Friday, 14 September 2007

Update 17th of July 2007

Not a lot to report this week save a report on change of residence (see below under 'OTHER NEWS') and the substantial draft legislative programme: It is a long document and contains much of interest to us as citizens but as family practitioners it contains the Child Maintenance and Other Payments bill (as formerly mentioned - really just an Act purportedly tidying up the administration of such payments) and the Children in Care Bill.
It does appear that the government has approached children's issues with an amount of intelligence, apparently looking at the problem areas and then seeking to do something about it. Who'd have thought?
First evidence was the establishment of the Department of Children, Schools & Families which, according to the Secretary of State will take a lead on ALL matters relating to children from youth justice to class-room discipline. His first statement to the House was last Tuesday and is digested by him on You Tube (I kid you not!) in a slightly unsettling development in government communications. Not much was said, but to be fair he is in new territory.
Second evidence is that the said SoS is Ed Balls, who is apparently incapable of pronouncing the word 'bureaucracy' (Freudian?) but is notorious for being close to the new Prime Minister. This might have some positive funding implications but it is far too early to say whether this might assist in payments for the lawyers who give effect to some of the initiatives...
But in my view the CinC bill is the third and more substantial evidence that child policy might be turning in a positive direction. The White Paper runs to 144 pages (, if you want to trawl through it) and in the initiatives it proposes plainly admits that the care system (Corporate Parenting as the bill puts it) has failed children. In particular, Chapter 7 proposes a number of alterations to social work practice right from recruitment through mentoring, CPD and review. The role of Independent Reviewing Officers is re-visited with the frank admission that they have not operated as they should, either being insufficiently independent or simply not reviewing. The paper does not propose externalising the IROs yet, but making it much clearer what their role is, appointing an IRO to every case.
(A complete cynic might point out that if IROs do their job properly there would be scope in the future to remove the role of Guardian from public law proceedings, with a considerable cost saving, and a transfer of what is currently a legal process of challenge into an administrative procedure. There is no such proposal.)
Chapter 2 deals with assisting parenting within the family and strengthens yet further the emphasis on finding a placement within the family or extended family, while Chapter 3 explores parenting outside the family including better training for fosterers, processes for making fostering more visible to potential fosterers and establishment of new standards and accountability for residential care. This latter is one of the more surprising and to my mind welcome developments in the bill. Paragraph 3.19 seems to suggest that the government has finally got the message that community placements are not always the best option for children. Accordingly the bill proposes more rigorous commissioning for care providers, the introduction of a 'social pedagogy' model into residential care, liaison with Youth Justice Boards to predict demand, development of national standards etc etc. Despite its horrible name, the 'social pedagogy' idea is, if I might say, both bold and exciting: it is in effect requiring residential care to do all that a loving parent would in terms of the overall development of his or her child: participation, expression, exploration, growth through association with others. At this stage the bill proposes an evaluation of those authorities who have been employing German and Danish pedagogues but having had some small experience in Denmark of this system, my personal hopes are quite high for the system. Whether providers of residential care have the imagination to give effect to it is perhaps a less happily answered question.
Other practical steps include the appointment of Designated Teachers for children in care, placing a requirement not to move children's schools in Years 10 & 11 save in exceptional circumstances and making the process of leaving care gentler and more tailored to the individual. This is currently being explored in a pilot which requires any change in the placement of a child aged 16-18 to be subject to review with an advocate of the child's choice. It is also proposed that children can remain with fosterers (that is, paid for, as they could do so anyway) until 21, and have a personal adviser up to 25, have a nest egg of £100 per year in care invested on their behalf and given to them on leaving, fees top-up for university and other practical help with accommodation and employment.
However, apart from ensuring compliance with the new methods of working, there is little in the bill for we lawyers. There is a greater emphasis on children's views throughout the process and though the bill does not always specify who is to provide advocacy to that end, it does not suggest that we should be involved.
Finally, if anyone can trace the person in the Department who chose the name for the leaving care pilot 'Right2B Cared4' and shoot them, I will contribute handsomely to your defence fund.
On another subject, Ward J continues on his still-fairly-lonely campaign to encourage the lower courts to use change of residence as a tool to secure the best interests of the child. The judgment has yet to be published (given on the 3rd of July) but a useful comment for practitioners can be found in the lawtel report of Re C (A Child) 2007: "The option to make no order was an option of abdication that was all too frequently resorted to by the courts and led to appeals from fathers protesting that the courts failed to enforce their orders." I could not agree more, having been knocked-back by Hogg J in very similar circumstances. Without seeing the judgment I cannot comment further save to say that there are cases where it can be said that the disbenefit of a change of residence is outweighed by the disbenefit of leaving the child where s/he is and not having contact, but that it is the Devil's own job to persuade a court to act. Re C may help.
It seems that I might have a response to my request for an article on the Child Maintenance & Other Payments Act. It strikes me that someone would do the members of the teams a service in spending an hour of two knocking up a brief history of the development of the law in relation to changes of residence. In my experience, the process is treated by the lower courts & many practitioners an aberration. The quote from Re C makes clear that that attitude must stop. An article/model skeleton argument would be useful. Any takers?