6 Maggie
1 ‘… and the guardian’s barrister’: The guardian is a separately represented social worker whose role is independently to represent the interests of the child. Their duties should involve holding the local authority to account, making sure that their care plan is the best one possible and sometimes acting as an intermediary between the parent and the local authority if communications with the social worker have broken down.
2 ‘… your informed consent’: Under Section 20 of the Children Act 1989, the parents/mother of a child can agree to the local authority accommodating the child for a temporary period. Accommodating means more than housing – it means providing for their care. This arrangement can mean the child staying at home with its parents and interventions from the local authority; more often it means the child moving into temporary foster care. Section 20 does not mean that the local authority has parental responsibility for the child, and the child’s parents are entitled to withdraw their consent at any time. If they do, the local authority must return the child immediately to the parents’ care. The local authority can ask the police to exercise their emergency powers to remove the child (up to 72 hours under Section 46 of the Children Act 1989) if the circumstances allow for this, or can make an application to the court for an Emergency Protection Order or an Interim Care Order (see next note). The courts have been concerned about local authorities relying on Section 20 consent and allowing the temporary situation to become a permanent one without issuing proceedings or providing support. There are also concerns around whether parents properly understand what Section 20 consent means, and it is the social worker’s responsibility to ensure that they do.
3 ‘… in the local authority’s care’: An Interim Care Order (ICO) places a child into the care of the local authority during care proceedings, before the final hearing takes place. The order gives the local authority parental responsibility over the child, which supersedes the parent’s parental authority if there is a disagreement about the child’s welfare. The order allows the local authority to decide where the child lives and who has contact with him. To make an ICO the local authority has to prove facts which establish that significant harm has already been caused to a child, or there is a serious risk that the child will suffer significant harm in the future, or which show that the child is beyond parental control. Sometimes parents admit that the threshold criteria have been crossed. If they do not, the local authority has to prove the allegations on the balance of probabilities. The court must first agree that the threshold has been crossed and, if so, whether it is in the child’s best interests to make an order. This is not inevitable, although it is likely.
4 ‘… it will never go back’: A paper published in 2016 by Professor Karen Broadhurst, lead researcher at Leicester University, et al., found that once newborn babies were removed in care proceedings from their mothers/parents, only 10% were returned. (‘Women and infants in care proceedings in England: new insights from research on recurrent care proceedings’, Family Law, Vol. 46, No. 2, 7 February 2016, pp. 208–11.)
5 ‘… happening to her next baby’: Professor Broadhurst’s 2016 paper also found that one woman in four who has her child removed by the state returns to court to have a subsequent child removed. In respect of those women who returned to court for a further set or two sets of care proceedings, 70% of the infants involved were aged less than one year, and nearly 60% were aged less than one month. The conclusion drawn was that there is a tendency on the part of local authorities to issue proceedings very early in the life of an infant where there is a history of previous proceedings.
6 ‘… attach to the order, as usual’: When magistrates make an order they are obliged to attach the facts and reasons upon which they based their decision to the back of it. The appeal courts have recognized the fact that there was a widespread practice of the local authority drafting these facts and reasons on behalf of the magistrates. The High Court said that this practice was ‘patently wrong, must stop at once and never happen again’ (Re NL (A Child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam)).
7 ‘… rebuild the family’: The fundamental principle of adoption remains that, where there is opposition from the parents/mother, the making of a Care Order with a plan for adoption, or of a Placement Order, is permissible only where, in the context of the child’s welfare, ‘nothing else will do’.
8 ‘… blue eyes matched his jumper’: Peter Connelly (also known as ‘Baby P’) was a 17-month-old boy who died in London in 2007 after suffering more than 50 injuries over an eight-month period, during which he was repeatedly seen by the children’s services and health professionals. Peter’s mother, her boyfriend and his brother were all convicted of causing his death. The case caused shock and concern, partly because of the magnitude of Peter’s injuries, and partly because Peter had lived in the London Borough of Haringey, North London, which had already been subjected to an intense review seven years earlier following the case of Victoria Climbié, an eight-year-old who was murdered by her guardians. From 2008–9 (the time of the Peter Connelly case) to 2012–13, care applications rose by 70% (National picture of care applications in England since Baby P, as published by CAFCASS).
9 ‘… supposed to care for them’: According to the Office of National Statistics crime and justice figures, 24 children (under 16) were killed by a parent or stepparent in the year ending March 2016.
10 ‘… any other country in western Europe’: Figures from Professor Karen Broadhurst in her 2016 report.
11 ‘… helping her learn how to do so’: In 2017 the courts raised the query of whether a local authority should spend on issuing proceedings (the cost of issuing a care application is over £2,000) and on psychological evidence (on average more than £2,000) when the expenditure is incurred before attempts at therapeutic support in respect of the parents or mother have been made. (H. H. J. Wildblood QC, A Local Authority v The Mother & Anor [2017] EWFC B59, www.familylawweek.co.uk/site.aspx?i=ed180307.)
12 ‘… no parental responsibility for her’: Parental responsibility means the legal rights, duties, powers and authority that a parent has in relation to his or her child. If a man and woman are married they automatically have parental responsibilities. If they are not, the father must have his parental responsibility rights granted by the court. A local authority can be awarded parental responsibilities.
13 ‘… to be Aaron’s mother’: Parent and baby foster-care placements are a way of keeping mothers or parents with their babies within family-based placements. The foster carers do not necessarily provide parental care (except if asked to), but teach the parent to develop their own skills. They also observe and record how the parent looks after the child and work with other professionals to identify support that might be needed in the future. The placement is an alternative to a more institutional mother-and-baby unit where there are several mothers and supervising staff. Placements generally last 12–24 weeks but may be extended if longer-term support is required.
14 ‘… her interim resolution hearing’: This is the directions hearing before the final hearing in care proceedings, and a last opportunity for the parties to narrow the issues and to see if any agreement can be made, which might avoid the need for a full final hearing.
15 ‘… provided for the hearing’: In any family proceedings, the applicant is obliged to provide the court with the bundle of case papers no later than two working days before any hearing. They must also provide the court and the other parties with a number of documents no later than 11 a.m. on the day before the hearing. These include a case summary, a statement of issues to be determined by the court, an up-to-date chronology and a position statement by each party, including a summary of the order or directions that they are asking the judge to make. The courts have recognized that these obligations are not always complied with and have said that this is unacceptable, that orders for costs should be made against the party or lawyers in default, and that in flagrant cases d
efaulters may be publicly identified in open court (Re X and Y (Bundles) [2008] 2 FLR 2053).
16 ‘… looking for adoptive parents’: Twin-tracking is the practice of progressing adoption plans at the same time as pursuing other options for children. Although it works well for children’s timescales and means that there is as little delay as possible between the order being made and the child being adopted, critics of the practice say it exacerbates the perception – if not the practice – of the local authority having already closed its mind to any possibility of rehabilitating the child with the family.
17 ‘… where others fail’: A publication by CAFCASS stated that there are considerable local variations in the number of applications per 10,000 children. Some local authorities have seen increases of up to 500% (note that this is apparent in areas where the numbers are relatively small) and decreases of up to 46% since the case of Baby P. Ofsted rated 77% of 69 local authorities inspected ‘inadequate’ or ‘requires improvement’ in November 2015. The report concluded that the statistics showed that good leadership was more a factor than size, levels of deprivation and funding in providing a high quality of children’s services.
18 ‘… in recurrent care proceedings’: In Professor Broadhurst’s study, a review of women who had been involved in repeated care proceedings showed that in 36% of cases, proceedings involving the removal of one child overlapped with proceedings involving the removal of a new baby. The average time between pregnancies for women who were involved in two sets of care proceedings was 13 months, although for some women it was only 6 months between the birth of one child and the conception of the next.
19 ‘… twenty-six weeks imposed by the legal framework’: By law, care proceedings must finish as soon as possible or take no more than 26 weeks. If the court anticipates proceedings will not finish in this timeframe, then it can extend it but has to give a judgment explaining why. Just over half of all cases are disposed of within 26 weeks. Some professionals feel that the current timetable will never be long enough for a parent to show meaningful change sufficient to ensure their child can be placed back in their care.
20 ‘… thirty-three thousand pounds each year’: The National Audit Office stated a council foster-care placement in 2014 was in the range of £23,000–£27,000, compared with a range of £41,000–£42,000 for a placement with other providers.
21 ‘… what kind of placement is undertaken’: The average cost of removal per mother was £200,000 (for an internal foster placement) and £300,000 (for an external foster placement). In respect of a mother who had had eight children removed, the cost was between £500,000 and £800,000 to place her babies. The average cost of assessment of parenting capacity of a mother was £4,000. (Figures from ‘The Serial Removal of Children from Young Mothers – is this right?’, Maureen N. Obi-Ezekpazu, Family Law Week, 18 May 2014.)
22 ‘… disguised compliance’: A term used within the care system to describe parents who say they are willing to change and engage, but are paying lip service to professionals and neither see the need, nor intend, to do so. Published case reviews highlight that professionals sometimes delay or avoid interventions due to parental disguised compliance. However, David Wilkins, senior research fellow at the University of Bedfordshire, argues that disguised compliance and resistance result from the situation rather than the individual, and suggests social workers should be more reflective and reflexive in their approach (‘We need to rethink our approach to disguised compliance’, David Wilkins, www.communitycare.co.uk/2017/03/16/need-rethink-approach-disguised-compliance/.)
23 ‘… for a further year’: Supervision Orders give the local authority the legal power to monitor a child’s needs and progress while the child lives at home. They also place a burden on the local authority to offer a parent support. Unlike a Care Order, a Supervision Order does not give the local authority shared parental responsibility, nor allow them any special right to remove the child from their parent. The parents keep parental responsibility but mustn’t act in any way against the Supervision Order.
7 Peter
1 ‘… a legal slap on the wrist’: See note.
2 ‘… the Crown Prosecution Service’: See note.
3 ‘… levels of perversion’: The categories cited in this chapter as ‘levels’ were amended on 1 April 2014 to categories A, B and C. A merges Levels 1 and 2; B is any image involving non-penetrative sexual activity; C is other indecent images not falling within A or B.
4 ‘… sentencing guidelines were clear’: See note.
5 ‘… treated in law as such’: All defendants under 18 years of age are dealt with in the youth court. Had Peter been charged when he was 17, his case would have been heard in the youth court. Guidelines published in 2017 have clarified that, where a defendant turns 18 in between committing an offence and being convicted (as in Peter’s case), it will rarely be appropriate that a more severe sentence than the maximum that the court could have imposed at the time the offence was committed should be imposed (in Peter’s case, two years’ detention). However, a sentence at or close to that maximum may be appropriate.
6 ‘… pre-sentence report’: See note.
7 ‘… a Criminal Records Bureau request’: In 2012 the functions of the Criminal Records Bureau (CRB) and the Independent Safeguarding Authority (ISA) were merged under the Protection of Freedoms Act to form a new body, now called the Disclosure and Barring Service. A DBS check enables employers to check the criminal records of current and potential employees in order to ascertain whether or not they are suitable to work with vulnerable adults and children. For individuals working in certain positions, a valid DBS disclosure is a legislative requirement.
8 ‘… alongside whom he would be incarcerated’: To date, parliament has taken the view that sentences for indecent images must be deterrent as well as punitive. This is, in part, to try to ‘starve out’ the market for the buyers of indecent images so that the makers will slow their trade. This policy has been ineffective: there has been an astonishing rise not only in the number of images being downloaded, but the number of offenders imprisoned. Child sexual abuse prosecutions rose by 82% over the past decade. They made up one third of all convictions for sexual offences in England and Wales in 2016–17. Police forces nationally are operating beyond capacity due to the number of reports.
9 ‘… Sexual Offences Prevention Order’: Since Peter’s case, Sexual Offences Prevention Orders have been renamed Sexual Harm Prevention Orders. These prohibit a defendant from doing anything described in the order. The court may make an order if it thinks it necessary to protect the public, or any particular members of the public, from sexual harm from the defendant.
10 ‘… his details every year’: Colloquially known as ‘The Sex Offenders’ Register’, Part 2 of the Sexual Offences Act 2003 brought into law a retrospective provision that requires offenders to notify certain personal details to the police in their area. These include any address at which they might stay for more than seven days, foreign travel plans, whether a child under the age of 18 is staying in their household for at least 12 hours, bank accounts and credit-card details, and passport and any identification documents. They must do so within three days of their conviction and every year thereafter. Failure to do so is a criminal offence punishable by the court by up to five years’ imprisonment.
8 Daniel
1 ‘… imposing strict time limits’: Custody Time Limits (CTLs) define the time that a defendant awaiting his trial can be held in custody. Less serious offences (summary and either-way offences) have a CTL of 56 days. More serious offences heard in the crown court have a CTL of 182 days. A CTL may be extended, or further extended, for a defined number of reasons, including the court ordering two or more charges, or some other good or sufficient cause. The prosecution must have acted with all due diligence and expedition.
2 ‘Our high court judge’: More complex and difficult cases are dealt with by high court judges. They usually sit in London, but also travel to maj
or court centres around the country to try serious criminal cases, important civil cases and assist lord justices to hear appeals. High court judges are given the prefix ‘the Honourable’ and referred to as ‘Mr/Mrs/Ms Justice Surname’. In criminal proceedings they are known as ‘red judges’ because of the colour of the robes they wear.
3 ‘… legal geographical areas distinct from London’: Barristers who practise outside London are divided up geographically into six legal circuits. Those who practise within a circuit are able to join that circuit as a member. The circuits are: the Midland Circuit, the Northern Circuit, the North Eastern Circuit, the South Eastern Circuit, the Wales and Chester Circuit, and the Western Circuit.
4 ‘… shielded from the dock by a screen’: Witnesses who are vulnerable, intimidated or victims of a serious criminal offence are able to give evidence in a way that is designed to relieve some of the stress associated with giving evidence. These methods are called special measures. For example, the witness can give evidence behind a screen or over a video link, or their evidence can be pre-recorded so that they do not have to then give it again in court. Special measures apply to prosecution and defence witnesses, but not to the defendant. They are granted only after an application has been granted if the judge thinks that special measures are likely to maximize the quality of the witness’s evidence.
5 ‘… read out to the jury’: In his police interview, a defendant may sign a ‘prepared statement’ which sets out, in brief terms, his defence or what he denies before he then goes on to answer ‘No comment’ to questions put to him in the interview. This prepared statement can later become evidence in the same way that the transcript of his interview would. A court can draw an adverse inference from a defendant’s silence in interview.
6 ‘… specific circumstances of rape’: The Sexual Offences Act 2003 made a number of changes to the offence of rape. If it is proved that any of a number of specific circumstances existed at the time of the rape, and that the defendant knew those circumstances existed, then the complainant is taken not to have consented to intercourse. One of those circumstances is when the complainant was unlawfully detained. The burden then flips to the defendant to put forward evidence, which raises the issue of whether or not the complainant did, in fact, consent to intercourse and whether he reasonably believed that she consented. If the defendant puts forward enough evidence to raise these two issues, then the burden flips back again to the prosecution to prove beyond reasonable doubt that she did not consent and that the defendant did not believe she consented.
In Your Defence Page 27