Cases adjourned when lawyers came off record – 2014vol4#6

Two child care cases in a rural town were adjourned when the solicitors for the parents said they were coming off record as they could no longer afford to represent their clients without any remuneration, especially when expert witnesses were needed. The solicitor said that he had worked for 18 months without being paid, because lawyers for the Child and Family Agency had been instructed to oppose all costs orders pending a Supreme Court decision on costs.

The judge said he could only reserve the issue of costs until the Supreme Court ruling, expected in January. “The mother and children are very vulnerable,” the solicitor said. “There is an equality of arms issue. They are entitled to representation and to expert witnesses.”

“There has been a discussion on this in England and Wales,” the judge said. “There is a recent decision by Lord Justice Munby. Even if I was to agree with you, against whom do I make the order for costs? The CFA is a statutory authority. It is obliged to bring these proceedings. The social workers have no discretion in the matter. So a statutory authority comes to court fulfilling its statutory duty. I don’t see how, without a legislative mandate, I can make the order.” He reserved his decision on costs and the solicitor withdrew from the court.

The solicitor for the guardian ad litem said they were looking for an adjournment so that the mother could obtain legal representation. The judge said he was uneasy about the case going ahead without the mother being legally represented, but he needed to consider the impact of a delay on the children and needed to hear evidence on this. “These children have the right to have their case heard at the earliest opportunity. I need the social worker’s and the guardian’s views on the impact of the adjournment on the children.”

The social worker said the children, aged five and six, were getting on well in foster care and the mother was working well with the social work department and engaging well with the children at access. It was not an adversarial situation. In practical terms they would not be aware of an adjournment. Access for Christmas was in place. She said she did not think an adjournment for three months would have a major adverse impact.

The mother told the court she would prefer to be legally represented and wanted to get the children back, and was in favour of an adjournment.

The GAL told the court the children were aware the proceedings would have an impact on where they live. She said that the purpose of her raising the matter was to seek just a short adjournment so that the mother could obtain representation.

Following a short adjournment of the hearing, the judge said that the application was for a Care Order under Section 18 of the Child Care Act, where the mother had been represented by a local private solicitor. “I heard from [the solicitor] who came off record. He is restricted by the lack of resources, especially in relation to his client’s need to consult experts. This is an important issue, involving the principle of equality of arms, especially relating to the most vulnerable in society.

“[The solicitor] is dissatisfied that in all cases where the Child and Family Agency had costs granted against it these were deferred until the outcome of the Supreme Court case. The costs issue is complex, it is not clear against whom the court should make a costs order. I said I would reserve the costs matter.

“The guardian said the matter should be adjourned. I heard from the social worker and the guardian about the impact of an adjournment on the children. My primary duty is to the welfare of the children, as defined in the [cited] judgments. My function is to vindicate the rights of the children and in so doing taking into account the rights of the parents.

“So having considered the evidence I don’t think I could deal with an application for an adjournment in the ordinary way. In child care cases where the case is set down for hearing, where a judge makes a decision on an adjournment he must consider the impact on the children.”

He said he must engage in a balancing exercise in assessing the rights of all those involved in these proceedings, in the context of the concept of the welfare of the children being the paramount consideration.

He said the circumstances included that the CFA had no objection to it; the GAL supported the adjournment; there was an equality of arms issue; the respondent was seeking the adjournment; the Supreme Court was to decide on the question of costs quite shortly; and, crucially, the children would not be adversely impacted by an adjournment. He adjourned the case to February.

“When it is adjourned all the witnesses must be before the court and there should be no further adjournments. In general these cases should be disposed of in about nine months, 12-15 months at the outside.”

In the second case the CFA solicitor said the mother had a mild learning disability. Her son, aged four, had been in voluntary care for two years but then his mother withdrew her consent to the voluntary care and an Interim Care Order was obtained. The CFA was now seeking a Care Order.

The judge said there used to be a system where the HSE had contracts for voluntary care. “Is there a national template for such a contract?” he asked. The CFA solicitor said there was not.

“It is up to an organisation like the CFA to have one,” he said. “The key word in voluntary care is ‘voluntary’. If a parent wants to terminate it she can. Have the particulars of the case been prepared?

“There’s a practice direction where the CFA sets out the Particulars of the Case in numbered paragraphs setting out the precise basis on which the order is being sought, including a list of witnesses, experts, etc, on which the judge makes a finding of fact.

“Then the respondent sets out her response, her own version of the facts, also in numbered paragraphs, indicating what is agreed and what is in dispute.

“There should be a care plan furnished to the court. Reports from experts should be exchanged 10 days before, and an application made to lift the in camera rule to allow that. This will streamline everything. The GAL and the respondent should prepare a booklet of their own responses, bound, tagged etc as appropriate.

“This is the standard we need to adhere to. There should be recent photographs of the children. That is crucial. The birth certificates of the children should be filed automatically.

“Then there will be a call-over to ascertain the number of witnesses, whether there is legal representation, whether an interpreter or advocacy service is required. If all that is adhered to it would be a good use of court time.”

Referring to the current case, the CFA solicitor said that the CFA was seeking an adjournment of its Care Order application so that the mother could receive representation. There was a psychological report on the mother, which indicated she had a learning disability. “It’s 10 years old,” the judge said.

He invited the mother to speak about the issue of an adjournment, and she told the court she was unhappy with the level of access, as her family only saw the child very rarely and he was unable to attend family celebrations.

She said she had been living in a homeless hostel after she left an alcohol treatment centre, but she was now attending Alcoholics Anonymous three times a week, was doing a parenting course and had stable accommodation.

“Would you be able to deal with the court yourself without your solicitor?” asked the judge.

“I would prefer my solicitor to be here,” she replied.

Judge: “You agreed to voluntary care.”

Mother: “I was bullied. [Named social worker] told me if I didn’t sign the paper work she’d get the guards up [for the child].”

Judge: “Did you understand what voluntary care was”

Mother: “Partly.”

Judge: “You didn’t end it.”

Mother: “I wanted to get myself right. Is there a possibility that between now and the hearing that I can have more access and [my son] can go to his cousins’ parties?”

Her solicitor, despite having come off record, intervened to say: “She needs help. We need a guardian ad litem. She waited a long time to go on the parenting course. She’s done exceptionally well today. She was very nervous. When she talks about her son going to parties it’s so that her son can see the rest of the family and keep up contact with them.

“She knows she has a long road ahead of her and she’s determined to travel it. She’s alcohol-free. She is anxious to build a relationship with her child. She has a lot to do to care for herself. She needs someone there on her side. I need to be in a position to brief someone on her side.”

The judge said: “Having looked through the papers I don’t think this case is half ready to go on. The case needs a psychological parenting assessment.”

“What does that mean?” asked the mother.

“Someone will talk to you over a number of weeks and will see if you are able to parent [your son]. There are risks for you. Also the CFA should find out if you need an advocate or someone to help you, for example, someone from Enable Ireland.

“I want a psychological parenting assessment. I want an advocate for the mother. I want an access schedule drawn up, based on dialogue with the mother and the foster carers, setting out the ambitions for access, targets, with specifics, where it will take place and the events the mother may attend with the boy. I am saying to the social work team – consider more access. The only reason not to have it is if it is going to have an adverse impact on the child. I want an access plan within two weeks. I want to see a copy of the voluntary care contract the mother signed.”

“We don’t file them,” the social worker said.

Adjourning the case for two months, the judge said he wanted copies of all care plans and reviews, a report on the mother’s addiction issues and what stage she was at in overcoming them. “This case is no-where near ready to go on,” he commented.