Barnardo’s, butt out of the law

This week, the British children’s campaigning group Barnardo’s published data relating to care proceedings in England and Wales. It strongly criticised the delays experienced by families who are subject of proceedings under section 31 of the Children Act 1980.

Under these proceedings, parental responsibility for a child can pass to a local authority where that local authority has demonstrated that the child is ‘suffering or likely to suffer significant harm’ and that the harm is ‘attributable to the care being given to the child’ or ‘the child being beyond parental control’. Barnardo’s said the fact that these proceedings can take as long as 62 weeks to get through the County Courts was ‘damaging vulnerable children’. The time spent awaiting a ruling in care proceedings places children in a ‘desperate limbo’ and leaves them ‘very possibly at risk’. The ‘evident lack of credence given to social workers’ today is one of the causes of ‘significant delays’, said Barnardo’s, before suggesting that a time limit of 30 weeks be placed on all cases, with a ‘fast-track’ system for cases involving children who are under 18 months old.

Of course, if a long period of time is spent making a decision about the care of a child, that could be extremely unsettling for the child involved. But still, we should think carefully about what Barnardo’s is advocating. A fixed limit on the amount of time a court has to dispose of a case would be extremely unusual for England and Wales. With limited exceptions in the criminal courts, there are no statutory time limits to force the conclusion of cases. Courts have the discretion to allot an appropriate amount of time in consideration of the complexity of the facts in an individual case. This discretion is particularly important in relation to care proceedings, where determinations can vary hugely from the straightforward to the enormously complex.

The language employed by Barnardo’s suggests that it thinks the decisions taken during care proceedings are simple. Its campaign materials flippantly use terms like ‘abusive households’, with children straightforwardly categorised as ‘at risk’ and ‘not at risk’. With such a black-and-white, abstract worldview, where everything is defined almost in terms of good and evil, it’s no wonder Barnardo’s thinks the amount of time spent on care proceedings should be capped and everything should be sped up to ‘save children’.

Yet anyone familiar with the law in this area will know that there are many intricacies involved. The courts have frequently disagreed on how to apply various provisions in the Children Act and have developed reams of case law attempting to formulate applicable definitions. The job of the practitioners in this area of law is to apply these concepts to the breadth of circumstances being weighed up in court. It is often a painstaking process. And considering that the proceedings can result in the state removing a child from its family – a very serious move – it is only right that it is a painstaking process. We should feel reassured that it often takes a long time to make these life-changing decisions.

Of course it is true that there are many unnecessary delays in the family courts. Concerns about such delays are not new. In 2006, the UK Department of Constitutional Affairs published its Review of the Child Care Proceedings System in England and Wales. It identified a number of factors causing unnecessary delay in hearings relating to the Children Act, including: the poor quality of legal representation; poorly prepared applications; the scarcity of judicial resources. But none of these issues would be solved by enforcing a Barnardo’s-style time limit; instead we need greater investment in the UK’s sclerotic civil legal aid system, which currently fails to provide legal protection for the poorest in society from some of the state’s most draconian powers. Fixing legal aid, however, is not something Barnardo’s is very interested in; it only wants to rush cases through the courts.

This is because Barnardo’s is not really concerned with the ins and outs of various complex cases, but rather with pushing its own interventionist agenda. In the aftermath of the horrific Edlington assault case, in which two young boys were jailed following a prolonged assault on a nine-year-old boy, the chief executive of Barnardo’s, Martin Narey, criticised social services in Britain for ‘trying to fix families that are completely broken’. He went on to say that ‘if you take a baby young and get them quickly into a permanent adoptive home, then we know that is where we have success’.

In May 2010, Barnardo’s assistant director for policy, Enver Solomon, said at a conference on service provision for vulnerable children that social services had ‘failed to crack neglect’ due to their ‘reluctance to make proactive decisions to remove children living in chronically neglectful circumstances’. It seems that, for Barnardo’s, taking children away from families should be a priority, and care proceedings are simply a question of how quickly a child can be removed.

This is why the administration of the law should not be influenced by the prejudices of individual charities. The law should not bend its rules to suit campaigners’ simplistic classification of legal problems in black-and-white moralistic terms. The issues dealt with by the family courts are frequently complex and carry the most serious consequences for those on the receiving end of the state’s powers. As such, the courts should be free to determine the amount of time required for the proper consideration of each matter on a case-by-case basis. Barnardo’s may like to think that the decisions made in care proceedings are simply a case of deciding who is and who is not ‘at risk’ – thankfully, adhering to due process is never that simple.

Luke Gittos is a Paralegal at Hughmans Solicitors and is reading to be a barrister at the College of Law in London.