justice which will bring disrespect to the politicians who devise new systems, those who advise them, to the whole legal process, to social workers and to child protection generally.

I suggest to the enquiry that these are the dangers of an over enthusiastic embracing of modernisation producing surface efficiency and deeper inefficiency. .

David Jockelson
Miles and Partners
88-90 Middlesex Street
London E1 7EZ
020 7426 0400

Submission to the Family Justice Review 29.09.10

1. By way of introduction and to establish some credentials:

I am David Jockelson.  I am a solicitor in private practice with Miles and Partners in London E1.  I work mainly in public law cases.  I have been qualified for 30 years and a member of the Children Panel almost from its inception.

I am writing almost entirely about the public law aspect of your Review.

2. Yes we have a problem.

The high level of cases may be slackening according to the very latest figures but for some months or years they have put such a strain on the system that it has been staggering.   That is a question of the sheer quantity of social work that the system cannot cope with.

Yes we also have a problem facing massive cuts which will affect social services, the courts and legal aid.  We must find ways of spending our money more efficiently.

This has shaken up our complacency and conservatism and is raising questions about the process which could make major changes in the quality and rationality of the work.

3. Easy answers? 

When looking for ways to improve the situation our minds can go quite easily to certain cases which are obviously not well served by the present system.

For example in some cases social work drags on for a long time, months or years, with social workers trying to achieve change by ‘working together with the families’ while children suffer.

There may be vague threats of action which the family don’t believe or act on – and then wham! – care proceedings – plan to remove child from the home. Shock, promises of change – too late.

Then ensues a whole machine going into operation – Vast expense:  the costs of lawyers and courts, experts and assessments, contact arrangements, social workers in court and not doing their main job. Etc etc.

and to be honest something of a lottery on the outcome:

If the kids go home – what support?  Clients who have had a Supervision Order say they haven’t seen a social worker in months.

And if the kids don’t go home – foster care – very expensive. Multiple moves. Research indicates pretty poor outcomes for children in care. Fewer and fewer adopters etc.

So we have got to divert some of these families from the existing court system. I will suggest some ways we can do that in page 17 onwards where I try and suggest answers to your questions 4,7,9,10,18

Basically I suggest it is about designing a system of graduated pressure on parents. Not the sudden all or nothing step of care proceedings.

We already have some systems for that and I will discuss them below and what we can learn from and what we could build from.  We can get busy with looking at the existing Initial Child Protection Conferences and Family Group Conferences and seeing their strengths and weakness.

And this need for graduated pressure starts long before we approach the threshold of legal action – it starts with the approach, skills, training, practice and support of the field social workers dealing with the families.

4.  BUT – and it’s a big but –  this simple case is easy to see and envisage and to provide solutions for.

Those solutions could be more humane, and more economic.

But there is a danger that we design a system suitable for these special cases and then apply to other types of cases which seem similar but where it should not be applied and would be a disaster.

“A disaster?”  Isn’t that rather strong language?

Yes.   As I have said many times before and do not apologise for repeating here:

with the abolition of the death penalty, care proceedings are the State’s grossest, most extreme interference in citizens’ lives. Taking away a person’s children is the most devastating step imaginable for the parent and the children and can only happen if it is totally justified, if there is no alternative and if it has been subject to painstaking and scrupulous examination.

How can I make that real?  Please – Dare to imagine this yourself if you have children – or, if you do not, other members of your family with children: Dare to imagine taking your child to hospital, a child who has been injured falling off a swing. Dare to imagine a social worker there saying “we are keeping you child in – we are not satisfied these are accidental injuries.” Your child is terrified and needs to come home now. Needs your comfort. You are powerless. “You can see your child for one hour tomorrow – supervised by a social worker.  We are going to court the next day. Your child will be in foster care….. the paediatrician here says there are reasonable grounds for believing these are not accidental injuries…. It’s only for 4 weeks initially….. “    Frankly my hairs are standing on end and I feel sick writing this. That’s how important this is.

And I have the deep belief that I am middle class and likely to be believed and able to handle things. And –  and – and –  …..  anything to avoid the horror of even thinking for a second of the possibility that my children will be permanently removed from me.

Is this the proper language of submissions to a government enquiry?

Yes. It is this important.   This is what we are dealing with. This is why we need to be careful to retain the fullest possible safeguards in all cases and use new methods very selectively and only for suitable cases.

5. The question is which are the suitable cases? 

Possible answer:  1.  Ones of chronic, long term problems. 2. Where the facts are fairly obvious, undeniable and the only question is what is to be done?  3. Where parents are susceptible to graduated pressure.

But – what percentage of cases is that?  Does anybody know?  Has anyone ever asked these questions? Why not?

6.  May we try to understand the range of cases?

It would be easy enough to say that there is a spectrum of cases – from these chronic neglect cases through to sudden, acute, emergency cases where children previously unknown to social services appear at hospital with suspicious injuries or sexual abuse is discovered.

In fact it is much more complex than that –  they need to be mapped – at least on a two dimensional map:  within the chronic cases there are different types of failure – usually neglect due to parents having learning difficulties / disabilities, mental illness, drug and substance problems. Personality problems – which can be specific to parenting issues. Ie attachment problems.

Chronic long running cases can be neglect of different types – missing school, children going to school dirty, hungry etc. lack of stimulation.

There is then a gradient with many intervening levels of neglect and abuse falling short of acute emergencies: families where there is emotional abuse, harshness, being ignored.  Exposure to conflict which may be shouting or may be physical DV.

Chronic is not the same as obvious.  Social workers may think so from the thickness of the file – ‘we know all about this family’.  That can be wrong either way – the multiplication of concerns, the microscope the family is put under makes relatively common levels of dysfunction into unacceptable risks.  And the other way – there are chronic cases where the long running nature is about low level concerns but in fact there are hidden serious problems – concealed sexual abuse, physical abuse, etc.

7. How much court do we need? Obviously for the disputed non accidental injury cases there needs to be a quasi-criminal trial – a fact-finding hearing.

It is tempting to think that is all the court is needed for.  Many questions raised suggest that the forensic process can be restricted to just that. And the ‘welfare stage’ can be dealt with elsewhere – in a committee, tribunal, by discussions between social services and ? the Guardian?

(We used to call it ‘disposal stage’ but I think current fashion quite rightly has rejected that term)

That would be a dangerously simplistic approach – into which your panel will not of course fall.

In fact the two stage process of the court is not limited to this sort of forensic fact-finding about abuse and then the welfare stage.

The first stage is deciding if the threshold is crossed – definition of which is too familiar to need repeating.

What may need repeating however is that many cases the burden of the threshold is on likelihood of future harm.  The court is in effect conducting a risk assessment exercise.

This is where differences of opinion are massive.  We have all had cases where there is a change of social worker during a case and a tolerant optimistic approach is replaced with a punitive, pessimistic approach – possibly because the social worker is more anxious – and the view of the Local Authority is that threshold is crossed and the care plan changes from rehabilitation to permanent removal. And other cases where the opposite change has happened.

Or cases where the field social worker is positive about a case but senior management is more negative and restrictive.

These are crucial decisions being made it often seems on an arbitrary ‘which social worker do you happen to have this month’ basis.

The court has got to provide a forum for some consistent and scrupulous assessment of the reality of threshold in all cases. 

8.  Welfare stage. That is threshold.  But you may ask – indeed you do ask – once that is disposed of can we not decide the welfare stage by some other, less formal or expensive method?

The answer is ‘maybe’.  But it ignores what actually happens in court cases – and which everyone with any experience of the cases knows needs to happen.

The division between the two stages is not clear cut.

The formulation of the care plan is not a straightforward social worker decision. The threshold may be met. The court can decide that child did indeed suffer significant harm at the relevant time. Of at that time was likely to suffer significant harm, in the future.

But does that mean the child should be removed from the home? To imagine that this is automatic is to see it through a tempting but very simplistic assumption which your team will not fall into.

The questions have has to be: how serious was the harm? What has happened since? Is the risk of future harm still established at this time?  Is that harm serious enough and cannot be avoided by appropriate protective arrangements such as Supervision Orders properly implemented? Ongoing monitoring of a new and more robust kind that could be devised.

————————————————– —————————————

Now for a bit of modern / recent history. I do not apologise for this (although this paragraph is obviously a form of apology..)  because many of the questions you raise have been raised and answered before….. and it raises the important question of why we sometimes do need proper court hearings…

9.  The Carter report and the infamous Annexe B.

Almost exactly five years ago the Carter Enquiry tried to introduce some of the questions you are now asking about reforms to care proceedings.  It did so in an unsatisfactory way, hidden in a one page ‘Annexe B’ at the back of their terms of reference which were mainly about legal aid reforms.

At that time I wrote a paper alerting the profession to this. Although I was not a representative of any organisation that paper did receive quite a warm welcome and was forwarded on to many members of the profession and judiciary and as a result I was invited to consultations at the DCA as it then was.

Most of my points remain valid now and I have adapted the contents of that paper to address a limited number of the questions you are now raising.  My original paper was written to raise issues and explain matters to civil servants and politicians. Some of it may therefore be redundant for the very experienced practitioners on your team.

If you are impatient with any of this background material please skip to section 18 – calling in if you please at short and surprising section 15.    

10.  The length of this paper:  I would dearly like to write a simple short paper which is easier to read (and perhaps more likely to be read?)  However before making proposals I must respond to some of the pressures that your committee will be under and some of the views that will be expressed to you.

The terms of Annexe B of the Carter terms of reference were covert and phrased in highly prejudicial terms (literally – pre-judging). The cost saving agenda seemed hidden and therefore slightly dishonest. The document was clearly written by the consultant business accountants with no appreciation of the legal process.

11.  Your terms of reference:  I very much welcome the open and honest terms of reference of your enquiry and the fact that they and the composition of your team indicate a proper respect and understanding of the main fact about care proceedings that I have repeated many, many times and has become a part of the language:  “With the abolition of the death penalty, care proceedings are the State’s grossest, most extreme interference in citizens’ lives. Taking away a person’s children and removing children from their own family is the most devastating step imaginable for the parent and the children and can only happen if it is totally justified and there is no alternative.”

The process for deciding this must be painstaking in the extreme. Mistakes either way are likely to be disastrous. Ie taking pains. And it may be that there is a tendency (conscious or unconscious) to avoid that pain and seek a cheap and quick solution.

12. Pressure from two major players:

Even more than five years ago the financial pressure on the system are enormous and none of us who work in it are ignorant of that.

The questions then and now can be seen as reflecting the interests and the representations of two important players.

12.1 The interests of the Treasury – and in some sense of all of us – is to save money.

The MoJ may wish to consider the respective costs of different areas of court process.  Crime and lengthy criminal trials are an immense burden on the budget and yet seem to be sacrosanct. Is that because of the real merit of the call for resources or because of the well organised, well connected and skilful criminal Bar.

Some sacrifices may be looked for from civil proceedings. We are all aware that the main growth area in civil is care proceedings. That is where savings are looked for – but there is a danger of this being done with no analysis of what accountants would call the real ‘cost drivers’ within care proceedings.

Even less is there any awareness of the ‘downstream costs’ of poor decision making here:  the massive impact on the health, police and prison budgets of children not protected to the very best of our abilities. It surely cannot be a question of  ‘that’s a different budget’ ? That would be the antithesis of any joined-up thinking.

12.2. Local Authorities will also be making submissions to you reflecting the interests and views of Directors of Social Services and their Finance Officers.

Local Authorities may have two ambitions: the first is obvious – to save money.

But linked to this, the proposals shift into a far more serious issue: – their seeking to transfer power in child care – from the formal, regulated, scrutinised, painstaking and expensive process of the Court to the informal, independent,  flexible, autonomous cheap actions of Social Workers and  Local Authorities themselves.

This is the move that I wish to draw attention to and discuss.

Disproportionate use of resources. 

Directors of Social Services may be saying that the Court forces them to spend a disproportionate amount of their Social Workers’ time and their budgets on care cases – in two ways:

“Firstly with elaborate and massively expensive assessments – often of hopeless cases”

(It is not hard to think what could prompt this backlash. s38(6) over the years decisions are a disaster for Local Authorities and the LSC. They represent an open cheque to experts and residential assessment centres.)

“And secondly, especially with pressure from the Guardians, the Court is forcing us to spend an unreasonable amount on care plans. They are perfectionist, unrealistic and rob resources from other families.”

“A disproportionate amount of Social Services budgets are being spent on the small number of families that come to court. The whole thing is bloated, over-elaborate.”

“Social Workers are therefore not able to do the preventative work that would prevent misery and be more cost effective.”

To an accountant that logic would be irresistible. Something must be done. We must cut back on these disproportionate costs. Use the money more equally, more efficiently, more cost effectively.

From the Social Work perspective and for the families: Why are we spending the resources so unevenly? Preventative work is far, far better than fire-fighting.

The previous of the terms of reference used phrases like – “to ensure all resources (including children’s services) are used in the most effective, efficient, proportionate and timely way”  – and read them with this perspective – you can realise that we are in fact trying to answer an unspoken assumption and accusation that care proceedings are ineffective, inefficient, disproportionate and slow.

 This is nowhere properly argued or any evidence produced. This is treated as a given. But that does not mean we can ignore the challenge. We need to answer: Are they? If not – why do they think they are?

No. But they may seem so to those who look at things from the outside.

We need to restate what really goes on in care proceedings and why they are different from other areas of law. The real reason why care proceedings are elaborate and lengthy.

That is not to say that there is not room for improvements and possibly some fundamental rethinking about child protection and the role of the law; when and whether the court should be involved at all. They are looked at in section 18 of this paper.

But for now let us deal with those situations where the court is involved.

13.  It is not sensible to compare care proceedings with other cases. 

Care proceedings cannot properly be compared with other forms of Court proceedings such as criminal or ordinary civil trials.

This is for three reasons.

13.1. Firstly, as I state above and do not apologise for repeating, they are simply the most important proceedings in terms of ‘punitiveness’ that come before the English Courts. This is both obvious and shocking.

I have said above that with the abolition of the death penalty, care proceedings are the State’s grossest, most extreme interference in citizens’ lives. Taking away a person’s children is the most devastating step imaginable for the parent and the children and can only happen if it is totally justified and there is no alternative.

The huge power and brutal intervention by the state explains why there has to be proportionate time and resources spent at this point. It is not a smooth increase in state intervention – it is indeed a sharp step, a move into a new league and the process has to reflect that.

A criminal trial with a possible prison sentence is a far, far less serious matter.

If someone offers you the choice of a few years in prison or the permanent loss of your children? Surely not a millisecond’s hesitation?

Yet there have always been millions of pounds spent on Old Bailey trials with QCs, forensics and trials that go on for months. The Government is now talking of reining that in – but from an incredibly inflated starting point.

Whereas removal of children is already done comparatively cheaply: mainly in the lowest level of court with unpaid magistrates, solicitor advocates and often junior counsel. On average – short hearings, few witnesses.

Surely this is an extraordinary situation; this is the true disproportion in the system. And yet we have been so used to it that it takes an effort even to notice it. In this context it is clear that care proceedings are not in fact very or disproportionately expensive.

13.2. The second point of uniqueness of care proceedings relates to the fact that care proceedings are the most important cases in terms of implications later for the individuals concerned and for society: 

On the one hand – not to remove a child when necessary is to risk danger of harm, abuse, death. 

On the one hand to remove a child unjustifiably is not only the grossest injustice to the family and the child, leaving a lasting grievance but it is no simple answer.

Those of us who work in the field know of the ever increasing difficulty in finding suitable adopters or even foster carers. This is especially true for children over a certain age, boys, and some ethnic groups.  A point I have not seen acknowledged is that with assisted conception making incredible leaps forward there may be almost no childless couples in a few years time.

The cost of foster care is huge and for residential units is astronomical – sometimes in the order of thousands of pounds a week.

We also know how poor the outcome is for children removed into the care system. The government has commented on multiple moves within the care system and the poor educational and social outcomes for children in care. Less publicised but vitally important to the debate is also the breakdown rates for adoption.

For the parents; if removal is not seen as legitimate, the effect on their functioning is profound.  One result is likely to be another swift pregnancy with all the attendant costs – human and financial.

These all have huge consequences further down the line – crime, health budgets; hidden costs. The idea of economising on decision making at this point is surely economic madness.

Simplistic thinking by one part of government will dump more serious and expensive problems on other parts of government for years to come.

13.3. Thirdly care proceedings are not like any other court proceedings

They are complex in a messy, human way that is outside the personal experiences of most people – including with all respect civil servants and accountants.

They deal in intimate detail with some highly dysfunctional families: with allegations often of mental health problems, drug addiction, chaotic lifestyles, physical and sexual abuse, neglect. Added to which there are often issues of learning difficulties, language and cultural problems.

This is all very unpleasant and hard for most people to think about. There may be disgust. There may be a need to assume there must be easy answers, tidy, cheap administrative answers. It is easy for that to become a basic impatience with the legal system; a simplistic approach tending unconsciously to the crude and authoritarian.

Most cases are in fact not clear cut abuse cases of the sort that are reported in the papers. The description above of extreme dysfunctionality is not universal.  Cases are often about incompetent, inadequate parents – neglectful with perhaps some drug, mental health problems. Borderline cases. Parents who might be able to get better. Who may be able to change to being good enough given input and time. Who need monitoring. We have to ask – What can be salvaged for the children in this family?  Parents may have improved but is it enough? Is it bad enough to remove the children?

The decisions to be made are the opposite of clear cut. They are matters of degree, of enormous difficulty and painfulness.

13.4  Care proceedings are not like any other court proceedings in terms of what is happening in the proceedings: 

Almost all other proceedings in Court consist of an enquiry into a factual situation followed by legal analysis. This is most obvious in crime. The simple question is: did this person commit this piece of behaviour and is that piece of behaviour criminal and if so what should be the disposal? Similar issues arise with regards to civil proceedings.

Obviously the more promptly that these can be carried out after the event considered, then the better – both evidentially and from a point of view of the proper discharge of justice, penalty or remedy.

In care proceedings, clearly this is a model which is appropriate for split hearings in which the fact-finding first half is closely analogous to criminal proceedings.

However, as mentioned above, it is very rare for cases to be decided purely on the basis of such fact-finding hearings. There are a few cases of alleged sexual abuse or alleged non-accidental injuries of which this is true and, if the finding is that these allegations were unfounded, then there are no further grounds for concern or proceedings.

However, the majority of cases either do not have such specific allegations or are cases in which those specific allegations are simply embedded in a more general level of concern about significant harm caused by family dysfunction and poor parenting.

In these cases, the question before the Court is essentially one of risk assessment for the future behaviour of the parents or family.

13.5 Care proceedings are about risk assessment for the future, not about a retrospective investigation of what has happened in the past. 

The entire enquiry in Court is actually directed at likelihood of future harm. This is why the proceedings are essentially a legal structure within which social work and psychological assessments are carried out.

Of itself, that would explain why the process is considerably more elaborate and prolonged than the simple fact-finding procedure in other sorts of hearings.

But the next layer of analysis is that these assessments are in fact not merely assessments of a static situation. They are almost invariably an assessment of a family with its dysfunctional aspects and the question is – can this family change? And if so, would that be within a time scale which is consistent with the need for the child or children to achieve some secure future placement?

13.6 Assessment of change. This is most clearly exemplified by residential assessments. It is quite clear and it is becoming recognised in a number of s38(6) cases, that these residential assessments are effectively assessments of parents’ ability to change. They contain psychological work, parenting work, and other work which may permit or encourage a parent to change to become a more competent parent.

This is also obviously true in situation where one of the main problems is a parent’s drug use. It is quite clear that the residential placement is as much about helping that parent achieve long-term drug-free status, as it is achieving improved parenting skills.

Therefore, in essence, what care proceedings are often about is Court directed assessment and processes to achieve change. It is for that reason that we repeatedly come up against the issue of time tables which involve assessments and work which takes place and has to take place over a matter of months, whereas the protocol and the expectations of the Court and statements regarding delay seem not entirely to have understood or to have accepted this fact about the nature of care proceedings.

13.7 Care proceedings are about Care Plans.  We all know that care cases are now very often a question of the Court and the Guardian putting pressure on the Local Authority to create an acceptable care plan and delaying final hearings to ensure this is done. Care plans have become central to many care cases and this explains delays and costs. Examination of the care plan is not a minor bolt-on issue.

This is clearly the target of proposal 3.3.2 – “Examining whether the two stages of the court process in child protection cases (establishing the facts and determining the care plan) could be more formally separated with different attendees, procedures and levels of legal representation, and precisely where, and in what way, lawyers should be involved.”  The implication is that this is wasteful, over elaborate. It is about removing care plans from rigorous, independent scrutiny of the court.  This is fully answered below.

The discussion cannot simply end with asserting the importance and uniqueness of care proceedings. It would be a danger that we were asking simply for a blank cheque both as to the degree of elaborateness of the assessment, the duration of the assessment and negotiations regarding care plans and the degree of Court supervision. We could quite rightly be tested on those aspects and we should be self-critical about them.

14.  But why involve the court? 

The first challenge could be mounted to the question as to why any of this needs to happen under the supervision of the Court. That is in essence the question that was being asked throughout the previous terms of reference and is repeated in your questions.

The answer I suggest is three-fold:

14.1.  Coercion. Firstly, as mentioned above, the difference between these assessments and other social work assessments is that the situation in the family is sufficiently serious that active consideration is being given to the removal of children from their birth parents.

This is in essence the escalating level of coercion in child protection and social work practice.

As the level of coercion increases, or as the level of threat increases, then it is correct for that process to be under the scrutiny of independent and experienced institution – namely the Court. The alternative model would effectively be the State through social services, exercising coercion on parents without an arena to ensure fairness and proportionality.

The human rights challenges to this only represent what any reasonably fair-minded person observing the rule of law would consider appropriate.

14. 2.  Quality control The second, less obvious reason why this assessment process needs to be under the control of the Court is one of quality control.

The question of what would be a fair and full assessment is something that the Courts have considered and developed over the years. The Guardians are also generally very experienced social workers with a knowledge of resources and of practices in many different Local Authorities.

The social workers dealings with a case are not only subject to continuous change, but are often inexperienced, not aware of the range of possibilities and not necessarily as experienced as they need to be for this important work.

The result could be either an assessment which is brief and dismissive of parents, and gives the family no real chance to change, with the result the child is cheated of the possibility of being raised by their own family.

Alternatively, the assessment could be superficial and incomplete and allow a child to be returned to a family where further abuse or neglect then occurs.

Quality control relates also to care plans: The scrutiny of care plans can be seen in two situations:

Firstly with rehabilitation of the children home: Time needs to be spent on developing a care plan that will guarantee as far as possible adequate monitoring to ensure the children’s safety. Questions also need to be answered about what resources can be found and put in place in terms of support, special schooling,  housing, medical check-ups and therapy arranged for the children etc. The input of expert advice in the case, psychiatric or social work, is often focused on these points.

The court should not attempt to control the future implementation of the care plan but can and should ensure that the plan is clear and secure and is likely to happen.

Secondly in cases where the children are removed from the family: the logic and justification for removing children from their families is based on the premise that the Local Authority can do better than the parents. To justify that the Local Authority needs to show what it will do with a Care Order if granted. Is the child going to be placed in a suitable home or residential unit? What does the child need? Will those resources be provided?

The detailed scrutiny that has developed is driven by the experience of Courts and Guardians who have so often come back to cases either when rehabilitation plans have failed or at the adoption stage and find Care Plans were inadequate.

Here again those of us actually working with cases see the hidden costs that are overlooked by those from outside. Most of us have been re-appointed on cases where a rehabilitation that could have worked has in fact broken down.

We find the vague promises of support made at the final hearing never materialised, the social worker left, the children never got the speech therapy or the respite care that would have allowed the family to survive. The family was left to drift into neglect again. The children suffered – which is the main issue from a human point of view – but from an economic point of view – eventually the children had to be removed again.

That is expensive in itself. If the children are not adoptable it represents a continuing huge cost – fostering for maybe 12 years at a few hundred pounds a week, on present day costs, and then leaving care services later . What is the total cost of all that? Hugely more than having a proper care plan that is delivered.

But this is precisely where the conflict arises with Local Authorities. To have an external agency exercising quality control is irksome in the extreme. The proposals could be seen as about Local Authorities wanting to escape from that control. This is totally understandable and we need to make it clear that this would seriously endanger children. 

14.3. Implementation of care plans:  We have to accept that the court cannot supervise the implementation of care plans. The need for some supervision is undoubted. Hence the saga of the starred care plans, which can be seen as the high tide of court control and which were rolled back by the possibly more politically sensitive House of Lords.  This has been replaced with provisions for reviews with Independent Reviewing Officers. There are many criticisms of the poor quality of this system so far but that is a different issue.

The power and responsibility of the court may be properly restricted. But it must clearly be authorised and enabled to ensure that  the children have the best possible clear and complete care plans to start with and for the IROs to monitor.

We need to argue that the court needs to remain involved in the formulation and checking of care plans. We need to explain that to remove this process would endanger children.  And that such a failure would be in conflict with the most strongly held beliefs of the government in the need for the best deal for children.

This does however require us to emphasise the dire situation in Social Services explored below. This has to be done, but is politically difficult and potentially offensive to our Social Services colleagues.

15.  Lawyers facilitate the process. The third reason why the involvement of the Court and of lawyers is necessary and productive at this stage may be a surprising one. The parents’ own solicitors do not in fact insulate their clients or over-protect them from the intervention of the state. They are actually the delivery point.

Social Services may see parents’ representatives defending them in what are considered indefensible situations or creating unnecessary delays. What social workers generally do not see is that one of the main roles of a parents’ solicitor is to act as the effective agent for that social coercion – however uncomfortable and unattractive that language sounds to us.

It is the parents’ solicitors who gain the trust of parents. They identify their solicitors as “on their side and worth listening to”. The solicitors then explain clearly and in a way that will be heard, the legal reality and the need for the parents to change their behaviour if they wish to retain the care of their children.

If this function were not carried out by the solicitors acting for parents, there would be many more contested hearings on hopeless cases. If parents and children can accept the legitimacy of decisions reached then there is a greatly increased chance of a successful outcome whether rehabilitated or removed. If that legitimacy is not achieved it is damaging for the children and for parents – whose lives are likely as a result to become even more dysfunctional with even greater risk to future children.

16.  Why are these proposals being made? Response to a crisis. 

I suggest we need to start from one stark fact: Social work, child protection and care proceedings are in serious crisis.  It would be hard to over-state how dire this is.

We know that from inside the system. But the fact has not been acknowledged – certainly not in the report – nor is it yet full public knowledge.

1. Social Services. After years of cuts, recent child protection scandals have led to increases in spending. Large and probably unsustainable amounts of rate payers money are being directed to Social Services but social work teams remain desperately understaffed and the workers over-stretched and over-stressed to breaking point. The same is often true of their Legal Departments.

Many experienced staff have left. New staff are often agency staff. They are frequently from overseas, especially Australia, New Zealand and South Africa. It is a measure of the desperation that London Boroughs are going to these countries and signing up Social Work students while still at their universities.

Many of them are very good but need better induction than they get and they are usually on short term contracts with the resulting very high staff turnover.

We are all involved in cases where the Social Workers have changed two, three or more times during the case. It is rare to have the same Social Worker on a case for more than a few months. This is clearly not providing a good enough service to children and families.

2. CAFCASS: It is hardly necessary to highlight the terrible backlog of cases, the delays, the demoralisation of staff, the current financial problems and failure to allocate work to self-employed guardians.

3. Courts. The courts are also overloaded to breaking point. To be offered contested hearings six months ahead is an absurdity; it is disastrous for the family and for proper planning for children as well as being totally non-compliant with the HRA.

Delay is not always wrong as we all know. Proper assessments – particularly ‘in the community’ – take longer than the protocol would accommodate if it were ever strictly applied  – but that is quite different from delays caused by overloaded lists.

Are care proceedings causing the problem?  Are they helping as much as they could?

No and No. Care proceedings are not causing the crisis in Social Work. The fact is that care proceedings are a mirror that reflect and illuminate the existing situation. They are the messengers bringing the bad news and they are in danger of being shot and seriously damaged with dire consequences to child protection, children and families.

The real problem is that care proceedings are continuing to try to maintain and even improve the quality of state intervention  – but at a time when social work is in crisis – some people would say is virtually collapsing. 

The real reasons for the crisis in social work.

Are social workers leaving because of care proceedings? Or because of overload, stress, burn out, sometimes poor management and lack of supervision, endless re-organisations, devastating witch hunts in the media and the general social attitudes towards social workers.

A TV programme some years ago referred to social work as ‘the pariah profession’. Many examples, most obviously Baby P are examples of the vilification of social work. Existing social workers all over the country reading those reports are demoralised. Many prospective applicants are deterred.

But many social work teams that have very little to do with court proceedings are also in crisis on staffing levels. The problem cannot therefore be caused simply by involvement with care proceedings.

But here we are talking about the crisis or collapse of social work. And that is not acceptable language for central or local government to use, or even to hear. It is far easier to find some external source of the problem – like care proceedings.

Social work crisis reflects a social crisis.

And even more unsayably – the crisis in social work reflects the fact that to some degree society is also in crisis.

Perhaps we need to assemble those familiar, grim statistics – on the breakdown of family life, social exclusion, or describe the changes in values and attitudes, or the vast, runaway increase in drugs which are now at the heart of a majority of our cases? All these are generating almost impossible levels of demand and stress on Social Services Departments. This is the real reason why preventive work has become a thing of the past.

But here we are talking about the decline or collapse of social work and of society. And that is probably even less acceptable language for government to use.

Or perhaps for any consultant commissioned by a government to refer to. So it is easier not to mention this difficult, ugly, complicated and politically embarrassing truth.  It is far easier to blame someone else. Blame the process, blame care proceedings?

One point that could however be properly made here: Courts and lawyers in their dealings with Social Services Departments can often act as if nothing was in crisis. We can be impatient, critical and reproachful. We can act as if there were plenty of resources.

We are not creating the crisis – but we are rubbing salt into the wounds. Maybe the attack in these proposals is in fact pay-back time? Maybe we need to listen and learn from that and be more sensitive and see ourselves as working with Social Services? 

17.  Is the present arrangement for involvement of court the very best we could contrive?

This is deal with in two parts: Firstly to ask are care proceedings and the assessments properly painstaking or are they over-elaborate, wasteful, over-lengthy?

Secondly to consider the more radical proposal to ‘identify good/innovative practice which enables children to be diverted away from court proceedings and, instead, to be supported in their families where this is possible’.

17.1. Are care proceedings and the assessments properly painstaking or are they over-elaborate, wasteful, over-lengthy? If there is waste, can it be eliminated?

The following are very brief notes about a very large subject.

There are three areas where we could consider improvements which would save money without compromising quality.

Firstly on a basic level of court procedure: 

We could analyse carefully time spent and time wasted in a case.

One small example and an obvious area of improvement is in travel and waiting time in court hearings.

Some Directions Hearings could be conducted remotely. Video-conferencing seems fashionable currently. But the need actually to see each other is not obvious and the system still forces people to travel. Hearings by e-mail and by telephone conference calls are extremely efficient. Everyone stays in their offices, no travel, no waiting. It may be possible to save thousands of pounds with no loss of quality.

Ideas like this at least needs examining. The present DCA enquiry needs to propose a much more thorough and rigorous examination of these ideas.

Secondly we should look critically at the present assessment process. It is beyond the scope of this paper to study this in any detail but certain questions could be raised here for answering later in a full, open, detailed enquiry:

The most important question must be: How successful in predicting risk are the various sorts of assessment?  What sort of assessment is best: psychiatric ‘snapshots with diagnosis’ or longer term social work assessments based on observation of behaviour? Are we getting real value from psychiatrists?

Why are we not more aware of outcome research? Is there enough information about outcomes?

How successful are drug rehabilitations? Surely that really needs looking at? Huge amounts of money are spent of drug rehabs but I am not aware of any systematic, trustworthy, long term follow up.  Some units will say ‘50% of our clients are drug free after six months’.  But they have an interest in saying so, their follow up methods may lose many of the failures and six months is not long enough.

This feeds into the really hard question: When would it be right to decide early on that a case was hopeless and the child should not be made to wait while a parent attempts yet another drug detox and rehab?

Thirdly the area of costs and alleged extravagance is the pressure to secure more complete care plans. This needs to be separated into two aspects: additional costs due to the process of further hearings against the actual cost to the Local Authority of providing the family or child with the resources needed.

The former is often simply about failures in the Local Authority’s planning, especially around parallel planning and different teams being involved. Time and money would be saved if a procedure could be agreed and enforced as to when and how care plans should be produced.

The question of the actual cost to the Local Authority of providing the family or child with the resources needed is in fact about rationing of resources. There is no honest discussion about how much we are prepared to pay as a society. Even in health, where the issues are clearer, there is no such debate about the value of a life, of certain interventions. We pretend there is no rationing but instead accept the ‘post code lottery’.

In care proceedings the lottery is often both post code based and whether the family is in proceedings. If Local Authorities feel courts are pushing them to spend ‘too much’ on some families, then it would be best to discuss what is too much, what is the budget, what is reasonable to ask for in terms of resources. This is a difficult, painful debate. By keeping care plans out of public scrutiny the debate is avoided.

Finally we should be emphatically drawing attention to the ‘down stream costs’. If a child does not receive correct resources costing a moderate amount now, and then goes on to develop mental health problems or commit offences, how many tens of thousands of pounds are spent in the psychiatric, criminal and prison systems in later years?

If the review or enquiry is being seriously business-like it should be doing this work and those who have commissioned it should be asking for that work. Perhaps we also should be finding or commissioning the research.

The role of the Guardian 

The proposals include ‘using a more inquisitorial system’. This has its dangers but could reinforce the role of Guardians – ‘the eyes and ears of the court.’

The tandem model of children’s solicitor and Guardian has been under attack for many years and the phrase ‘Rolls Royce model’ will have been used. A Ford Fiesta seems the usual counter proposal.  Some will say that the Guardian is an expert witness for the court and experts don’t need legal representation.

This is to misunderstand the role of the Guardian. S/he is not simply an expert witness. S/he is a key player in the whole case.

It has been explained above that the court has a very different role than courts in other types of cases. It has duties to check and direct the assessment process. It has a duty to monitor the progress of the case and the actions of the Local Authority.

This duty effectively falls on the Guardian on a day to day basis. S/he uses the court for reinforcement and to be accountable but the Guardian needs not only continuing advice about the law and what can properly be asked for but also strong representation in court if this is to be effective.

We have all been involved in cases where the Guardian is the only steady, reliable element in a case and the Court looks to Guardians for the pressure to maintain momentum in a case and the quality of the process. Guardians were introduced after the failure of the system and an early child death scandal. To curb their powers or influence would be retrograde and dangerous for children.

The system is not extravagant as the phrase Rolls Royce suggests. If we have to use motoring metaphors, it is more like a basic farm Land Rover; spartan, robust, and any extra cost is caused by the need for four wheel drive to drag difficult cases through the mud and up the hills. Try replacing that with a Ford Fiesta!

18. In answer to your questions 4,7 and 9:

From a lawyer’s point of view, in terms of general approach and procedure, we are all aware of the growth of alternative dispute resolution and mediation. Is there a role for those approaches here?

This is a huge and difficult subject and these are preliminary comments:

It is useful to note that there already two institutions which throw some light on this approach and from which we can learn a lot about the advantages and the dangers of this approach:  Child Protection Conferences and Family Group Conferences. 

They address slightly different but overlapping situations: the first simply with a family or parents who are seen as in crisis, failing and where the children are at risk of harm. The second  is likely to have that element but essentially explores the wider family as a resource.

Coercion. We need to be clear that, as a family reaches the stage that involves these steps, especially Child Protection Conferences, we are talking about pressure from Social Services and the possibility of court action, the threat ultimately of the removal of the children.

We therefore need to put this whole question in a way that is very challenging for us and using language which may be shocking: What is the best use of coercion in child protection? What would be effective but legitimate?

We do use coercion. We all agree some children need to be removed. We all believe that the threat of removal can change some parents’ behaviour – sometimes. We don’t really know which parents or when and how it works because nobody has done the research. That is surprising as it might be thought to be fairly central to the whole business. 

This question needs to be asked in this way because at present there is a form of disproportion with care proceedings. It seems like a clumsy ‘all or nothing’ business. Either there is there is no coercion or there are care proceedings. This is like an on/off switch – not a graded response like a brake or accelerator.

Ironically this is rather like the poor parenting that is criticised in some of the families involved: letting children push the limits with no response and then suddenly cracking down – crudely, harshly, in a heavy handed way. Which in fact further alienates the children and leads to further behaviour which is seen as difficult or challenging.

So often everyone in a case asks – why did Social Services wait so long before taking action? Leaving aside the problems of Social Services generally, there is also the fact that social workers have been urged to work with parents in partnership. The only coercive mechanism is the ultimate one of care proceedings, very hard to use skilfully. It would be like only having one, draconian sanction to use with a child in the home.

Graded pressure or coercion. We should be asking ourselves how can the use of coercion and threat be made more sophisticated and graded but still legitimate and accountable? Even better, to borrow from the parenting analogy, how can the process be one of ‘tough love’ – firm but fair and with warmth and support?

Child Protection Conferences are a form of graded pressure or coercion. They are slightly formal, ‘independently’ chaired meetings of all concerned with a family, which has power to recommend placing the names on the Child Protection Register.

It is possible that the consultants or the civil servants have sat in such a conference. For those of us who do so regularly, we can report that they are curious, unsatisfactory mechanisms. The ‘evidence’ in the form of reports is usually late, incomplete and cannot be challenged. Those attending are often a random collection of people involved with the family from different disciplines and many are reluctant to comment on registration. The chair can decide whatever s/he likes and is not bound by the ‘votes’ of those present. It is not clear to parents or often to the participants what is the significance of their child being on the Register.

If the purpose is to achieve constructive change then it is important to consider the reaction of the parents. Parents often either take the procedure too lightly and are dismissive, or they react with confused anger and aggression or they panic and over-react into anxiety. None of these are particularly effective to achieve the desired changes.

What outside observers may also not appreciate is the reality of working with parents who may have mental health problems, learning difficulties, huge cultural differences and language problems.

Child Protection Conferences precisely highlight the danger of less formal procedures and ‘under-representation’.  It is necessary and far more effective for the longer terms interests of the children for the parents to be well represented and well advised by people they trust.

Ironically the Legal Aid system currently makes it less likely that parents will be well represented at this stage.  It effectively ‘dis-incentivises’ early constructive solutions.

Another way of avoiding care proceedings arose some years ago with the move towards Family Group Conferences as a way of working with the family early on. If the family can be encouraged to ‘sort things out without the need for court proceedings’ that would save, time, money and conflict.

They are used where social workers think either the parent(s) might cope with more family support or where they are not going to cope and a home is needed elsewhere in the family. Those are in fact very different situations and the danger of running one into the other will be dealt with below.

But to deal first with the possible advantages: the FHB or ‘family hold back’ factor:  In that second situation, where a home is needed elsewhere in the family, it would also in theory resolve one of the less obvious but very important causes of delay and expense that now exists in care proceedings: the FHB or ‘family hold back’ factor.

To explain: One reason we have considerable delays in the court process is that sometimes we have ‘serial assessments’ – first the mother; then when she fails, the father or grandmother or other family member come forward and want to be assessed.

And if the assessments do go ahead, and if they fail, then the child has been in foster care for longer than necessary, it will be harder for the child to move on and, at a certain point they may be too old to be adopted. They have missed the bus.

This is enormously frustrating for the Courts; but in cases where the mother fails, can we really say “No, sorry; there’s a perfectly good uncle or aunt or grandmother but they’ve come forward too late. So we are giving the Local Authority a final care order although their plan is currently for adoption. They may change their minds and look at the family but that’s up to them.” That would be totally unacceptable and could result in many children failing to remain within their families.

Usually this whole problem is simply a result of the fact that the person who is seen as the primary carer is given ‘the best shot at it’ – and everyone else in a family is holding back so as not to be seen as threatening or undermining her.

In theory getting everyone together could produce quick and practical solutions to this problem or, on the more positive situation of parent(s) coping with more support, then that can be arranged quickly and simply.

In theory. But the results in practice are not as satisfactory as the original glowing reports from New Zealand suggested. Or perhaps as the organisations or consultants who provide FGC services might wish to claim.

There are huge, messy emotional issues here that will not have been within the professional experience of those undertaking the present enquiry and need spelling out.

This is likely to be a dysfunctional family possibly with a long history of conflict, even abuse, neglect or violence and bullying. There may be learning difficulties and/or a long tradition of avoiding or manipulating Social Services.

Who wins? Family Group Conferences can simply be a formalised arena where the more dominant or domineering members of the family take even more power and oppress the weaker. The family appears to resolve the problem by voluntarily agreeing to take the child away from the mother. But old patterns are being repeated. The problem is brushed under the carpet.

It may not in fact be necessary for the child to be removed but if the family decide it is, then parents may well feel they have little choice. This can be a travesty of proper procedure. Children may lose their home with their parents on the decision of a dysfunctional family.

Because there is often no full and rigorous assessment, the child may end up with the most dominant member of the family – possibly aggressive or even abusive – not with the most suitable person.

This leaves aside any ulterior motive – from sexual abuse through to the value of a child as a ticket to increased benefits or a place on the housing list.  This is a highly dangerous result.

Fooling Social Services and the long term results.  

It could be asked what research there has been on the real long term results. FGCs often result in a family ‘resolving the problem’ which actually means ‘fooling the social workers that it’s safe. Then a few months later, once the social workers have all gone away, the kid goes back to mum.’ Looks good and will be reported as a success in research or brochures advertising FGCs but in practice is definitely another dangerous outcome.

These two procedures share all the classic dangers of  processes which can be quick, cheap, superficial and dangerous. 

We could still say that Child Protection Conferences and Family Group Conferences do have real dangers but maybe the parents need to hear about the serious stage matters have reached; maybe the family does need to be brought together and told strongly and authoritatively and advised by people they trust, that the whole family must now work openly, urgently to salvage the situation.

But the dangers remain so we need to ask what could be done to create a new model which is quicker, simpler but sufficiently painstaking to safeguard the children and create safe, successful outcomes?

One of the proposals in the Carter Annexe B review is for ‘early low-level judicial intervention’.

Taking this proposal as a challenge and viewing it as constructively as possible we could see this as amounting to suggesting a mechanism for a figure like a Judge or an Adjudicator or a tribunal, in a fairly formal situation, to articulate to the parents the seriousness of the situation and the reality of the coercive  threat at a realtively early stage. Possibly they would supervise the Child Protection Conference and ensure its proper operation or encourage or even require the family to engage in a Family Group Conference and set appropriate terms.

There may be benefits for the family to see that holding back in order not to upset the mother is not going to work. “I, the Judge, am saying I want to hear about the wider family. The mother cannot reproach you for offering. This may be your only chance of keeping the children. ” This could well help resolve that disastrous, family hold back factor.

Proper systems:  The aim must be for this to be done in a way that is fair, constructive and calculated to produce change in the family and improvements for the children.

It would require very careful thought to design such a process. It is a major project which needs not only careful thought, but information from research and the proper examination of models from other countries and cultures.

Will the civil servants have the courage to say that this cannot be rushed whatever the political pressure to come up with quick answers? That a full commission or enquiry needs to be set up – however unfashionable such an approach is. Will they see that to rush changes through would produce great future embarrassment of the government and all those involved?

Some basic requirements have to be met. The information justifying this level of coercion needs to be sound, offered in advance to the parents, and open to some challenge. If this is already beginning to sound like a court then it highlights the difficulty of finding any sort of innovative middle course between the two existing extremes.

Also it will only be fair and will only be effective if the parents and family are advised by people they trust for reasons explored above. 

That is a really constructive role for solicitors and one that we in fact already do play in some cases, quietly in our office in discussions with our clients.

I and most other child care solicitors have diverted many cases from court proceedings by encouraging parents to co-operate with Social Services and sometimes to work with other family members to create a care package that will ‘satisfy the social workers’ – ie provide better care for the children. This is an area that could well be developed with better thinking, training and funding.

Resources. There is also no escaping the issues of resources.

Many of us have clients coming into our offices saying ‘I have tried to get some help from Social Services, I am not coping, I am in danger of hitting him, I need help, my son needs a nursery.’ They get brushed off unless they are seen to be in total crisis. Indeed more than one client has had to threaten to abandon their child in the offices in order to get a response. That damages the child and sets off relations with Social Services on the worst possible footing.

Some of this is simply resources. Social workers cannot necessarily offer the support or the nursery place. Many nurseries have been closed down. Youth clubs did great work but are now a distant memory. They did real, invaluable preventative work.

Any early low-level judicial interventions that are properly conducted will lead to the Judge asking what resources are to be available to the family if coercion is also to be applied. You cannot give people in that position power without them feeling the proper sense of responsibility that goes with it. It is not necessarily a cheap option.

One new more hopeful development is that parents are beginning to say ‘I want some parenting training’.

This is major progress. As someone who is a parenting group facilitator as well as a solicitor, I know that parenting training is an effective and cost-effective way of quickly and profoundly improving the situation for many families.  It is an idea some of us have worked with for ten years but it now seems an idea whose time as come. Judging by the TV programmes, people are beginning to see the light on this.

One threat to the effectiveness of this is the danger that they will be seen as punitive, something to be done because of a compulsory Parenting Order, stigmatising. That would entirely undermine their effectiveness.

They need to be seen as respectable, smart, fashionable.  If more role models in society could be heard to say they struggle with being a parent and have benefited from help or a course then an important new resource could begin to operate: an example of good/innovative practice.

But this strays way into the sky blue area outside of our immediate subject 

Thank you for reading this far.

Happy to come and talk with you if that might be your modus operandi at any stage.

David Jockelson.   29 September 2010

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