A document endorsed by the President of the Family Division calls on child welfare professionals to adopt best practice guidance when considering special guardianship orders.

The guidance comes as the family courts begin to signal a significant shift away from the sector’s “good enough” standard of practice, which has been widely criticised by child welfare experts for being inadequate.

Judge Keehan, who wrote the guidance and who has just been promoted to Family Division Liaison Judge for London, also outlined a sharp increase in new child protection cases which was not in line with national data on the prevalence of child abuse, raising concerns about the motivations behind the increase.

Special guardianship orders (SGOs) allow courts to place children with someone other than their birth parents, when the parents cannot look after them. Most SGOs are made in favour of a family member known to the child.

The document offers information about the Working Group which helped to develop the guidance, the background to SGOs (which is very good) and a best practice guidance (Appendix E) on how to spot cases where SGOs are appropriate and how to process SGOs correctly.

The guide also mentions several other recommendations the Group says must be implemented, including a renewed emphasis on parental contact, better support for Special Guardians and a reduction in the use of supervision orders with special guardianship orders.

Other important areas related to child welfare the Group said it would investigate are mentioned, such as:

• The increase in short-notice applications being made by local authorities when issuing applications for public law orders;
• Whether guidance should be given on the appropriate use of s 20 / s 76 accommodation;
• Whether child welfare proposals contribute to delivering enhanced benefits and outcomes for children and;
• How children in family court cases can be engaged in the most effective way.

While it’s worth reading the whole document from start to finish (you’ll need a packet of Digestives and 12 tea bags – the guidance is 54 pages long excluding the bumpf), these are the sections we think are must-reads if you don’t have that many Digestives, or tea bags:

Executive Summary (Pages 12-13)

Short and sweet, this summary offers a clear outline of the guidance and the 10 recommendations the Group makes for SGOs.

Best Practice Guidance (Page 14)

We have only been saying this for ten years, but it’s great to see the family courts finally raising the bar and demanding that best practice be the “new normal” within child welfare work. The Guidance makes it clear that best practice must be applied when processing SGOs, and while the sector’s idea of best practice is still nowhere near good enough (for us at Researching Reform at least), it’s a good place to start.

Special Guardianship (Pages 17 – 26)

The first page in this section offers a good reminder that local authorities must always try to place children with relatives or someone known to the child before considering adoption. This is a legal requirement and not a discretionary policy.

This section also explains what a special guardianship order is, how it works and the complications within the current SGO framework which can compromise appropriate placements and disqualify eligible family members through no fault of their own.

And there is some discussion about poor assessments and variations of quality nationwide, as well as a sub-guide on how to ensure assessments meet best practice guidelines.

Options for placement with family and friends (Pages 66- 69)

This appendix outlines all the options available to child welfare professionals to enable SGOs with the child’s relatives or friends. We would encourage birth parents and their extended families to read this section, as it offers vital information on how SGOs can be secured and which options allow parents to retain parental responsibility.

Conclusion (Pages 33 – 34)

Another significant development is mentioned in the Conclusion by way of a recommendation, which says that where a child has little to no previous connection with a proposed special guardian, the child may live with the guardian on an interim basis before an SGO is made, if that is in the child’s best interests.

The guidance also recommends that the child’s plan should include clear provisions for the time he or she will spend with his or her parent(s) or former carers and the planning of and support for the contact arrangements.

You can read the message from the President of the Family Division and access the Guidance here.

Further reading

Section 20: Councils Bypassing Parents, Targeting Children To Secure Agreements

Children’s Right To Speak To Judges In Family Cases Shelved Because Of Cost – Former Family Court President 

The President of the Family Division, Andrew McFarlane, has published a report which offers a roadmap for the day-to-day workings of the family court during the next six months, and also suggests that the system is unlikely to go “back to normal” before the spring of 2021.

The report, called “The Road Ahead”, confirms that case loads inside the courts remain high, posing a significant challenge to a system which is not fully operational, and which also faces considerable technological challenges.

McFarlane admits in the update that the measures suggested are “aspirational”,  which could potentially confuse family courts and legal professionals who are still struggling to find a way forward.

These are the key messages from the report.

Signposts not Directions – with several guidance notes on case management already issued, McFarlane says no more rules are necessary, and that the Road Ahead is just a framework, designed to outline “basic priorities and ground rules and to offer a checklist for case management decision making.”

Courts versus Remote Hearings – while some courts are being opened up and additional spaces are being sought out, remote hearings are here to stay. Video hearings should be the number one choice (over telephone hearings) where possible.

Families and their Lay Advisors – remote hearings have often been fraught for vulnerable parents, extended family members and their McKenzie Friends, who are not always able to communicate with the judge or lawyers during the process. The report offers parties to proceedings the chance to attend a solicitor’s office, barrister’s chambers, room in a court building or a local authority facility, with their McKenzie friends or interpreters.

Public Law Cases – despite the high workload that existed before lockdown, and the family courts’ ongoing struggle to process all these cases within the elected time frame, the President says public law children cases are still expected to be completed within 26 weeks. The courts are expected to do this by limiting the length of hearings and only dealing with necessary issues. We can see “necessary issues” becoming a bone of contention in these proceedings.

Case Management – the handling of cases should be “clear, focussed and very robust”. Under this mantra, professionals will be expected to avoid adjourning cases so that they can be held face-to-face, which could cause problems for complex family law proceedings.

COVID Case Management Checklist and the “Can Do” Mentality – the report offers a guide on how to narrow the issues down in a case, hearing formats, and ensuring remote hearings are ‘as fair as possible’.

And all of these measures are impossibly underlined by the “overriding objective“, set out in the Family Procedure Rules, which requires courts and professionals to have regard to concepts like fairness and equality.

The family courts were in bad shape before it found itself at the steep end of a technological learning curve, and that journey has been tumultuous. How it will fare in the next six months is anyone’s guess.

You can access the report here. 

A new guide to help clinical psychologists understand how family court assessments should be produced during the COVID-19 outbreak warns that assessments undertaken remotely may not be valid.

The guide, which was issued on 29 May and written by Dr Miriam Silver, Dr Jaime Craig, and Dr Helen Rodwell, explains that there is no evidence or research which validates any kind of remote assessment carried out on behalf of the family courts, including investigations carried out by psychologists.

As the UK starts to re-open schools and some of its businesses in full, face-to-face assessments are also discussed. The guide concludes that enabling this kind of assessment will depend on the levels of infections in certain areas, the health of the psychologist and whether the psychologist feels comfortable enabling a person-to-person assessment. Advice on how to minimise infection during face-to-face meetings is also given.

The guidance then asks psychologists to be mindful of the power imbalance between experts and the people being assessed.

It says, “Expert witness assessments inherently involve a power imbalance between the psychologist expert and the assessed person. This power imbalance can make it much harder for the assessed person to state that they are unable to manage or communicate well during an online assessment or to feel able to raise concerns about the proposed steps to manage infection risk.”

The guidance requires psychologists to explain how they adapted assessments, the rationale for the adaptation and give an opinion “as to the extent that this is likely to impact on the validity of their assessment”.

The document highlights some of the possible changes in children’s and families’ behaviours during the lockdown and explains that psychologists will need to be careful when trying to understand whether those changes are important.

The guide also reminds expert witnesses that the increased use of remote technology could also cause families who do not have easy access to the internet difficulties, and that those difficulties should not be used against parents and extended family members during assessments.

The very last segment of the document emphasises the need for psychologists to understand the serious nature of these reports and the life-altering consequences that stem from these assessments, as well as ensuring they do not place children and families at further risk of harm through their conduct.

The conclusion is very much worth a read, so we’re adding it below:

“Psychologist experts have a duty to the Family Court to complete valid, reliable and fair assessments. The gravity of decisions being made for children and families is high and will have an enduring and wide-reaching impact which can be difficult to predict.

Reliable and valid assessment-based psychological opinions therefore remain crucial. At the current time, parents, children and families who are undergoing Family Court proceedings are living under increased stress and their usual access to services is likely to have been negatively impacted.

During the pandemic, parents will have reduced capacity to demonstrate engagement and capacity to change.

As the Family Drug and Alcohol Court advise: “No amount of creativity can remove the grave concern about the injustice of making potentially life-changing decisions for children without due regard to the test that is applied in normal circumstances.”

Psychologist experts also have a duty of care to the parents and children that they assess, as well as to themselves and members of their team. It is essential that their assessments do not place people at additional risk of harm to their physical or psychological health.”

The psychology sector has come under fire for failing to address a loophole which allows unqualified individuals to practice as psychologists in the family courts. Under current guidelines, unqualified psychologists can act as experts and dodge malpractice claims, by avoiding the use of  protected titles such as ‘educational’, ‘clinical’ or ‘forensic’.

The loophole allows unqualified and potentially dangerous individuals to offer psychology services without the need to be  registered and regulated by the UK’s watchdog, the Health and Care Professions Council (HCPC).

A damning report in 2012 by Professor Jane Ireland found that over 20% of psychologists  in  family cases  were  unqualified  and  65%  of  expert  reports  were  either  of  ‘poor’  or  ‘very  poor’  quality.

You can access the guidance here. 

As everyone remains either thoroughly confused or casually complacent over what rules we’re supposed to be following (including the Prime Minister’s senior advisor who helped to make those rules), the courts too, are in a precarious limbo.

Not entirely family court related but still of interest, the Lord Chief Justice has approved the re-launching of jury trials, with four courts confirming such trials took place last week.

You can read the update written by the Chair of the Jury Trials Working Group here.

Domestic abuse cases in criminal courts are being prioritised for summary trial with hearings being listed so that individuals can start to attend physical courts hosting these cases.

Guidance on listings in magistrates courts can be accessed here.

The order of business in family courts remains relatively unchanged this week, with the following priorities confirmed below:

Public family law cases (child protection) – Emergency Protection Orders • Interim Care Order • Renewal of Interim Care Order • Secure Accommodation Order • Deprivation of Liberty authorisation.

Private family law cases (divorce, child contact) – Child Abduction Orders (including Tipstaff Orders), Domestic Abuse (Family Law Act) Injunctions, Female Genital Mutilation and Forced Marriage Protection Orders, Divorce – urgent applications and decrees absolute.

Court of Protection cases –  Urgent applications • Applications under Mental Capacity Act 2005, s 16A and s 21A • Serious medical treatment cases • Deprivation of Liberty • Form COP1 Statutory Wills – where person is near end of life. • Safeguarding applications via the Office of the Public Guardians.

The latest guidance to ensure injunction applications are prioritised and victims of domestic abuse receive protection as soon as possible, can be found here.

Almost 70% of those who answered a poll asking the public whether they thought the family courts’ current burden of proof should be replaced with the “beyond reasonable doubt” threshold used in criminal courts, said yes.

A poll that we ran last week, and which received 43 votes, found that 69.8% of those who took part wanted to remove the civil test used by the family courts (“balance of probabilities”) and replace it with the criminal test.

The poll, which also offered a third option in an “other” box for members of the public who thought the tests could be improved or further developed, sparked strong reactions in those for and against changing the burden of proof in family courts.

One tweeter said, “Try telling a child that although you believe a parent is most probably abusing them, because you’re not absolutely sure, you’re not going to remove them from harm’s way.”

Another tweeted commented, “I am passionate about reforming the system and the test for for examining evidence MUST be brought in line with the criminal courts. Additionally the evidence in Family Court must be investigated and confirmed as truth, not just assumed to be so as it is introduced by SS!”

Tweeters also described the problems with the current burden of proof in family courts, which is the same standard used for civil courts across the country.

Family courts are considered unique in that cases that come before them often feature both civil and criminal elements, arguably making these tests not fit for purpose.

One tweeter told us, “Feel very strongly about this. I am testimony that this method is very dangerous. I ended up being falsely accused of the father’s crime of drugging. I was falsely accused of Parental Alienation. The current balance of probabilities [test] is a sick joke.”

A commented on twitter added, “In my relatives’ case the judge didn’t even use balance of probabilities (which is ridiculous in itself) she based her “judgement” on her ASSUMPTIONS. If I could take it to high court they would be disgraced at her findings. Ignored BLATANT EVIDENCE. Why? [Money emojis] Yep, the root of it all.”

Another poster said, “It is hard enough to get justice for and protection for victims and especially children. How will children be better safeguarded by raising the threshold?”

You can see the poll on Twitter. 

Family proceedings being heard in the Court of Appeal will be broadcast online so the public can watch, in a legal first for such cases.

However, the proceedings will be streamed with a 90 second time delay to allow court clerks to stop the transmission, so that the hearings will not be streamed in real-time.

The reason given for the transmission lag is to ensure any ‘disruptions’, or reporting regulations breached during the broadcast are caught before they are streamed online.

Furthermore, the cameras will only face the Judges’ Bench and the Bar, obscuring parties from view, limiting the scope and context of the transmission.

The initiative was announced on March 12 by the government, and is a joint initiative by the Ministry of Justice and HM Courts & Tribunals Service. The press release says the project has been deigned to boost transparency inside the system.

It is not clear whether the project, which places discretionary powers in the hands of the judiciary to decide wether or not to allow a case to be live streamed for public viewing, will feature those cases which involve serious miscarriages of justice by children professionals, lawyers and even judges.

These cases have become increasingly of concern, as this site and others continue to investigate and expose a worrying number of proceedings which involve malpractice and law-breaking by professionals inside the family courts.

In a statement included in the press release, Terence Etherton, The Master of the Rolls, and Andrew McFarlane, President of the Family Division issued a joint statement which said:

“Many of our most significant cases come from the family jurisdiction. It is only right that cases of such wide public importance are made open to the public. Recent examples of cases looking at issues such as Islamic faith marriage, access to fertility records, or transgender identity are of interest to the public and it is important for the public to see how the court approaches these issues.

We are of course mindful that in some cases, full public access would not be appropriate, we will ensure that those involved in such cases remain protected.”

Where families request their privacy, those requests will be considered. They will receive a written notification ahead of the video transmission to inform them they have been selected and will then have the chance to raise any objections, either by phone or in writing.

Before any live coverage of these cases can be watched, which could potentially encompass both private law (divorce and child contact cases) and public law (care proceedings), legislation will have to be implemented.

The press release explains that a statutory instrument has been put before Parliament to enable the project to launch.

Nominated cases will be streamed on the judiciary website, YouTube, Facebook and Twitter.

You can access the full press release here.