Justice For Families

I just wanted to post the link to this act.

Note the principals..... in section 1. Then ask yourself why official solicitors are appointed in 300 odd cases in the last 18 months in adoption cases.

The black line below is the link, just copy and paste to view.

http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&title=Mental+Capacity+Act+2005&sea
rchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=1414433&ActiveTextDocId=1414433&filesize=234617

1 The principles
(1)The following principles apply for the purposes of this Act.
(2)A person must be assumed to have capacity unless it is established that he lacks capacity.
(3)A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4)A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
(5)An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
(6)Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.

Betcha this don't apply in family courts

It doesn't seem to be......

and this is just the start of the act.

I wonder if there is an act for one set of people and a secret set of laws for courts and social workers to follow.

Also, you might be interested to know that a parent (victim) is tried in court based on the balance of probability and not fact.

Section 2. (4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

The trouble is though you can present this to as many people as you want and it's all down to the judge to make the decision. Your presentation can be fantastic and very reasonable but the judge will do as he/she pleases anyway.

In this sense, I find the law, previous judgements and human rights laws completely useless in a family law court.

The law is clear here....

27 Family relationships
(1) Nothing in this Act permits a decision on any of the following matters to be made on behalf of a person—

(e)
consenting to a child's being placed for adoption by an adoption agency,
(f)
consenting to the making of an adoption order,
(g)
discharging parental responsibilities in matters not relating to a child's property,

(2)
“Adoption order” means—
(a)
an adoption order within the meaning of the Adoption and Children Act 2002 (c. 38)(including a future adoption order), and
(b)
an order under section 84 of that Act (parental responsibility prior to adoption abroad).


So it looks like an official solicitor or "best/second friend" can't agree to a child going into care or agree to an adoption order on behalf of a parent who doesn't have the capacity to agree...... If I understand this law correctly.

NRparent wrote:The law is clear here....

27 Family relationships
(1) Nothing in this Act permits a decision on any of the following matters to be made on behalf of a person—

(e)
consenting to a child's being placed for adoption by an adoption agency,
(f)
consenting to the making of an adoption order,
(g)
discharging parental responsibilities in matters not relating to a child's property,

(2)
“Adoption order” means—
(a)
an adoption order within the meaning of the Adoption and Children Act 2002 (c. 38)(including a future adoption order), and
(b)
an order under section 84 of that Act (parental responsibility prior to adoption abroad).


So it looks like an official solicitor or "best/second friend" can't agree to a child going into care or agree to an adoption order on behalf of a parent who doesn't have the capacity to agree...... If I understand this law correctly.

That is what i pointed of to John, however like i told him the OS can skate around this issue by simply saying we did not agree to the adoption, but meerly offered no evidence to back up the person i was supposed to represent.

(4)A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

This was clearly breached & Rachel has proof of this, the expert gave the go a head for an OS because she disagreed with Rachel & that is in writing.

http://83.137.212.42/sitearchive/DRC/the_law/legal_commentary/does_my_client_have_capacity_t.html

Guidance the DRC gives to legal advisor's......

A certificate of suitability of litigation friend needs to be completed with supporting medical and other relevant documentation demonstrating that the claimant satisfies the definition of a ‘patient’. A preliminary hearing may be required to determine the capacity issue and the suitability of a nominated litigation friend.

Suitable litigation friends would include the following:

* A person appointed under a validly donated Enduring Power of Attorney (EPA) whilst the donor retains capacity, which has subsequently been registered with the Public Guardianship Office after the Court of Protection has heard evidence regarding the donor’s alleged incapacity and has expressed satisfaction that this exists.
* Persons appointed on behalf of others who, by reason of mental impairment, lack capacity lawfully to donate an EPA, therefore entailing the appointment of a receiver by the Court of Protection to act on their behalf in the management of their personal affairs.
* In the last resort, the Official Solicitor.

Any terms of settlement agreed on behalf of a ‘patient’ will require court approval.


Note - a LAST resort is an official solicitor..... so why are there 304 "last resorts"? in 18 months, sounds like someone wants to meet adoption targets and there is short cutting of procedures involved......

http://www.journalonline.co.uk/article/1002902.aspx

Note here that Scotland are concerned about how a person is assessed for mental capacity to instruct a solicitor. The test done is a general capacity test and not specific to the person or the legal proceedings.

www.piba.org.uk/assets/docs12/IncapacityafterBaileyv_1_.Warren.PIBAConference.6306.doc

In this link, they compair an adult looking after their own property and knowing when to ask for advice to being able to offer instruction to a solicitor in court.

So thinking logically. It an adult can catch a bus, gets lost, then has the intellect to ask for directions to get to where they want to go, without writing down directions and then get there. Does that make them able to instruct a solicitor? I think "yes" Obviously the person needs more help and assistance to understand the procedures.

How can a mother be forced to accept adoption of her child when she feels the hurt and upset that other parents feel in the same position? but apparently not understand what's going on in court nor have the ability to instruct a solicitor to "fight" to keep her child with her.

If the person I describe in the Bus example, can live independently and is the same person being forced to accept an official solicitor. Why can they make day to day decisions unaided, not be deemed a risk to themselves by the authority, but when in court contesting an adoption and care order....all of a sudden, they can't understand court procedures.

I think it's more likely that the court wants to say that a parent doesn't understand the procedure so the court doesn't have to allow the time to the parent to make informed decisions. For a court and LA, this is easy pickings to get children into care and into adoptive parents lives.

The LA seem to want to shy away from offering help and support to disadvantaged families....even where extended family are offering to help.

The person making decisions for disadvantaged parents are social workers who, if faced with a challenge (like dogs in an extended family's house), choose to dismiss the extended family as support because the social workers needs are "not met". So the service user is disadvantaged because the s/w doesn't get on well with dogs and therefore the baby can't remain in the care of a mentally disadvantaged mother or her extended family. According to a social worker - adoption is the only option. Nottingham courts rubber stamp court orders for this this type of mentality.


Another thought provoking question...... How can a mother of a baby deemed not mentally capable of instructing a solicitor, find out that a C1 form is needed to contest an adoption/care order, ask a solicitor for the form (be refused and given the wrong form), then find someone to help her get the right form, ask family to help her fill the form in and submit the form to court..... mostly by herself. ..... all this and still be considered mentally incapable of instructing a solicitor?

but a psyc can offer a general capacity/intelligence test to the mother and say that the mother can't instruct a solicitor..... The psyc offers an opinion and suggestion. Apparently that's clear medical evidence????

Great post^

In the last resort, the Official Solicitor.

That's how it should be, but take for example Rachel the hounds basically hired an OS & didn't even inform anyone else, even though they knew there were extended family, nobody was asked us to take up her affairs or anything.

I know for a fact they just wanted to knock the opposition out by getting an OS involved & that's why they never contacted any family to take on her affairs because then there plan would not quite work as they knew everyone else thought the same way as Rachel & would of told the solicitor to carry on how they were going.

http://www.dca.gov.uk/legal-policy/ment ... mca-cp.pdf

all 300 odd pages of info about mental capacity and the code of practice.

In Rachel's case there is documentation that demonstrates that she understands the issues concerned regardless of whether or not the expert thinks she doesn't.

It is not a matter for "experts reports".

johnhemming wrote:In Rachel's case there is documentation that demonstrates that she understands the issues concerned regardless of whether or not the expert thinks she doesn't.

It is not a matter for "experts reports".

That puts the nail in the coffin, & regardless of her parenting skills or any other excuses the LA come up with, the simple fact of the matter is her human rights were walked all over by stopping her from objecting to the adoption, which is dead wrong.