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The Mills Grind Slower and Slower

August 23, 2010

Leslie Barker, an experienced magistrate writing in the Guardian  reminds us, quite correctly that deciding to remove a child from his/her parents on a care orders in too draconian, too complex and too sensitive a decision-making process as to be subject to an arbitrary deadline as was suggested by Barnardo’s.

However Mr Barker is much less convincing about why many such cases take 45 weeks or more to reach a conclusion. After all, a child is made in 38 weeks from conception to birth – why should it take longer, or even that long, to reach an important decision about a child’s future?. Decisions made in care proceedings although very serious can, if mistaken, be reversed on appeal or later if circumstances change by orders being varied or discharged. So why so long, why so ponderous?

As Sherlock said; let us consider the facts. An interim hearing has just ended at the Anywhere Family Court. The lawyers, social workers, guardian and court clerk sit around with their diary’s open trying to schedule the next hearing in the case. The Clerk offers “how about the 16th – you can have half a day then”. “Ah”, says a solicitor, “I’ve got a case in another court that day”. Well then says the Clerk what about 20th in the following month”. “I’m on holiday then” responds the social worker “me too” says the Guardian. “Why not try the month after”, says a barrister, “people will be back from their hols then”. Well, says the Clerk I can offer you the 30th then but that’s a 3 month delay. “Sorry”, says the other barrister “my expert is not available then”.

And so we go on, ever extending the periods between hearings and continually putting off the final decision. The question is why? And that question is I think susceptible to a who benefits analysis. The child does not benefit and is disadvantaged by delay. The parent(s) often want to put off the final decision, which they anticipate will be against them, in the hope that something will turn up. But, neither child nor parents are in control of the pace of the proceedings; the professionals are. Several of the professionals are likely self-employed (the barristers, some guardians, solicitor partners, experts) some are usually employed (the social workers and the solicitors employed by their firm or the local authority). It in the interests of the self-employed to keep a full or slightly over-full caseload to be sure of an adequate income flow. For the employed, their managers try to ensure they are fully loaded with work and sometimes grossly overloaded. Thus, everybody concerned has a full to overflowing diary and therefore you get the sad spectacle of the scenario I outlined above. Ah-ha, you will say; what about the court clerk? Well, there is the MoJ insisting that its physical assets, the court rooms, be fully utilised or closed – use it or lose it they say – so no spare space there either.

Now, don’t jump to just blaming the professionals; they too need to eat. There have been years of cutting back of professional fees earnable from legal aid, years of making social work either at the front line or as Guardians less and less rewarded either in money or satisfaction terms. The whole system has been incrementally, year by year, overloaded and starved of adequate resources in the name of meeting targets and being cost-effective and is now rapidly heading towards the ultimate goal of the cost effectiveness fanatic – nil cost and nil effect.

2 Comments leave one →
  1. August 25, 2010 7:21 am

    This is an area I know very little about but I can recognise exactly this situation. It is one that has developed rather than been planned. It’s the line about ‘incrementally, year by year, overloaded and starved of adequate resources’ that made me cheer (not because it made me happy but because it is EXACTLY the point).
    So how to make things better? At least some discussions are being had but if they aren’t had at the right level and with the right people (people who do the work rather than people who manage people who do the work) it’s arguable as to what decisions may be made.

  2. August 27, 2010 9:11 pm

    These days it is almost always either the case that one of the lawyers, social worker, guardian and experts is unavailable when the court can list it or that there is no judge time available on the one day everyone has identified as manageable. Where possible we excuse the person who can’t make it, or make arrangements to find alternative representation but it’s just not always possible or appropriate. The solution I think would be more court time i.e. more judges, but I won’t hold my breath for that one.

    Incidentally Brick, I agree with almost everything you post on your blog, but I’m not sure about your suggestions above that we can fix any mistakes caused by a pacy process by appeals or by varying orders. One one level of course you are technically right – wrong orders can be reversed. But it isn’t just about law: Once care orders are made, children moved, contact reduced etc etc there are some things an appeal can’t fix. These decisions are so important that it’s imperative that we get them right first time around. Placement instability and unnecessary change is harmful to children. Appeals are expensive, unsettling and cause more delay not less. It is to avoid the greater evils associated with appeals that we all strive to get it done correctly and thoroughly at first instance.

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