The Public Law Outline; the need for families to seek Legal Advice at an early stage

On Friday 26th July I attended some training from Exeter Barristers; Magdalen Chambers. The subject was Family Justice Reforms and the Public Law Outline.

What is/has been happening is a major shake-up of how child Law cases are dealt with by the Courts.

Of particular concern have been Child protection cases brought by Social Services. These are what we call “Care Cases”. We had reached a stage where these cases commonly took over a year from start to finish. There were increasing numbers of experts. The cases were costly and slow and of most concern, children were being left in limbo.

The Public Law Outline is the initiative of the most senior Family Law Judge; Mr Justice Mumby (President of the Family Division of the High Court). The intention is to conclude all but the most exceptional cases within 26 weeks. It is to reduce the use of experts. It is for cases to be better managed by the Courts and to be presented in a more focused and analytical way by Social Services

As a training exercise, the course put on by Magdalen Chambers was enjoyable and a chance to catch up with old friends including other specialist Child Law Solicitors, local Barristers and members of CAFCASS.  On 16th July I had attended another presentation on the same subject at Exeter County Court Chaired by our Local Designated Family Judge;  His Honour Judge David Tyzack QC. I have also been keeping in touch with the reforms from the legal press, so the reforms, which came in from 1 July 2013 were not new to me.

The reforms are well intentioned and it is right that children should not be in limbo for long periods of time, and often 26 weeks even is far too long.

The real criticism that I have is what happens before a case ends up in Court. I have seen (too many times) parents not realising the enormity of where things have gone wrong until the start of Court Proceedings or until the point where the lawyers become involved shortly before Cout Proceedings.

Unfortunately the new system expects Social Services to carry out key assessments including expert assessments before the issue of proceedings. This is at a point where there is very little Legal Aid available for parents to access for advice. (For Care Proceedings legal Aid is not means tested, because the proceedings are essentially the state intervening in families and from a Human Rights point of view it is essential that parents have access to representation)

The Law is clear (and in line with common sense) that the best place for children to be brought up is with their parents (provided the parenting is of a good enough standard and the home is safe) and if that is not possible then children should be brought up within their extended family. Children going into care and/or being adopted should only be a last resort, after all other options have been ruled out.

Parental failure, more often than not is something which creeps up on families. Parents can down play their own problems or can end up in denial over the actions of another parent. (For example; it takes a long time for alcohol consumption to escalate into addiction and then to show itself in child neglect; A parent doesn’t choose to enter a domestically abusive relationship- the violence creeps up on them, escalating over time; or one parent cannot believe that the other has deliberately harmed their child)

Just as problems creep up, a parent who has started to fail, cannot easily turn things around instantly. They need to accept there is a problem before they can do anything about it. Parents can be defensive in the pre proceedings stage as can other family members.

But the Public Law Outline essentially envisages Social Services starting with what is likely to be their final plan for the children. There is only a very small window of an opportunity for parents to demonstrate insight and change. Similarly for grandparents to show that they prioritize their grandchildren over their own children and that they can protect the children from their parents. Not easy, if the Social Worker has already a closed mind.

Generally speaking the expert advice we get is that addicts need a 6 month period to start to show that change is likely to be sustainable. This is at the very top end of the case timescales.

But of course, some would say, parents are given to long and too many chances and that this further damages their children. This is a powerful argument unless you are a parent and you love your children and are in a mess, but want to change but are not quite sure how. Also if you feel everyone is against you, nobody wants to help you or give you a chance.

It is difficult. I certainly have acted for parents who have successfully turned things round. This has included cases where Social Workers have lost perspective and have been reluctant to see changes. I have acted for parents who have have found themselves at the end of applications which were not fully justified by the evidence, and after robust defending the proceedings were withdrawn. But equally, I have  also acted for parents who have failed to accept that their partner is dangerous, or to overcome their own addictions or who have started to make progress, but who have become overwhelmed and slipped back. I have also acted for parent who might have had their children back, but have failed to own up to the truth of what went wrong.

It is so difficult.

The Public Law Outline is what it is. As a member of the Law Society Children Panel for many years,I will adapt how I act for parents, to do the best job possible, and to give them the best chance possible. There are not as many of us as there used to be. I cover all of East Devon and have meeting rooms in Exeter and Taunton.

What is most important, is that once, Social Services become involved with a family, is that parents and grandparents seek expert Legal Advice as soon as possible. There is some Legal Aid. Not all advice is free, but advice at this pre-proceedings stage is absolutely crucial.

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