lørdag den 25. oktober 2014

For review in cases concerning the placement of children. By Hanne Ziebe, lawyer #fostercare #denmark #gifted #odense


Dansk: http://2e-giftedogdiagnose.blogspot.dk/2014/10/om-prvelse-i-sager-om-anbringelse-af.html
For review
in cases concerning the placement of children.

By Hanne Ziebe, lawyer

Practice on the placement:

A judge in a municipality in southern Jutland said recently during a meeting in the municipal child and youth committee: "It is very unsatisfactory that the lawyer and we have not received the file. But now, we strongly recommend that the municipality remember to send the file to the next meeting when the matter to be reviewed in two years. "With these words, the little boy preventive detention for two years.

Other examples from my practice from September 2014:

Holstebro Municipality chose to place some children, first in relation to the mother, and a month later the father could come in and have tried his case. Here it was decided that the children should also be placed in relationship with him.
Father's case was thus virtually determined one month before he came to the meeting and did not have a feeling that he could have tried his case, that was the decision on the placement of children in the mother's case. In this case, in this way come to affix the parents instead of the kids, and the case now has two genbehandlingsfrister in relation to the children.

In Odense Municipality was not considered a problem that a councilor who had to approve a decision to place a child, had a even a very clear position on the mother. (red. Mother of a Gifted Child, misplaced by foster care!)
After the mother was questioned at the meeting, and the lawyers had made their concluding remarks, traveled council member stood up and said addressed to my client, "I'm good enough tired of you." He referred on to a long series of telephone and e-mail correspondence, which he for some time before the meeting had had with her ​​mother. After a few minute monologue he was stopped by the referee. The mother was then a waiting room, so the committee could decide. The referee announced shortly after the committee had unanimously decided to forcibly remove the child. The mother did not have an experience of having had a fair review of the placement of her son. Firstly, because one of its voting members had openly declared that he did not like my client. Secondly, because he took the last word in the matter and procederede against my client and they had a platform to influence the other members. The judge denied that that was disqualified during the proceedings.

The last case I want to mention is a case from a central Jutland municipality. Here are a young couple struggling to get in touch with the municipality to municipality to hand over their children back. The municipality was granted to place the children in a year, and the year has passed. There has not taken any decisions or agreements that may legalize the placement of the children. Parents have been told that the social worker has been on vacation and that the municipality will look at the matter again in November.

This is only the amount from my calendar in September. However, I believe that the above gives a pretty good picture of how things generally look out on the placement of Denmark

Abolition of the right of appeal

In June 2014 the Danish Parliament adopted the Law no. 737 amending bl. a. Procedure Code and Social Services. The background was a "modernization and streamlining of proceedings before the courts". This would, among other things implemented by limiting the right of appeal. Requirements below 20,000 kr., And cases there appears to be won, had to be cut from right to appeal. Parliament found that cases of forced removal of citizens' children should be included among these trivial cases where the right to appeal the revocation, appeal the future can only be made in exceptional circumstances and with the process of appropriation Board's permission.

The above should be read in conjunction with the Danish courts compared to courts in other European countries are among the most scraped. Court Administration has "Status of Court reform" of April 2009 presented statistics showing that Danish courts already then soon be able to make most decisions for the least money with the fewest judges compared to the other Nordic countries. Parliament could instead have chosen to hire more judges in the High Courts, if only it were case processing times to be reduced.

When Karen Hækkerup made ​​the proposal for the above law, this was also motivated by the fact that it was very few decisions that were changed in the High Court.
The Minister pointed out that only 2% of forced removal cases that were overturned by the High Courts. For the same legislative work shows in greater detail, it is between 4.3 and 2.1 percent of the cases, which overturned the High Court. In 2013, 10 of the cases were appealed to the High Court, as amended by the High Court, an appeal opportunity in the future are cut off.

Case law

The low reversal rates does not necessarily indicate that the cases should not be appealed. The reason may well be that the cases - in my opinion - has thus far been a very cursory and superficial treatment both at the administrative and judicial authorities:

In a judgment of the High Court (dept. 6. B-1718-09) requested an attorney about to be devoted four hours to the case, which concerned the forced removal of a child. He would, among other interrogate a child placed. Moreover, he wanted either a questioning of the examiner or by a written statement from this.
This protested Kammeradvokaten against.

The High Court pointed out here that the "usual time spent in involuntary commitment proceedings is hours, why setting the date of 2½ hours must be regarded as fully adequate."

It was determined that the child would not testify. The court reasoned that the fact that "the courts make a judicial review of the Board's decision." The High Court also prevented the lawyer's other requests for evidence. The High Court stated that: "There is no information that provides the right basis to call witnesses or obtain a declaration from the person concerned."

That decision became a precedent in Danish law. Therefore, in practice, never put witnesses in child removal cases and cases run mostly through the courts in about 1 hour. This is related to the courts alone make a "judicial review" and thus does not address whether the forcible removal is at all reasonable.

A judicial review is a review of its legal basis, authority, competence, etc.. There is not before the court ruled on whether it is appropriate or best for the child, the child must be placed without. A lawyer to litigate in a placement case, thus does not say that it is better that the child comes home because .... Here, instead just procederes that the municipality is not the placement. Judicial review is of the reasons given most often irrelevant because there actually is no review by the courts of whether the forcible removal is appropriate or not.

The considerations above may seem very theoretical. However, it has great importance whether, in cases of child placement can only be determined whether the judge is a judge, and the law is "legal" or whether instead determined whether the caseworker has made a reasonable and good decision. It is this fact that leads to the judge in the High Court decision cited above do not find it necessary to be carried out interrogations of the child or by the examiner - the judge must examine only the Appeals Board has taken a legal decision.

Credentials Access in placement cases

High Court decision referred to above has - unfortunately - influenced the treatment of child removal cases in all the courts in cases of child placement:

When municipalities will place a child, the municipality issuing the order. If citizens do not agree with this decision, the matter shall be submitted to the Children and Youth Committee. Here are some members of the City Council, which is the case presented, which must approve the decision.

The child removal cases, the citizen as in other cases by public authorities allowed to take a lawyer to meetings by the municipality and Appeals Board. Appeals Board has in recent years refused to agree the time for meetings with national or his lawyer. The meetings conducted without regard to whether the citizen or his lawyer have the opportunity to be present. Is the citizen - or lawyer - indisposed for example due to illness or appointing of other meetings, conducted the meeting anyway. This unusual practice is not followed by other authorities such as the Tax Administration or the courts, where the meetings are arranged with the citizen lawyer. The practice undermines the principle of free choice of lawyer, which applies to most places in the world, citizens in child removal cases are forced to choose a lawyer who has sufficient space in his diary that the lawyer with a very short notice can intervene in the case. The practice not to schedule the lawyers are to a large extent also also followed in child and youth committees. As municipalities increasingly requires citizens to pay for the lawyer's travel and as most parents forced removed the children have the opportunity to pay the lawyer's travel narrows the lawyer elections further.

During the preparation of the municipality or Appeals Board forwarded the file usually so late to the citizen lawyer, the lawyer in practice given the opportunity to request further inquiries or additional information, for example from the municipality. The lawyer has no right to call witnesses to the meeting and the parents lawyer has not the opportunity to ask the child questions. The file will flow case, the acts municipality chooses to present to the committee. There is no question of the whole file. It is repeatedly seen that municipalities have developed psychological reports based on documents from the administration single-handedly send to a psychologist. This psychologist has no contact with the parents, and the parents are not informed before the report is presented before the meeting. Psychological Reports is an important determinant of whether a child should be placed, or return to their homes.

Appeals Board against the decision on placement of children, the interruption of contact between parents and children or the decision to attempt a return home (continued placements) noted frequently serious errors in local authority decisions. In September 2014, the Appeals Board published a report showing that the law was not observed in 39% of a series of cases treated by municipalities that Appeals Board had examined some municipalities have had error rates higher than 80. Appeals Board only usually to criticize but one such result in criticism but not the invalidity of the decision. Maintaining placement continued despite the often very serious mistake.

If citizens want to proceed with the case, it must be brought before the district court. It is my impression that there are important differences in the extent to which carried out a complete review or only one judicial review by the district courts. In any event, the District Court's decision in the future could usually not be appealed.

The major responsibility
On the one hand it is important to protect children from abuse by parents who can not take care of their children. On the other hand, it is equally important not to place children outside there is good reason for this. SFI has in several studies shown that placement is not the solution to a problem, only the start of it. Children in care have as adults, poorer education, more mental health problems and less contact with their families than those who have not been placed outside the home during their childhood. It takes on the whole a really good mentality to withstand being placed.

Legal guarantees is a security that we take the right decision. It can be expensive to have tried a case in several instances. It may be difficult to hear those who have a different opinion. There can be time consuming to have a case stated that all aspects appears. But such a big decision, as it is to take a child away from their families and placing it at the municipal level, will, if we make the wrong decision could cost much more.

Therefore, I believe that it is extremely critical that while accepting a very high error rate in placement cases choose to restrict the right credentials in the placement area.

Twice Exceptional Denmark

Twice Exceptional Denmark er lavet for dobbelt exceptionelle børn dvs. børn med særlige forudsætninger som samtidig har indlæringsvanskeligheder. Disse børn kan have opmærksomheds-, koncentrations- og kontakt- vanskeligheder som oftest er pga. Ordblindhed/ Dyslexi, ADHD, AS, PDD NOS, OCD, Tourette osv.

Det ofte set at Børn med særlige forudsætninger er af natur Asynkron Udviklet dvs. det halter med at deres emotionelle og sociale udvikling følger med det som ses ved jævnaldrende, samtidig med at de lærer lynhurtigt det emner de er motiveret for og ender således ofte foran jævnaldrende i disse oråder, uden sparringspartner. Børnene ender ofte meget ”misforstået” og en tværfagligindsats er nødvendig hvis sådan en situation skal kunne vendes.

Tværfaglighed bør bestå af en BMSF konsulent/psykolog og derudover specialister jvf. barnets specifikke diagnoser og andre problemer hver gang handleplaner udarbejdes, barnets evalueres osv. Men der er langt vej endnu, da BMSF ikke anerkendes i Kommunerne, og dermed overses det at barnet har behov for en ”særlig” forståelse og indsigt for at børnene kan få den rette hjælp jvf. Socialloven og Inklusion.

Men desværre ses disse børn i AKT forløb, heldagsskoler og kan ende i Udsatte grupper:

De unge, som kommer til opholdsstederne, har været vanskelige at placere i de kommunale tilbud, hvor hverken de unge, som kommer til opholdstederne eller de elever, der går i de kommunale tilbud, vil profitere af at være sammen.