Social services removing children from parents with ASD

I wish that it happened to me when I was a child. It's better to grow up in an orphanage rather than with my mentally ill parents. Probably they were trying their best, but they were simply not able to take care of themselves, let alone of a disabled children.

I totally agree with this - when it comes to child protection issues, the courts must take an approach which is far more Millitant, hardline, resolute, determined and uncompromising and in acting in the best interests of children, the courts must develop an attitude and mindset that is zero tolerance and zero patience against the deliberate mismanagement of local athoriites who are following a political agenda and are engaging in political point scoring at the expense of innocent and vulnerable children - frankly, I would prefer it if religious organisations took over this very important area and it’s another reason why I firmly believe that there must never be any separation between church and state 

On balance, I’m inclined to believe this, because given the stories I’ve heard over the years from my 30 years in supermarket retailing, many local authorities don’t even follow their own rules and guidelines and one hardly ever hears about social workers being arrested for failing to follow the guidelines laid down (which I’m inclined to believe that they should be) - many of my former supermarket work colleagues have relatives working in the social worker sector and for local authorities and have highlighted many areas of potential corruption - there is definitely a role for religious organisations to be working in this sector and the related legislation is very weak when it comes to child protection issues 

As I said earlier on I think judges should be a lot harsher with local authorities. If I were them I wouldn’t wait for the authority to ignore the Court order once to put a penal notice on it. Id put the penal notice on the first court order. The threat of imprisonment would probably help stop these little administrative ‘accidents’ from happening. Especially where court orders require councils to spend more money than they want to.

https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2009/2474.html

in this case someone was asking that  a penal notice be attached order directed against A local council. Generally speaking in order for someone to be imprisoned for contempt of court for disobeying a court order there has to be a penal notice on the order.

The judges response is basically to say that he’s not going to put a penal notice on the order because local councils almost never deliberately refused to obey court orders. But that if they do disobey the court order they will be called the court to explain themselves and if they still refuse to obey he can issue a second order with a penal notice, and if they disobey that they can be sent to prison.

see paragraph 12

”Accordingly, I do not think that a penal notice is necessary in orders made against a public body. A failure to comply with an order can be dealt with by an application to the court for a finding of contempt and, if necessary, a further mandatory order which may contain an indication of what might happen should there be any further failure to comply. Adverse findings coupled with what would probably be an order to pay indemnity costs should suffice since it is to be expected that a public body would not deliberately flout an order of the court. Were that to happen, the contemnor could be brought before the court and, were he to threaten to persist in his refusal, an order could be made which made it clear that if he did he would be liable to imprisonment or a fine.“

A corporation is not "a class of people "  it is legally a fictitious single "person". Councillors and officers are just the human means by which an authority operates.

" If a councillor ignores a court order or instructs other council employees to they are acting unlawfully. That's how court orders work. "  OK, I will call you out on this one. Give me ONE example from Public Law where a councillor or officer is held personally accountable for the outcome of a statutory duty by an authority. Just one concrete example... Give me a citation of caselaw or a reference to actual legislation. That should be easy enough if you actually know what you are talking about.

Forum rules prevent us from identifying ourselves, but I have given a few clues as to my training and experience.  As a teacher, I tell all my students "Don't believe anything unless you can check the evidence. What are your sources? Where are the references?"

Ok here are some examples of where directors / officers of a corporation have been imprisoned for contempt of court

https://www.howatavraamsolicitors.co.uk/imprisonment-for-company-directors-disclosure-order/

https://www.kingsleynapley.co.uk/insights/blogs/dispute-resolution-law-blog/contempt-of-court-the-prospect-of-prison-even-before-proceedings-are-issued

https://www.macfarlanes.com/media/1857/fraud-and-financial-crime-holding-the-director-in-contempt.pdf

https://www.weightmans.com/insights/de-facto-directors-personally-responsible-for-company-contempt/

Dear Peter - your profile states that you " have a PhD in biometalworkometry (not really) "   Forgive me if I question how this experience is relevant to this discussion. Have you ever represented a local authority in court, either as an advocate or as an officer? Have you ever applied to the Family Court for an Order, or responded to an appeal against an order? Have you ever been a senior officer of a public body? Have you ever served on a local government committee? In other words, where is your credibility? 

I ask this with the greatest respect, but when you make statements as facts which are contrary to my forty-plus years' experience in public service, I would like to know on what you are basing your opinion so that I can either learn from your greater wisdom - or decide that you are talking through your hat.

Ian said:

Where Parliament leaves a question of fact to a public body, the court should not interfere except where the public body is acting perversely.

When a court issues an order it has already determined it is appropriate for the court to interfere. If an councillor ignores a court order or instructs other council employees to they are acting unlawfully. That's how court orders work. They very explicitly spell out things you must (or must not do) there is no rule that says the order can only apply to a named person. Consider supper injunctions these injunctions that ban people from spreading defamatory statements. The judge literally names everyone on the injunction. Any individual aware of the injunction can be held in contempt of court in they spread the defamation. Court orders aren't only made out against corporations as a legal or economic theory, they're made out against corporations as a class of people. The judge could as easily have named "everyone living in postcode X" or "everyone over 6 foot" in his order (subject to the statutory basis on which the order is made).

The "person" to whom most orders are addressed are not natural persons, but the authority itself, which is a legal fiction. "The mayor and burgesses of the borough of Snodbury " named in the order refers to the corporation. The Worshipful the Mayor of Snodbury, Councillor Fred Buggins is not personally responsible, nor are any councillors or aldermen (burgesses) individually.

Councillors and officers are only liable personally if they act unlawfully, or in bad faith. 

A council must act reasonably, as defined in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223

Where Parliament leaves a question of fact to a public body, the court should not interfere except where the public body is acting perversely. [R v Hillingdon LBC, ex parte Puhlhofer [1986] AC 484]

So something that a company does a company is liable for not generally a employee of the company. However contempt of court is a specific crime of disrespecting the court, in this context disrespecting a court order. When the court makes an order anyone who interferes with that order whether they’re an employee or not can be in contempt of court. It’s completely separate from the lawsuit or the family case or the criminal case that spawned the order.

in some ways the court treats a person not going along with the court order in the same way but it treats someone standing up in the court dropping their trousers and mooning the judge.

as a general rule court orders require people to do things (or not do things) not corporations. A corporation can’t perform physical acts independently of the people who make up the corporation.

generally speaking if a court give someone a court order they can physically go show it to someone at the corporation the order is against and if that person says go away instead of something more responsible like directing them to the person who would be appropriate to deal with that order that person is probably in contempt. And the further up the chain they go to check what they should do about this court order the higher up the contempt reaches. Because if you become aware of a court order that applies to you or your organisation and you by acting or not acting, or by instructing others to act or not act take steps to stop that order being carried out you are in contempt. In practice only in the most wilful and malicious cases will judges send someone to prison for contempt. But they can and they do send people to prison for up to 2 years. Ostensibly for the crime of disrespecting the court (in the form of disrespecting the order of the court)

so yes absolutely if your company is sued the individuals in the company are usually not liable. but if someone waves a court order under your nose Expecting you to do some saying ‘my boss told me not to go along with it’ won’t necessarily save you in fact what it will definitely do is put your boss in very hot water because it makes him look like he wilfully and knowingly decided to frustrate the order of the court.

contempt of court is really old common-law. it comes from the earliest courts of the Norman occupation. The government has made a few laws to try and limit inappropriate use of contempt of court, The European Court of human rights has laid down some limits on the use of contempt of court particularly against lawyers arguing with judges.

but ultimately contempt of court is there to give the court the power to make people tow line with what the court demands they do or not do. Initially to deal with things like people not turning up to court or leave in court without permission or disrupting the court. Later when court orders became more common for disrespecting the courts written order and not going along with it.

it makes sense when you think about it there are some people so poor or so obstinate that  no amount of fines could ever deter them and anyone can make a limited company, anyone who wanted to frustrate the will   of the court could just make a company and say whatever action they took was on behalf of their company.

I’m not a lawyer  a lawyer Could  give you much more nuanced Philosophy about what contempt of court is. But directors and officers of corporations can absolutely be held liable for not going along with a court order that applies to their corporation.

Peter - Are you a lawyer? This is a fascinating discussion. I must confess to not being a lawyer myself, but I was Chief Officer of a NHS statutory authority and a Member of the Institute of Local Government Administrators, but that was a long time ago.

As I understand it, a local authority, has a separate legal identity from its officers. Councillors and Officers of the Council enjoy statutory immunity from civil liability where they act within the powers of the council, in good faith and without negligence. However they can incur personal, civil and criminal liability whilst acting on behalf of the Council if they go beyond the powers of the Council or act in bad faith or negligently.

Councillor Buggins or Town Clerk Mr Jones cannot be held personally liable for the acts of their authority. A Court order may require a local authority to do XYZ, but the council is a legal person separate from its councillors and officers. 

Local Authorities (Indemnities form Members and Officers) Order 2004 ; Public Health Act 1875 s.265; Local Government Act 1972 s 111(1)

My reading of part 37 of the Family Procedure Rules in association with parts 17 and 18 is that these apply mainly to procedural matters and acts by individuals such as providing false statements not knowing or believing them to be true, withholding documents, etc.

In Civil Procure Rule 81 the alleged contemnor is the "person" who failed to carry out the order. My experience is that orders are directed to a local authority, so the authority as a body corporate (a fictional "person" in law) might be in contempt of court, but not individual officers or members. You can fine Blankshire County Council, but you cannot send it to prison.

Usually the remedy against a public authority is judicial review. "A reasoning or decision is Wednesbury unreasonable (or irrational) if it is so unreasonable that no reasonable person acting reasonably could have made it (Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223). The test is a different (and stricter) test than merely showing that the decision was unreasonable." [https://uk.practicallaw.thomsonreuters.com/6-200-9152?transitionType=Default&contextData=(sc.Default)]

Yes Health and Wellbeing Board are statutorily required to exist and there is a statutory duty to allow them to publish certain reports but to the best of my knowledge nothing they recommend is binding on the local authority.

Please show me where the duty to fund local transport exists in statute. Because it's clear to me section 63 of the Transport Act 1985 doesn't compel local authorities to spend money. The key phrase here is "to secure the provision of such public passenger transport services as the council consider it appropriate to secure." A duty to do what you consider to be appropriate is no duty at all. Any local authority can say "given our budget constraints and other statutory costs we considered it appropriate to spend no money on public transport."

Ian said:

The councillors cannot be sent to prison if they act in accordance with standing orders

Yes they can. Not for a statutory crime but for contempt of court they can. If a court order requires a corporate body do something and a member of the corporation actively frustrates the court order, for instance by not doing it when the duty to execute the order naturally falls to them, or by instructing others not to comply with the court order, may be guilty of contempt of court. Individuals who commit contempt of court outside of court can be subject to committal hearings which may result in them being sent to the cells in the same way that they might have been if they refused the courts instructions while physicaly present in court.

Part 81 of the civil procedure rules states "“penal notice” means a prominent notice on the front of an order warning that if the person against whom the order is made (and, in the case of a corporate body, a director or officer of that body) disobeys the court's order, the person (or director or officer) may be held in contempt of court and punished by a fine, imprisonment, confiscation of assets or other punishment under the law."

(same thing in part 37 of the Family Procedure Rules)

Yes corporate manslaughter can only result in a fine but for non compliance with court orders officials of the corporation can be imprisoned even if following their own rules.

I won't be coming for them personally. I am a university practice tutor and practice educator. I hope I can make a difference by educating the next generation of social workers. I do some expert witness work, and specialise in education and some immigration cases. I am usually instructed by the appellant/complainant's solicitors. I would like to see solicitors and children's guardians becoming more autism aware because they are part of what should be the "checks and balances" in the system. We also need to train judges because in the Family Court the judge "manages" the case in terms of who has to do what. I am not just saying this to get myself more work, but if the parent's solicitor can persuade the court to authorise an independent social worker with neurodiversity experience to review the social worker's assessment, it can help. 

So when they have the wrong end of the stick, then there is no immediate or even short path to recourse for the wronged parent nor redress made?

The already agitated parent(s) now have to become masters of the law at the drop of a hat?

You write so eloquently and reasonably Ian, and I commend your initial request for facts, which of course by the nature of the medium are in short supply, but what you have yet to do I suspect, is convince an audience of perhaps the most comprehensively victimised & misunderstood people on the planet, that you won't be coming for our kids...

Hi Peter. I like your enthusiasm, but I think your legal knowledge might be a bit off.

Local government and NHS -  " The 2012 Health and Social Care Act (HSCA12) initiated a major reform of the health and social care systems in England. The structural reforms have had a profound impact on the
way public health is organised, commissioned and delivered. In particular, the key duties
and responsibilities for improving health and coordinating local efforts to protect the
public’s health and wellbeing have been transferred from the National Health Service (NHS)
to Local Authorities. In addition, a new executive agency – Public Health England (PHE) –
was created to deliver services at a national level, take a lead for public health, and support
the development of the workforce (DoH, 2011a).
Among the new responsibilities of local authorities is a statutory duty to establish a Health
and Wellbeing Board (HWB). This is a formal sub-committee of the local authority
comprising a range of stakeholders, including NHS and local authority representatives.
HWBs have a duty to encourage integrated working between the NHS, social care and public
health. " [https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/216708/dh_131904.pdf]

Transport - it is not a power it is a duty - do you know the difference?

A local authority is a corporation.  A court order is addressed to the corporation, e.g. " the mayor and burgesses of the borough of Blanktown." The council can defend and initiate proceedings [Lcal Government Act 1972 s222]  The councillors cannot be sent to prison if they act in accordance with standing orders, bye-laws etc. because the "council" is a body corporate, unlike an incorporated organisation where the trustees or directors can be personally liable. A corporation can really only be fined, even for corporate manslaughter.

Also it’s worth remembering that the local councils do have one option to raise more money. They can raise council tax above the government recommendations. If they can get their local populace to vote for it in a referendum. A council with real guts might go to it populace and say we need to tax you more otherwise we have to close this and this and this. ‘We have to cut services you rely on to meet our obligations with regards to the services we are obliged to provide like education and social services.’

The local council isn’t obliged to assist the NHS. And if there’s a covenant on a park it can still be sold it just means that the new buyer is severely limited in what they can do with it. Also as I read that statute the power to subsidise bus routes and other public transport is a discretionary one. The statute empowers the council to make such payments it doesn’t require them to do so.

again if a court is telling you you either spend this money or you get locked up I would imagine political suicide is preferable. and if it’s political suicide to allow local government to do such things then that might finally kick central government into taking responsibility.

i’m sorry but unless a party other than the Conservative or Labour Party get into power The only way I see the local government system getting the reform it needs is if it collapses catastrophically or is otherwise forced into extreme situations like the ones I’ve described.

either that or if the government of the day is forced into meaningful English devolution by an overwhelming wave of public sentiment to that affect. 

Arguably selling off leisure centres and swimming baths would thwart the NHS effort to get people to take more exercise to cut down obesity and diabetes. Likewise parks have a value in cleaning the air, providing exercise and as a way of meeting mental health needs.  Nothing is ever simple! 

Our local park was given to the local auhority by the local lord of the manor in the early 20th century with a covenant that it should be used in perpetuity for local people - presumably if the council closed the park the land would revert to the manorial estate. The local council tried to make dog walkers keep their dogs on a lead in one park, but the original deed of gift specified that exercising of dogs was permitted, and the lord of the manor was requested by local people to enforce the covenant. Dogs are free to roam unleashed! 

Other parks are common land, are established by Acts of Parliament, or otherwise subject to a whole range of trusts,covenants, rights of way and other constraints. In London, a few parks are built on plague pits. One local park is both an Ancient Monument and a Site of Special Scientific Interest. Then there are the Tree Preservation Orders ...  Selling off parks would be a legal minefield as well as political suicide.

Public transport -  see Transport Act 1985 s.63(1) " in each non-metropolitan county of England and Wales it shall be the duty of the county council—  (a)to secure the provision of such public passenger transport services as the council consider it appropriate to secure to meet any public transport requirements within the county which would not in their view be met apart from any action taken by them for that purpose; ..."

Also, I imagine many readers of this list woud be very unhappy if the concessionary bus passes for disabled and elderly people were to be withdrawn. These are funded by local authorities.

I am sure every local council wastes some money, but even with 100% efficiency they could still not make ends meet from the existing council tax base and central government grant.  In 2019/20, local authorities in England received 23% of their funding from government grants, 50% from council tax, and 27% from retained business rates – revenue from business rates that they do not send to the Treasury. For a full account please see www.instituteforgovernment.org.uk/.../local-government-funding-england