Judges must have feedback if they are to be confident they are striking the right balance between child protection and human rights when making adoption orders, a senior judge has said.
Delivering the keynote speech at a Family Justice Council event this afternoon, Court of Appeal judge Lord Justice McFarlane said judges receive almost no feedback on the outcome of their decisions.
He said: ‘The only feedback that does occur is haphazard and normally arises because the case in one form or another happens to come back to court at a later date. There is no regular system of keeping the judge informed with the progress of events six months, a year, five years, 10 years, down the line.
‘Even when an adoptive placement formally breaks down, the judge is not informed. My understanding is that in such cases a formal “breakdown” is undertaken by the relevant social services department. It would be both unnecessary and inappropriate for a judge to play any part in that review process itself, but a short report of the outcome sent to the judge would, in my view, be nothing but beneficial.’
Without sound, wide-ranging research on outcomes, and detailed individual feedback on the progress of particular cases, ‘it is difficult, indeed logically it is impossible, for judges to have confidence that the current balance between child protection and human rights, which favours a massive erosion of the right to family life because it is “necessary” to do so to protect the child, is indeed justified’, McFarlane warned.
Highlighting the need to significantly raise the level of public education and awareness on how the family justice system operates, McFarlane said the issue of transparency was much more than simply allowing passive public scrutiny of processes and outcomes.
He said: ‘Those of us in the system need to be proactive in shining a light on our work, both in general and, if necessary, in particular cases, so as to generate a far greater understanding among the public of what lies behind the important decisions that are taken about children by the courts, as an arm of the state, in the public’s name.’
McFarlane recommended positive steps to engage the mainstream media to carry material which accurately describes the family court process. ‘A neutral account of the system, possibly backed up by video content, should be readily available online,’ he added.
A ‘vacuum’ created by the lack of sound and accurate information about the system provided a space in which ill-informed and, at times, deliberately incorrect commentary and advice can be introduced, McFarlane warned.
He said: ‘Targeted “advice” by some semi-professional McKenzie friends and other lay organisations to vulnerable individuals who find themselves the subject of care proceedings has the effect, in some cases, of moving those individuals directly away from engaging effectively in the court processor achieving access to a system which, I believe, would respect their right to a fair process and to family life.’
With litigants in person seeking to appeal childcare decisions, there was a significant and growing distrust shown by some parents in childcare lawyers and judges, he warned.
Acknowledging the difficulty in anticipating any extension of legal aid in the current climate, McFarlane singled out two sources of detailed general advice that parents can access.
The Transparency Project website, he said, has several accessible explanations of the law and procedure aimed at the non-lawyer under the general title ‘Children Law for Dummies’.
The Bristol family court has established a ‘family court information’ website for families involved in proceedings.
McFarlane said: ‘I am told that the cost of establishing the family court information website is under £1,000 per court centre. I cannot understand why it has not been replicated by each and every one of the other 40 or so family hearing centres around the country.’
McFarlane’s speech was part of an annual lecture to commemorate the life and work of children’s lawyer Bridget Lindley OBE, who died in March last year. Lindley was a former member of the Family Justice Council, as well as principal legal adviser and deputy chief executive of the Family Rights Group.
Both organisations hosted the event.