Family court judges and magistrates take decisions on custody and access that can adversely affect child safety. But who holds them to account if they make a mistake? Amy Taylor reports
Lord Laming’s March review of the child protection system in England makes 58 recommendations spanning children’s services professions. However, none mention magistrates and judges – despite their far-reaching power to decide where a child can live and who they can see. Even a chapter on law and a section on the need for social workers to be properly prepared for family court appearances fails to mention the conduct of family court magistrates and judges themselves.
Magistrates and judges also sit outside the serious case review process. Serious case reviews take place every time a child dies where abuse or neglect is known or suspected to be a factor in the death. They look at professionals’ decisions and communication, with the aim of learning lessons for improvement and offering opportunities for scrutiny and challenge.
Several of Laming’s recommendations are aimed at improving the serious case review process, but he does not call for magistrates’ and judges’ decisions to be made a part of it. Opinion in the sector is divided as to whether crucial legal decisions about children’s lives should remain outside the serious case review process, and whether the appeal system provides adequate accountability while also maintaining magistrates’ and judges’ independence.
Domestic violence charity Women’s Aid says that more needs to be done to make family court professionals more accountable. In 2004, it published a hard-hitting report on 29 children killed in 13 families between 1994 and 2004 in England and Wales as a result of contact or residence arrangements . In five of the cases concerning 11 children, contact was ordered by the court.
The report called for mechanisms for holding family court professionals to account in cases where children are killed or seriously harmed and, if found to be responsible, to ban them from practising. It also called for family court professionals to be required to take part in serious case reviews whenever relevant.
In 2006, the judiciary put out a detailed response on the five cases and found magistrates and judges not to be at fault. Senior judge Lord Justice Wall found that the deaths of eight of the 11 children could not have been reasonably foreseen by court professionals. On the remaining three child deaths, he found it was not clear if the court should have been more proactive in investigating the circumstances of the cases before granting contact or not. He rejected both of the charity’s recommendations for change.
Perdeep Gill, a child protection trainer and consultant, agrees with the charity that existing accountability arrangements for magistrates and judges are insufficient. She cites the case of a child who was killed the day after a magistrate refused a London council an emergency protection order.
“The courts aren’t held to account,” Gill says. “There should be a system. They are completely missed out. The Social Work Taskforce needs to ask how courts are making the judgements they are making. Is it good case law that’s being set?”
Vulnerable to attack
For many, though, the fact that all family court decisions can be appealed against in the higher courts – something the magistrates and judges are very aware of – is sufficient. Anthony Douglas, chief executive of the Children and Family Court Advisory and Support Service (Cafcass), says family court professionals feel as scrutinised as children’s services staff.
“Every decision by a magistrate or a judge is subject to appeal by the High Court, Court of Appeal or House of Lords,” explains Douglas. “Judges and magistrates feel just as vulnerable to attack and under the same pressure as the rest of us. They are not in the local structure of accountability but are just as exposed.”
But the issue is not just one of scrutiny. Feedback and learning are – in theory at least – essential elements of the serious case process. By contrast, there is no system under which magistrates and judges are automatically given feedback on specific cases they have been involved with. The closest thing to this is the work of Family Justice Councils, local bodies which monitor and aim to improve the family justice system locally and comprise people from professions including the judiciary, Cafcass and social services.
These councils may discuss a case if it contains a particularly unusual or significant issue, but this is not routine.
Gill argues this is inadequate, particularly given the impact that court professionals’ decisions on outcomes can have. “When cases have gone wrong that’s when serious case reviews should look at how and why the courts made the decision they made,” she says.
But Douglas fears that any move to make judicial decisions part of the serious case review process could undermine judges’ and magistrates’ independence. “They are not part of the executive partnership arrangements because of their constitutional position. It’s hard for judicial decision-making to be brought within a partnership arrangement process.”
Audrey Damazer, Justices’ clerk for London’s 17 family courts, argues that court professionals make their decisions based solely on the evidence put in front of them at the time and a range of factors can influence the way cases develop.
“I’m not sure what magistrates would learn from getting feedback on what had happened in cases they had ruled on. I don’t know if having a system for reviewing cases would be helpful because families are so dynamic and so many things can happen and change after we have made a decision.
“If somebody looks at the papers relating to the case and thinks there’s no way a court should have come to this decision, the appeal system is there for them to appeal.”
Damazer says it is the role of magistrates and judges to apply the law rather than work with the families, and this makes their inclusion in the serious case review process inappropriate.
For Douglas, the judiciary’s independence is a “more important principle” – providing they can still learn the lessons from their mistakes with equal rigour to other agencies.
He adds that, just because a serious case review has been carried out doesn’t mean its recommendations will be enacted and that, as with anything else, quality is down to professionals’ own desire to do a good job.
“In terms of the impact of a serious case review, they have a high profile but it doesn’t mean actions are followed up,” Douglas says. “With judges, it comes down to strong leadership and a strong sense of accountability. In the end, the accountability is with each professional. People want to make fewer mistakes and do a good job.”
John Fassenfelt, deputy chair of the Magistrates’ Association, says that a formal system to provide magistrates with feedback on cases they have ruled on would be useful. He explains that magistrates sometimes hear news about individuals but this is very ad hoc.
“There are no formal mechanisms. If there were we could learn from our successes and our failures. At panel meetings, people will come back and say X has done well, but it’s fairly rare.”
This article is published in the 30 April 2009 edition of Community Care under the headline “Sealed off from scrutiny”