During this period of austerity and continuing pressure on access to justice in family matters in this jurisdiction, we are pleased to be able to include good news from Australia in this issue, before turning to more mixed messages from UK research on parenting and mental health.
Rosemary Sheehan from Monash University presents the findings of her evaluation of “Legal responses to child sexual abuses in the Children’s Court in Australia: study findings on a case management approach”. She describes the challenge these cases present in every jurisdiction, but suggests that adversarial court process in such highly conflicted matters where proof is required but findings of fact are so problematic, as used in Australian state magistrate’s courts, has not been helpful. The Children’s Court in Victoria has recently achieved real benefit for families through adopting an intensive case management approach. Guided by an expert steering committee, the Children’s Court of Victoria developed a “D list” of child sexual abuse cases to be handled proactively by a single judge, employing intensive case management. The new process draws on the experience of the Federal Court of Australia’s Magellan case management system in operation since 1998 for better post- separation parenting dispute management where domestic abuse was an issue. This process used judge- led tightly- managed time- limited procedures, supported by Family Consultants. Through observation in court in Victoria, a survey of court records and interviews with stakeholders and focus groups, Sheehan and colleagues found magistrates taking a key role in gathering facts, speaking directly to parties, and establishing a calmer atmosphere in court with earlier resolution of the cases. We ask whether this be considered not just as a matter of effective case management, but also of a move towards an inquisitorial approach ...... good when its good but dependent on high quality magistrates?
Sadly this positive Australian report is counterbalanced by a worrying report from this jurisdiction where Maebh Harding and Anneka Newnham have documented concerns about the overlap between public and private law in post separation parenting disputes. These issues were raised by Sir David Norgrove in his 2012 Family Justice Review. This research substantiates the importance of questions raised there. In looking at the records of 197 Section 8 cases, the authors found local authority involvement in 56: in 13 the local authority was simply helping with information, and in 16 the case was truly hybrid with the local authority supporting a parenting arrangement, perhaps by helping with supervised contact. But in the largest group of 27 cases the matter had been diverted by the local authority from care proceedings to a private law case of contact and residence. This would have resulted in substantial cost savings for the local authority at a time of acute financial pressure. But given that legal aid is available to parents in public law cases but not in private law unless there is evidence of a threat to a child from one of the parties, this development raises serious questions about representation. In 19 cases the proceedings had been initiated by the local authority, minimising state intervention which we might applaud, but the authors ask whether the court should have the power to refer some of these cases to public law. There are vulnerable and dysfunctional mothers without representation ... another part of the LASPO Gap.
A third article from Conor O’Mahony and colleagues from Cork again looks at the boundaries between state and family responsibilities, looking at how the voice of parents is heard in child care proceedings in the District Court. Catholic social teaching has strong views about the importance of parental responsibility and control, and the Child Care Act of 1991 while requiring the Child and Family Agency (CFA) to promote the welfare of children not receiving adequate care and protection, also required the CFA to have regard to the rights and duties of parents. This study of 67 professionals in 3 counties describes the variation in the way parents are able to speak in court and welcomes the development of the services of advocates to support the parents.
Finally we are pleased to include an important discussion of the working of the Mental Capacity Act from Dr Peter Bartlett and colleagues from the University and medical practice in Nottingham. Their concern is to “Advance Decision Making under the Mental Capacity Act 2005 in Cases of Bipolar Disorder”. They suggest that bipolar disorder which affects 1.4% of the population including young people, many of whom are married with families, may be particularly suited to advance decision making on capacity. There may be on average ten episodes of recurrence of incapacity which are usually preceded by clear signs for some weeks before onset. This makes it a condition where planning for some form of Lasting Power of Attorney or Advance Decision to Refuse Treatment (ADRT) could be of benefit to patients and their families. A sample of 549 bipolar sufferers and 650 psychiatrists were studied, and though advance decision making was positively valued by those who were aware of the procedure, neither awareness or use were widespread. The study gives important practical detail about how information on the procedure may be given to sufferers, how formal any documents need to be, and how to find such a document after time has passed. Here resources do not appear to be the key factor... it may well be possible to work towards increased effectiveness of a thoughtfully drafted piece of legislation.