Operation of the Family Courts - Justice Committee Contents


Written evidence from Shaun O'Connell BSc PGCE (FC 01)

Henry VIII: "His promises, as he was, mighty; But his performance, as he is now, nothing".

Halsbury Statutes Article 29 "No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we pass upon him, nor will we condemn him, but by the lawful judgement of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right".

INTRODUCTION

1.  I have had extensive experience of the Family Courts in rather an unusual manner. I first met the Family Courts myself through divorce proceedings and was incredulous at the experience being a teacher with training in Science, special needs and anger management. I was even given a £10,000 costs order for the pleasure. I could teach any child except my own.

2.  Since 2003 I have assisted numerous parents, grandparents and step-parents in both public and private law cases. I therefore have an inside view of the system closed to the public. My own experiences and knowledge have led me to the conclusion that it is not per se the law which is a problem but the administration of the Law that does need correcting. Far too much discretion was given to the Judiciary.

3.  I would be more than willing to give oral evidence as there are matters which the Select Committee learn from. If, the coalition Government is serious about seeking to relax the chains of the state, increase self-help, raise personal social responsibility and improve family outcomes then please heed my pleas.

EXECUTIVE SUMMARY

4.  Family Court private law decisions beginning with an expected outcome of joint residence are not difficult matters to address and do not require as great funding as presently given.

5.  Serious allegations of physical harm to parent or child, or sexual abuse should be in the remit of Public law unless there is scant evidence in support in which case matters are under private law procedure.

6.  All other cases in private law can be dealt with an enforceable mediation process taking minimal time and expenditure.

7.  Court time to be freed up to allow greater time for other cases to enable Justice to take place.

8.  Review of funding of the Court system. Currently underfunded in terms of time available to allow the system to operate as a forum for justice rather than a conveyor belt for lawyers.

9.  Remove the over-riding objectives in Criminal, civil and family law.

10.  Parents who continue with weak or frivolous allegations must be aware they may lose joint residence and will put the accused parent in the position of resident parent.

11.  Cases which are forced to be judicially determined then must be dealt with on the basis that without serious evidence of harm the Court will rule in favour of the maligned/ alienated parent.

12.  Public law cases must be determined based on facts and with properly trained professionals providing independent reliable knowledge and research on physical or sexual abuse, emotional abuse issues must be reviewed by Parliament.

13.  Placing children with family members and Family group conference process must be used unless serious sexual or physical abuse, until issues resolved.

14.  Contact centres to be disbanded for private law cases. Only used to facilitate contact for parents under suspicion/investigation in public law.

15.  Cafcass officers or Guardian's to have no role in private law disputes.

16.  Cafcass Guardian's to investigate Local Authority files, carry out independent investigations and obtain any evidence in support of or against the parties and report honestly and accurately.

17.  Cafcass as an entity to be reviewed on it's role independently. Wishes and feelings reports to be dispensed with.

18.  Dept of Health to resume role of providing evidence based signs and symptoms on abuse issues and review emotional harm disorders and symptomology.

19.  Use of experts to be restricted to issues requiring expertise and from someone practicing within the NHS not whose career is based on providing expert Court reports.

20.  Provision for parents to obtain independent representation including lay advocates if they so wish to represent them in family proceedings to reduce financial strain on children's inheritances/ provide greater equality of arms and reduce emotional strain.

21.  Review of the discretionary areas of family law.

22.  Role of CAMHS to be placed with the medical profession psychiatrists outside of the Family Court arena under normal NHS referrals.

23.  Review of disorders and methodology of assessments based on the knowledge of the medical profession not therapists, social workers, CAMHS, hired guns or psychotherapy.

24.  No fault complaint procedures to enable the truth to come out and wrongs redressed without fear of litigation as most parents simply want; the truth, an explanation and rights wronged.

25.  Improve access and use of Relate.

26.  Enact Part II Family Law Act 1996.

SUBSTANCE OF THE SUBMISSION

27.  The Select Committee has called an enquiry into the operation of the family. I shall not deal with the fourth part but I do append Lord Justice Munby's speech and mention Dr Pelling's analysis regarding the Children schools and Families Act 2010. I do not see any reason why hearings should not be dealt with in Public as any other proceeding. The family Justice Council admitted this year that there was only anecdotal and little evidence that children are harmed by open Court proceedings.

28.  I shall deal with one of the most important aspects for any parent involved in public or private law proceedings which is access to Justice and the changes to legal aid. In public law persons with parental responsibility or birth parent have automatic right to non-means tested legal aid. Other parties need means tested legal aid with risk of charge on property/financial cost and risk of losing assets. Some 85% of public law cases are persons on income support. In some areas only around 6% of children taken into care return to their parents and contested cases can cost in excess of one quarter of a million pounds.

29.  In the case of private law, legal aid has a cap at gross of £2,657 monthly and disposable income of £8,000 only is disregarded. Many parents even now do not realize that the potential inheritance for their children is being swallowed in legal costs.

30.  Family proceedings are inherently full of enflamed emotions and I recall overhearing a barrister stating that Lord Justice Thorpe described parents undergoing divorce as suffering from temporary insanity. Why do parents need to sacrifice their life's work, their property/ assets to satisfy the need for legal representation?

31.  There has been a large increase [increasingly complained of by the Judiciary] of litigants-in-person, but everyone forgets that the Family Justice System is there for the parents and the wider family. The parent knows the case best. The parent has the in-depth knowledge of what has happened. With the best will in the world lawyers do not have the time to get to know the parents, their case, the ins and outs of family disputes as their time is limited by funding and time for other clients and have a large workload to make profit for the Company they work for.

32.  There has been a slight forward move to .grant right of audience where the person is partner of the litigant, where the litigant suffers ill-health and has insufficient means to afford private representation or where the litigant is relatively inarticulate and prompting may delay proceedings yet what of the parent who does not want to employ someone they may perceive having vested interest in prolonging proceedings or feeling let down by representation or who simply makes a conscious choice? Are they to be denied assistance that they choose?

33.  The problem comes down to the legal services Act 2007 and the provisions that govern alternative representation. There is no provision. It effectively monopolises representation contrary to European legislation prohibiting monopolization of services. If Lord Justice Wall insists on protection of insurance, being formally legally trained and having disciplinary body, then this would apply equally to lay advocates where rights of audience is willing to be granted.

34.  The basic guide is that "each party must be afforded a reasonable opportunity to present his case under conditions which do not place him under a disadvantage vis a vis his or her opponent." If legal assistance is not needed in family as is implied then Local Authorities/CAFCASS etc do not need to spend public money on in-house or outside representation. If an expert/Guardian report in private law goes against a parent then the LSC must be satisfied there is a 70% chance of overturning the report, if not legal funding is removed. This cannot be right given that expert reports are often highly flawed and based on dubious methodology.

35.  What if, in the case of a jurisdiction issue between Scotland and England there is a reluctance of Counsel to pursue a point of law that even the LSC believe is correct in law?

36.  There can be no reason to not open up access for litigants to have a lay advocate if they so wish other than a jealous guarding of a monopoly by vested interests. It could be directed by Statutory instrument.

37.  Changes in the Court system introduced by Margaret Thatcher resulted in Court time being a sensitive subject. Few seem to realize the implications of the Over-riding objectives in civil, criminal and yes Family Law. This reduces the time spent on your case in order to allow time for other cases. One ex District Judge privately informed me that he resigned after ten years as a District judge because he was repeatedly rebuked for taking too long with cases. He resigned on principle as he believed his role was to deliver Justice.

38.  The Judicial oath to do Justice by Mercy and Right is at stake. We need a system which operates for the benefit of society and not for vested interests. If the Committee will pardon the wording, we need to deliver Justice and not a self-serving conveyor belt where disposal of cases, time limits and targets under the Public Law Outline are paramount.

39.  In order to speed up the system we have an invented term "the timetable for the child" a mantra that the parents time for completion of any steps to make themselves, in the eyes of the Local Authority, "good enough parents" are outside the child's timetable and so sorry we need permanency for the child either adoption or long-term foster care. This is incompatible with State obligations to Family life.

40.  Anyone with experience of the Court system currently knows most time is spent waiting to get a hearing and then to get into Court, hanging around for up to four hours or more for a thirty minute or one hour hearing which is inadequate with Legal representatives or each parent, the children, and the Local Authority. Inadequate with the system being based on Chinese Whispers, hearsay, with parents in turmoil, and with Guardian's whose role is often inadequate and as Eric Pickles himself noted barely able to be anything more than cheerleaders for the Local Authority's case. This brings me to the second point.

The effect of Cafcass's operations on court proceedings, and the impact on the courts of the sponsorship of Cafcass by the Department of Education

41.  Cafcass in case anyone has forgotten was the amalgamation of the Family Court Welfare Service, Official Solicitor and Guardian Ad-litem panel. It was formed (coincidentally?) after Oliver Cyriax mounted a campaign on the failure of the probation Service. The Private law welfare officers then almost overnight became Children's Guardians.

42.  In public law they rarely check the Local Authority files, often rely purely on the evidence that the Local Authority files, and the LA analysis of what is in the best interests of their client—the child, lacks coherence.

43.  In one case the Local Authority failed to disclose that two social workers asked a child direct questions about sexual abuse with-held the fact from the Court and held a secret professionals meeting. That man was found guilty of rape after the child made a disclosure the day after she had been asked direct questions by social workers. She did not investigate Local Authority records.

44.  In another case the Guardian wanted a case she had been handed disposed of without meeting the child, seeing any evidence, or meeting the parents. Thankfully the Judge did not agree when the child had severe behavioural issues.

45.  Guardian's do not, as many might envisage, check out the facts and analyse the evidence, agreeing with the Local Authority without highlighting discrepancies in the evidence, further investigation that might be needed and relying sometimes on the words of a child who has been ripped from their parents care and everything that was familiar to them on the basis of mere suspicions. It is also common that symptoms caused by being removed from parents are then twisted and blamed on the parents themselves.

46.  Expert reports on parents at a psychiatric or psychological level are often sought in a fishing trip with an expert who, if he reports in the parents favour will not be selected again [where he can earn £25,000 upwards]. These reports are routinely sought where there was no concern for mental health. The standard diagnosis is personality disorders or psychological traits where time for recovery are outside the children's timetable based on dubious methodology.

47.  Guardians are also failing to raise concerns. CAMHS workers are often social workers or therapists. A child with enuresis and/ or encopresis [LAC health nurse stated - it is normal for children in care to wet themselves], CAMHS blame the symptoms on parental care/ child's home experience. After 23 fantasy questions based on animals and fairy stories, child is diagnosed with reactive attachment disorder.

48.  Neither Guardian or CAMHS are demanding medical assessment to eliminate organic cause.

49.  Same has happened with the symptoms of child who was HIV positive - symptoms were blamed on contact with mother. 23 Questions later of child diagnosed reactive attachment disorder.

50.  In private law rule 9.5 Guardians have no mandatory role and there is zero definition of their role in the proceedings. It is absurd when there is no understanding of the process of parental alienation, not trained child and adult psychologists and as a result the Guardian usually follows the resident parents wishes as echoed by the child.

51.  Domestic violence training for Cafcass comes from Barnardos who were awarded the contract yet what knowledge do Barnardos have as to adult psychology? Cafcass also have a private agreement with Coram.

52.  Contact centres [arrived 1985], experts, independent social workers, foster carers [earn more than many parents], private foster care companies [FCA made 11 million pound pre-tax profits in 2007], Baby P case was used to increase demand.

53.  State invasion of families is not in the State's best interests as outcomes from care are exceedingly poor and as long as a parent can provide good enough parenting [not parenting valued by class, training, so-called experts or fluctuating demands of social work theories] then the State should steer clear.

54.  Responsibility for children's welfare was transferred from the Dept of Health [logical body] in 2003. Margaret Hodge brought in the everyday matters agenda. Responsibility for child welfare should be returned to the Dept of health as the pediatricians have the in-depth knowledge of abuse indicators.

55.  Over the last 20 years more and more disorders have been invented by those with vested interest eg ADHD, attachment disorders, personality disorders, PTSD for children. Family assessment and development workers [FADS] similarly are ill trained and largely incompetent.

56.  The Judiciary are reluctant to criticise CAFCASS officers and even experts except those who portray a picture the system does not agree with eg Dr Lowenstein and Parental Alienation Syndrome.

57.  I do ask the Government to recall the 1970s when children had freedom outside, when social cohesion was stronger, when children were allowed to take risks, when Education was respected and when the State had much less intrusion into family life. We did not suffer as those with ever increasing interest in monitoring families would allege so that we need to avail ourselves of their services.

The role, operation and resourcing of mediation and other methods in resolving matters before they reach court

58.  In public law cases where the LA are engaged with child abuse/ neglect then the operation of Family Group conferencing which is often referred in literature yet infrequently used should become mandatory unless the abuse issues are related to physical or sexual abuse. This should be used as a filter. Physical abuse with serious injuries and sexual abuse has to be determined by findings of fact. Temporary care within the child's family should always be used prior to foster care pending outcome.

59.  Emotional abuse with it's vague definition and methodology of diagnosis should be reviewed. In the meantime use family Group Conferencing and medical specialist advice.

60.  There is no system to ascertain whether a particular disorder/diagnosis or methodology of assessing it is valid or not. Ofsted have admitted there is no body that oversees this and that they can choose their own disorder/methodology when they are assessing Local Authority protection of children. This needs to be reviewed but no-one with any vested interest in the procedure or who is not medically trained should be permitted to make such decisions.

61.  Allegations of abuse reaching threshold level should be transferred to public law arena. Domestic Violence should become a matter for the Police as a criminal act. Arguments and other forms of so-called domestic abuse should be relegated to the dustbin as if a relationship breaks down some form of dispute would be expected. It is about taking the heat out of the situation not fanning the flames.

62.  Mediation in divorce/separation cases will not work unless there is a mandatory definition of joint residence as the starting point for all Court based decisions. Mediation should be with mediators who have a fixed outcome of joint residence as the starting point and only very serious reasons would prevent this from happening. Should not be linked to legal aid.

63.  Better use of pre-court assistance to keep the parents together eg relate to prevent it from getting to Court and enact Part II family Law Act 1996 which has been swept under the carpet.

64.  A no fault complaint procedure to permit honesty and openness and for matters to be addressed which are wrong without fear of litigation and inherent costs/embarrassment, fear of insurance costs and insurance issues and to protect the family from abuses of power or other wrongs.

65.  Finally restore the biological nuclear family at forefront of State Policies for all bodies and that includes the Judiciary [Public Authority s7 HRA 1998.

July 2010



 
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Prepared 14 July 2011