The sequel to Re DE

07 Nov

In the original care proceedings the local authority’s plan was to place the child at home with the parents but under a care order. The effect of that is that the local authority would share parental responsibility with the parents; the local authority could decide where the child should live, go to nursery or school and about medical treatment. The most important power is that the local authority can remove the child from his parents.

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In the original care proceedings the local authority’s plan was to place the child at home with the parents but under a care order. The effect of that is that the local authority would share parental responsibility with the parents; the local authority could decide where the child should live, go to nursery or school and about medical treatment. The most important power is that the local authority can remove the child from his parents.

The parents are amongst the most vulnerable in society. Both have learning difficulties. However, for the local authority to have asked a court to approve its care plan for the child to live with his parents after the care proceedings, there must have been a degree of confidence, that with support, this could be made to work. A court must have approved the plan when making the final care order.

This case came before Mr Justice Baker in May 2014. The local authority wanted to remove the child from the parents. The actions open to the parents are (1) to apply to discharge the care order, and (2) to apply for an injunction under Human Rights Act 1998 to prevent removal of the child. The decision of Mr Justice Baker in May was to grant an injunction and to give guidance to local authorities about how to approach the removal of a child from parents or other relatives.

The case has rumbled on. The local authority is sticking to its case. Even if a court grants an injunction to prevent the removal of the child that will only be until  a court is able to consider the evidence and the welfare of the child. The decision for a court is whether to discharge the care order and leave the child with the parents or leave the care order in place and sanction the removal. It strikes me that if a local authority has got to the point of deciding on removal, those decisions are fairly urgent.

Parents in these circumstances need representation. It is incredibly hard to represent yourself: The things that lawyers can do are to organise all the facts and statements and reports, manage procedure and ask relevant questions in court. There is often an incredible amount of information packed into the statements. The local authority will have its own lawyers and may well instruct a barrister to appear in court. The Human Rights Act 1998 – or more specifically the European Convention on Human Rights 1950, enshrines the right to a fair trial. Parents who are facing the removal of their child cannot possibly get a fair trial unless they can have legal representation.

It hardly needs to be said that the removal of a child from his or her birth family is a decision which affects all involved throughout the child’s lifetime. It may result in the child being adopted – becoming legally part of another family. Those decisions touch the deepest emotions of all parents. That adds to the disadvantage of parents in this sort of situation.

Parents facing care proceedings – the application by the local authority to the court for the court to consider whether the child should continue to be cared for by his or her parents, and if not, what should be done, are entitled to legal aid without consideration of the merits of their case or their financial circumstances. However, both the merit and the parents’ finances are scrutinized when they want to make an application to discharge a care order.

I can see the point that the merits of the application have to be assessed. Many parents would apply to discharge care orders when there is no justification to do so. They are angry; they cannot understand the justification for the orders in the first place. The courts would not have time to deal with all such applications. That is without considering the need to take into account the expenditure of public funds – money which should be spent on deserving cases.
However, the need to review parents’ finances results in many parents not being able to afford representation. They may have just a little too much to have “free” representation. Alternatively, they may get legal aid but with such a large contribution that they cannot afford to make the contribution.

The parents in Re DE were refused legal aid because their household income was just over the limit. They have been represented because lawyers were prepared to act for them without being paid. That could represent a large number of hours and days of work. Given that lawyers who work on legal aid rates do not earn large sums – and those of us who do care work are paid wither by legal aid or by the cash-strapped local authority – there’s only so much of that sort of thing that anyone can afford to do. Moreover, I do not see why the government should rely on the good will of lawyers to do the right thing for vulnerable people and not think about their own mortgages or their own children’s school uniforms which all have to be paid for.

The lack of legal aid is what has incensed Sir James Munby P. Without legal representation, the parents would not know what applications to make or how to deal with the court. For these parents the confusion would have been exacerbated because of their learning difficulties. It is very difficult to imaging what it would be like to attend court in a foreign country without an efficient interpreter. Even if the proceedings are carried on in your mother tongue, if you don’t understand all the words, it might just as well be a foreign language.

That simply is not fair.

 

Margaret Pine-Coffin

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