Family court system could implode, warns its top judge

Family court system could implode, warns its top judge
The family courts system is in "grave danger of imploding", Sir Nicholas Wall, the judge in charge of it, has warned.

By Andrew Gilligan and Laura Donnelly
Published: 9:00PM BST 07 Aug 2010

Since the Baby Peter tragedy, the number of children subject to care proceedings has shot up by two hundred a month, a rise of more than 40 per cent
In a letter dated July 29, Sir Nicholas, president of the Family Division of the High Court, suggested legal aid cuts could mean that parents fighting to keep their children have to represent themselves in court.
He says he has been "inundated with expressions of serious concern" from judges about the cuts, which will almost halve the number of family law firms doing legal aid.

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The letter, obtained by Community Care magazine, is his second stark warning of the crisis in children's justice. Last November, in a professional conference unreported at the time, he gave one of the most outspoken speeches ever made by a judge.
"Neither I, nor any of my colleagues, has any wish to engage in politics," he said. But "the time has now come when the judicial reluctance to go public … must come to an end."
Sir Nicholas warned that the system was in a "parlous state", in danger of collapse, and it was "the children who will suffer most". It was funded by people "who know nothing about it, and have never practised it … Neither the court itself, nor the out of court facilities, are serving disadvantaged children as they should."
It was, he said, "welfare, or farewell".
The judge's interventions are signs of unprecedented anger across the child protection world. Some parents say their children are being seized without cause by overzealous councils. The professionals say the error, more often, is leaving them with abusive parents – as, of course, with Baby P. Both groups may, in fact, be right.
Since the Baby Peter tragedy, the number of children subject to care proceedings has shot up by two hundred a month, a rise of more than 40 per cent.
Eight thousand children were taken into care last year alone. Yet, disturbingly, the number of infants not in care who died of neglect or abuse has also risen – suggesting that in some cases, the wrong children are being removed from their families, and the wrong children being allowed to stay.
In theory, there are many safeguards. No child can be taken from their parents without a court order, and later a full hearing. At the system's heart lies a person called a guardian – an independent expert, with a social work background, quite separate from the local council and family. The guardian's job is to get to know the child, investigate their circumstances, stand up for them in court and protect them against abuse of power by social services, or their parents.
"You look critically at what the local authority is doing, and you look critically at what the parents are doing," says Alison Paddle, a guardian since 1991, who is also spokesman for their professional body, Nagalro. "You give the child a voice."
Ms Paddle says that in her experience – she has done about 120 cases – it is rare for a council's concerns about a family to be completely baseless. "You often ask yourself why they haven't acted before. But unfortunately there's also quite a number of situations where the local authority haven't covered everything they should do to keep the child out of care. There may be relatives, for instance, who can offer something very positive but haven't been asked."
Another guardian fought off a local council which seized children for adoption after their parents left them home alone, caring for a disabled sibling. "The local authority overreacted," the guardian said. "They also lied to the court about the experience of the foster-carer, possibly placing a very disabled baby at risk by placing him with a very inexperienced carer."
The decision was overturned. Guardians can also get children placed in care where they think the social services have been too lenient.
In many places, however, the guardian system has effectively collapsed. At least 1,000 children going through care proceedings are now represented only by a constantly-changing stream of "duty guardians", people who often never meet the children they are supposed to be championing, let alone visit their homes, and base all their judgments on the local authority's paperwork.
Thousands of children never get a guardian at all, or have to wait weeks for one – by which time all the key decisions about their future may well have been taken, irreversibly.
The courts have no real investigatory capacity and tend to take the word of the experts. In some cases, say guardians, the course of a child's whole life is effectively decided in one brief phone call.
"Duty guardians or no guardians at all were happening in every single case I handled for several months," says Barbara Hopkin, a prominent family lawyer. "It's a rubber-stamping exercise. I was told by some [duty guardians] that they were not allowed to talk to the parents."
A family court judge, Graham Cliffe, said that the guardian service in his area, York, had "deteriorated at an alarming rate" and "reached crisis level – make no mistake about it, vulnerable children are being sold short."
Cafcass, the government quango which runs the service, blames the problems on the post-Baby P care rush, as social workers play it safe. That, perhaps, is reason to scrutinise applications more thoroughly, not less. And Cafcass's critics say the real problem is that it is a classic New Labour bureaucratic monster.
"In terms of funding, Cafcass has done quite well," says Paul Bishop, vice chairman of NAPO, its staff union. "But only fifty per cent of people in Cafcass are actually doing the job and the other fifty per cent are monitoring them and filling out forms."
Before Cafcass was created, in 2000, children's guardians were lightly managed – and in most parts of the country, every child got a guardian within 24 hours. In the new era, when some children never get a guardian at all, staff say they have to fill out five forms for every action they take, swallowing a third of their working week.
Anthony Douglas, Cafcass's chief executive, insists that talk of a meltdown is "alarmist". "We've absorbed 30 per cent more work in a year," he says.
Yet the legal aid cuts are a double whammy. "All the parties in a case have to use different firms, but after October, there will only be one family law firm doing legal aid in the whole of Devon,' says Hopkin. 'It's a complete disaster'.
In April, the county's child protection department was criticised by a judge as "more like Stalin's Russia ... than the West of England".
Sir Nicholas's leaked letter says that across the country, many of the new solicitors given legal aid contracts have no experience in family law, and may "not know fully what they are doing". And these cuts are quite separate from new, further, reductions to legal aid being planned by the Coalition government.
It is fair to say that almost everyone involved with the children's courts – the professionals, the parents and the children themselves – has never been unhappier. The real problem is not, perhaps, that social workers are evil, or that all parents are liars. The problem is that in cases needing very fine judgments, a dysfunctional system is making it harder to get those judgments right.

http://www.telegraph.co.uk/news/uknews/law-and-order/7931918/Family-court-system-could-implode-warns-its-top-judge.html