Presentation Transcript

1. Making the best use of lawyers in proceedings for children’s protection

   Judith Masson Law School University of Bristol
2. Introductions Me: Academic researcher and educator Research in child protection proceedings in E+W Out of Hearing (1999) – Children’s representation Protection Powers (2007) Emergency intervention Just Following Instructions? (2011) Parents’ representation On the edge of care (2012/3) Pre-proceedings And you…?
3. Aims To present research findings to illustrate: How lawyers work in child protection cases Why they approach cases as they do How lawyers can influence clients How you might influence lawyers Ways of working with lawyers for the State NB will be some differences here
4. Topics Lawyers for parents Preliminary advice Parents with learning difficulties Contact Placement Final hearings Lawyers for the Department
5. Key features of Care Proceedings in E+W (1) Proceedings brought by local authority ‘a last resort’ in cases of ‘significant harm courts seen as having ‘draconian’ powers Multi-party Parents usually represented separately Children represented by children’s guardian and solicitor Very, Very few cases where children give instructions Multiple hearings and lengthy cases Average over a year! Poor judicial case management Assessments in proceedings Culture and expectations
6. Key features of Care Proceedings (2)(from Care Profiling Study 2008) Concerns about parenting 75% relate to child neglect Families involved Longstanding problems; returning parents DV (50%), substance abuse (50%) and mental ill health (30%), Use of expert evidence 90% of cases; 65% adult psych – 20% 2 or more Culture and lack of trust of state’s case Outcome 60% care order (10% with adoption plan); 14% supervision; 23% relative care 3% dismissed, No order, wdn at FH
7. Legal representation in care (E+W) Publicly funded lawyers in private practice Divided profession but most work done by solicitors Specialist solicitors may combine with other family law work or crime Specialist accreditation expected if represent children Barristers and many solicitors take both children’s and parent’s cases LA (Department) rep by in house lawyers and barristers Women lawyers predominate Few younger lawyers
8. Task of representation Components of representation Advice Instructions Negotiation Advocacy Support Importance of trust Representation is based on relationships Partisanship
9. What motivates lawyers?
10. Important -Protecting the vulnerable It’s more challenging and intellectually engaging than perhaps a private law case where you’ve got two parents quite often who should know much better acting like children themselves and arguing about whether they pick up little Johnnie from outside Asda or pick him up outside Sainsbury’s. This is something where there’s more on the line and quite often parents at their most vulnerable, or vulnerable adults anyway who stand to lose their children and need somebody to fight their corner for them because nobody else will. S6
11. Making a difference Because fundamentally you need the best outcome for children and if there is any way that brings about the best outcome – either being with their parents or placed in their family rather than in care, or retaining a contact relationship, that matters hugely. It probably sounds terribly twee, but it is about … that’s why the judges do it, that’s why solicitors do it, that’s why social workers do it – they don’t do it because they want to take children off their parents, they do it because they want the children to be safe. Barrister 8
12. Interesting and challenging And I think as a lawyer it’s one of the most challenging areas you could work in – might be terribly paid, but in terms of challenge you’re getting things that you wouldn’t get anywhere else, because your knowledge base has to be so huge. … There’s nothing routine about care work at all. I never know what I’m doing from one day to the next.Solicitor 3
13. The culture of representation (1) ‘Communities of practice’ Mather (2001)‘repeat’ players’ Galanter (1975) Shared ethos Parents’ right to fight = contest agreed outcomes valued = negotiation Better to be right than quick = delay Parents’ rights + children’s rights often co-incide
14. Rights, timeliness and good outcomes If you were being totally focused on the needs of the child, you would try and get cases dealt with, almost universally, well within the 40 weeks in order that children can be moved on and start the next phase of their lives. But that’s not fair to the parents. And if the parents are capable of turning their lives round and having their kids back, then arguably it’s not fair to the kids either because the kids should ideally be with their birth parents and not with substitute parents. Removing a child from her birth parents doesn’t inevitably mean that that child’s future is going to be better than her past.Judge
15. Culture of representation (2) Hierarchy of placements – relative placements superior Contact as a currency Importance of being realistic BUT NOTE Beliefs not always founded on knowledge: Importance of timeliness outcomes of care system Breakdown rates of adoption placements
16. Lawyers’ expectations in care cases You don’t … in this line of work, you don’t get too many successes if you gauge success by having the children returned – there aren’t too many of those because the LA within which I work routinely don’t take proceedings unless they’ve got a good chance of getting a Care Order at the end of the day, and that’s right and proper. Why issue proceedings if you’re not going to get the order you want? So it really is down, from my point of view, to the parents putting their best efforts into changing from what Social Services have found to be not good enough parenting to good enough parenting within the period of the care proceedings. Solicitor 34
17. The culture of representation here?
18. Changing the culture of representation Judicial education + strengthening case management Better information for courts about: Child development – importance of timely decisions Outcomes of care Placement breakdown rates Research evidence needed to displace myths and entrenched beliefs
19. How can lawyers help parents?
20. Lawyers before court proceedings The pre-proceedings system in care proceedings (E+W) Applies where is case for proceedings but urgent protection not required Parents sent letter advising of concerns (legal aid) Parents + lawyer attend meeting with children’s services Agree plan to avoid proceedings (Plan monitored) 25% cases proceedings avoided 1/3 alt care; 1/5 substantially improved care
21. Realistic advice… ... whenever you get to these meetings, you always give a client exactly the same advice: ‘This is the last chance saloon. You either row in now or you’re going to end up in court, and trying to undo it is going to be a damn sight harder than it is to stick to the contract’.... (Parent’s solicitor)
22. Parents’ views about having their lawyer there ... you know that everyone in the room is against you ... and when you’ve got your solicitor with you, you know they’re the only person who’s 100% backing you up, so it helps you this is why I feel confident now because if they haven’t got back to me by next week I am going to call my solicitor and say what is going on, and if my solicitor weren’t involved I wouldn’t have a voice
23. ... she said, ‘Providing you stick to what they put down in the agreement when you sign it, then it is not going to go any further’ ... [My lawyer] makes me feel a lot better about everything. She’s like, you know, ‘this is something we could fight, you have got a good chance of beating them’. And she’s sort of ‘don’t give up, go in there with your head held high’, this, that and the other – she’s really nice, yeah Support, Strength and Reassurance…
24. [without my lawyer] Some things I don’t agree with, but I feel pushed to go along with it….. So I keep my mouth quiet about things I don’t agree with, I just go along with it Restraint… and avoiding false compliance He helped me stay calm, and if I was rambling on, you know, when you talk about it more you get angry and he was like ‘calm down’...
25. Are there negative consequences too?
26. Problems of the pre-proceedings system When to use it Some parents failed to seek legal advice Some legal advisers poor Some meetings badly organised/ conducted Delays Before the meeting took place After the meeting where little progress made Not a magic solution –some parents unable or unwilling to change sufficiently to be safe carers
27. Legal advice in care proceedings I’m just honest with them – I really am honest with them. ‘This is what the local authority is saying, these are the reasons why they’re saying that. You either work with them or you think they’re against you.’ Solicitor 29 Well – I said that the main thing she needed to do was co-operate. I always advise parents that they should co-operate with social services, and I advised her to accept any offers of help. ... the best thing I could suggest was that she did as she’s told – basically. Solicitor 38
28. Legal advice? Just give them legal advice, tell them bluntly what is what. Clients phone me up and say “I met a new man on Facebook”. I say, “Cancel it – I do not want you having relationships.” They say, “What do you mean?” I say ,“Don’t screw it up by doing that.” They respect me because I tell them how it is and because you build up that relationship. But if the social worker said it they’d say “Oh – they won’t let me do anything.” They perceive me as being on their side – even if I’m telling them the same thing. S14
29. Support on the last day, when we all knew really what was going to happen – it was quite an obvious case – I think [M’s solicitor] should have been there – that’s my own personal opinion because I think that mother needed that support. She got that support actually from the social worker but really it’s a difficult position for a social worker to be in. LA Solicitor 2 you don’t have time to handhold clients as much as they need, so, yes, it was key having [the community psychiatric nurse] there… [Mother] had no one and she needed specialist help and that’s why I couldn’t have seen her, given her the information and just left her, I couldn’t. If she tried to kill herself or something, I couldn’t live with that. S 36
30. Limits of advice and support Time (and money) Lawyers lack specific training (and aptitude?) Importance of client retaining representation Self representation very problematic in care cases Judges want parents to be represented Pressing too hard may mean client sacks lawyer Alternative lawyers v difficult to find Clients are free to reject advice
31. Parents with learning difficulties The fact remains, however, that the great majority of the parents we interviewed held a good opinion of their solicitor and were very satisfied with the service they had received. With the single exception of one mother, none of the parents we talked to could think of anything they didn’t like about their solicitor. These positive opinions were not associated with favourable case outcomes. (Booth and Booth 2005 p.121)
32. Making proceedings less stressful Clear explanations – pictures of those involved Pre-hearing visits to court Support person to accompany parent at court Suitable waiting areas All professionals should introduce selves to parents Judicial officer should speak directly to parents Avoid jargon Start time and length of hearing known in advance Apply to all parties –parents and children
33. Parents with learning difficulties Key points for lawyers Communicate clearly Be honest and clear about what is expected Provide emotional support Have a non-judgmental attitude Provide positive praise for achievements Advocate for suitable assessments Advocate for appropriate support services (adapted from Ward and Tarleton (2007)) Parents need the right lawyer one who will do this
34. Contact
35. Bargaining in the shadow of the law Many aspects of care proceedings are negotiated/ agreed between the parties not determined by the court Negotiations take place at the court door Contact is a frequent topic for discussion Parents raise contact because they are dissatisfied Parents see their lawyers as able to deal with social workers Parents’ lawyers try to achieve ‘positives’ for their clients Separated parents may compete Parents may ask for more than they can realistically do Children are not in a position to make demands
36. Contact as a bargaining chip A good foundation for positive contact? What other positives could there be? ‘And then try and find other elements that make the decision more palatable for them like trying to achieve something with contact maybe, so whatever I do, I try and get some positives out of it for the client so they come away feeling, yeah, okay, they had to accept that maybe they’d lost their child, but they were going to get some contact.’Solicitor 32
37. Lawyers’ influence on contact decisions Lawyers’ responsibility is to their client, their involvement is time limited and their have no resources other than their influence. Compromise unless sure judicial officer will agree with them NB NSW Contact Guidelines (2011) Want to do something for their client Tend to think more is better…
38. Father’s solicitor has managed to obtain a copy of the up-to-date contact report, which does indeed report that Father only engages with the child for 20 minutes and is more likely to talk to the adults in the session. The father’s barrister and the mother’s barrister discuss the father’s proposals for contact. Mother’s barrister suggests a compromise of 1 1/2 hours. She says that the children’s guardian is happy with 2 hours…eventually it is suggested that the child will be made available for 2 hours and it is up to the father how he deals with this…. The local authority barrister returns to say that the local authority have accepted 2 hours every 2 months…. Extract from researcher’s observation of negotiation at court, Parents Representation Study (2011)
39. ‘I negotiated a high level of contact – in fact, daily contact – she herself reduced that contact. This was during the proceedings. So in the course of the proceedings she actually felt it was too much to have the level of contact that she was having, so she effectively agreed with her mum and dad what level of contact she would have and she was very happy with that. ‘Well, no matter who I’m acting for, I always try and remain child-focused in all of this. So I think care work is about achieving the right outcome for the child whilst protecting the parents’ rights as much as possible and I felt this case completely met that criteria.’ solicitor 16
40. I negotiated – we didn’t have a contested hearing because the father was having the child. [Mother] wasn’t happy about it because there was a lot of conflict between them… ...my feeling at that point was that I had to negotiate contact for her. So I wanted her to keep in contact. So I negotiated and got her twice a week contact which was a little bit more than they were offering. Solicitor 10 What did the lawyer need to consider in this negotiation? What would make agreeing to this level of contact a good outcome for the child? So was this a good outcome for Mother?
41. This was an interim supervision order – then there was residence and contact order with [father] I’ve now been told she hasn’t turned up for contact (laughing) – so the LA rang and said could I contact her – but she hasn’t responded now – I think – you can only do a certain amount. So that’s a sort of sad but good case in a way. Solicitor 10
42. Parents’ lawyers can have a positive impact Check that contact has been properly considered (How would you show that it had been?) Support clients to keep contact during proceedings By showing an interest in parents’ contact Who else can parents talk to about their contact? Help make contact better for clients Can you do anything to help lawyers do this?
43. A more positive influence … the quality of the contact between Mum and the children was poor and people looked at how that could be best improved. Rather than seeing all 3 children together, she’d see them individually. The relationship – how she interacted with the children was not good, so everybody went out of their way to see how we could move it on….’ Solicitor 24
44. Mother’s solicitor discussing how mum could make contact better for three year old Patrick. Mum is currently seeing at a contact centre (unsupervised) Are there parks mum could take Patrick to? Mum can think of a particular adventure playground he would like – and then a couple of others. The solicitor suggests she makes enquiries about these. She suggests there is also the library – Mum knows about this and used to take Patrick there -it has a good children’s section. The solicitor suggests picnics – Mum agrees – depending on the weather. Mum says Patrick likes to run about and doesn’t like the confined space provided for contact – he loves running around. Mum is keen to think about this and make enquiries. The solicitor also suggests Mum might also talk to the foster carers to see what ideas they might have – confirming that Mum gets on with them. Mum mentions taking Patrick to swimming lessons, but the solicitor warns that this might not be something she could be involved in.
45. Placement - realism? In terms of the outcome – in the circumstances it was the best outcome because the child remained within the family and the hope was that relationships with the paternal family would get back to where it was at commencement of the proceedings, which was really good and extremely supportive, to allow Mum to be able to go and visit whenever she wanted. Solicitor 13
46. Placement dilemmawhat should the lawyer advise? Bernie and her son Patrick Bernie is an alcoholic living with her mother, also an alcoholic. Her son, Patrick, aged 3, was found wandering in the street when his (separated) father was supposed to be caring for him – he also had signs of physical abuse. Care proceedings were started. Bernie wanted to regain care of Patrick but did not engage with substance misuse services or move away from her parents, despite advice and encouragement from her lawyer. Bernie’s father contacted her estranged brother who offered to care for Patrick. The assessment of the brother was poorly done – the children’s guardian required a further assessment (not very positive). Bernie wanted to do the best for Patrick and did not trust her brother.
47. we didn’t have a contested hearing because the father was having the child. [Mother] wasn’t happy about it because there was a lot of conflict between them, but I actually spoke to her quite firmly, I said ‘You know – if it’s not the father then you’re really looking at adoption because you haven’t had any assessment and I’m sorry to say a baby would be easily adoptable.’ I told her quite bluntly – some people wouldn’t have done that but I think I probably had to….. Solicitor 10
48. Final hearing Contest or not? Lawyer’s work on parent’s instructions Lawyers can and do shape those instructions Positives of contesting? Negatives of contesting?
49. Positives of contesting? I always feel better if the parents come to court and fight it no matter what. Because I feel then the child can be told ‘your parents came to court and they did their best – but at the time the judge …….. Solicitor 39 There’s no worse thing you can do, as one to a parent than take their child away from them forever. …and if people want to contest them, then that is their absolute right. Judge 2 they’re going to feel better about it aren’t they – that it wasn’t them abandoning them. S 40
50. Negatives of contesting Were recognised by lawyers for vulnerable clients Such clients pressed to concede ‘not to agree but not to contest’ Extremely stressful and upsetting Parent expected to give evidence …will usually be some / token questioning Parents often unsupported at final hearing Solicitors delegate to barristers
51. Summary Parents find partisan support from lawyers empowering Lawyers’ advice supports co-operation Fighting for clients is part of lawyer’s job Lawyers need to understand more about child welfare generally and in individual cases Lawyers negotiate for their parent clients even if they use the language of welfare Lawyers recognize the value of continuing relationships for most children Lawyers work within the system and try to make it work for their clients Professionals need to convince that they know the family Professionals must be able to explain their decisions thoroughly
52. Questions and comments
53. Working with lawyers Common complaints from children’s services: Our lawyers do not do what we want Our lawyers make unrealistic demands Law gets in the way of social work/ good decisions for children Are these issues for you? Other issues?
54. Law as a tool Proactive use of legal advice You know what you wish to achieve and seek advice about how to use the law to achieve it Reactive use of legal advice Something has happened and you want to know how to deal with it
55. Getting good legal advice Be clear about the factual situation: what you actually know; what you think might be true; and what you do not know Don’t omit info because you think it’s not relevant Be as clear as you can about what you want to achieve and to avoid Your reasons and why you have rejected altenatives Question and expect to be questioned If you do not understand say so
56. Good legal advice….. Does not mean being able to do what you want Does not necessarily mean going to court Is realistic not optimistic Identifies risks / chances Identifies potential negative consequences Indicates time scales to start and complete action Makes clear what has to be done (and by whom) NB lawyers are often better at talking to other lawyers!
57. References and resources Masson, J (1999) Out of Hearing Chichester: Wiley Masson, J et al, (2007) Protecting Powers Chichester: Wiley Pearce, J., Masson, J and Bader, K (2011) Just following Instructions? The representation of parents in care proceedings, School of Law, University of Bristol available at http://www.bristol.ac.uk/law/research/researchpublications/2011/justfollowinginstructions.pdf Parents with learning difficulties Booth, T and Booth, W (2005) ‘Parents with learning difficulties in the child protection system’ J Intellectual Disabilities 5, 109 Tarleton, B(2006) Finding the right support? Baring foundation, ch 8 http://www.baringfoundation.org.uk/Findingrightsupport.pdf The court and your child http://www.judiciary.gov.uk/NR/rdonlyres/3E93D2F5-A0A5-4EDC-AE93-2C9B381404B1/0/Public_Law_bookletEnglish.pdf Also available in Urdu, Arabic, Turkish, Portuguese, Gujarati, Albanian and Thai Parents experience of the family justice system Hunt, J (2010) Parental perspectives on the family justice system London, Family Justice Council http://www.judiciary.gov.uk/NR/rdonlyres/3507705E-C25E-4674-9397-2171CB4D43E0/0/Parental_Perspectives_final.pdf