Welcome to another week.

With children back at school while a new spike in Coronavirus cases builds, our question this week, is just this:

Do you think Ofsted should be prioritising care home inspections to ensure children in state run homes are not falling ill?

The government has confirmed that an online service to process care and supervision applications in public family law cases will resume on 14 September.

The service, which had begun to roll out across England and Wales at the start of the year, was halted during the COVID-19 pandemic.

The platform aims to improve the court process for these cases and ensure the best outcomes for children through six digital tools:

• allowing local authorities to create new digital applications for care supervision and Emergency Protection Orders
• enabling cases to be progressed by the court, legal professionals, local authorities and judiciary in a timely manner
• giving legal professionals, including parents’ solicitors and Cafcass the ability to access cases digitally and view tasks that need to be completed before a hearing
• allowing court users to see the status of their case and to progress it online
• enabling court users to upload and access documents and evidence digitally
• enables documents and evidence to be added to case and court bundles which can be uploaded, annotated, presented in court and used in the hearings.

An online seminar on the rollout hosted by Her Majesty’s Courts & Tribunals Service (HMCTS) was held in January, which confirmed that councils would need to upload every document relating to a child’s case onto the portal once it was operational.

Emma Petty, the Service Manager for the HMCTS reform project, said, “It’s really important to treat that case management system they have access to as the digital file, and have all of the information in the one place that everyone can access.”

Ms Petty was responding to a series of questions posed by Researching Reform at the seminar. When asked about whether cases would be vetted to see if they were appropriate, Ms Petty said there would be “an element of validation” to the digital process.

However, emergency applications will be unrestricted under the new service, allowing councils to submit such applications without any scrutiny.

The latest child welfare items that should be right on your radar:

• Latest House of Commons Library Briefing on The Adoption and Children (Coronavirus) (Amendment) Regulations 2020
• New book on banning corporal punishment launches with open webinar
• Judge issues guidance to experts on remote evidence

A government consultation proposing to extend some of the controversial regulations which relax local authority duties and responsibilities towards children in care has found that most respondents agree with the proposal.

The consultation, issued by the Department for Education, has caused controversy among child welfare charities and human rights groups who say the review is not impartial and should not be looking to actively push for a position.

Critics said the consultation should have sought views on all possible solutions to keep child services up and running during the COVID-19 pandemic, instead.

In an effort to boycott the consultation, several organisations asked the sector not to submit responses, calling the consultation null and void.

The regulations, which were brought in to remove perceived pressures from the social care sector during lockdown, led to an outcry inside the sector after it was revealed that the government had not consulted with overseeing bodies before implementing the changes.

Child welfare bodies say the regulations, which allow local authorities to skip past vital document gathering during the adoption process and insist on virtual contact during lockdowns despite guidance stating face to face contact is allowed, place children at risk of harm.

While the document offers a breakdown of the type of response it received, categorising them as individuals, local authorities, charities and other organisations, and a further breakdown of which organisations responded, it does not give the names of individuals who took part.

The majority of respondents were individuals (91), making up almost half of those who submitted views to the consultation (48.15%), with local authorities making up less than 20%, with 37 responses.

Children’s rights charity Article 39 recently lost its judicial review into the regulations, having argued that it was unlawful for the government to implement the easements without a consultation. The charity asked for permission to appeal the decision, which was granted.

You can access the home page for the consultation here.

Some of our readers may have noticed that our posting has been a little less frequent than usual, so we’re just checking in to say please don’t worry, we’re still here.

The Summer has been extremely busy, both in terms of our work and the adjustments we’ve had to make during lockdown. During this time, as you know, we posted regularly as there were a lot of important developments to cover, but we’re now going to take a very short break.

All this means is that our site may not be updated as frequently over the next seven days, but we are still here to help with queries, comments and pro bono family law support.

Wishing everyone a restful Summer, and we’ll see you as we hit the ground running in September.

Natasha xxx

The latest child welfare items that should be right on your radar:

• Former councillor boasted of being ‘paedo master trainer’ as he gave out advice on abusing children
• ‘It was utterly devastating and cruel what happened at Shirley Oaks’ – child abuse survivor Emma Lewis on the aftermath of the Independent Inquiry into Child Sex Abuse
• Madeleine McCann prime suspect reportedly sexually abused five-year-old girl

The latest child welfare items that should be right on your radar:

• Adoption charities taking over Kinship carer service is ‘slap in the face’ (Scotland)
• 20 adoption orders granted via Zoom (Ireland)
• Government must make registration of sharia marriages mandatory, report says (England and Wales)

Robin Tolson, a family court judge who sparked a national outcry for telling a rape victim in court she was responsible for her assault, has stepped down. The comment was made in December 2019, during a hearing for the case.

The development comes after several MPs said the judge should be barred from handling domestic violence and rape cases.

Tolson announced his departure in an email he sent to Central Family Court users, calling the job “thankless’, and said he made the decision with “considerable regret”. He also stressed that he had stepped down for personal reasons, and because he wanted “a life better suited to his personal circumstances.”

In the statement, he said:

“Having been instrumental in having the post of DFJ [Designated Family Judge] re-graded to senior circuit judge level, I decided late last year not to apply when it was re-advertised. I must stress this was for personal reasons and had nothing to do with any other factor. Although the president was kind enough recently to stress his confidence in me as DFJ here, the role is arduous and, at times, thankless; and I desire a life better suited to my personal circumstances. It is as simple as that.

You the court users will glimpse, perhaps more than glimpse, some of the difficulties we – judges and staff alike – have faced here in court and behind the scenes at the business end of a family justice system which, if I may offer a personal view just for a moment, seems increasingly incapable of meeting the needs of its users: not enough time or money for the necessary and deserving; and a tendency to concentrate resources on the unnecessary, complicating the simple and pandering to agendas which are at odds with reality or a diversion at best.”

Tolson’s judgment in a case involving a contact order for a child garnered national media coverage at the beginning of the year when he incorrectly told a mother who had said she had been raped, that the assault by her abusive husband hadn’t constituted rape because she had not fought back.

The comment, along with several other flawed interpretations of law and process by the judge led the High Court to conclude that Tolson’s views were obsolete and that his handling of the case was “so flawed as to require a retrial”. Ms Justice Russell allowed the case to go to appeal, and commented in her reasoning that Tolson’s views were outdated.

Members of Parliament, including Louise Haigh and Tulip Siddiq condemned the judge’s views on rape, while a letter signed by 130 lawyers and campaigners called for immediate action to ensure family judges were properly trained to deal with rape cases.

Tolson will leave his judicial position on 21st August.

Useful Links:

• Family judge steps down from ‘thankless’ leadership role
• Male judge who was slammed for telling a woman she wasn’t raped because she didn’t fight back ‘makes the same ruling again in a second case’
• Angry litigant jailed for flooring judge with a flying rugby tackle

The government has launched an investigation into judicial reviews to see if the process needs reforming. The Ministry of Justice says it is part of a plan to try to strike the right balance between citizen’s rights and effective governance.

Judicial reviews are used to look at the legality of a decision, action or failure to act by a government body while exercising its functions. A review decides whether laws have been correctly applied and the right processes followed during the life of a case.

Judicial Review can be used in family cases, and typically involves decisions made by Child Services Departments in local authorities.

A review of the process comes after the current government was defeated twice in the Administrative Court, on matters relating to Brexit (Article 50 and the prorogation of Parliament).

Those who argue in favour of restricting judicial review say there is evidence of the judicial review process being exploited to overturn ministerial decisions. Those against adjusting the balance to make it harder to apply for a review say the process is a vital part of the system which ensures legal scrutiny of government decisions.

The investigation will be chaired by Lord Edward Faulks QC, and five additional panel members, none of whom specialise in family law matters.

Any recommendations made during the investigation will be considered by the Minister for the Cabinet Office, Michael Gove.

The investigation will consider whether to write the terms of a judicial review into law.

Of significance is the investigation’s remit to consider public law control of all UK wide and England & Wales powers that are subject to it whether they are statutory, non-statutory, or prerogative powers.

This could lead to a tightening of Judicial Review, which could ultimately prevent specific types of claims from being heard in the Administrative Court. While the investigation appears to be geared towards an analysis of how the process is being politicised, it remains unclear how the probe and any future recommendations might affect family law cases.

The Ministry of Justice’s press release lists the considerations of the investigation as follows:

• Whether the terms of Judicial Review should be written into law
• Whether certain executive decisions should be decided on by judges
• Which grounds and remedies should be available in claims brought against the government
• Any further procedural reforms to Judicial Review, such as timings and the appeal process

We recommend reading the terms of reference and the notes under the terms for a clear picture of what the investigation will explore, as some of the terms are potentially controversial.

The press release says the panel will report back later on in the year, though it’s not clear from the statement whether a public report will be produced or whether the panel will be reporting back to a government body or Minister to update them on their progress.

Links:

• Press Release
• Terms of Reference for the Review
• Civil Justice Data (With Judicial Review section)