Saturday, 10 July 2010

Children and the courts ....Review by the Government

"The court therefore grants an interim care order to the local authority in respect of ...(child) ..."  Those words are the nuclear option in child care cases.  They often mean removal of the child from the family to foster carers of the local authority's choosing.   The word "interim" means that the removal will be temporary whilst the case proceeds to a "final hearing" several weeks or even months away.

Removal of children is essential in some cases where there is "clear and present danger" of serious injury or abuse.  In other cases, the decision to remove is difficult with considerable room for difference of opinion.  In those cases some argue for supervision rather than removal.  Others disagree and plump for removal on a "just in case" basis and perhaps because the children's guardian has recommended it and a decision to go against the guardian usually results in an appeal.  This is a difficult and controversial area.

The law is in the Children's Act 1989 and in binding judicial decisions.  One such decision is Re L-A (Children)(Care: Chronic Neglect) [2009] EWCA Civ 822 where the court of appeal confirmed that children should not be removed from home at an interim stage unless the safety of the child requires it.  ["Safety" appears to be rather an "elastic word" covering any form of "safety" - physical, emotional etc].  When the case eventually gets to a final hearing, there may be a "care order" based on a "care plan" involving permanent removal of the child and adoption.

Interestingly, these orders (interim or final) can be made by either the High Court, County Court (where judges sit alone) or by Family Proceedings Courts (FPC).  In the FPC, cases are heard either by panels of three magistrates or, sometimes, by a District Judge (Magistrates' Courts).  The latter are supposed to sit with one or two magistrates but this never seems to happen in practice - (see Magistrates Courts Act 1980 s.66).  [The question is never asked - "Why is this judge sitting alone?"].*  If an application for an interim care order is opposed (and not all are) then the magistrates will conduct a hearing which could take a full day or perhaps more.  At the end of that day, everyone is tired but the magistrates will then have to stay to consider the case, prepare written reasons and announce their decision.  Appeals are then common adding further stress to the family in question.  The magistrates are dissuaded from going home and returning another day with rested minds.  This is because it is usually hard to get the same panel of magistrates back together.

If a court is to exercise, even temporarily, a nuclear option then one has to question whether this form of decision-making process is the best that could be devised.  Also, it does not usually save money because appeals are common.  One option might be to have the cases heard entirely by professional judges who, as lawyers, have specialised in this work.  An alternative would be a new tribunal for Children Act cases.  The tribunal would take over the "child care" work of the FPCs and also that of the County Courts.  Hearings would be before panels of three with a qualified lawyer as chairman.  A third option would be to make some reforms within the FPCs to overcome the difficulties put in the way of magistrates.  Perhaps a better option by far would be the creation of a Family Court.  This was suggested many years the late Mr Justice Finer in his report on One Parent Families.

The magistracy contains many very capable, caring and conscientious people but, in these difficult cases, they are asked to make their decisions within a flawed system which is not of their making and over which they have little or no control.  It fails to allow them to take time to give calm and considered consideration to the evidence and to come to a well reasoned judgment.  Reform seems to be needed.

The government is looking at family law - see here.  The review is not just seeking the views of professionals.  Anyone may comment by completing the online questionnaire or by writing to the review.  If you have personal experience of these cases - maybe because you have been a party to a case - then the review would no doubt like to hear of those experiences.


* When the Family Court was created, section 66 was repealed by the Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 10 para. 48

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