Proposed Changes to Public Family Law

The question here is how and when the state should intervene in families. Much of the debate about the care system has related to the secrecy of the Family Courts. What the secrecy of the Family Courts does is to conceal the problems in the system and make it harder to work out solutions. This page is not supposed to come out with hard and fast changes that should be proposed, but instead to develop ideas around which changes could be developed.

It is not necessary to assume that the essential strucuture of the Children's Act 1989 should remain with merely tweaking at the edges. Instead we need to consider what needs to be done to protect children whilst supporting families.

Judging Risk
The first problem is judging risk. I am not sure having Emergency Protection Orders ex parte through the Family Proceedings Court has any merit. There is a good scheme whereby a police offer can take a child into care if it faces a clear and present danger.

The UK uses the phrase "risk of significant harm". This is clearly far too vague. We need to identify which risks warrant action. This should not be done by civil servants in departmental guidance, but should be done by a select committee of The House of Commons and House of Lords and a joint resolution of both houses. This should identify where the limits of risk can be determined. One of the difficulties in managing risk is that there has been no real law. A form of secondary legislation should identify the situations where action is permitted.

We should not allow "possible emotional abuse" as a reason for taking a child into care. Substantially there should be evidence of actual abuse to the child. A higher court (not the FPC or County Court) may be able to take a decision on the basis of experts forecasts, but it should not be a routine activity as it is at the moment. The exception to this would be mental illness where the parent has been sectioned.

There needs to be far less judicial discretion. Decisions involving long term foster care or adoption should involve a jury. Adoptions should not be closed apart from the exception below.
Procedure
There needs to be an effective procedure before court care proceedings commence. A Family Conference involving (where possible) the extended family should aim to resolve issues by consensus. The Local Authority should be able to convene such a conference where it is felt that there is risk, but should not be able to challenge decisions of such conferences unless there is substantial evidence that a child is substantially at risk. Grandparents should be able to convene such a conference.
Contempt, Secrecy and court procedures
The idea that allowing the press in the court would somehow prevent miscarriages of justice is a complete non starter. It is difficult to tell in advance which cases are going to go wrong. The press could not attend every case just in case.
  1. The court should never be able to punish someone for contempt for simply reporting misbehaviour to the appropriate public authority. If someone has misbehaved professionally then they need to be held to account.
  2. An anonymised judgment should be published electronically for every case in the County Courts, High Court and above. A written judgment should be given to parties in the Family Proceedings Court.
  3. If parties (other than the local authority) wish to discuss publicly their case then they should be able to do so by giving notice to the local authority. This gives the local authority the opportunity to resolve any issues. This would allow discussion of proceedings and require that all proceedings in court subsequent are held in public.
  4. Parties should be able to bring in a reasonable number of lay advisors to support them. (perhaps 5 should be the maximum number).
  5. There needs to be a constraint on reporting restriction orders. They should not be possible during the proceedings where parties have requested openness.
  6. There should be a default reporting restriction on names and photos unless agreed by the parties.
  7. Full disclosure from the local authority shoudl occur as a matter of right.

Conflicts of Interest
Solicitors should not be able to work both for the local authority and for parents.

Decision making
  1. Parties should be able to request a lay jury to decide on evidential issues where any long term proposal exists
  2. A closed forced adoption should not be permitted unless a criminal conviction of the parents has succeeded for harming their child. Clearly in this situation the parent has forfeited their right to have continuing contact.

Contact
Telephone contact must never be forbidden. Childrens Social Services must not be able to use contact as a negotiating ploy to stop parents complaining about the services.

Neglect
A cluttered house should not be good reason for a care order. It may be good reason for an order to tidy up the house. Similarly other neglect issues.
Domestic Violence
Whereas an order to keep the violent partner out of the house may have merit, victims of domestic violence should not find that they lose their children because they have reported the domestic violence.
Advisors
Mackenzie friends should have a right to represent the people they attend court with and cross examine witnesses.
Written Judgments
Parents should be automatically provided with written judgments and have time to appeal calculated starting with the receipt of the judgment.
CAFCASS
The guardian system again is subjectively dependent upon who the guardian is - like much of the system.
Independent Inspection
Independent Inspenction must be by people who are independent of the system. It is no good having someone who is part of the system producing a whitewash report.
Separate Support and Enforcement
It creates a lot of conflicts of interest when the same organisation that is responsible for support is also responsible for investigation. The investigation of allegations and references should be handled by a separate agency probably linked to the police.
Targets
Targets for children to be adopted etc are obviously a no no. Monitoring of things such as how long it takes to do things has merits, but the targets have caused a rush to judgment.
Medical Evidence
All unproven medical theories should be subjected to a major form of Daubert test before being accepted in the courts. Experts responsible Treating, reporting and the provision of expert evidence should be separate. Someone should not be able to divert attention from their bad treatment by reporting abuse and someone who reports abuse should not be financially rewarded for it.
Childrens Index
This is likely to be counterproductive. It is not the failure of reporting that causes abuse to continue, it is the failure of the system to act properly on reports.
Child Protection Conferences
These must have documents provided in advance for parents and the proceedings should be recorded on tape and a copy provided for the parents.
Children in care
Children in care should be encouraged to speak out about their maltreatment whilst still in care and be protected against sanctions by the authority. There should be people independent of the system available for them to speak to in confidence. They also should be allowed to talk to the media.

Any complaints about the treatment of a child in care should be investigated by someone independent of the system.
LIP support
Litigants in person should get some support for their costs (photocopying, travel etc) and their assistants. (Mackenzies etc)