Bearing false witness?

Parents caught up in our present care system are already denied their human right to a fair hearing, and it appears that the state's current demand for ever more control and expeditious, cost-effective process can only increase this injustice.

The Children Act 1989 promoted collaboration between parents and social services, furthering an inquisitorial approach to care proceedings, trusting social services to respect parental rights and only intervene in a family's life when absolutely necessary to protect a child. Parents were allowed to instruct their own independent, state-funded expert evidence to defend themselves in the adversarial arena of a care hearing.

Previous government initiatives to avoid cost and delay have already resulted in rules (rule 25.7 FPR 2010) which force parents to jointly instruct and rely on experts chosen and remitted by social services, and now judicially managed and timetabled under the public law outline.

Within the increasingly inquisitorial care justice system, parents are placed in the unfair position of having to prove they did not harm, nor are likely to harm, their children, without any expert evidence other than that relied upon to prove their harm. This may explain why only five of the 34,042 care cases reviewed following miscarriages in criminal proceedings raised serious doubts about expert reliability, and why the number of fully-contested care applications, having recently fallen, still average 80 per cent.

This use of expert consensus to determine abuse in care proceedings is condemned by the European Court of Human Rights, which stated in P, C and S v United Kingdom [2002] 35 EHRR 31 that 'to ensure within the court process the exploration rather than the exclusion of expert evidence might negate the state's case for permanent removal of a child from his parents'.

The lack of such alternative expert evidence also aids appeals by social services, as a judge must have a sound basis, and give sufficient reasons, for rejecting expert evidence (Re E (Care Expert) [1996] 1 FLR at 570) and this is difficult without reference to alternative expert opinion. Worse still, even when a judge's reasons are sufficient, an appeal may still succeed if a judge's conclusions could not be reasonably drawn from the expert evidence available, which, unless dissenting expert evidence has been allowed, will be the very evidence rejected.

An adoption order will not be reversed if a parent could have obtained an alternative opinion of the cause of harm had they exercised reasonable diligence at the time of the care hearing. Thus the systemic need for consensus on harm has not only been the main cause of the miscarriages of justice '“ that eventually manage to come to light in the confidential, closed world of care proceedings '“ but will also prevent parents reclaiming their adopted children.

This is graphically illustrated in Norfolk County Council v Webster [2009] EWCA Civ 59, where the Court of Appeal held that a nutritionist's evidence that a vitamin B deficiency caused a child's fractures could have been obtained at the time of the care hearing, despite being systemically impossible '“ the hearing judge being precluded by the adversarial system from obtaining such evidence, and the parents by lack of legal representation and grounds for permission.

This systemic flaw removed three children from loving, innocent parents forever. Future similar travesties can only be exposed if parents leave the country to avoid imprisonment for contempt and seek media help. The Family Justice Review does nothing to remedy this flaw, nor the secrecy and lack of accountability of care proceedings, and the need for experts to assess and report within ever-shorter legally prescribed timescales can only increase the chances of such miscarriages.

Blurred roles

Families in need of help are subject to a package of standardised, overlapping, thematically prescribed reports from educational, child and adult psychologists and psychiatrists, CAFCASS and a social services core assessment (the guidance to which alone runs into some 130 theorised pages), and these can be used as a fishing expedition to acquire evidence of harm. CAFCASS has already piloted the use of guardians in pre-proceeding meetings in the Midlands.

As these experts are working on an inquisitorial basis to protect children, they are neither independent nor objective assessors, but part of an investigative process, and this role, justification of their fees and their need to be rehired, may influence their ability to judge harm.

Their therapeutic, supportive and assessment roles are also dangerously blurred, particularly as 80 per cent of care actions are now based on parental neglect, where harm is based on a subjective assessment of a parent's mental health and parenting skills, and early intervention can only exacerbate this.

Despite reports from the magistrates' committee that the PLO 'is not working' and the family courts are bogged down with unnecessary assessments, which are the 'biggest single cause of delays', the Family Justice Review insists that the PLO provides 'a solid basis for child-focused case management', and adherence to it must be consistent and enforced by senior judiciary.

The magistrates' committee also questions 'whether all these assessments are necessary'. But the FJR makes no proposal to reduce or streamline the many standard, overlapping, expert reports. It does, however, propose that independent social worker assessments must be exceptional. These, in recent years, have been increasingly allowed due to questionable social services assessments, and their use coincides with a decline in care orders.

Last year Mr Justice McFarlane issued a practice direction to his Midland circuit prohibiting the use of psychologists and independent social workers if they were unable to report within three months of obtaining leave. But surely such a short turn round time to produce a report, dependent upon expert availability, is unfair to a parent, particularly if they have no other independent expert evidence?

Treading dangerously

The Family Justice Review supports the standardisation of the threshold criteria required to obtain a care order, which, at present, in breach of the rule of law, is dependent upon a local or police authorities' interpretation. And the Magistrates' Association reports that this variable interpretation is relied upon by a court until challenged. As the Family Justice Review promotes early court intervention because if left too late it 'could have very serious consequences', one can only assume that this will result in the lowest threshold interpretation being standardised.

It appears that assessments are to be rushed through, at a time of greatest upheaval for already vulnerable children and parents in need of help, and the criteria for a care application lowered despite a parent's human rights and the already clogged-up, under-resourced, care courts.

As the Family Justice Review calls for 'robust case management' and a statutory six-month time limit, there will be less time for disagreement of expert evidence, and courts will be far more reluctant to allow parents additional expert evidence to support reasons for their disagreement.

The lack of independent alternative evidence on the cause of harm is exacerbated by social services' use of expert teams. Such teams straining for consensus on a single cause of harm, as quickly as possible in overstretched care courts, can only increase miscarriages. As Mr Justice Ryder stated in Oldham Metropolitan Borough Council v GW and Others: 'An overriding desire to promote agreement can lead to key issues being obscured and thereby not investigated by the court.'

Team assessments are, in any event, intrinsically dangerous, as experts need to be independent of each other to avoid peer pressure, rank deference, careerism and covert inter-professional communications.

Despite this, following on from the previous government, the coalition appears to promote the use of expert teams as a perfunctory panacea for expert availability, court costs and delays.

Last year an alternative commission of experts' pilot was commissioned by the Legal Services Commission and DHS to explore the viability of regional NHS expert teams. Only 28 care cases were undertaken with four NHS teams, so the results were rather inconclusive, but solicitors voiced their reluctance to relinquish the control and choice of their own experienced experts to an anonymous team, and the NHS cannot guarantee the availability of experts already committed to NHS duties, nor their legal training or range of expertise.

The state appears to be moving to a fully inquisitorial care justice system, while at the same time insisting that parents have the right to a fair adversarial hearing.

Radical reform is needed to allow parents and children the fully adversarial justice afforded an alleged criminal.