Independent Social Workers – an endangered species? blog by Chris McWatters
It’s good to see the efforts made by Ann Haigh and others in their letter to Children’s Minister Tim Loughton today, making the case for preventing the dissapearance of the independent social worker from care cases. But I fear it will fall on deaf ears. Only a few weeks ago, Tim Loughton was quoted as saying “Judges need to be able to trust the advice of social workers and act more quickly”. This was in response the Norgrove report setting a six month time limit on care cases, and clearly he had in mind the in- house local authority social worker as opposed to an independent social worker who is often brought in as a possible challenge to the local authority’s recommendation for a care order. In the government’s mind, the ISW is seen as costly and cause for further delay. But time and time again, as any care practitioner knows, the ISW has the wisdom of experience to find a way of working with parents and finding a solution whereby a child can remain in the care of the extended family. As tempting as it is for the government to say right, threshold is crossed, let’s hurl them into adoption without further delay, is it not worth at least having a stab at preserving the Article 8 rights of parents and children alike ? Children who have been through the care system may well end up with a few more GCSE’s and brighter prospects of a professional life if adopted. But then why the enthusiasm by adoptess to search for birth families if there wasn’t a profound sense of belonging to that birth family ? The case for a care order needs to be properly scrutinised, and the best evidence in that process of scrutiny freqeuntly comes from the independent social worker as opposed to the in-house one. Perhaps one way to ensure that the best quality evidence is made available that is considered fair to all parties is if the ISW is made a joint instruction at the CMC, and that they effectively take over the case. That is of course if they are willing to work for the £36 per hour that the Legal Services Commission are trying to restrict them to.
Filed under Social Work
Introducing ‘The Justice Gap’: Chris McWatters blogs on new website launched today
I just thought I’d introduce readers of this blog to a new website launched today called ‘The Justice Gap” . It is edited by Jon Robins, who also has an article out today in the law section of the Guardian attacking Ken Clarke’s double standards in cutting legal aid while at the same time claiming that access to justice is the hallmark of a civilised society. Apart from the many ranting articles and blogs that the site contains about the currently impoverished justice system, it also has a family section. At present this only has one story about how supermarket loyalty points have become a deal breaker in divorce proceedings. But expect meatier family law subject matters to be published in due course.
Chris McWatters
Filed under News
Government Dogma on Legal Aid Cuts: Chris McWatters blogs on FLBA meeting on 17th September 2011
Stephen Cobb QC spoke very eloquently against proposed cuts to family legal aid at an FLBA meeting on Sunday, pointing out the harm that could be caused to children as a result of parents who would no longer be eligible. Dominic Grieve MP, in his capacity as Attorney General, was also present, listening to the litany of complaints from FLBA members, as well as from chairman of the Bar, Peter Lodder QC, and Nicola Higgins, chair of the Young Barristers Committee of the Bar council.
Grieve was at pains to point out that as Attorney General, he viewed himself as Leader of the Bar, and therefore was attending the meeting in order to feedback to Government what the views of the Bar was in respect of legal aid cuts. His understanding of the nature of the complaints was that it was a matter of re-adjusting the criteria of who could be eligible for legal aid, and in that respect, he felt he could return to the Ministry of Justice to present the case of the FLBA.
However he was also at pains to point out that, in his capacity as a representative for the government, we were living in a period of austerity, and that there was simply no room for manoevre in the planned 25 per cent reduction on spending in Ken Clarke MP’s department. The planned cuts were an absolute essential, from his point of view, for the country to return economic health.
Of course there is now a wealth of evidence to suggest that he, and the rest of the government are wrong about that, given the recent utterances from the IMF, and flat-lining growth figures. But far be it for me to speculate on a subject I know nothing about – economics.
However it does seem to me that economics is the only argument that the government are willing to wrestle with in the current climate, in spite of the prime minister’s crows about broken society. And what we family lawyers are only too aware of are the long term costs on society of children who have been badly damaged through bad parenting.
Stephen Cobb QC pointed out at the meeting that as a result of the proposed changes, 54,000 fewer people will no longer recieve representation, with 68000 children being affected. Many of their parents may well not bother going to court due to the complexity of litigation, meaning many of their children may not get to see their parents due to the lack of a court order.
I just wonder how many of those children will add to the list of the 120 thousand problem families that David Cameron alluded to in the wake of the recent riots, whom he recently stated needed early intervention to prevent them from living wasteful lives.
As part of this early intervention, the case for legal representation in respect of warring families should also be made, given the extensive economic costs to society of problem children in the long term. And these costs will be spread across many different government departments: health in respect of mental health problems, social security in respect of the unemployed, the home office in respect of the police having to deal with the inevitable criminal behaviour, and last but not least, the ministry of justice in respect of criminal courts and prisons. So it’s not just a question of knocking on the door of Ken Clarke MP, requesting that he think in a more holistic way in respect the impact of cuts to family legal aid, but all the other government ministers who will have to pick up the bill in the future.
Chris McWatters
In-law Evictions? David Renton blogs on the boundaries of occupation orders
Can I evict my mother in law?
Possibly not, it seems, unless you have an interest in land. The issue arose in a case I was recently in. Mother alleged domestic violence against father and his family members and sought non-molestation and occupation orders limiting his and his mother’s access to the family home. By the time I had been instructed, an interim ex parte application (albeit to last only for a week) had already succeeded.
Father, a privately paying party, supported the conversion of the interim order into a final order. Mother in law objected. She was the freeholder. Suffering from long-term illness, she had spent large sums of money converting parts of the property to make them suitable for her use.
Working through the different sections of the Family Law Act 1996, it was clear that section 33 did not apply (mother had no interest in the land), nor could sections 34-38 (all of which are capable of binding only present or former spouses or cohabitants).
With some evident regret, mother withdrew her applications for an occupation order at court, when this was pointed out to her, and a complex compromise was reached on terms favourable to mother in law.
But what struck me about the case was this: before making her application, mother had not stopped to ask where it was in the power of the court; and neither indeed had the District Judge, when making his initial order.
Filed under Care Orders
‘A’ is a must-read case for the media-savvy lawyer, blogs Chris McWatters
When the rules changed back in 2009 to allow the press inside the family courts, there was a real anxiety that the tabloids would run amok and hijack cases with their insensitive reporting of proceedings. So far, so that hasn’t happened, probably due to the rules preventing them from ‘jigsaw’ identification of the child.
However, every now and then, the hacks come flooding in, and A(A Minor) [2011] EWHC 1764 (Fam) is clearly such a case. And when they do, it’s clear from A that you need to be pretty media law savvy if you want to keep them at arms length.
Briefly, A is a case where the mother has been arrested for the murder her two and four year old sons, although as yet to be charged. A is her newborn baby, who is now subject to an interim care order whilst the murders are investigated. The mother also suffers from serious mental health problems.
Inevitably, the death of two small children in suspicious circumstances arose press interest, but before anything was reported, the Local Authority applied for and were granted reporting restrictions in respect of the child. The Sun subsequently published a story entitled “Mum quizzed as two sons die in a month”, and went on to name the mother as well as her two dead sons.
A psychologist reporting on the mother expressed in very strong terms how concerned he was that prolonged media pressure would put her at risk of self harm. The mother’s legal team in turn applied for an injunction preventing the press from naming her and other members of the family, which resulted in a contested hearing in the family division front of Mr Justice Baker.
The battle that ensued between the mother (supported by the father and the guardian) and the press was a classic article 8 (right to family life and privacy) versus article 10 (freedom of expression) contest. However the legal argument was far more akin to those used in the media courts of Mr Justice Eady and Mr Justice Tugenhat, and indeed some of their recent judgments in press injunctions are referred to.
In his judgment, Mr Justice Baker goes through this area of law since the implementation of the Human Rights Act, making extensive references to the relevant cases (such as Campbell v MGN Ltd [2004] UKHL 22, which sets out the balancing exercise that needs to be done between articles 8 and 10) as well as to the Press Complaints Commission Editors’ Code of Practice. Did, as was the issue in Campbell, the mother “have a reasonable expectation of privacy”? Or did the importance of preventing any interference in the reporting of crimes outweigh the importance of any infringement of the article 8 rights of the mother ?
He ultimately concluded that the mother’s article 8 rights were outweighed by the importance of the media’s freedom of expression, having listened to extensive arguments by Frances Judd QC, representing mother, and Adam Wolanski, a media specialist from 5 Raymond Buildings, representing various press organisations.
What’s striking from reading the case is just how subtle the arguments are in respect of this balancing exercise, and just how familiar any family specialist would need to be in dealing with the kind of arguments that they are likely to face from the freedom of expression camp. So if you do find yourself having to apply for a reporting restriction order in a family case, and you find yourself up against a representative of the press, then familiarisation with A, and the extensive case-law that it refers to is, in my humble opinion, almost definitely a pre-requisite.
Filed under Care Orders
Victims of domestic violence will suffer due to cuts: Smita Shah blogs on the effect of government cuts on women and victims of domestic violence
The Government spending cuts will have a disproportionate effect on women leading to greater inequality between women and men; and for some women the combination of cuts may have a negative impact upon their human rights. These stark conclusions are the findings of a human rights and equality impact assessment of public spending cuts and their impact upon women in the city of Coventry entitled ‘Unravelling Equality’ , published in May 2011 by the Centre for Human Rights in Practice at Warwick University and Coventry Women’s Voices.
The report analyses the public spending cuts that are currently underway and their potential impact upon women in Coventry. The authors chose Coventry due to its diversity as a city. Coventry contains a large number of people potentially hardest hit by the cuts, for example public sector workers, lone parents, carers and the unemployed. Coventry Women’s Voices were also eager to quantify the impact of the cuts upon the lives of women.
The report, after consultation with women and women’s voluntary organisations, examines eight broad areas where spending cuts are likely to have an impact. They are: employment, housing, incomes and poverty, education and training, violence against women, health, social care and other support services and legal advice services.
It is worth focussing on one area, perhaps the most obvious, victims of violence.
For victims of violence the findings are disturbing: ‘as a result of the cuts there is a high likelihood of significant worse outcomes for women in terms of the violence they suffer and its impact upon them. The most obvious impacts include less successful investigation and prosecution of offenders, more ongoing mental, physical and sexual health problems for women, and more women trapped in violent relationships.’
Organisations such as Valley Housing and Panahghar, which provide emergency housing, counselling services, specialist services for Asian women, child and family support as well as advice received funding from a central government programme called Supporting People. However the fund has lost 11.5% of its funding, Coventry City Council has topped up some of the funding but will be making a decision in September as to what will happen to its Supporting People contracts. Who will provide these services to women if these organisations lose their funding?
The report quotes that 38,575 women in Coventry are likely to experience domestic violence in their lifetimes. The West Midlands police have to make a saving of £40 million in this year’s budget and a further £38 million in 2012/13. This may lead to cuts of 2000 jobs. As part of these cuts the number of specialist domestic abuse officers, who are specially trained to deal with domestic violence cases, has been cut from eight to two.
The impacts of violence against women and indeed female children and young persons are well documented and can be severe and life long, being physical, mental, psychological as well as sexual. They can require compassionate and consistent services to be available over time, rather than a one time application fix. The cumulative impact of cuts in services for women, the police and CPS, the NHS, legal aid, benefits and housing benefit will have a direct impact upon women’s right to life (Article 2 ECHR) and freedom from inhumane and degrading treatment (Article 3 ECHR) as well as freedom from discrimination (Article 14 ECHR).
Their report, while noting some positive initiatives where the Coventry City Council has tried to supplement funding cuts, nevertheless makes for depressing reading.
The findings and indeed the study may be unique as they provide a snapshot of the overall potential impact of the cuts, and crucially predict in real terms their impact on the lives of women. I am unaware if other such studies have been conducted in the UK, and I would be keen to know if anyone reading this knows of other such studies, in order to try and paint a national picture.
Filed under News
