Tuesday, 31 July 2007

The nature of risk

As if deliberately to undermine my point yesterday about pools versus guns, in today's Times is a report of a Manchester mother appearing in court charged with posssessing a pistol after her 12 year old daughter was shot dead at her home in April. A 17 year old boy is charged with the girl's murder. Ignoring that inconvenient fact for a moment, I re-read the chapter in Freakonomics about guns and pools. In the US, Levitt & Dubner claim, a child is 100 times more likely to die in a swimming accident than to be shot, yet we tend to think of guns as very dangerous and pools as fun leisure facilities. Parents are peculiarly susceptible to an expert's fearmongering: 'Fear is in fact a major component of the act of parenting. A parent, after all, is the steward of another creature's life, a creature who in the beginning is more helpless than the newborn of nearly any other species. This leads a lot of parents to spend a lot of their parenting energy simply being scared.' Risk evaluation has to be part of a parent's job. The trouble is that parents are often scared of the wrong things and find it difficult to work out who to listen to. What they suggest is that we react more strongly to certain risks, even when the feared event is very unlikely to happen because of the presence of outrage. Quoting expert risk assessor, Peter Sandman, we take risk seriously because of the dread factor: "when hazard is high and outrage is low, people underreact. And when hazard is low and outrage is high, they overreact". The reaction to the sad news of Anna's death by drowning in the Daily Mail's coverage is not to analyse the nature of the risk presented by pools, but to stoke up outrage about the care system and link the death to the recent campaign on adoption targets. It may turn out that Anna's foster carers have themselves fallen short of the good enough parenting standard and that would, of course, be an outrage. But I would be surprised if it turned out that foster carers were statistically more likely to be responsible for children's deaths than either parents or swimming pools. In other words, generally speaking parents do not need to worry about death as a risk when a child is in foster care. None of which philosophical musing will be of any comfort to Anna's parents and my heart goes out to them.

Monday, 30 July 2007

Should pools & ponds be banned?

The BBC reports the tragic death of a toddler who drowned in a swimming pool at the home of her foster carers in Hampshire. An inquiry is already underway as to how this death happened but detailed facts are not yet known. I can anticipate heavy criticism of the local authority for failing in their duty to take care of the child: no doubt her natural family are devastated, as are the foster carers. I once acted for grandparents in a case in which the grandfather was a devoted fan of carp and had a number of pools in the garden. The local authority were highly concerned about them and I remember thinking that this was the nanny state gone a bit mad. He had erected a large fence around the pools and a gate between the kitchen door and the garden as well as putting mesh on top of the pools and so on. That local authority had a policy that they would not approve placements of children if the home had a pool and frankly I thought they were making a bit of a fuss. I started to take the issue a bit more seriously though when I read Freakonomics - an excellent provocative book about facts and figures by US authors Levitt (an economist) & Dubner in which they claim that a swimming pool is more dangerous than a gun. Actually when you look at the letter of what they claim it is that a swimming pool is more dangerous than the gun of the householder. Statistics on UK drownings are difficult to find. In 2002, 17 children under 5 died from drowning, 13 of whom died in baths, garden ponds & related water freatures. Apparently 80% of pond drownings happen not at home but at a friend or neighbours, where presumably the child is in less familiar territory and perhaps supervision is more relaxed. The question must be to what lengths should we go in dictating to parents or carers whether the risk presented by water features in homes outweighs the benefits?
See the the ROSPA website for more information about children's safety and water.

Friday, 27 July 2007

Parental Irresponsibility

Well I thought it was worth waiting 17 years for and with a lovely little jibe at the new parenting truths. Classic line from Bart: "I want one of those dads who - you know - what's the word? Is the same in the evening as he was in the morning? I know : consistent".

Yes Sir, That's My Baby Now? Surrogacy complications.

The Court of Appeal have just made what seems to be an extraordinary decision in a surrogacy case. A birth mother conceived a child using the sperm of a man who asked her to act as a surrogate for him and his wife. When the child was born the birth mother refused to hand him over and has been looking after him for 17 months, together with her husband and the boy's half-siblings. The court said that the natural mother and her husband had been good parents but felt that the natural father and his wife would make better parents.One of the most important factors for the court seems to have been the fact that the birth mother had deliberately tricked the father as she never had any intention of handing the child over. The Times has a case summary . The full case report - which may be crucial in understanding what really was behind the decision- does not yet seem to be published anywhere amongst my usual sources. What struck me as extraordinary about it was that - forgetting about the surrogacy angle for a moment - I can hardly imagine a court taking a child from its mother, stepfather and siblings after 17 months and placing the child with its father unless there was something seriously up with the mother's care. In other words it would not just be a case of whether the father could do a better job, provided mother would be good enough. Maybe it should be but it generally isn't. The case also goes in the opposite direction of a recent House of Lords case emphasising the importance of the dual role of genetic and psychological parent and I would be surprised if the surrogacy case doesn't end up there too.

Wednesday, 25 July 2007

One of those days

Ever had one of those days when .... people are just nice to you all day long for no apparent reason!! The station attendant at Welwyn Garden City offered to make me a cup of tea while I was waiting for a train. And he meant it! Someone picked up my bag full of briefs which I was struggling to get up the stairs (I was just about to scream for help suspecting robbery when I realised what was actually happening). My opponent stepped in and sorted out a reading list for the Judge before I got into trouble for not doing it and before I had even asked her to. Somebody said a real heartfelt thanks to me for doing some interviews. My solicitor bought me lunch. I had three lovely emails thanking me for my articles. Mr Blog offered to run me over to my friend so we could spend the evening talking shop and other nonsense, having already brought me coffee and breadfast when I was in the bath. I came home to a house full of lovely flowers from our Australian houseguests. And someone sent me a funny email that was actually funny! Small acts of kindness but I am strangely touched and moved and inspired to pass it on as I go through tomorrow.

Sunday, 22 July 2007

Opening up the debate: open court plans

More press articles this week debate the issue of family courts sitting in private. The Sunday Telegraph has a piece case summary of a particular case in which a child has been removed from its parents apparently without justification and linking it to government targets on adoption. David Pannick QC has written an article advocating media access in the Times and urging the new post holders in the Minstry of Justice to change the direction of the current consultation papers on this process. To trace the debate background see the report of the Select Committee . This was then followed by a DCA consultation paper published together with the responses. The upshot of the earlier consultation was that the government has decided not to allow automatic access by journalists to the family court. In fact, the current right of journalists to attend hearings in the magistrates courts (the family proceedings courts) will be removed! A right I would comment that journalists barely known about and I have never known to exert, perhaps because the ordinary nature of cases in the family proceedings do not make for good copy. However, the media will be able to ask for permission to attend court hearings - just as they can do at the moment! The Family Justice Council has proposed a checklist to help the court decide whether to allow media access in a particular case. The paper says that there will be more consultation with the judiciary, court staff and the media on arrangements for the media to make an application to the court for this but there is no more specific information and no specific question asked about it in the new consultation paper Confidence & Confidentiality: Openness in family courts - a new approach and the closing date for responses is October 1st. The paper does set out the thinking behind the government's position despite there having been some support for media accesss (mostly from the public as opposed to the lawyers - imagine your surprise!) and the steps the government will be taking to open up the family justice system - for example with wider publication of family court decisions and a new online source of information about family courts. But that's what I'm trying to provide. The government is just jumping on my bandwagon!!

Thursday, 19 July 2007

Judith's Divorce Blog

I am delighted to have discovered Judith Middleton's family law blog. Judith is a partner at Latimer Hinks, Darlington and her blog deals with issues arising from divorce cases but is very unstuffy, helpful and personal.

Monday, 16 July 2007

When the going gets tough ...consequences for refusing contact

In a Guardian article about courts moving children from mothers to fathers we are told of two recent cases in which the Court of Appeal has upheld the decision of the courts to move children from their mother to their father because the mother was refusing to allow decent contact. The headline is 'Judges get tough on fathers' rights to contact with children'. I have not yet been able to read the full judgments in the two cases (so I do not know, for example, why the mothers said they did not want the contact to happen) but I have read the summaries. In one of the cases the mother was suffering from a serious personality disorder, had been warned that the child's residence might be changed, had interrupted & interfered with contact causing frequent court appearances and both a psychologist and a social worker recommended a change or residence. In the other case the mother had disobeyed 11 court orders and sabotaged the only contact that did take place. The court did not want to send her to prison because she had a new baby with a new partner. And both mothers appealed against the original orders. You still have to be a pretty determined father (and probably entitled to public funding) to be willing to go through all that to get your contact. 'Judges finally run out of excuses for not getting tough on fathers' rights' might be a more appropriate headline?

Tuesday, 10 July 2007

The Who Cares? Trust

I have not made quite as much progress with setting up my blog as I hoped as unlike Gordon Brown I was among the first London dwellers to go on a tour of the floodplains of Northern England. Along with a group of other soggy southerners I was cycling across the Transpennine Trail which helpfully went right through the affected areas and I was able to witness the floods happening at first hand from my bicycle. Even better was the fact that the Pennines turn out to be a range of rather large hills and so when we weren't almost drowning on the plains it was because we were half way up a mountain. We covered 210 km & over 6,500 feet in height in just over 3 days. All for a good cause: click here for the Who Cares? Trust's website which tells you all about the charity which works to help children in care. You can donate money to them through Just Giving or email me if you would like to sponsor Biking for Kids in Care.

Monday, 9 July 2007

The open door of the court?

John Hemming, Liberal Democrat MP for Birmingham Yardley, has made an application to the High Court to disclose information about 90 UK family law cases to various watchdogs and professional bodies such as the General Medical Council and the Bar Council. The Sunday Telegraph reports that if he is not successful he is threatening to discuss the cases in Parliament under Parliamentary privilege. This follows on from an earlier piece in the Sunday Telegraph last week on the same subject and the public comments make for interesting reading here. John Hemming is a fellow blogger and there is more information about his thoughts on the John Hemming's blog. A head of steam seems to be gathering, perhaps following the appointment of Jack Straw as Minister for Justice, replacing Lord Falconer. There is more information at the website of Facto - Families Action for Court Transparency and Openness set up by Sarah Harman (ex-Judge and sister of Harriet Harman - now Deputy Leader of the Labour Party though the website does not seem to be updated very often. Bridget Prentice MP is the minister responsible for family justice as a result of Gordon Brown's reshuffle. It will be interesting to see what impact this will have on access to family courts. At some point I might even go open on my own thoughts about open access....

Monday, 2 July 2007

Open court debate: Webster case

I have been following the UK care case of a family from Norfolk with interest and there was a big feature about them in the Mail on 30th June: Webster family case . Mr Justice Holman has identified a number of errors made in a previous case the upshot of which was that the Websters lost their three older children into care. They have now been allowed by the Judge to keep their fourth child but understandably want to ask the courts to look again at the evidence in the previous case. The Mail is claiming that but for the public spotlight given to the case by their coverage and pressure for open reporting of the case a further miscarriage of justice might have happened. I am not saying that they have not made an important point and offered huge support to the Webster family. But I recently did a case in front of the same judge in which his careful scrutiny of the evidence and particularly the expert evidence led to parents being allowed to keep their children in the teeth of local authority opposition without any of the publicity that has surrounded the Webster case. Ironically perhaps and unfortunately for my argument I am not able to give you the details to prove my point! You'll just have to trust me, I am a lawyer!!