TIM WEEKES FINDS SPECIALIST CHILD CARE SOLICITORS ALARMED BY RECENT PROPOSALS TO REFORM THE REPRESENTATION OF CHILDRENThe mood among solicitors specialising in children law is grim.

Their day-to-day work involves the most vulnerable and powerless members of society, often children who are at risk of abuse or violence in the home.

They offer a vital conduit for children's views about the actions of parents, social workers, local authorities and others.Yet despite the importance of their work, they see signs that the government is preparing to remove children's rights to representation by solicitors.

The alarm among children's solicitors arises from a speech given more than a year ago by Lord Irvine, who even before being appointed Lord Chancellor questioned the need for children to retain their eligibility for legal aid on a non-merit, non-means-tested basis in all public law cases.More recently, Lord Irvine's thinking has been echoed by Geoff Hoon, parliamentary secretary at the Lord Chancellor's Department (LCD).Currently, any child involved in public law proceedings has an independent guardian ad litem.

This guardian has a duty to instruct a solicitor for the child.

The child is guaranteed legal aid to pay that solicitor.In a speech to the National Association of Guardians ad Litem and Reporting Officers (NAGALRO) in November, Mr Hoon said that children's access to a solicitor in public law proceedings reflects the particular importance of these proceedings and their potential serious consequences for the child's future.

'I think there is no disagreement that this is right,' said Mr Hoon.Later in the speech, however, he wondered whether there should be more flexibility about the requirement for a guardian to appoint a solicitor in every case, while recognising that children would always need separate legal representation in disputed public law cases.On the surface, this appears an innocuous proposal, but Mr Hoon's spee ch has caused deep concern among practitioners, because few public law cases are disputed.

But practitioners and guardians say this is only because a great deal of work by both the solicitor and the guardian goes into the preparation of these cases to ensure both the child and the public authority achieve an outcome they can accept.One prominent practitioner, Richard White of Croydon-based White & Sherwin, says restrictions on legal aid would actually damage the effectiveness of the guardian ad litem, who receives advice from the child's solicitor.

He says: 'Children's cases of any complexity have two aspects: one is the welfare aspect, on which social workers and others have a view; the other is the legal aspect, because the child has rights in law.' The legal issues can be complex, so guardians find it difficult to conduct cases without legal advice both inside and outside the court.Guardians are equally convinced of the importance of solicitors for children.

Sue Cooper, chairman of NAGALRO, says the suggestion that legal aid could be removed from children in non-disputed cases misses the point that the lawyer is involved not just for hearings in court but from the beginning of proceedings.

Even if there is no dispute in court, there is a job to do, with varying levels of intensity, at all stages of the proceedings, she says.

In fact, it is solicitors who are leading attempts to improve the representation of children in all proceedings, both public and private.The Solicitors Family Law Association (SFLA), for instance, recently hosted a seminar aimed at sharing good practice.

Those attending included court welfare officers (from the Probation Service) and representatives of the Official Solicitor, both of whom have certain responsibilities for reporting on children in private law proceedings, as well as guardians ad litem.

Each has a different approach to the job of ascertaining and communicating the interests of children, and the SFLA wanted to promote the best ideas from each.It has been suggested that the various bodies responsible for reporting on children in court should be brought together under one umbrella body.

This, it is claimed, would end anomalies such as the duty of local authorities to fund local panels of guardians ad litem, which appears to conflict with a guardian's duty to be an independent voice speaking in the interests of the child.Whether such a body would command the resources necessary to allow court welfare officers, for instance, to spend more time with the children on whose behalf they speak, is doubtful in the present political climate.

In fact, many solicitors would prefer to see a simple extension of the guardian ad litem's role to private law proceedings, a move the government has the power to make under the 1996 Family Law Act.NICHOLAS MURRAY DISCOVERS WHAT CHILDREN LAW PRACTITIONERS THINK ABOUT THE UTTING REPORT INTO 'HUMAN WICKEDNESS'When in July 1997 the former government Chief Inspector of Social Services, Sir William Utting, published his review of the success of the 1989 Children Act in tackling the disturbing phenomenon of child abuse, he described the experience of writing People Like Us (July 1997) as 'at times a crash course in human (predominantly male) wickedness and in the fallibility of social institutions'.With the north Wales tribunal nearly finished hearing evidence alleging widespread abuse of young people in local authority care in the 1970s and 1980s there comes further disturbing news.

Just before Christmas, south Wales police announced that a major investigation into allegations of abuse in children's homes, dubbed Operation Goldfinch, had fanned out from cardiff into virtually the whole of south Wales.If these allegations turn out to be true -- and in spite of the tenor of most media coverage there may be two sides to this story -- the pressure on the government to implement the Utting report's recommendations for changing the law will prove irresistible.The staggering cost both of these police investigations and of the subsequent inquiries worries many lawyers in the children law field.

They ask whether the millions of pounds spent on the north Wales tribunal could not have been better spent on social services training and supervision to prevent further scandals.

Mark Powell, chairman of the Association of Lawyers for Children, asks: 'Is the north Wales inquiry going to achieve as much as it costs?'The Utting inquiry concluded that the criminal justice system was 'ineffective in deterring offenders and in securing convictions of those who are guilty', and called for immediate changes in the law relating to children.

It said that the report of the Advisory Group on Video Evidence -- the Pigot Report -- should be implemented in the next parliamentary session.

The Pigot report had recommended ways of making it easier for young children to give evidence outside 'the public arena of the courtroom' by, for example, using pre-trial video evidence and preventing the defendant from cross-examining the child in person.

It also declared that: 'no child witness to whom our proposals apply should be required to appear in open court during a trial unless he or she wishes to do so'.Utting also called for a wide-ranging review of the arrangements for prosecuting alleged sex offenders and for such measures as television links, the use of judges and barristers who specialise in work with children, and preparation for the child through the child witness pack and programmes such as the National Society for the Prevention of Cruelty to Children's (NSPCC) witness support project.

Barbara Joel-Esam, a lawyer in the NSPCC's public policy department, would like to see video evidence extended to include cross examination as well as examination in chief.

This would have the two-fold advantage of completing evidence at an early stage when it was fresher and more reliable and of allowing the child to complete that stage and proceed with therapy -- currently delayed for fear of tainting evidence.She is also concerned about the language used in court and the range of adversarial techniques deployed.

The NSPCC has prepared a video giving guidance to judges and barristers on how to deal with children as witnesses.

But in the longer term it would like to see Britain's adversarial approach dropped in favour of the inquisitorial approach used in some other European courts.Many specialist practitioners argue that children do not lie about their experiences of abuse and say simply that the priority is for children to be listened to.

They have no qualms about the current prosecutions.

Neither are they concerned about the scales being tilted too far towards those making allegations of abuse.

'I think the balance is pretty fair at the moment,' says Mark Powell.

That is a view that would not be endorsed by Chris Saltrese, the solicitor representing the staff group from Bryn Estyn, the children's home at the centre of the north Wales allegations.

He insists that Peter Howarth, the head of Bryn Estyn, is 'wholly innocent' and describes the north Wales investigations and the allegations which have been reported uncriticall y in the media as 'a modern day witch-hunt'.Mr Saltrese told the Gazette that it was 'extremely difficult for the defendants to get a fair hearing' in such cases and that it was now difficult for social workers with children to do their jobs for fear of having allegations made against them.Mr Saltrese wants to see changes to the law would would force every police interview of a witness to be taped so that leading questions and the floating of the issue of compensation before witnesses would be ruled out.

He says current prosecutions have involved abuse of process in cases dealing with events that happened 15 to 20 years ago where vital witnesses may have died and records and log books gone missing, leaving jurors to be swayed solely by the often dramatic testimony of alleged victims without any other evidence.Mr Saltrese points out that the latter were not small children but boys aged between 14 and 17 in Community Homes with Education (CHEs), the successors to the former approved schools.

Many, he says, were young offenders, '95% of whom now have a string of convictions'.

He accepts that children must be listened to but is worried about the methods used by organisations like the NSPCC in 'debriefing' alleged victims.

'We have to be rigorously objective,' he insists.These are opinions rarely heard in the mainstream media which tend to reflect the view that there is an epidemic of abuse and that most allegations are true.

But perhaps the care system has moved on from the time that is being contested in north Wales.

There is greater awareness of the problem.

There are, quite simply, fewer children now in residential institutions (8,000 in 1995 compared with 40,000 in 1975) and children's homes are smaller, with an average capacity of ten.

Recruitment and management of staff are probably now carried out with greater care than in previous years.Changes in the law relating to children are undoubtedly needed and Utting has pointed the way.

His proposals command widespread assent.

But without a keen awareness of the rights of those accused as well as those who accuse, however unwelcome it may seem to say it, miscarriages of justice could result.THE COURTS' ATTITUDE TOWARDS ADOPTION BY GAY COUPLES HAS BECOME MORE LIBERAL, WRITES MARGARET JERVISGay adoption has come out of the closet with two landmark rulings in the English and Scottish courts.

The test for rights campaigners is now whether pressure can be brought to steer the law towards allowing joint adoption by gay and lesbian couples.The case of Re W (1997 2 FLR, 406) in the High Court last year was a watershed according to James Baker, deputy official solicitor.

'It was the first time a judge made a freeing order in favour of a lady in a lesbian relationship,' he says.

Previously he has represented children, all female, as guardian ad litem in a handful of applications by lesbians, but where the relationship did not play a pivotal role in decision making.Mr Justice Singer was asked on behalf of the natural parent to rule out gay adoption as a matter of public policy.

The judge declined, stating that there was no statutory provision for such a bar and that it was up to Parliament and not the courts to legislate on such a sensitive issue.In Scotland, the courts have edged even farther.

The Inner House of the Court of Sessions made a positive ruling in favour of a male homosexual couple (AMT [known as AC] 1997 Family Law 8).

The case concerned a severely handicapped five-year-old boy.

The main carer was a qualified nurse, and the security of the boy's placement depende d on there being an income-generating partner.

The gay couple's ten-year partnership was viewed as a clear sign of stability in the best interests of the child, with the court citing research findings which discounted a claim of disadvantage by virtue of the sexual orientation of the carers.

Although the law regarding male couple adopters is still largely uncharted waters, Mr Baker anticipates an increased flow, but not a flood, of lesbian applications in the High Court.

Sexual orientation needs no longer be viewed as part of the equation, he says.

'In future there is no need to drag experts into court to give a "psychological opinion", he comments.

'Lesbianism is no longer a contra-indication.'In principle the barrier to gay adoption was lifted with the 1976 Adoption Act which gave the go-ahead to single adoption.

In practice, although lone adoptions now total 14%, sexual orientation has been viewed critically by local authority legal departments.

'Couples are often assessed and approved by adoption panels, but then wait years to be matched,' says solicitor Gill Butler, a specialist in the gay and lesbian field.

'Local authority legal advice has generally been conservative, but attitudes in the courts have changed, led largely by judges.

Ms Butler says that 'hundreds' of de facto lesbian adoptions where the sexual orientation of the applicant was not made an issue have been approved in the past.

Ms Butler agrees that ' a number of uncontested cases may go through county courts on the nod'.Local authorities cannot legally place a blanket ban on gay adoption, says Deborah Cullen of the umbrella organisation British Agencies for Adoption and Fostering.

Voluntary agencies may do so.

The church-run Children's Society is one case in point.

Natural parents have no right to choose the sexual orientation of potential adopters, a point underlined in the recent court decisions.

Implicit local authority exclusion policies may be masked in explicit bans on single adoption such.

Caraline Johnstone, the assistant press officer of the Law Society's Local Government Group, says: 'I don't think local authorities are that conservative or discriminatory.

The adoption criteria that most worry elected members are health issues like smoking.

What normally happens in respect of single adopters, be they heterosexual or homosexual, is that they will be approved as adopters if they meet the selection criteria of the authority to which they have applied and will be matched with a child if they are the most appropriate adopter based on the child's needs.'While anxiety concerning disorientation or abuse persists, Ian Spafford, solicitor at Gateshead Metropolitan Borough Council says safeguards for children's welfare are 'arguably higher' in cases of gay adoption.

'You have to be matched with a child, and it may take an unusual adopter to care for an unusual child.' Suitability checks, including the child's own wishes and feelings, and court scrutiny are likely to be especially stringent, stresses Ms Cullen.Realistically, young, healthy babies are still likely to be placed with childless married couples.

That means gay adopters may have to be equipped to take on the most difficulty or handicapped children to cancel out the perceived negative effects of being homosexual.

Where it is acknowledged that two people are needed to care, two should be allowed to adopt, argues Anya Palmer of the campaign group Stonewall.

Proposals to allow unmarried couples to adopt in the 1996 Adoption Law Review were spiked by civil servants backed by ministerial family policy at the time.With family values a sensitive issue for the Labour government, parliamentary legislation to reverse the decision is unlikely in the foreseeable future.

This creates an anomaly, says Ms Palmer.

The recent court rulings make it clear that adoption by gay couples is 'open and above board', she says.

'But the children are not recognised as having two legal parents.' In addition to inheritance rights.

Ms Palmer says that joint adoption would be integral to a child's self-esteem in countering peer group stigma.Looking ahead, Ms Palmer sees the legal battle ground moving on to the plain of the Human Rights Bill.

On the basis of respect for family life, it can be argued that it is not in a child's best interests if, when a couple is chosen, only one becomes a legal parent.

A likely staging-point is joint residence orders, a legal precedent already established in favour of a cohabiting heterosexual couple.

'The way forward is tricky and it's best to go one step at a time,' cautions Ms Butler.

As tacit approval of adoption by lesbian couples increases, it is likely that gay men will seek to follow suit.

While male adoptions are rare in general, reflecting demand and gender discrimination, the Scottish ruling has demonstrated that gay men in stable relationships can get a fair hearing.Already there are successful, if controversial, fostering projects where delinquent gay teenagers are stabilised by older gay men.

Moves to cast such delicate arrangements in the concrete of adoption would inevitably give rise to an agonising legal conundrum, not to mention a moral panic.But with gay and lesbian family law a growth area, forecasters predict no respite in the battle to test the limits of the law.INTERVIEW: A CASE FOR REFORM BY ROBERT VERKAIKThe sensitive issues surrounding children in court have for a long time been presented by some family lawyers as reasons for protecting the family courts from the effects of reform, writes Robert Verkaik.

Because the interests of the child override all other considerations family law has become the exception rather than the rule in many aspects of court procedure.But family law specialist, David Burrows, a sole practitioner and member of the Solicitors Family Law Association national committee, now urges his colleagues to recognise that procedural reform need not threaten the special position of the child in court.

Family lawyers, like other lawyers, says Mr Burrows, must accept that they are not immune to the cost-cutting Woolf reforms.Mr Burrows says: 'We get obsessed with getting every bit of paper before the court.

But I don't think many of us actually stand back and ask what do we need to get a fair answer in this case.' Mr Burrows describes the tendency to produce every relevant piece of information to the court as 'documentary incontinence'.Becoming more realistic and practical in children cases means not only reducing the number of social services' and doctors' reports but also the number of lawyers in the courtroom.

Lawyers must start from the premise, says Mr Burrows, that it is not possible to achieve complete truth in the court room.

Therefore, fewer lawyers and experts are required to find a qualified truth.Mr Burrows, a solicitor advocate, also asks: 'Are we achieving justice by these long trials of multi-party actions, with half a dozen QCs earning, as Lord Irvine quite rightly puts it, a lot of money?' Specifically, he argues against there ever being more than one advocate on each side.

And he makes the point that lawyers should always remember that the legal costs o f one of these trials could make a real difference to the life of the child at the centre of the case.

'I expect if a primary school was told that it was to be given the costs in one of these cases it would think Christmas had come early,' he says.Like many UK lawyers Mr Burrows took the opportunity of using the Louise Woodward case in America to observe the US court system in action.

He was particularly struck by the time constraint of one hour given to the defence lawyer to sum up before the jury.These sort of reforms, says Mr Burrows, will have to be adopted by UK family courts.

'If we don't start looking at these types of issues now we are going to get the ground cut from under our feet by the government,' he warns.Mr Burrows admits this sort of language is playing into the hands of the Lord Chancellor but he does not regard everything in the reformist garden as rosy.

He says family lawyers do need to draw a line in the sand before the gradual movement towards a wholesale inquisitorial approach in all children cases.The inquisitorial system is already firmly established on the continent, particularly in Germany and France.

But Mr Burrows warns that it can lead to injustice where the judges control the case and the parties have a limited input.

Woolf wants judges to lead the way in managing cases and some judges, including family court judges, are already jumping the gun.Mr Burrows says: 'It's important that lay people retain control.

The courts are there to serve the customer not the customers to serve the judges.'He maintains that if judicial intervention is taken too far it becomes judicial interference.

'In France', says Mr Burrows, 'judges are not popular.

Their decisions are often thought of as without logic.'In this country, Mr Burrows says, work still needs to be done to provide children with a means of achieving consistent representation.

To this end, he supports efforts being made to create a single agency representing the child's interests.

Mr Burrows explains: 'To have the Official Solicitor, guardians ad litem, court welfare officers and social workers all coming at the case from different directions is crazy.

You need a much clearer approach in the way children's view are represented to the courts.'The Solicitors Family Law Association (SFLA) has been pressing for a new agency for some time and has had some success in getting these different groups talking to one another.

Mr Burrows predicts: 'I hope something will come out of it in the year.' The new Family Law Bill is expected to be published soon and implemented within the next two years.

It will, says Mr Burrows, be an opportunity to provide a single set of rules for all aspects of family law.The SFLA civil procedure committee, of which Mr Burrows is chairman, is now working with the Lord Chancellor's Department to try to achieve this.

Many family lawyers want to avoid the same sort of mistakes found in part IV of the current Family Law Act 1996 which deals with domestic violence.Finally, Mr Burrows wants to remind Lord Irvine that many family lawyers did not join the profession simply for the money.

They could, he says, have chosen other areas of law more richly rewarded.

'This is something I think the Lord Chancellor has woken up to now,' he says.CHILDREN LAW: RECENT DEVELOPMENTS-- Vernon v Bosley (No 2) [1997] 3WLR 683 on the disclosure of medical reports by doctors who have already given evidence and the duty of the litigant not to mislead the court.-- R v East Sussex CC ex p Tandy [1997] The Times, 2 October on the extent to whic h the resources of a local authority should influence the way in which it exercises its statutory duty, here in the field of education.-- Re W (Adoption: Homosexual Adopter) [1997] 2 FLR 406 where it was held that there was no rule of public policy or principle preventing a homosexual, as an individual or part of a couple, from seeking to adopt.-- Dawson v Wearmouth [1997] 22 August, CA on whether the father could make an application prohibiting the mother from naming the child in the way that she had.

The court found it had jurisdiction to hear such an application.-- Re D (Contact orders: conditions) The Times, 5 August where it was held that it was inappropriate to attach to a s 8 order conditions under the Children Act 1989 s 11(7) which amounted to injunctions to protect the mother from harassment.THE LAW SOCIETY'S CHILDREN PANEL-- This national panel of solicitors was originally known as the Child Care Panel.

It was established in March 1985 to provide the names of solicitors available to conduct child care cases.

Following the full implementation of the Children Act 1989, the panel was revised and renamed the Children Panel.-- The aim of the panel is to provide competent representation for children in all proceedings under the Children Act 1989 where provision exists for children to be represented.-- Solicitors in private practice who have been admitted to the Roll for a minimum of three years and have held an unconditional practising certificate for that period are eligible for membership.-- To qualify, solicitors must attend two one-day approved training courses and have experience of public and private law cases where children may be represented, and of advocacy in the family proceedings courts, county courts and general magistrates' courts.-- Assessment is by application form, references and interview.-- The period of membership is five years.-- The membership fee is currently £165 plus VAT.-- There are currently approximately 1,700 members.-- Panel members are normally expected to conduct cases personally.-- Panel members are also available to represent and advise parents and other parties in cases involving children.-- Details of panel membership are held by county courts and family proceedings courts throughout England and Wales, panels of guardians ad litem, citizens advice bureaux, local authority services and many other interested welfare organisations.For further information about the panel contact the Law Society's regulation and information services; tel: 01527 504 433.