Presentation Transcript

1. What are care proceedings really like?

   Key findings from the Care Profiling and Parents’ Representation Studies Judith Masson
2. Care Profiling Study 2008Quantitative court file study 386 care cases from 8 CCs and 17 FPCs applications made in 2004 Local Authorities’ concerns: 75% relate to child neglect Families involved: Longstanding and multiple problems - DV (50%), substance abuse (50%) and mental ill health (30%) Children: 28.6% <1 year; 57%<5 years; 62% cases related to 1 child 1/6 cases involved 3 or more parents Variation of practice between courts eg use of transfer, experts, contested matters, duration Use of expert evidence 90% of cases; 65% adult psych – 20% 2 or more Outcome 60% CO; 23% RO; 14% SO; 3% dismissed, No order, wdn at FH
3. Parents’ Representation Study 2008-10Qualitative observation + interview study Aim to develop understanding of care proceedings Through lens of parent’s’ representation Observation by shadowing parents’ lawyers Following ‘the cases’ from hearing to hearing From meetings with clients To discussions with other lawyers Into court (eventually) Afterwards with client Unique perspective of the researcher Deeper understanding of care proceedings and of PLO
4. Parents’ Representation Study 2008-10 Study of the processes and practices of representation Observations in 4 Care Centres and 4 FPCs 100+ hearings and associated discussions Interviews and Focus Groups 41 solicitors +focus group 8 barristers +focus group 4 judges +focus group (+focus group with Magistrates’ L Adv) Cases studies Purposive sample of 16 cases identified at early hearing Analysis by systematic coding of transcripts/ field notes
5. Care proceedings – the process Set out in the PLO, Practice Directions, Rules and cases Adversarial process: Parties are LA, parents and child Judicial case management Controlling: the use of experts, case timetable etc Overriding objective A timetable for the child 5 key hearings - completion in 40 (30-80) weeks
6. What is the court process really like? Not like the PLO! Multiple ‘hearings’ to discuss, agree, monitor, decide Time spent outside not inside court room Majority of issues decided by negotiation Lawyers take lead role in negotiation Little evident judicial case management in 3 of 4 Study Areas ‘Negotiation’ with clients to seek agreement Substantial use of experts - forests of paper Lack of professional continuity: lawyers, judges and sw Unpredictable? Substantial minority of contested final hearings
7. Lawyers – who they are? Solicitors Specialists; Law Society Children Panel Most sometimes represent children Experienced, predominantly women over 40 Under pressure – time and money Legal Aid Rates - fixed fees - now more risky and less lucrative Barristers Family lawyers, some specialists, middle ranking juniors and babies instructed for - 5Ds - diary, distance, duration, difficulty, dispute Lack of continuity but skills in establishing rapport Particular skill in getting parent clients to concede
8. Aims of parents’ representatives Helping parents to understand the process Making the process ‘work in client’s interests’ Securing the best (available) outcome for their client Supporting client through the process Additional responsibility for the child… ‘[remaining] ‘child-focused…achieving the right outcome for the child whilst protecting the rights of the parents as much as possible.’ CS6 AND Keeping their businesses afloat
9. Initial advice Competing concerns Getting the client’s trust Getting the client to recognise the need for change Key messages Act on instructions Co-operation with LA Focusing on child Being ‘honest’ ‘realistic’ And there is rarely much time between meeting the client and going to court
10. Continuity of professional practice Carole was represented by 2 solicitors and 3 barristers BUT - LA had 2 separate barristers Ben represented by 2 different solicitors Ben had 2 different social workers and 2 separate foster placements Bernie was represented by the same solicitor throughout BUT Patrick had 4 social workers LA had 7 different lawyers There was a different Magistrates’ Legal Adviser at nearly every hearing
11. Use of experts
12. The use of expert evidence Concerns - costs and delay also devaluing social work Why are there so many experts? Lack of control Parents’ rights and ‘the rule of optimism’ To test parents’ commitment Give parents time to change To convince parents to accept the care plan To supply specialist knowledge to LA and court To share the burden of difficult decisions Avoids decisions and informs unavoidable decisions
13. Negotiation Everything could be negotiated (exception in Area D) Usual mode of litigtion practice Mnookin and Kornauser(1979)‘Bargaining in the shadow of the law’ Matters only put to judge if lawyers can’t agree Benefits of settlement under parties’ control outcomes can be made more palatable considered more likely to be successful BUT concession is not consent Process – Caucusing and consulting Generally accepted by parents without comment
14. Threshold Negotiating threshold Carole’s case not ‘soiling’ but ‘poor toilet hygiene’ Evie’s case (serious injuries) statement: ‘children lacked appropriate supervision’ Evie’sresponse‘if they cried, I would run to them straight away’ You could have a case where [csa’s] alleged but also neglect issues. If you get a finding then that sexual abuse didn’t occur but that neglect occurred and therefore the children can’t be looked after, they have lost the child to that extent, but preserved some sort of reputation which may be of relevance for the next child – for the future. (Solicitor 26)
15. Decision-making in care proceedings Resolution 2/15 Negotiated outcomes 9/13 Consent, concession and attrition Adjudication: Contested matters – Care profiling study 33% (130/386) contested interloc matters eg ICOs or experts 23.3% (85/364) final hearings; 64 on care plan; 45 on threshold Contests largely not related to weakness of LA case Statistical relationship between planned placement and contest Final hearing contests: Parents’ Representation Study 4/13 Carole, Hayley, Robert, Sean
16. Overview of the process for the 16 case studies
17. Understanding care proceedings practiceShared ethos (1) Being right is more important then being quick If you were being totally focused on the needs of the child, you would try and get cases dealt with, almost universally, well within the 40 weeks in order that children can be moved on and start the next phase of their lives. But that’s not fair to the parents. And if the parents aren’t capable of turning their lives round and having their kids back, then arguably it’s not fair to the kids either because the kids should ideally be with their birth parents and not with substitute parents. Removing a child from her birth parents doesn’t inevitably mean that that child’s future is going to be better….” (Judge 3) Parent’s rights = children’s rights
18. Shared ethos (2)Agreed outcomes are valued And then try and find other elements that make the decision more palatable for them like trying to achieve something with contact maybe, so whatever I do, I try and get some positives out of it for the client so they come away feeling, yeah, okay, they had to accept that maybe they’d lost their child, but they were going to get some contact. (Solicitor 32) …if you can avoid findings of sexual abuse or whatever else is alleged against the parent… You could have a case where that’s alleged but also neglect issues. If you get a finding then that sexual abuse didn’t occur but that neglect occurred and therefore the children can’t be looked after, they have lost the child to that extent, but preserved some sort of reputation which may be of relevance … for the future. (Sol 26) Too much compromise for agreement?
19. Shared Ethos (3)Belief in parents’ absolute right to contest Care orders viewed as ‘draconian’ I would never [be]grudge anyone a fight – even if there’s no case. I don’t think it’s a waste of money – this is a big issue for me ….a lot of solicitors will say to you that it’s almost therapeutic or cathartic to have a contested final hearing . (LA Lawyer 1) Well – should [lawyers] stop them [contesting]? I don’t think they should. Because, you know, [parents] are going to feel better about it aren’t they….(solicitor 40) Scepticism about the capacity of the LA; and Hierarchy of placements – Rehabilitation - Closed adoption Belief in superiority of kinship care
20. Improving care proceedings Family Justice Review: More/ better pre proceedings work Better preparation of cases by local authorities Judicial continuity and better judicial case management Timetable (timescale) for the child Shorter – possible statutory time limit - 6 months but exceptions Judicial appointment of experts More limited consideration of care plans Rehabilitation; kin care; LA care or adoption Concordance with Munro? Good practice or meeting the demands of the courts?
21. Reforming care proceedings If proceedings are to be completed more quickly they will have to be made smaller – FJR proposals are limited Shorter proceedings with less scope for negotiating care plans are likely to demand more adjudication. A better process also has to be better for parents A process which is easier to understand, provides an opportunity to speak and where parents are included.
22. References Care Profiling Study - Report and summary http://www.justice.gov.uk/publications/research030308.htm Just Following Instructions? The representation of parents in care proceedings http://www.bristol.ac.uk/law/research/researchpublications/2011/justfollowinginstructions.pdf J. Hunt , Parental perspectives on the family Justice System in England and Wales (2010) Family Justice Council http://www.judiciary.gov.uk/about-the-judiciary/advisory-bodies/fjc/publications/other/Parental-perspectives Family Justice Review – Interim Report http://www.justice.gov.uk/publications/policy/moj/family-justice-review.htm