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GN Law Media: To Order, Or Not To Order, That Is The Question (that keeps getting forgotten)

Just before the Christmas period the President of the Family Division, Sir Andrew McFarlane, made his address to the Association of Children Lawyers Annual Conference. He highlighted concerns about the increasing levels of care proceedings issued in the country, but refused to go as far as his predecessor, Sir James Munby, in calling it a ‘crisis’.

Sir Andrew McFarlane in his address supported a report produced by the Chief Social Worker for Children and Families, Isabella Trowler, which discussed the occasions where care proceedings should avoid the court arena. She highlighted ways in which the period before proceedings are issued could be utilised better in order to focus on education and support. Further than that, however, Ms Trowler called for a stronger distinction between local authority involvement when there were concerns about the standard of care given, as opposed to the threat of significant harm.

But what, in practice, does this mean? When the court is tasked with making final orders in care cases, it has a number of options available; final care orders, supervision orders and the making of no order at all. It is the latter option which Ms Trowler is concerned is being overlooked. The court ought to consider whether the child would be more likely than not to benefit from an order being made before concluding which option is most appropriate. In reality, however, this option is hardly ever exercised.

Despite my relatively short time in this profession, I can count on one hand the number of times I have seen no order made. More often I see occasions where the opposite is true; occasions where (whilst trying not to sound like a bitter solicitor on the end of an adverse decision) judges appear to make an order which seems to go far above and beyond what could conceivably be necessary and/or proportionate and to the point of indicating a total disregard for the principle of ‘no order’. Where is the weighted consideration of what the making of an order means for the child when the decision could go either way? Where is the ‘hard and fast’ evidence relied upon by the judges and produced by the local authority which dismisses the no order principle out of hand? Alternatively, when an order is made, where is the flexibility in the terms of the order that allows for everyday ‘real’ life? It seems that, as soon as an order is made, everyone involved in proceedings (lawyers, judges, social workers alike) forget that life actually happens. It is ever changing and ever moving and directions on a piece of paper aren’t always well equipped for those sorts of dynamics. The smallest thing can change and before you know it parties are back in court, barristers are instructed and the public purse is turned upside down once again.

I second Ms Trowler’s calls for more to be done in pre-proceedings work (or third, if we include the thoughts of Sir Andrew McFarlane as so we should), however, I do not think the buck stops there. I do not think that that approach alone can help to address the increasing numbers of children in local authority care. Yes, if the local authority took a more focused approach to the pre-proceedings work, we may find that fewer cases reach the court arena in the first place (although discussing pre-proceedings is another argument for another day entirely), but then what happens to the cases that do proceed to court? The ‘no order’ principle will continue to be pushed away, hidden in a dark corner of the courtroom. The figures of cases reaching court might reduce, but the percentage of ‘no order’ cases will likely remain the same unless the courts themselves take responsibility for re-familiarising themselves with this overlooked principle.

Until the courts themselves consider a new approach to the way cases are examined, I believe we will see the same narrow focus on the available options, the same analysis conducted and ultimately the same decisions made.

Sometimes, education really is key. If both the local authority and the courts altered the way they looked at cases, then I believe we would be left with a more joined up approach to tackling some of the issues leading to social services intervention. The courts not only need to allow for parents to access the support and education needed to help with caring for a child, but should also be encouraging it.

In my opinion we need to move from a reactive state of mind to a proactive one, and both the local authorities and the courts are in a position to make this happen. 2018 was a turbulent year for many important social issues, and I do not think that this issue will be at the top of Sir Andrew McFarlane’s new years resolutions. However, I am encouraged that he has confirmed that there is much work still to be done. This new year is set to bring about much change in this country, and I hope that this is something that we will get to see addressed as the year goes on.

Emily Roome
Family Law Department

Posted on Wednesday, 30th January 2019