"Debate on taking children into care is so long overdue"
http://www.irishtimes.com/news/social-affairs/a-proper-debate-on-the-merits-of-taking-children-into-care-is-long-overdue-1.1588744
I deliberately allowed some time to pass
before responding to Breda O’Brien’s article in the Opinion and Analysis
Section of the Irish Times November 9th 2013. Her analysis made me angry with its cheap shot
at lawyers always an easy target and a great refuge for lazy journalists. Accordingly, I thought it best to leave some
time pass before responding. Breda is commenting
about taking children into care, something I posted on quite recently in my
blog, and asserts that the publication of the Interim report of The Child Care
Law Reporting Project under the chair of Dr Carol Coulter, also quoted
extensively in the blog, provides an opportunity to open the discussion.
While it is true that the removal of the
Roma children from their families in order to check their identity is hardly
the stuff of day to day childcare cases before the District Court, it nonetheless
occurs in a culture. We need to examine
that culture. How sensitive are the
authorities in their approach particularly to those who are not native to these
shores? Why did the police visit those
Roma families in this circumstance without an interpreter? Is it just coincidence that in the case I
discussed the same thing had occurred and of course, my family were also not
Irish? I doubt it. There is low level racism in this country and
it manifests not so much in overt racist abuse more in the attitude to eastern
Europeans and others living here. It is
a kind of – “if they don’t like it let them return to their own place” sort of
attitude” and it allows us to do the
sort of thing that involves going to people’s homes and taking their children
(perhaps with some justification) but doing so in an unnecessarily harsh
manner. It is extraordinary to me that we
Irish, who have been the butt of racism the world over, should carry on in this
manner in our own place while all the while telling ourselves that we are great
and hospitable people. Hmmmm?
I fully accept that the vast majority of
cases are about people whose lives are miserable and abject. Breda typifies this as “mundane”. Gosh – in Ireland in the 21st
Century – do we really consider human misery and squalor to be “mundane”. Is it impossibly naïve to expect more? Am I
the last ancient idealist standing?
Breda states that the vast majority of cases in so far as they come to
the attention of the authorities are triggered by alcohol and drugs but she
goes on to say that it is striking “how often parents with mental health
difficulties and cognitive problems feature”.
That is a very interesting observation and one which deserves much
further and deeper analysis. It needs to
be cross related, for example, to cut backs and how those cut backs have affected
our mental health services. We hear a
whole lot on a day to day basis about the how cut backs have affected our
health care system or killed it off finally depending on your perspective but
there is not much focus on what is happening to our mentally ill – another
hidden minority perhaps? Kieran McGrath
an independent child welfare consultant is quoted by Breda as stating that if
you believe your children will be taken into care it is a big disincentive to
seeking help. Precisely. How many parents and indeed family lawyers
would willingly seek the help of social services in family difficulties if they
knew that the help would be structured positively and would be beneficial to
all concerned? I know that in my
practice and I am over thirty years involved in this area, I actively
discourage the involvement of social services if asked for my views by a client
as I do not find it helpful or positive. I do not discourage people from this route
because I am litigation oriented or because I abhor peace and love conflict or
whatever lawyer cliché we are having today!
I am a trained mediator and collaborator whose commitment to peaceful
resolution is long established and unquestioned. I believe that in this area there is huge
scope for a collaborative and/or mediation approach but not one which cuts out
lawyers one which is inclusive of lawyers.
There is no good reason to cut out lawyers from the child care system
and there are many good reasons not too, human and constitutional.
I agree with Breda that many of the cases presented
are messy and there are no easy answers.
However, that is all the more reason for a thought out and sensitive
approach. Where possible our resources
should be put into the family and only when all avenues in that regard are
exhausted should we turn to care as the answer.
It is my experience that care is the most frequent and certainly the
immediate response in most cases. I
accept that Alan Shatter, Minister for Justice, is correct when he says that
the Gardai and Social Services are damned if they do and damned if they don’t
in these situations however, that is all the more reason to examine our
responses and the personnel we involve in a thorough and objective manner. It is too easy to trump up the “vulnerable
children” card and use that to justify outrageous trampling on people’s human
rights. I completely accept that the
first and most important consideration must always be the welfare of the
children however, frequently though not always the welfare of the children and
the welfare of the parents are inextricably linked and accordingly a balanced,
humane and holistic approach is required. The decision to remove a child should only be
made in extreme cases and only after other avenues have been exhausted unless
there is an immediate danger to the physical or mental wellbeing of the child. I know that this is the official stance of
the powers that be however, it is one that does not stand up to scrutiny as
emergency care orders seem to be a pretty standard response and once a child
has been taken into the care system even for a week or so, it is very easy to
leave him or her there for another few weeks while the investigation goes on. Because of this it seems to me that good
lawyers working in this area are crucial.
Breda makes the suggestion that we should
have specialist judges in this area and I agree with that just as I agree that
family law judges should be specialists or at least have extensive training and
experience in the area of family law. However,
Breda’s specialist Judges are qualified not only in law but in childcare and
welfare. I have no objection to the
requirement that Judges hearing child care cases would be both lawyers and
experts in childcare and welfare however, I have grave objection to such Judges
having no legal qualifications or experience.
Judges should first and foremost have legal training and experience, ie
they should be both theorists and practitioners. For specific jobs they should be required to
have, where necessary, additional training and experience. In passing, however, I would state that
frequently what we require from our judges is patience, listening abilities, politeness
and respect, an agile and creative mind, the ability to walk a mile in someone’s
shoes, humility and humanity. I have
found that over many years when I encounter most or all of these qualities in a
Judge I rarely need him or her to also be specialised in the area on which they
are adjudicating.
We are told that in the Dutch system it is
quite common for parents and social workers and children not to have legal
representation. The Judges we are told
work very hard to achieve consensus.
Indeed, I am sure they do but from whose perspective and how do we know
that this is a model that we want to emulate unless we hear from the parents
and families who have experienced this system? Breda says that our system is
“lawyered up” to an extreme and costly degree ….and “the more lawyers present,
the more the focus is likely to be on disputes about the facts of the case,
rather than on the best interests of the child.” This is what I mean by cheap shots because
this analysis does not bear up to much scrutiny. Social workers are frequently conflict driven
and adversarial in their approach. That
has been my honest experience. Social
Workers also need retraining if they are to change their approach in these
cases and not just a weekend here or there.
It is accepted that if all parties “lawyer up” the costs are going to
escalate but a less adversarial approach from all the professionals involved
might mean that all parties would not feel the need to “lawyer up”.What an obnoxious expression that is by the
way riding rough shod as it does over the idea that people should and do
require legal representation on occasion and having your children taken away
from you might just be one of those occasions.
Finally Breda says that providing intensive
support for troubled families is expensive but the alternative which is children
with a lifetime of problems, ill educated and probably unemployed thereafter
not to mention incapable of supporting their own families is likely to turn out
to be far more costly in the long run. In
examining the costs here, we need to reflect honestly on the cost of foster
care versus the cost of maintaining children with their families and whether
the support we give to foster care might make a significant impact on the life
of the families from whom we remove the children in the first place.Of course there are always situations where
removing a child or children is the only viable option and in that sense we
will always need foster parents and social workers who can make that call.No group is dispensable in this situation and
it is not useful to focus on trying to find a scapegoat for our mistakes.Lawyers are necessary in this area since it
concerns fundamental freedoms and human rights.
Many lawyers have extensive family law experience and are trained in conflict
resolution. We guard our judicial
independence for a good reason and we forfeit it on any platform at our
peril. Social Workers do a tough and
frequently thankless job but they can do it with more humanity and they can be
solution orientated.They need to stop
seeing lawyers as their enemy and figure out a positive professional
relationship.To do this they need
training but also the acknowledgement that they are often as adversarial as
those they point the finger at. The
working culture in which these cases are examined needs to be changed
completely.They need to be moved away
from court houses and courts, they need to be about enquiry rather than blame,
at least initially and they need to be multidisciplinary as Kieran McGrath says
but I would stress that package includes lawyers. In fact I would see this whole area as tailor
made for the collaborative approach.
