PROHIBITIONS ON PLACEMENTAs noted in Family Practice on October 24, 1997 the Children (Protection from Offenders) (Miscellaneo us Amendments) Regulations 1997 (SI 1997/2308) were brought into force on October 17.

Prior to implementation in Family Practice on September 26, it was noted: "in a worst case scenario, the regulations require that a child who had been fostered with a carer for some years, had prospered in that placement and developed a healthy relationship with the carer, would have to be removed, if the local authority discovered that the carer had been cautioned for an offence of causing actual bodily harm 20 years before".

As predicted the harsh regulations have produced results every bit as absurd as the example given.Children of 10, 8 and 5 were accommodated by a local authority with foster parents in September 1996.

The foster father had some years before been cautioned in respect of an assault occasioning actual bodily harm on a previous foster child.

That incident was regarded as of such little consequence that the court subsequently made an adoption order in respect of that child in favour of the foster parents.Taken literally the caution acted to disqualify the foster father from approval and required the local authority to effect immediate removal of the foster children.

The previous traumatic experiences suffered in their birth family and the further trauma which would be caused by removal were not factors which could be taken into account.

The local authority and the guardian ad litem for the children sought to find a way by which the children could remain with the foster parents and supported their application for residence orders.The case came before the President on 10 February, 1998.

He found that there was abundant evidence that the placement had been beneficial to the children, that they were happy there and that they did not wish to leave the foster parents.

He held, however, that he was not able to put aside the clear public policy underlying the regulations.

They prevented the children remaining with the foster parents whilst subject to Care Orders; the temporary device of a Residence Order would equally be contrary to public policy.The case illustrates all too sadly the absurdity of the public policy in this case.

Immigration is the only other area which operates so strictly, and even there the Home Office is sometimes known to act with wisdom and discretion.

To ask local authorities and the courts to make decisions which they know to be adverse to the interests of vulnerable children is unreasonable.

If the Human Rights Bill was already in force, it would have to be questioned whether these regulations are contrary to the child's right to family life.The case is likely to be heard in the Court of Appeal later in the summer.

There can be no worse blot in child law at present.

The group of cases involved must be small, but that is no reason to allow this retroactive provision to continue.

The Regulations were hastily made and should be speedily amended.SEX AND VIOLENCETwo of the main themes of work in family law have always been sex and violence.

Recently they seem to have acquired greater prominence in the national psyche.

Given the extent to which the development of policy is driven by the way in which issues are portrayed by spin doctors, whether in government or in the media, it is especially important that the various and inextricably interwoven aspects of sex and violence are carefully presented.The consequences of the awareness of the sexual abuse of children has from time to time featured large in the public mind in the last 15 years, but it presents itself in different ways.If there is a spectrum in s exual abuse it is important to analyse it, rather than simply attribute the same characteristics and responses.

At one end there may be uncontrolled, fixated personalities, who present extreme danger to any child with whom they have contact.

At another point in the spectrum, may be the regressed personality, whose offending occurs only within a dysfunctional family.

There is an increasing tendency to apply the term paedophilia to all on the spectrum.

Although some at the more dangerous end of the spectrum have now learnt to seek out vulnerable families, it must be doubtful whether it is helpful to apply the same epithet to the whole range.

There is a need to distinguish types and their characteristics, in order to assess their susceptibility to treatment and impose suitable punishment.

A failure to discriminate penalises not only the offender, but also their family.There are no simplistic solutions and there is a danger in lurching from the total denial of abuse of two decades ago to the lynch mobs of today.

Other examples are current.

The debate over Recovered Memory Syndrome may raise proper concerns about the extent to which memories of abuse in childhood are genuinely resurrected many years later.

If that is yet again to be the justification for denial of more recent abuse or abuse which has caused ongoing trauma over a number of years, many will suffer from the consequences of simplistic interpretation.Censorship may also result from simplistic interpretation.

In this atmosphere is there rational debate about the screening of Lolita because it may encourage abuse or the removal of the Stations of the Cross from Westminster Cathedral on the grounds that the artist has been exposed as engaging in incest.

The offence given is understandable; the desire to obliterate the cause less so.

If the art provides a better understanding of human suffering, children may benefit.

One might also add: "he that is without sin, let him first cast a stone".A similar and related spectrum exists in family violence.

Currently this is exemplified in disputes about contact between separated parents and their children.

There is a range of cases on a spectrum from violent, vindictive fathers using contact with their children as an opportunity for continued abuse of their former partner, to mothers who will use any means at their disposal to prevent their former partner having contact with the child, including the making of false allegations of sexual abuse.In recent years the court's approach has been relatively simple.

Clear and convincing evidence commensurate with the seriousness of the allegation will be required before the court will order that the non-residential parent should be deprived of contact.

Parents unable to satisfy the court that there should not be contact, may be sent to prison if they defy the court.

There is now increasing concern about the effect of the application of this principle on the welfare of the child.It may be that the courts are about to examine this approach more carefully, but if it is to be refined, it will require closer attention to the detail of the evidence.

That requires time and forensic skill in and out of court.

It is no simple task to judge between the parent who has genuinely been abused, physically or emotionally, and who fears for the safety and well being of herself and her children, and the parent who, having suffered the end of the relationship, decides that her former partner shall not have the satisfaction of seeing the children.Within that spectrum there are many shades of parental personali ty and of child characteristics.

Yet court decisions normally follow welfare reports, in which the recommendations are framed with an eye on judicial precedent.

Many lawyers will advise their clients that their prospects of opposing contact are very limited and cases are settled accordingly.If there were a truly child focused system there would be careful analysis of allegations, expert assessment of the parties and proper representation of the children's wishes and feelings, together with a more detailed consideration of the impact of contact and the particular arrangements for contact, rather than the current assumption that children will almost automatically benefit from contact.

LEGAL AIDThe Lord Chancellor's Department is reported to have announced that standard fees will be imposed on all family law cases by the beginning of 1999.

Current figures on franchising record that about one third of legal aid work, calculated by the amount taken from the fund, is undertaken by franchised firms.

Approximately 60% of matrimonial work, on a cost basis, is undertaken by non-franchised firms.

Given that only some 6% of work is undertaken by firms with applications in progress, it seems the Board has some work to do to convince the remaining 60%.

It would be interesting to know what percentage of firms this represents, as distinct from cost of work undertaken.Presumably the imposition of standard fees is a strong arm tactic to compel the remainder towards franchising and block contracting.

In this climate what are the prospects of ensuring that the need to undertake closer examination of contact arrangements survives the imposition of public policy on legal aid funding? REPRESENTATION OF CHILDRENAttention was drawn in Family Practice on March 27, to the work to be undertaken in consideration of a unified Court Welfare Service for children.

The Association of Lawyers for Children (ALC) has now made preliminary submissions to the Inter-Departmental Working Group.The ALC notes that the system of dual representation for children in public law proceedings, of a guardian ad litem trained in social work practice and of a qualified lawyer, has attracted widespread and national and international approval.

It is a model which often avoids delay and expense by deploying respective skills in an efficient and effective partnership.

It notes the value of representation by a solicitor in identifying legal issues, providing good case management and ensuring that the voice of the child is properly advocated before the court.

The guardian undertakes a separate investigative role in addition to providing the court with advice on the proposal for the child.

They work in conjunction in preparing and presenting the case for the child.

The submissions make the following points:-- Generally, representation should be undertaken by Children Panel solicitors or those with special training.

The current system should not be disturbed, because it is working well and it protects the child.

There is no justification for changing the system because it is regarded as expensive [if indeed it is so]; instead it is necessary to look at the system itself and see where savings can be made.-- The guardian cannot provide the representative role; this is particularly clear when dealing with older children who can and wish to instruct their solicitor.

Although the Official Solicitor seeks to combine the two roles, in practice he works by instructing counsel in almost all cases and using experts such as child psychiatrists to advise on the child's interests.-- I n discharge proceedings if the issues are straightforward the proceedings can and should be concluded at an early stage ie, at a directions appointment, but the court has to be sure that the interests of the child are being served; for a young child the appointment of a guardian and solicitor is almost certainly vital to ensure that the local authority have made a correct assessment of the family before the return of the child to their care.

In the case of the older child, this may be less important.-- The tandem approach and work of the guardian and the solicitor in the initial stages of a case is particularly important since it helps establish the framework of the case.

This early work lays the foundation which so often leads to an agreement between the parties.-- The court has power to review the solicitor's role at any stage including directions appointments.

When the final care plan is placed before the court it may appear that there is no conflict between the child's position and that of one or more of the other parties.

In those circumstances, it may then be appropriate for the child's solicitor to cease to play a part.

However, this will only happen in the very rare and exceptional case; generally the lack of conflict would only become apparent as the case resolves itself by agreement [at the final hearing].

The submissions then go on to consider the position in private law proceedings.-- The majority of cases under the Children Act which come before the courts are private law disputes, usually between parents.

Many of these are resolved, some with the involvement of the Court Welfare Officer.

While it is important that in all these cases there is an investigation of the child's wishes, it is not necessary in most cases for the child to be represented.-- In our view the private model should follow the public model but with a process for selecting cases where children need representation.-- Where there is a contested case there should be a Court Welfare Officer, who should give consideration as to whether the child should be represented and always advise an older child about the possibility of seeking legal representation.-- In certain groups of cases consideration should be given to the child being legally represented, in particular those involving: -- termination of contact; the implacably hostile parent; where the court directs medical or psychiatric reports on a child within the proceedings; where there are concerns about the welfare of a child within the family which fall short of the need to implement child protection procedures; where a parent is under a disability and represented through a guardian ad litem or next friend.

Exclusion orders; unusual, complex, difficult cases, for example those with a foreign element, immigration problems or permanent removal from the jurisdiction.-- The ALC proposes that in private law proceedings the court should consider at an early stage and from time to time as the case proceeds, whether the child needs to be legally represented or whether her wishes can be adequately presented through the Court Welfare Officer.

The ALC notes that the Court Welfare Officer is often unable to undertake a thorough investigation because of limitations on resources, which does not assist the resolution of cases and may cause additional expense.

The Court Welfare Officer should be spending more time ascertaining the wishes and views of the children and instructing experts if appropriate.

The ALC proposes that when proceedings have been issued, a Court Reporter should be appointed so that a t the first appointment the case can be classified as suitable for mediation, a simple case in which it is not necessary for the child to have party status or complex proceedings where party status for the child is appropriate.Having considered the task, the ALC submissions proceed to examine whether it would best be carried out by a unified welfare service.

The ALC considers that, provided such a service was properly resourced, it could provide a significant improvement in the representation of the wishes and interests of children where there are disputes between their parents and/or third parties including the state.

It proposes that there should be a non governmental agency with a national base, operating regionally, and attached to the court system.

It should be possible for there to be a unified service, drawing on the expertise and different benefits of the Panels of Guardians ad Litem and Reporting Officers, the Official Solicitor and the Court Welfare Service.The ALC considers that legal representation of the child must be independent of the unified welfare service, whether through solicitors in private practice or law centres and preferably not on a block contract basis since that might result in a loss of independence in the advice provided.These are preliminary submissions and there will no doubt be continuing debate about the role of a unified welfare service, how it should carry out its tasks and how its staff should be employed.

The Inter-Departmental Working Group should be publishing a consultation paper during the summer