This is a post by Sarah Phillimore and represents her views about the Daily Mail which she hopes, but cannot assume, are shared by other members of the Transparency Project.
It is always illuminating to run things through the Daily Mail translator. It is a great shame that one of the most widely read newspapers in the UK persists in journalism which at best is click bait, at worst actively dishonest and agenda led. Of particular concern to family lawyers is that agenda currently appears to be an attack on legal aid for parents in care cases.
On August 16th 2016 the President of the Family Division published a “View from the President’s Chambers’.In brief, the President discussed the continuing and significant rise in the number of care cases coming before the courts. There will be no corresponding increase in resources – something has got to give. We lawyers are urged to improve our efficiency, to deal with more cases, more quickly.
However, the President recognized that cases about removing children are serious. Speed is not the all-consuming goal. He set out clear principles.
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Care cases, with their potential for life‐long separation between children and their parents, are of unique gravity and importance
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It is for the local authority to establish its case
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Common‐law principles of fairness and justice demand, as do Articles 6 and 8 of the Convention, a process in which both the parents and the child can fully participate with the assistance of representation by skilled and experienced lawyers.
Of course, adherence to both or either Articles 6 and 8 of the ECHR does not necessarily require reliance on many or expensive lawyers. There are care cases that are simpler than others. The President considers some possible economy measures, such as greater reliance on ‘settlement conferences’ or taking a closer look at the operation of the ‘tandem model’ which currently exists in care proceedings i.e. that the child is represented in court by both a guardian and at least one lawyer. In complex cases the child’s solicitor could be assisted by a junior barrister and/or a QC.
The President comments:
This, I emphasise, is as it should be. But we need to remember that all this costs money. I repeat in this context what I said in Re L [2015] EWFC 15, para 38:
“I end with yet another plea for restraint in the expenditure of public funds. Public funds, whether those under the control of the LAA or those under the control of other public bodies, are limited, and likely in future to reduce rather than increase. It is essential that such public funds as are available for funding litigation in the Family Court and the Family Division are carefully husbanded and properly applied. It is no good complaining that public funds are available only for X and not for Y if money available for X is being squandered. Money should be spent only on what is “necessary” to enable the court to deal with the proceedings “justly”. If a task is not “necessary” – if it is unnecessary – why should litigants or their professional advisers expect public money to be made available? They cannot and they should not.”
The President concluded:
From my perspective, the focus of this is the question of whether, at certain stages in the proceedings and at certain type of hearing, there could properly be scope for dispensing with the attendance of some, or even, in some circumstances, all, of the child’s professional team. But, I emphasise: so far as I am concerned, none of this can be allowed to prejudice the fundamentals of the tandem model.
So what happens when we run this through the Daily Mail translator? It comes out like this:
Too much is being spent on child cases, says top family judge: Sir James Munby demands number of taxpayer-funded lawyers is cut
- Too much public money is being spent on cases involving children in care
- Sir James Munby said cash was being ‘squandered’ on lawyers
- He said the number of taxpayer-funded professionals should be cut
In a short piece, the pejorative word ‘squandered’ then appears four times. His ‘plea’ for careful husbandry of public money becomes a ‘demand’ that professionals are ‘cut’.
‘Squandering’ is then linked to the ‘scandal’ of the legal aid payments incurred in the Ben Butler case. It seems that the Mail have at least paid better attention to their arithmetic this time, no doubt assisted by Lucy Reed’s helpful explanation about why their previous quoted figures of £2 million as the costs of this case, were so wrong.
However, The Mail do not explain why it is apparently an automatic ‘scandal’ that parents get legal aid if the state wishes to take their children away, or why such a terrible, unique and atypical case as that of Ben Butler should provide the foundation upon which rests such condemnation of an entire system. There is no reference in the Mail article to the President’s other comments or clarification that he is referring to possible efficiencies when looking at the tandem model; for example, considering whether lawyers for the child are necessary at every interim hearing, rather than wholesale slashing of family lawyers for the duration of the care proceedings. The picture the Mail paints is – as usual – crude, incomplete and misleading.
I do not argue with the need for efficiency. I accept that public money is finite and must be spent wisely. But family lawyers now operate in a system that has already been cut to the bone, for example, where interveners facing allegations of life changing seriousness must fund their own legal representation. Where is all this fat that we can trim?
Nor are ‘top lawyers’ sprinkled around care cases like so much irresponsible confetti. It is very difficult to secure funding for a QC. In almost 20 years of practice I have asked for such funding five times. I have been refused every time.
Such irresponsible and deliberately inaccurate reporting by the Mail is not simply annoying for family lawyers. It has real and serious consequences. The President commented in his View that the reasons behind the relentless rise in care proceedings were ‘little understood’.
We disagree, those of us who have read Dr Ray Jones unpicking of the aftermath of the death of Peter Connelly. One reason why care proceedings continue to rise is likely to be linked to the culture of fear, blame and shame around social workers that newspapers such as the Mail and the Sun so enthusiastically promoted at the time, and continue to promote. In the face of a tabloid monstering, local authorities have become increasingly risk averse, which has been noted and decried by many academics and researchers – see for example the conversations at #CPConf2016.
I suggest that one way to save money in care proceedings would be to stop publication of inaccurate, partial and fear mongering bilge and instead promote reasoned and well informed debate about care proceedings. When should they be initiated and how they should be funded? These are important issues; they matter. They should be discussed and reported upon with the care they deserve.
Fantastic article – and your comment about how illuminating it is to run this through the Daily Mail Translator is exquisite.
As an adopter, one thing that stands out for me is the rise in care proceedings against adopters whose children are deemed by social workers (generally those who have little or no experience in working with adoptive families and no understanding or training in attachment issues and the long term effect of early life trauma and neglect) to be “beyond parental control”. This then triggers Care Proceedings, when what is needed is support for adoptive families to stay together. Due to the lack of training & understanding on the part of a particular section of social work depts, thousands of pounds are spent via Legal Aid on cases that should never have come to court. It appears that it’s preferable to social services to spend the budget of their legal dept rather than their post adoption dept (whose purpose is to support adoptive families) – or rather, that the pockets of the LA legal dept are deeper than those of the (often tiny) Post Adoption depts.
Thanks for your kind comment! yes, its always fun when bored to run things through the Daily Mail Translator.
I agree that the problems faced by families when adopted children need help and support is serious and I hope is getting more awareness and recognition.
I agree that it is a problem in the family justice system – and in many other systems – that short term thinking predominates. If a more long term view was taken and money spent on ‘prevention’ rather than a very expensive (and often ineffective) ‘cure’, it would be better and cheaper.
The government introduced the Adoption Support Fund, along with post adoption support within adoption teams, which should go some way to addressing the issue of non specialists working with parents. Unfortunately not all adopters understand attachment and trauma based issues and even well trained professionals can reach the impasse of meeting legal thresholds. Reach legal thresholds and LAs are often spending ASF funds and funds on care proceedings, it isn’t an either or.
I agree about preventative work. As far as I can tell from the research I have read, prevention is always cost effective long term but it escalates costs in the short term. Most decisions made about funding are short term, because a politician’s term of office is short term (in my view), and increasing taxation is very unpopular. We also have a government focussed on demonising the socially deprived and who seem willing to take adoption to the point of social engineering.
Adopters should be supported but so should the families of those same children who would have the capacity to effect change with appropriate support. Sometimes this would be the kind of therapeutic intervention which takes cases outside the 26 weeks, which wouldn’t be appropriate in some circumstances obviously, and timescales for children are important.
Imho, it is a huge injustice there is no equivalent to the ASF for families who are at risk of having their children removed. If we consider most cases are sad rather than bad (which I do) prevention in the community could reduce all kinds of costs, including the cost of placing children in care or adoptive placements, and some associated court costs.
I am with Munby on the introduction of problem solving courts, I like the flexibility of the FDAC and intervention of PAUSE. It will be interesting to see how settlement conferences work. It is a great shame that in all this creativity the DM have reduced what could feel empowering for parents to something which will only alarm. Reducing costs now reduces the risk of losing legal aid in public law cases which would be a travesty.
Exactly Helen. The real evil of this article, is that the President’s sensible and measured call for careful husbandry of very limited resources, has been stomped all over and turned into some misguided and unnecessary attack on legal aid for parents in care proceedings.
There does not seem to be any sensible and rational debate about the child protection system, or at least none that I can find beyond the boundaries of CPConf2016. If our journalists/politicians won’t promote it – who will?
It is clearly the agenda of the Daily Mail that there should be no sensible and rational debate. It prefers to stir up public resentment and outrage about (often imagined) grievances and injustice. These then get picked up by the usual campaign groups and dominate the discussion, while debate about the real flaws and problems in the system – which Munby has been identifying since the notorious Re D in 2004 and more recently in Re B-S – is stifled.
Steve Doughty is clearly a pretty dim hack more at home with articles about Pokemon, and this could just be lazy and incompetent journalism, but it does seem to fit the Mail’s wider agenda, in which case one has to wonder what it hopes to achieve, other than more sales.
I think Dacre publishes hate of all kinds, there may be an agenda that goes wider than that, and I have no idea how politicians really use the media.
The siren call of conspiracy theories is becoming ever clearer to me. I have a horrible feeling that this must be part of some wider agenda. It was quite a struggle and a strain to link what the President said to the case of Ben Butler, but of course the Mail managed it. So not, I think, lazy journalism – but something quite deliberate.
Who is approving or pushing for this agenda, I don’t know. But I think an agenda clearly is being pushed.
BTW I have just started reading ‘Learning from Baby P, the politics of blame, fear and denial’ by Sharon Shoesmith and I urge anyone with any kind of interest in the child protection system to get a copy and read it NOW.
Steve Doughty (no relation) has been writing like this for well over 10 years so I think it may be a well worn track, rather than a new threat.
He has indeed, and I don’t love Sharon’s book yet (only on 2nd Chapter) but there are concepts in it that she encapsulates v well. I also like the use of language in giving us some manageable descriptions, cultural tropes is a favourite so far… Other stuff is a well worn path but, since recent rise in care proceedings has been dubbed the Baby P effect, it is worth revisiting.