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Monthly Archives: May 2012

Finally – resolution on prior authority!!!! (sort of, but not really)

Our beloved President (and honestly, no sarcasm here, I am delighted!) has finally tackled the Prior Authority issue.

http://www.bailii.org/ew/cases/EWHC/Fam/2012/1442.html

In DS & Ors (Children) 2012.     (Am a little sad that I didn’t get to be the one who got to run the case, having expended quite some time on the issue, but delighted that it is finally gripped)

Interestingly, the President takes a different view to me on whether the LSC have law on their side here.

Para 38 For present purposes, the law can be taken quite shortly. To the mind of the lawyer it remains curious that an administrative body can effectively render nugatory a judicial decision taken in what the court perceives as the best interests of a child. Where the party or parties who seek to instruct an expert are publicly funded, however, there is no doubt that the LSC has the power, given to it by Parliament, to refuse to fund the instruction or to fund the instruction in part only. Moreover, the LSC undoubtedly has the power, deriving from the same source, to cap the level of fees which may be expended by the expert at a given level. That is undoubted the law. Lawyers may complain that this is an unfair state of affairs, or that they cannot find experts who will work at the rates laid down. Their remedy, if they take the view that the decision of the LSC is Wednesbury unreasonable or can be struck down for any other public law reason, is to apply for judicial review.

If I recall correctly, both Calderdale and Lambeth (the cases I think mean that the Court takes precedence over the LSC internal policies) are both High Court, so the President is not bound by them, and distinguishes them in any event by saying that the Statutory Instrument which sets out how the LSC have capped expert fees is binding.  (In my humble opinion, it would be binding, had the draftsmen remembered to put something into the SI that said that it was binding on the Courts, but such is life).  A closer inspection of this authority shows that Justice Wall specifically refers to Calderdale on the issue of splitting costs, so I am certain that the argument that the Court pushes the LSC around, not vice versa, is, I’m afraid over. And we lost.

The law, as it stands then, is that the LSC DO have the power to bind the Court, and Mr Justice Wall suggests that the remedy is a judicial review if the LSC are acting in a Wednesbury unreasonable way. Presumably, the LA as a body with locus standi, could launch that JR if the LSC decision was delaying a case, because heaven knows the last thing a publicly-funded solicitor who depends on the LSC to process claims and write cheques wants to do is hack off the paymaster.

Here is some very helpful concrete guidance – as much of it places onerous tasks on the Judge/Magistrates if granting approval for an expert, expect to have a harder task over the next few weeks in getting an expert past the Court.

Guidance

    1. In all the circumstances of this case, therefore, I feel able to offer the following general guidance:-

 

i) The words “the cost thereof is deemed to be a necessary and proper disbursement on [a named individual's] public funding certificate” (or words to equivalent effect) should no longer be used when the court orders a report from an expert. The words do not bind the LSC or, for that matter anybody else. In addition, there must be doubt about the court’s power to make such an order. It is, in my judgment, far better to follow the words of the Regulations, particularly if the court is being asked to approve rates in excess of those allowed by the Funding Order. A copy of such an order is attached at the end of this judgment.

ii) The test for expert evidence will shortly import the word “necessary”. The question which the court will have to ask itself is whether or not the report of the expert is necessary for the resolution of the case. FPR rule 25.1 will shortly be amended to insert the word “necessary” for “reasonably required” and there will be a new Practice Direction.

iii) It is the court which makes the order for the instruction of an expert, and this responsibility neither can nor should be delegated to the parties. It is of the essence of good case management that the court should identify the issues on which it wants the expert to report. It would thus be helpful and important for the tribunal to be able to say – if it is the case and the hard pressed Tribunal with a long list has had the time – that it has read all the (relevant) papers.

iv) If the court takes the view that an expert’s report is necessary for the resolution of the case, it should say so, and give its reasons. This can be done by a preamble to the order, or by a short judgment, delivered at dictation speed or inserted by the parties with the judge’s approval. I have considered this point carefully, and have come to the conclusion that this does not impose an undue burden either on the court or the profession.

v) There is no substitute for reasons. A consent order is still an order of the court: it is a judicial decision and must be supported by reasons. Equally, a decision by the LSC is a decision. It too should be supported by reasons.

vi) “Reasons” in circumstances such as these need not be lengthy or elaborate. They must, however, explain to anyone reading them why the decision maker has reached the conclusion he or she has particularly if the expert is seeking to be paid at rates which are higher than those set out in the table in Schedule 6 of the Funding Order

vii) Speed is of the essence in proceedings relating to children. An application for prior authority must be made at the earliest opportunity and, once again, must be carefully drafted and supported by reasons.

viii) By like token, it behoves the LSC to deal with such applications promptly and, particularly if the application is being refused, or only granted to a limited extent, to give its reasons for its decision. Once again, the reasons can be concise. Of course the solicitor seeking prior authority can go ahead regardless, and instruct the expert at the rates the expert demands, but such a suggestion, in reality, is unreal. The expert’s contract is with the solicitor, and if he or she does not recover the expert’s costs from the LSC, it is the solicitor who is liable. Given the exiguous rates of remuneration, this is a risk no solicitor is willing to take, particularly where the client is impecunious.

ix) Similar considerations to those set out above apply to any challenge to the LSC’s ruling.

x) If a case is urgent, it should be so marked and the reasons for its urgency explained.

xi) Courts should familiarise themselves with Part 25 of the FPR and with Practice Direction 25A which supplements it. Specifically, they should be aware of paragraph 4.3(h) or its equivalent when amended which provides that the person wishing to instruct an expert must explain to the court why the expert evidence proposed cannot be given by Social Services undertaking a core assessment or by the Children’s Guardian in accordance with their respective statutory duties. The Rule and the Practice Direction are being revised to make them (it is to be hoped) more practical and “user friendly”. Practitioners should look out, in due course, for the amendments.

And then a suggested form of wording for orders (you will note that this is a LOT longer at present, and the President stresses that all of this should be prefaced by a short judgment as to why the expert is required, and at the minimum a clear preamble that sets out why the judicial decision has been made)

Coda

    1. A suggested form of order, depending on the facts of the individual case, could be in the following terms: –

 

a) The proposed assessment and report by X (as set out in paragraph 2 of this order) are vital to the resolution of this case.

b) This case is exceptional on its facts.

c) The costs to be incurred in the preparation of such reports are wholly necessary, reasonable and proportionate disbursement on the funding certificates of the publicly funded parties in this case.

d) The court considers X’s hourly rate of £y and the estimated costs of the assessment report to be reasonable in the context of (his) qualifications, experience and expertise.

e) The field in which X practises, and the particular expertise which (he) brings to bear on cases involving (subject) are highly specialised. There is no realistic prospect of finding an alternative expert with the necessary expertise at lower fee.

f) (The court considers that any further delay in order to give the LSC the (further) opportunity to consider an application for prior authority to incur the costs of the proposed amendment or report would be wholly outside the child(ren’s) timescale(s).

  1. Even such an order (which will need, of course, to be adapted to the facts of the individual case) should be buttressed by reasons as set out in the guidance which I have attempted to give.

There’s a very interesting addendum to the judgment, where the LSC submitted some data to the Court. Here are the figures on applications for prior authorities :-

Nov 2011  – 216

Dec 2011 – 492

Jan 2012 – 784

Feb 2012 – 1140

Mar 2012 – 1840

Apr 2012 1855

I wonder why the numbers spiked so – might it be because the LSC started rejecting claims left right and centre, leaving solicitors holding the baby and being out of pocket and thus deciding never to get burned like that again?

Laughably, they also claim to be processing prior authority applications in between 3 and 8 days.  (Perhaps, if their definition of a Day is the time it takes Jupiter to orbit the sun)

So, where are we?  I suspect, still waiting for the judicial review.  The white flag has been waved by the Courts as to whether they or the LSC are in charge of assessments, so what Justice Wall has done here is set out a clear framework in advance for prior authority applications to be accompanied  by chapter and verse on why the Court has decided that the assessment is necessary and the costs appropriate. That paves the way, should the LSC act capriciously (as if they ever would, quell my scepticism) for a judicial review.

If you’re an Independent Social Worker, this case is really, really bad news, I’m afraid. The Courts are not going to do battle with the LSC in any care case as to the ludicrous £30 per hour cap that was pulled out of thin air. It will have to be a judicial review based on the policy being unreasonable and having been done without an Impact assessment.  (And I think the clock has chimed on the time-limit for such an application – unless the applicant (Nagalro, or BASW presumably) argues that it was unclear until this decision that the intention was to bind the courts, or that social workers doing risk assessments would not get the £63 per hour that the SI suggests)

Madame Le Guillotine and the law of unintended consequences

I was reading Pink Tape today  http://pinktape.co.uk/family-justice-review/i-suppose-i-should-blog-sommat/  and had a horrible moment of self-recognition. I try to avoid introspection wherever possible, because it allows me to maintain my massive inner belief that with a bit of airbrushing I could look like Brad Pitt, and with a bit of extra prep time, I could use honeyed words to charm the very birds out of the trees just like the silks I most admire, but reality crashed through that today, spoiling my internal sense that all must be right with the world whilst I am still a presence in it.

The thrust of Pink Tape was, there’s no point merely grumbling about the FJR and the 26 weeks that is coming at us like the meeting of minds between the prow of the Titanic and the sharp bit of that iceberg (I don’t know, in this analogy which is the iceberg and which the boat – part of me suspects that the huge power of the system for inertia and ignoring the things we don’t like mean that we may well see off the FJR just as we saw off the Protocol and the PLO and those horrid Practice Directions by just agreeing to pretend they don’t exist), but to speak up, lest we find ourselves pinning up that “First they came for the Jews” quotation on our cubicle walls. (Mine, by the way, are in a delicate shade somewhere between mushroom, and fawn)

So, here is my fourpennorth.

The 26 week period to resolve care proceedings, particularly if it is a cap, or guillotine, rather than an aspiration or target, won’t work. (It wouldn’t work if it was an aspiration or target, EITHER, but for different reasons).

I can’t see it surviving contact with the Court of Appeal, and if it does, I certainly can’t see if surviving contact with the ECHR.

Even if you put a new section in the Children Act 1989, that says “Section 1(2) shall now read “In any proceedings in which any question with respect to the upbringing of a child arises, the Court shall ensure that the case is dealt with within 26 weeks of the proceedings being issued save for exceptional cases” , every single case will just be exceptional.

And if you snip out ‘save for exceptional cases’, then what you have is s1(2) of the Act being potentially in conflict with s1(1). And as s1(1) not only comes first, but says expressly that the child’s welfare is the paramount consideration, that will trump the revised s1(2) .

The Court would HAVE to retain the power to decide that in an individual case, the welfare of the child requires that the proceedings continue a little longer.

And if they have that power, they will use it.

And if they use it on Case A, how is it right to fail to use it on Case B, which is the same factual issue? And what about Case C, which is analogous, or Case D, which is quite a bit like Case C (though nothing at all like Case A)

So, I think insisting on having the sharp-cut off Guillotine regardless of welfare is unlawful even if the law is changed (and there’s a huge difference between a general principle that delay is harmful and should be avoided, and removing the discretion to decide whether the harm of delay is outweighed by the children’s best interests and saying “one size fits all”)

And if it isn’t a sharp-cut off Guillotine, it will just be ignored. Just as the major impact of implementing the 40 week target in the Protocol and the PLO was to move the average duration of cases from BELOW 40 weeks to 25% OVER 40 weeks.

 Now, the law of unintended consequences. I’m fairly sure that the Government don’t intend the revised Family Justice system to result in more children being in care, or more children being subject to Care Orders or there being far more applications to Court to be dealt with, but that’s what the law of unintended consequences is all about. Stuff you didn’t mean to bring about when you did something new and clever, but that happens anyway.

Let’s look at a little example.

“Charlie” is the son of a single mother, father off the scene, no suitable family members. “Charlie” is a newborn baby at the time of issue, and his mother has been a heroin user for ten years. The mother gets legal advice at a Letter Before Action meeting pre-birth, and decides to use her best endeavours to quit heroin. The drug tests are ordered at the first hearing. They arrive (let’s be optimistic) by Week 5. They are clean. Obviously, that only shows that she has been abstinent of heroin for a few weeks, and we need more. So let’s have some more drug tests.

Now, we might get a psychiatric report, or we might have the benefit of the ACCEPTED RESEARCH that Justice Ryder has been mooting. 

 I suspect that  you and I have both read enough psychiatric reports to hazard a guess that either of these things will say :-

(a) Mum has a long-standing problem of heroin use

(b) She says she is committed to being abstinent

(c) She would need to be abstinent in order to care for the child

(d) In judging whether the abstinence will last, a year is a good start, and two years is where you would feel really confident.

 So, mum gets the further drug test, at week 18, that’s clean. She has been abstinent for nearly four months and has evidenced that.

 The Local Authority are about to file their evidence. Everything mum has been asked to do within the proceedings, she has done. She achieved abstinence and maintained it. But the timescales for having confidence about abstinence are still eight months away, and six months beyond the point at which our Family Justice Guillotine says “No, stop now and make a final decision”.

The LA (and the Court) have three possible decisions here, none of them palatable :-

(a) Supervision Order with the child at home, and if the progress doesn’t last, bring the case back to Court, with a brand new application (presumably a brand new 26 weeks) and paying the full Court fee [because the Government rejected that recommendation, made by Laming, Plowden and the FJR that Court fees that mean it costs around £5,000 to seek a Care Order be abolished]

(b) Decide that the mother can’t demonstrate that she can maintain abstinence within the child’s timescales (of course she can’t – because she needs a year, and she’s only allowed six months) and that therefore it has to be adoption. [I can already predict that this option is provoking howls of outrage, and I don’t terribly disagree, but it is an unintended consequence for drugs cases that if you don’t give the Court long enough to conclude that the parent CAN do it, they may have to decide that the parent CAN’T]

(c) Care Order with the child at home, with a care plan that provides for the child to remain at home with mother UNLESS she lapses, in which case the child would be removed and a Placement Order application sought.

 [You may remember, that I said none of them were palatable at the outset]

 Let’s make this a little bit more tricky.

 This time, mother has one lapse, and it comes in the second drug test. So at Week 20, the Court has evidence that she has used heroin once, and once only, during the course of the proceedings.

 Which of those three options do they go for now? What happens if mum needs some medical intervention to achieve abstinence in the first place, so she doesn’t actually become abstinent till Week 12? Which of those three options is the Court supposed to go for?

 In short, in reducing the time for drug or alcohol cases to be determined, has the Government decided to give the benefit of the doubt to the parent, or to take a cautious approach and assume that the parent is more likely than not to relapse during the child’s minority, or to have a fudged position resulting in more children being subject to Care Orders?

That looks to me, whichever way you slice it, to be a political decision, but one that hasn’t been actually made or debated because nobody has realised that this has arisen as a byproduct of deciding that taking less time over care proceedings must be a good thing.

 In deciding that children have to have their future determined by week 26, you inadvertently create a huge problem in those cases which CAN ONLY BE TESTED OVER TIME.    If you don’t test over the time it needs, you are going to either guess wrong or end up with a fudged compromise that massively expands the number of LAC children.

And heaven forbid that if this happens to Charlie in Manchester, it has a different outcome than if it happens to Charlie in Dorset.

Let’s assume it isn’t drugs or alcohol. It is an unsuitable partner. It takes till Week 7 to categorically establish (through a super-quick process of gathering all the information about what an unsuitable person X is, and maybe having a fact-finding hearing about what X did to Charlie. ). Charlie’s parent decides at Week 7 to separate from X. By the time the LA are filing their evidence, Charlie’s parent and X have been separated for three months. By the time of the final hearing, four months.

Is the Court supposed to give the parent the benefit of the doubt there, or assume that the separation won’t last (since they aren’t allowed to extend the hearing to test it) or to have a fudged position whereby the LA have the child at home under a Care Order and a plan that has the child removed if the parent reconciles with X?

Now, what if Charlie’s parent is seen with X at Week 20, and says it was a one-off, a blip? What happens then?

My guess would be, that in a perfect case, where the parent is faultless for the full 26 weeks, the case ends with a Supervision Order. And a significant proportion of those will come back to Court having not worked (as we know now, when parents are tested over a much longer period, a significant proportion of rehabilitations sanctioned by LAs and the Courts break down, and the child suffers further significant harm).

 Thus, the number of proceedings will go up. [Law of unintended consequences]

And in a case where the parent has a blip, and the blip is not really, really early on, Care Order with the fudged (some might say inchoate) care plan of ‘remain at home unless you screw up again, then removal’. So, the number of children who are subject to Care Orders will go up. [Law of unintended consequences]

And in a case where there a couple of blips, which might be ironed out by extending the assessment period (but that’s no longer an option) Care Order and Adoption. So the number of children who are subject to Care Orders and need adoptive placements will go up [Law of unintended consequences]

The cases that won’t have their outcomes affected, of course, are the ones where the parent DOESN’T even TRY to quit heroin, or drugs, or the relationship with X.

But I don’t see any analysis in the FJR or Government’s approach as to what proportion of cases fall into the “Concerns then full engagement” “Concerns with good engagement but blips”  “Concerns, attempts to change but quite a few blips” or  “Concerns that the parent doesn’t engage with at all” categories.

In that case, lacking the key data, how can we really plan?

Anecdotally, I have seen a LOT of cases that looked cast-iron as to the outcomes by week 26 (or even earlier). Some of them go exactly the way you call ‘em. Some don’t. And what’s worse, if you exclude the utterly hopeless cases where there’s no effort to change, you can’t even predict which ones will go the way you called them, and which won’t.

I don’t think the 26 week Guillotine will work. From everything I’ve seen, it will be an attempt to put those electric shock paddles onto the PLO, and have people follow it.  Just moving the majority of work that is done in proceedings onto the shoulders of the LA pre-proceedings. That doesn’t reduce delay, just takes it off the Court’s books, and lets everyone wag a finger at the naughty Local Authority.  As a side-benefit, we can compare Local Authorities and hopefully single out some particularly naughty ones.

Also, as we all found out in the really early days of the PLO, there’s no point the LA spending hours and hours doing assessments if when the case gets to Court the parents immediately ask for a second opinion and the Court grants the request.

Here’s a question about whether there should be a shift in focus which is a political decision, and ought genuinely to be made as a political decision rather than an administrative one.

Where the Court finds that a child has suffered significant harm, ought the focus of the rest of the proceedings be on the parents CURRENT capacity to provide non-harmful parenting for the child, or on the FUTURE capacity?

Because that’s ultimately where the 26 week approach is taking us. And I’m not going to argue here about whether a CURRENT or FUTURE capacity is a better system – that, it seems to me is a broader question for society. I think we currently (despite what the House of Lords/Supreme Court keep saying) have a system that is built around the hope/expectation that the court process can effect a CHANGE in people. And we try to do that without any actual resources that would effect that change. I suspect that those resources won’t be forthcoming.

 If you want a family justice system that helps parents to make the changes they need to be able to care for their children, then you need the TIME and the SUPPORT for those changes to work.

(We currently have a system that spends a fortune arguing about diagnosis and nothing whatsoever on treatment. It’s like sending someone off to a top Harley Street dermatologist for paid-for advice on how best to remove their unsightly tattoo, and after we get that advice and have paid for it and seen what should be done, instead handing the person a sheet of sandpaper – and maybe an aspirin – and telling them to get on with it)

 Do we want to try to keep as many children as possible with parents, or do we want to try to ensure that as few children as possible drift whilst we wait for decisions?  Either is a legitimate aim of a Family Justice system, but it would be nice to decide, before working out the nuts and bolts, what the actual aim is. (Because the fake aim of ‘both’ is just as feeble as those people and politicians who agree that we need to make significant cuts in spending, but not on any areas that would be unpopular. In the words of Billy the Kid  “Speed’s good, son, but accuracy’s final”)

You might need to throw an awful lot of money to have a system that not only aspires to bring about CHANGE in parents, but actually has the ability to realistically do it, but it might equally save an awful lot of money in the long-term. How many neglect cases do we see where one of the root causes of the neglect is the neglectful parenting that the parent themselves received as a child? So, if you fix the parent, you solve problems in the next generation. Problem being, for politicians, solving problems for two or three Parliaments down the line isn’t a vote-winner.

 Rant over.

Mental Capacity Act -inspirational blogpost

 

No, not mine, I’m not blowing my own trumpet.

THIS

http://www.thesmallplaces.blogspot.co.uk/2012/05/guest-post-we-are-whats-missing-from.html

 

is probably the best piece of writing I’ve read in a long time. If you have any interest in adult social care, or mental health law, or damnit, if you just have any interest in personal freedoms and the extent to which the state should mess with that, I urge you to give this a read.

Again, I wish I’d written it.

Who pushes who about in the careenium?

 

A fairly short post on a very big topic.  With the way modern neuroscience is moving, such that one can look at a very detailed brain scan of the make-up of a persons brain and detect the differences that make one person a murderer, and another not, Hume’s Fork becomes less of a philosophical debate, and more of a scientific one.

Hume’s Fork is basically a philosophical brain-teaser, along these lines. If an action I perform is a result of a decision I take because of who I am, and who I am is either the result of my genetic make-up (for which I am not responsible) or my childhood upbringing (for which I am not responsible) why am I responsible for my actions?

 

As a lawyer, part of my intrinsic belief system is that whilst I can understand that an individual is made more likely to do something they shouldn’t because of background or circumstances, there is still ultimately a degree of free will, and thus responsibility, that says “I am more tempted than another person might be to steal that flat-screen TV from a bookies during a riot, but it is up to me whether I actually DO steal it or not”

 

But the more I read on modern neuroscience, the less I am sure about the reality of free will.

There’s a lovely paradox about free-will versus determinism (the opposite concept that basically, you don’t really make decisions, the decisions you think you are making are just an illusory construct of the various factors beyond your control acting on you, and that you could really do nothing other than what you believe you just decided to do).

 

It is called Newcombe’s Paradox. In this, a super-intelligent alien, or computer, or God, whatever you feel most comfortable with, says to you “I have put a cheque in these two envelopes, A and B.  And I have also predicted what you will do, when given the choice of just opening A, or opening both A and B.

If I think you will just open A, then there is a cheque for £1,000,000 in envelope A, and a cheque for £10,000 in envelope B.  If I think you will open both envelopes, then there is a cheque for £1 in envelope A, and a cheque for £10,000 in envelope B. 

The cheques are already written, and in sealed envelopes. I don’t go anywhere near them after you make your choice. So, do you want to open Envelope A, or both envelopes?”

 

Now, depending on whether you believe in free-will or determinism, you’ll have a very strong and clear view as to what you should do. You’ll also have a very clear and strong view that the other option is wrong (unless you’re far too reasonable to be reading a law blog)

 

The interesting thing is, if you imagine that your best friend goes into the booth and looks inside the envelopes just before they are sealed, they will ALWAYS want you to open both envelopes, because that ALWAYS makes you £10,000 better off.

 

Anyway, that’s probably fried your mind for a few minutes, and made you argue with anyone else you put this Paradox too.

 

This blog all inspired by the excellent blog on neuroscience and the law on the Human Rights Blog today, by Rosalind English of One Crown Office Row. I wish I’d written it.

 

http://ukhumanrightsblog.com/2012/05/29/we-need-to-think-about-kevin/

 

The title of my blog entry today, stolen from Douglas Hofstadter, who was writing about free will and choice and illusion of free will and choice, artificial intelligence, game theory, morality, cooperation, and just about every topic of any consequence in the modern world back in the seventies, and was also the author of the first book ever purchased on Amazon. I could not recommend Douglas Hofstadter more highly to anyone who wants to stretch their mind.

In the Jingle, Djangoly morning, I come following you…

 

The Parliamentary Justice Committee met recently, and if you’re a fan of conspiracy and outrage the debate makes for entertaining reading  (y’know, if you’ve been reading the Daily Mail for so long that you are starting to find it utterly reasonable, and you want something to provoke a reaction of “these people are just plain wrong”, then Parliament is a good place to go for that fix)

 

This is the bit that is relevant to us, where Mr Djangoly MP lets us glimpse what the Government fix on family law experts is going to be – my underlining. (I’m afraid I left in his first remark, which is his attempt to get John Hemmings MP to stop talking when grown-ups are talking, because it made me laugh)

 

Mr Djanogly: Will my hon. Friend let me make some headway, and then he can come back on what I say?

Such reports take up precious time. I agree that they should be used only where necessary to determine a case and the courts should ensure that such evidence is properly focused on the key questions that the court needs to be answered. We already plan to change the family procedure rules to bring that into effect. Expert evidence will of course continue to be important in some cases to ensure a fair and complete process. Where expert evidence is required, we are working to ensure that it is of high quality and delivered promptly.

To go into more detail, because of the concern shown by my hon. Friend the Member for Birmingham, Yardley, we are introducing early changes to the court rules through secondary legislation. The main elements are raising the threshold for the court to permit an expert to be instructed; requiring expert witness evidence to be necessary, rather than reasonably required; and in family proceedings concerning children, there will be a list of factors that the court must explicitly consider in deciding whether to permit an expert to be instructed. Those factors include the impact on the child of a delay and undergoing an assessment, the cost, and whether the information could or should be provided by one of the parties, such as the local authority. We will also require the court to exercise better control over the questions put to the expert and require solicitors to undertake preparatory work earlier in the process to reduce delays in the experts beginning work.

We recognise that minimum standards are necessary for expert witnesses in the family court. We are working with the Department of Health, health regulators and the Family Justice Council to establish minimum standards that judges should expect from all expert witnesses. We are exploring how and whether we can implement the family justice review recommendation that meeting minimum standards should be a requirement for public funding. We will also consult key stakeholders on proposed minimum standards, which we hope to have in place later this year.

 

An interesting idea. Perhaps putting some stringent guidelines about when assessments are needed into a revised Family Procedure Rules will work. After all, when we’ve tried that in the past, it has always worked. For example, it might work  as well as :-

 

The Protocol, which said, don’t use experts unless they are necessary

The PLO, which said, don’t use experts if you can get the social worker or Guardian to answer the questions

The current FPR, which gives a huge set of tasks to be followed if anyone seeks to persuade the Court to instruct an expert

The House of Lords decision in Kent County Council v G which sets out very firmly that s38(6) is about assessment of the child, assessment of the current situation and is not for the purposes of affecting CHANGE in a parent

 

All of which are currently ignored by professionals on a regular basis. Changing the requirement to ‘necessary’ rather than reasonably required, will just change the words that advocates use when asking for the report.

 

The idea which really would stop the instruction of experts altogther is the one mooted in the Family Justice Review – make the Judge write the Letter of Instruction. Introduce that, and you’ll see the number of experts instructed in care proceedings fall by about 90%.   And if you want to stop them altogether, make the payment come out of the Court budget….

My kith and kin, oh I have sinned

Research on Contact in kinship placements

An organisation called Family Rights Group, who are a charity advising parents who are involved in care proceedings have commissioned some interesting research about contact for children who are living with family-and-friends carers.  This is something which has become more prevalent over recent years (and ought to be generally viewed as a good thing that children who can’t live with their birth parents are cared for by family members rather than by the State) and is likely to continue to increase, particularly as the pressure on the demand for foster carers builds up.

 

This report is interesting, because it addresses commonplace experiences in the family justice system from a group who really have the quietest voice in the care proceedings – the family members who step in and care for the child either as an interim measure or permanently, and who are doing such a massively important role yet have very little input into the arrangements that are being made for the child who will be living with them.

 

I think that the research and the report is valuable because it doesn’t come in with any fixed agenda, but is rather an attempt to look at the issues of contact where a child is placed with a family member from each viewpoint and to see what could be done to make it work better for everyone. 

 

If this is reflective of Family Rights Group generally, they come across very well – thoughtful but practical and providing proper sound advice without being politicised on the “parents bad  / social workers wicked” spectrum. I suspect that they have quite a lot of sensible advice to offer to people and more professionals and clients could benefit from what they have to offer.  

 

 

The report can be found here : -

 

http://www.frg.org.uk/managing-contact-with-parents-and-relatives-for-children-living-in-family-and-friends-care-arrangements

 

 

The accounts that the kinship carers give of how the children came to be living with them, and the varying relationships that they had with Local Authorities, ranging from support to resistance and opposition, are interesting and worth reading. (It is also noteworthy how ambiguous some of the placements were in relation to whether the child was ‘looked after’ or not, which has obvious financial implications for the carer and the LA involved)

 

 

“Where the initial legal arrangement was clear, the carers interviewed had taken the children under a variety of different legal arrangements, including interim care order,interim residence order, under s.20 Children Act 1989 as looked after child, under private fostering, and as a private family arrangement. There seemed to be no standard legal route that would be followed by children going into a family and friends care arrangement. Research carried out by Family Rights Group with Birmingham University

(2009) suggests that this might be a consequence of different local authorities having vastly different policies for working with family and friends placements, where such policies exist at all.1 This survey of English and Welsh local authorities revealed that most councils (69%) did not have a written, coherent approach to working with family and friends care. Where policies did exist, they encouraged different approaches to the legal status of children placed with family and friends carers: a few recognised that children placed there by the local authority should be treated as looked after, and their carers

supported as foster carers, but others discouraged the use of family and friends carers as foster carers in almost any circumstances.”

 

 

 

The research makes some recommendations, from the perspective of family and friends carers about contact, and how this should be managed :-

 

Good practice in contact – recommendations from family and

friends carers’ perspectives

 

The following recommendations for good practice derive from the experiences of contact which family and friends carers have described in this chapter. The recommendations draw upon carers’ observations of what has worked well in contact, what could have improved the experience of contact, particularly for children, and ideas from carers themselves on what would be good practice in contact.

 

Carers recommend:

Ø That local authorities should be clear with family and friends carers about the legal arrangement of the child’s placement with them, and the legal basis for any restrictions that they are asking the carers to impose on the child’s contact with parents. They should explain why these restrictions are necessary for the child’s wellbeing. Carers should be informed whether the child is subject to a child protection plan or not, whether the child is looked after or not, and who holds parental responsibility for the child.

 

Ø The experience described by three interviewed carers of having to resist the separation of siblings by the local authority indicates that local authorities should give careful consideration as to whether a decision to separate siblings will be in the best interests of the children, particularly where there is a family and friends carer who is willing to keep the siblings together, given that placements where children are placed with siblings are less likely to be disrupted than placements where children are placed alone,2 and given also that a plan to place one or more children for adoption could result in the permanent loss of contact with siblings placed elsewhere.

RESEARCH STUDY

2 Mullender, A ‘Sketching in the background (1999), Mullender, A ed. We are family: Sibling relationships in placement and beyond BAAF 1999

 

Ø Local authorities should consult the carers, and where possible the child, before setting up any contact arrangement. The arrangement should take into account the carer’s and the child’s views on what will make the contact safe and enjoyable, whether it should take place in the carer’s home or another venue, what level of contact will be sustainable for the carer and the child, and the procedures that should be followed if the arrangements need to be changed should be specified.

 

Ø There should be an expectation that it will be adults rather than children who have to bear the strain of contact, for example where long distances need to be travelled, or in arranging the time of contact. Consideration should be given to how contact fits into the child’s routines and activities.

 

Ø Where the local authority is involved in the contact arrangement, there needs to be good communication between carers and social workers about the risks to the child from contact. Social workers must inform carers about any potential risks, and the carer must inform the local authority about any risky incidents.

 

Ø Carers and children must be taken seriously and listened to if they report concerns about problems with contact, such as the child’s opposition to the arrangement.

 

Ø The local authority, carers, parents, and where appropriate children should draw up a contact agreement, which spells out not only where, when and how often contact will take place, but also what will happen if either party is unable to keep to the agreement, or shows up late, or does not give notice of not attending contact. Clear direction from the local authority would assist with this.

 

Ø Where carers are asked to participate in letterbox contact arrangements, they should routinely be provided with information and guidance about what this involves.

 

Ø Decisions by the local authority not to include a willing carer in contact arrangements, and not to inform the carer about what happens within contact they are not part of, need to be carefully considered. The reasons for not including or informing the carer should normally be explained to the carer.

 

Ø Where a local authority has set up a contact arrangement, they should consider how the support might continue to be available for the carer even after the local authority has ended its formal involvement, eg by having a specialist kinship worker who can be available for consultation, or by providing a duty service the carer can call.

 

Ø Given that local authorities set up some arrangements which appeared to be potentially quite harmful for children, carers should have a vehicle for raising valid objections to contact arrangements which they believe will be damaging for children.

 

Ø Local authorities should have an information package that is provided to family and friends carers, which includes advice about contact and a template for a contact agreement. Where possible, carers should be offered access to a tailored preparation/induction course for family and friends carers, such as is now being designed by Family Rights Group and The Fostering Network.

 

 

 

ØCarers find a lot of support in being able to discuss contact with other family and friends carers, whether this is a group which meets in person or an online forum, and carers with experience of contact can provide other carers with valuable advice on this difficult and sensitive topic. Carers should be encouraged to join or set up their own support group, or to join Family Rights Group’s online forum.

 

 

 

The report also considers parents experiences with family and friends carers, and makes some recommendations from their perspective : -

 

Good practice in contact – recommendations (parents’ perspective)

 

The following recommendations for good practice derive from the experiences of contact which the parents of children placed with family and friends carers have described in this chapter. The recommendations are based both upon the parents’ descriptions of their experiences, and upon their concluding suggestions for what could be done to improve contact in these circumstances.

 

We recommend:

 

Ø That local authorities ensure they are seen to be even-handed with parents when children are placed with family and friends carers and contact arrangements are being made. We recognise that for some parents the experience of losing their children will make it difficult if not impossible to feel that they are getting a fair deal. In addition, the adversarial nature of court proceedings can make the working relationship between parents and social workers difficult to manage. However, social workers have to ensure that contact arrangements are decided according to the child’s needs, and do not unnecessarily become part of any conflict with parents.

 

Ø Restrictions on children and parents showing affection to one another, or on children being informed of the enduring love of another parent, during contact needs to be justified. The purpose of contact supervision is to prevent the child being harmed, emotionally, physically or otherwise, and parents should be prevented from showing affection to their child only if this would be harmful.

 

Ø Where parents wish to correspond with their child, or pass on gifts, then any restrictions should be stated openly and explained to the parents. It is unfair to both parents and child to prevent this without explanation.

 

Ø Where local authorities have been involved in removing a child from their parents, and placing the child with family and friends carers, then the local authority should have a duty to remain involved long enough to ensure that contact arrangements are working. There should be a way for parents to bring in the local authority where contact arrangements are not going according to an agreed plan, or where they are not beneficial to the child.

 

Ø Consideration should be given to parents who are anxious about their child’s wellbeing, possibly because of limited or no contact, having the opportunity to receive independent information about the child.

 

 

The report then approached matters from the point of view of professional practitioners (i.e social workers)

 

The practitioners made the following recommendations for good practice in contact:

 

Ø In making decisions about contact the focus should be on the benefits to the child, and not the adults.

 

Ø Parents and carers should try to ensure that they are saying the same things to the child, as failure to do so can lead to confusion for the child and conflict between the parents and the carers.

 

Ø There should be clear guidelines and expectations about contact. It helps if the practitioners can meet and talk to the birth parents first, setting out the groundrules, and the possible consequences of their actions to the parents. There should be a review of how contact is going, and any problems should be dealt with in between contacts.

 

Ø The role of carers in helping children to feel secure in contact should be recognised and supported.

 

Ø Notes should be taken of how the child appears to be, not only during contact but before and afterwards as well.

 

Ø Family Group Conferences and mediation should be considered, particularly where it is difficult to agree a contact arrangement or to sort out problems.

 

Ø In unusual circumstances, where approved foster carers become family and friends carers, they may need to be supported to think about contact differently from the way they are used to.

 

Ø Where court guardians make recommendations about contact they should have to justify it as being in the best interests of the child, and be held accountable for the consequences of the contact for the child.

 

Ø The arrangements that will be in place for contact after proceedings, eg whether or not it will be supervised and where it will take place, should be tried out before the end of proceedings.

 

Ø Careful consideration should be given to the suitability of the venue being used for contact, eg a children’s centre might be more suitable than a contact centre for contact involving younger children, if it is more geared towards providing play facilities for children.

 

Ø Although contact can be part of a ‘children in need’ plan, when the children in need team no longer need to be involved there should be another lead professional to take on responsibility for the contact.

 

 

 

And then drawing all of these various strands together, these conclusions :-

 

Considering the views of parents and carers, and the suggestions made by practitioners, we recommend that the following principles are observed when arranging or participating in contact arrangements:

 

i Make the child’s needs the first consideration. A step towards doing this can be for the adults to put themselves in the child’s place, and think about contact issues from that perspective:

• What will the child’s earlier experiences of their parents and others mean for

contact arrangements?

• What pressures might the child feel they are under?

• What could be done to make contact more enjoyable for the child?

This is a step that should be taken by all of the adults involved in arranging the child’s contact. Practitioners need to ensure they are focusing on meeting the child’s needs. Carers need to understand why it might be important to a child that they have contact with parents, even where the carers may themselves feel angry with those parents. Parents need to understand that it might be in the child’s best interests to have less contact with them than they want and the importance of routine. For example, a contact plan that resulted in a child spending part of each week with four different carers, staying

overnight with three of them, was probably drawn up to meet the demands of the adults and not the needs of the child.

 

ii Good communication is paramount. All parties who are involved in contact need to ensure that everyone is kept aware of contact arrangements and any changes to those arrangements. Good communication could involve:

 

Practitioners consulting parents and carers about contact arrangements, and

meeting with them to discuss how contact is working out

 

• Using Family Group Conferences to make arrangements for a placement,

including arrangements about contact. Family Group Conference or mediation

can also be used to assist communication between parties who are in

disagreement about contact.

 

• Drawing up a contact agreement, specifying: where, when and with whom

contact will take place: What will happen if it cannot take place? What behaviour would be considered inappropriate in contact? What indirect contact can take place and how often? Etc.

 

 

iii Recognise the loss that parents face. While parents will have legal rights to be kept informed and involved in decisions being made about their child, which will be determined by the child’s legal status, regardless of legal status there should also be an underlying principle that parents should be kept informed and involved in significant decisions, unless their involvement would be harmful for the child. There needs to be recognition of the loss that parents have faced, and practitioners need to continue to support parents to manage contact and manage their feelings.

 

iv The venue and the contact arrangements should feel safe for the child and the carers. Where contact is unlikely to be safe, then there should be a risk assessment to help plan what could make it safe, e.g. does it need to be supervised, what would be a safe venue, can it happen safely at all?

 

v Access to good information and advice. Both parents and carers who were interviewed felt that it was important to have access to good information as early as possible. An information pack could give parents and carers basic details about the legal position of family and friends care placements, and suggest where to get more detailed information and advice.

 

vi Monitoring procedure. There should be a procedure for monitoring how a

proposed contact arrangement is working out. This could involve a trial period before any court order for contact is made or a period where practitioners meet with the parties to find out from them about any difficulties.

 

 

 

 

My overall impression of this report is that it is heavy on common sense practical proposals arrived at by listening to the people who are living through these experiences, and light on dogma, speculation and cod-psychology. I hope that it reaches the audience it needs to.

Inquiring minds wanna know (part one – Orkney)

 

 

A review of some of the major child protection public inquiries, to see if the things we were supposed to learn from them really were learned.  This one – Orkney.

 

 

As we all know, social workers in every single case either act incompetently and bungle their simple job by leaving children to be abused, or act like jackbooted fascists, snatching children from their loving families on flimsy evidence. This is all based on the media reporting on social workers. The fact that from the media reporting on doctors, the general public don’t perceive that all doctors are either pioneering geniuses who have invented a new cure for cancer OR filthy perverts who touch up their patients at the slightest pretext, is probably because the average person reading a paper has a real life GP with whom to compare those stories and work out that the average GP is just someone doing a job – they may do it well, or badly, they may have days when they do particularly well or days when they’re just not at it. But the average person doesn’t know a real life social worker (since all social workers like lawyers, routinely lie to people in pubs about what they do for a living, to avoid the look of disappointment/revulsion/boredom on the other persons face) and so haven’t got that recalibration of  “the ones in the papers are in the papers precisely because they are an exceptional example, for good or ill, of their profession, and you can’t extrapolate from that what the average member of that profession is like”

 

I liked in the first Munro report, the honesty that you simply can’t create a system that both protects every child from harm and at the same time protects every innocent family from disruption. The profession for a while, and the media, are under the illusion that people can get that decision right – is this safe, or am I being intrusive? In 100% of cases, and it just isn’t true. More information and more rigorous assessment helps get it right, but it won’t ever get it right 100% of the time. Just as doing surgery on people carries with it an inherent risk that something will go wrong, but we don’t have a media outcry to ban heart surgery when a patient doesn’t make it through the operation, balancing risk against the desire to keep families together isn’t going to be a judgment call that is right all the time.

 

The public inquiries have focussed on the two areas where social workers and other child protection professionals have got it wrong  (nobody ever held a public inquiry to see which of the people involved in brilliant work most deserved the credit – they are by their nature a blame game)

 

They fall into the “How could anyone have missed that?” school  – Maria Colwell, Paul, Victoria Climbie, Baby P  or the “what on earth were these people thinking?” school   – Cleveland, Rochdale, Orkney.

 

It struck me this week that the family justice system probably has a significant batch of people now who weren’t reading newspapers and watching the news when Cleveland or Orkney were happening (they were over 20 years ago) and probably very very few who were in practice when the Maria Colwell report came about.

 

So, a short series of blogs reviewing those public inquiries, and the lessons that were intended to be learned from each of them, and then an overview of whether those lessons really have been learned, or whether the public inquiry is anything more than a political way of saying “We’ve tackled this, public, no need to worry about it any more, move on”

 

 

 

ORKNEY

 

The actual inquiry can be found here :-

 

http://www.official-documents.gov.uk/document/hc9293/hc01/0195/0195.pdf

 

 

On 27th February 1991, nine children from four families living on the island of South Ronaldsey, Orkney, were removed from their families by the social work professionals of Orkney.

 

They were removed principally because of allegations made by three children of another family, the W family.  The nine children remained in care until 4th April 1991, so were in care for just over a month. They returned home because a hearing before the Sheriff’s Court dismissed the application for technical reasons but had expressed strong views that regardless of the technical issue in his view the children should be returned home. The Local Authority won an appeal against that decision, but the children had gone home by that stage and the Local Authority abandoned the proceedings.

 

It is worth noting that the public inquiry did not tackle the merits of the allegations or whether they were proven, and this led to some disquiet amongst the family members involved, who had been the subject of truly ghastly allegations which were never really laid to rest or the families innocence being fully acknowledged.

 

The W family had been known to Social Services for a number of years. The father of that family had been convicted for offences of physical abuse against his children and had pleaded guilty to criminal charges of sexual abuse against his children in 1987 and received a seven year prison sentence as a result.

 

The Local Authority were therefore working with the children of the W family, particularly as a result of allegations of sexual abuse between the siblings of the family and child protection court proceedings were taken as a result. [I am not going to dwell, in this summary, on the different processes in Scottish law and English law unless it becomes explicitly relevant – suffice to say that proceedings were brought)

 

The mothers of the other families involved Mrs M and Mrs T were close friends with Mrs W, and the social work professionals began to note that when they made visits to Mrs W, the other two mothers would be present and Mrs W wanted them to remain, even when professionals suggested they should leave.

 

On 30th October 1990, a child OW, made allegations of sexual abuse against siblings. This was shortly before OW’s 16th birthday. The LA were aware that other older siblings had made allegations of inter sibling sexual abuse at a similar age and had then retracted them.  A Place of Safety Order was obtained for OW, and over the next weeks, the Local Authority came to believe that all seven of the W children who were under 16 should be taken into care.

 

During the removal process the youngest child, SW, was not initially found and removed and there was some suggestion that other families on the island were assisting in her being kept away from the LA. The child was found by the police in the care of a Minister.

 

The seven W children came into foster care, with court proceedings, and medical evidence was obtained that suggested that the children had been the victims of sexual abuse, this abuse post-dating Mr W’s incarceration – thus that there was still abuse taking place and a live risk to be protected from.

 

South Ronaldsey was a relatively small and isolated community, and there was a considerable amount of local feeling that the W children had been wrongly removed. There was a large volume of correspondence being sent to the LA in relation to the W children, both about them, and for them.  The letters contained references to turtles that the LA did not understand, and there were also gifts including toy turtles.

 

The W children were interviewed about their disclosures – thought had been given to video-recording the interviews, but due to a combination of technical problems and the children’s reluctance to be recorded, this did not happen, and the disclosure interviews were conducted with a written note being kept. There were a number of interviews and there was some uncertainty between professionals as to whether the purpose of these interviews was forensic (to gather evidence about the abuse) or therapeutic.

 

Initially the disclosures related to inter-sibling sexual abuse and wholly unacceptable sexual boundaries within the sibling group.

 

But on 6th February 1991, the disclosures from MW took on an entirely different character. The allegations became of a form of abuse which was organised in nature, in the open-air at a quarry, involving a number of different adults including the minister, and which had a ritualistic overtone, with cloaked figures and a circle, with a child being chosen, pulled into the centre of the circle with a hook (similar to a shepherd’s crook) and abused whilst everyone else watched. The disclosure was detailed and accompanied by the child making drawings about what was alleged to have happened. The police officer present later said that she had not believed the allegations until MW had said “my dad will kill me” which made the police officer feel that the allegations were true.

 

The contemporaneous notes made by the police officer in a ring notebook were subsequently shredded, although a handwritten note based on the contemporaneous notes was made.

 

MW gave a further interview on 12th February, developing the detail and adding information that the children had had to wear costumes, including turtle costumes.

 

QW also gave an interview that day, in which she was asked about the turtle suits and went on to make similar disclosures to MW.  (of course the critical point here is that there were six days between the first interview where MW made disclosures of this type and other siblings making similar allegations, six days during which there was opportunity for cross-contamination)

BW attended an interview the following day, and made the same disclosures about costumes, a circle, dancing, and individuals being pulled into the circle by a man with a hook and then abused whilst everyone watched.

 

The children were naming the same adults as being involved, and those adults had children of their own. The W children had named those children as having been involved as victims of the abuse.

 

[LW was interviewed on 13th February and did not make any disclosures, saying when questioned about the details that he did not know anything about this and had not gone with the other children, and that he had probably been at the beach instead. ]

 

It was felt, by the police and the Social Services department that as a result of these disclosures, there was significant concern about whether there was a form of organised abuse taking place in this island community, and that three children had made the same detailed disclosures naming the adults involved and that children from other families were suffering the same sexual risk as they were.

 

[Now, putting to one side, the problem of contamination and that the recordings made were flawed because they weren’t videoed, and weren’t conducted along the Achieving Best Evidence standards we – ha! Would see today,  the authorities here were in a tough spot – they were aware that the W children were very sexually disturbed children, that they had been the victims of sexual abuse from someone, and they were giving an account that was very detailed and consistent between them. This account implicated other adults and was that other children had been victims of this abuse. Those other children were living at home with those allegedly abusive adults. The authorities had to make a call as to whether to write off these allegations as being fantastical and lacking credibility, or whether to seek to keep the other children safe whilst that was being determined.  We know that history has deemed that they made the wrong call, and it is very easy to look at the workers involved and wonder with our hindsight what on earth they were doing believing these allegations.  But I certainly remember at that time – when I was working on the Child Protection Register, pre any thoughts of becoming a lawyer, that I’d often see the phrase in official documents “children must always  be believed” and that was certainly a part of child protection thinking at that time, that children did not lie about things as serious as this. If you consider that context – that professionals believed that children would not lie about this sort of thing and that three of the children, who definitely had been abused by someone, were saying this, one can see why professionals made what now in hindsight seems an obviously wrong call.  I haven’t seen the phrase “children must always be believed” for about twenty years..]

 

A variety of professionals held what we would now call a Strategy meeting, to discuss the disclosures/allegations and what to do as a result.  [As an aside, there’s always a very different, yet subtle distinction between the word ‘disclosure’ and the word  ‘allegation’  - disclosure implies belief that what is said is true – you don’t disclose something that didn’t ever happen, and allegation implies at best caution about whether something happened or not. Always interesting to watch at a Court hearing, who says ‘allegation’ and who says ‘disclosure’]

 

The social work manager made a remark at that meeting which probably haunted her for years afterwards, asking the police how much more evidence they needed in order to act, saying that there was ‘enough evidence to sink the Titanic’

 

By  the end of 13th February 1991, the decision had been taken that nine children named in those allegations had to be taken into care through the making of Place of Safety Orders.

 

You may, if you’ve been paying attention, recall that the children were not removed until 27th February 1991, which would have given two weeks for there to be some investigation with those children or those families. This time was used to plan the operation of removing the children simultaneously and arranging for foster placements, medicals and disclosure interviews. No doubt this was quite a logistical exercise – particularly given that all of the children would be being removed not only from their homes, but from the island on which they lived and would need to be transported to another island. The authorities were convinced that all of the children needed to be moved at once. This, I think, is where things really went wrong. If the W children’s allegations were wholeheartedly believed by professionals, and I’m sure they were, for the reasons earlier discussed, then how could you leave the children at the risk of organised and serious sexual abuse for another fortnight, once you had decided they had to come out? And if they were safe for a fortnight, why were the children not interviewed prior to any decision about removal?  (The LA might, conceivably, have been swayed by the knowledge that the W children had been in foster care since October 1990, and thus the last known allegations about the organised abuse pre-dated that removal, but this seems slender to me)

 The planning also included an intention that each of the children be placed separately, to facilitate any disclosures and ensure that siblings did not influence, contaminate or silence each other.

 

What seems almost extraordinary, twenty years later, is the passage in the inquiry report that says that at the time the decision was made to remove the children, the LA had very little information about the children, including the ages and number of children that the families under suspicion had.

 

The other families were not known to Social Services, save for the friendship some of the mothers had with Mrs W.

 

But here is the really damaging bit.  On 20th February (BEFORE the removal of nine children), MW was interviewed again about the organised abuse. During the interview, she observed to the interviewers  “Did you know this was all a lie?”

 

And at that point, before nine children were removed from their families, seven days after the decision had been made, but seven days before it had been carried out, THAT was the point at which all of this could and should have been stopped.

On 23rd February, four days before the removal, AW was interviewed. AW had not made any allegations about organised abuse, and when asked about it was adamant that none of this had happened.

 

In order to manage this situation, Orkney Social Services had asked for assistance from other Scottish local authorities, both in terms of placements and provision of experienced social workers with a background in investigation of sexual abuse allegations. The workers from those authorities gave evidence to the inquiry that they had understood that the evidence of abuse was compelling and robust and that the Orkney police had weighed all of this up. They had not been aware of the 20th February interview with MW when MW had said that this was all a lie.  It would be fair to say that those workers had a sense of considerable disquiet about the way in which the removal and post removal work was being planned, particularly about the removals being scheduled for 7.00am – one of the workers used the term ‘dawn raids’ to convey the dramatic and disproportionate nature of what was being proposed which was exactly the view the Press took of what happened subsequently.

 

The application forms for the Place of Safety Orders were completed, but gave no detail about the nature of the concerns or why the orders were sought. An application was made before the Sheriff Clerk at which only the LA were represented – this application dealt with four families and nine children. The hearing lasted, in total between twenty and twenty-five minutes.

 

The orders were made.  (It appears that there were at the time, two routes to obtain Place of Safety Orders in Scotland – one a hearing before a Sherrif Clerk, the other before a Children’s Reporter – and that the latter might have been more formal and robust)

 

At the final meeting before the children were removed, there were fifty professionals present, ten or fifteen were standing. It was loud and crowded, with people speaking at the same time and it was difficult to take notes. There were real concerns with both the Orkney field social workers and mainland social workers feeling that insufficient information about the nature of the abuse was being shared and that the plan to separate all of the children and provide no sibling contact was harmful in nature. Those concerns though expressed, did not result in any change of direction.  Matters became so heated that the mainland social workers were minded to pull out and not be involved in the operation – at eleven pm, this debate was still raging, and it was only when they were told that the removals would go ahead with or without their assistance that they decided it would be better for the children for them to remain involved.

 

The nine children were removed on 27th February, at around 7.00-7.30am. The parents were told that the children were being removed because of the families involvement with the W family, and that Place of Safety Orders had been made. They were told no more than that. The removals, as one would expect, were difficult and traumatic.  Some of the children ran away, some shut themselves in rooms, one of the mothers was clinging to a child and shouting at the social workers that they were evil. One of the police officers during a removal told the mother that she would go to Court and get the children back.   [Bear in mind that prior to this ‘dawn raid’ the families concerned had never even been VISITED by a social worker,  their first involvement was a removal without warning. Also, that the Place of Safety Orders served on the parents gave no information as to what would happen next and the parents were not formally  told of what their rights would be to contest this removal at Court, and also that some of the professional and experienced social workers later described the experience as “harrowing”]

 

The medical examinations showed no evidence of abuse.

 

The first Court hearing (The Children’s Hearing) to review that removal was 5th March 1991. The parents were served with notice of that hearing the afternoon beforehand. Now, bear in mind that this hearing was taking place on a remote island in the Orkney islands and what was at stake, and wince at this next bit.  The parents on the morning of 5th March, asked for some more time to be allowed for their senior counsel who were travelling from the mainland to arrive. The Court refused as members of the Court tribunal had taken time off work to come in that day. Eventually, the local MP was called and intervened, to secure an adjournment from 10.0am to 11.00am. The Court had allowed thirty minutes for each families case (!!!!) but in the event, the hearing (for four families and nine children) concluded at 3.00pm. Oh, also, none of the parents had seen any of the evidence against them, even at this stage. The broad nature of the grounds was shared with the parents half an hour before the hearing and they were asked whether they agreed with them, which of course, they did not.

 

The Court granted a Warrant which authorised the further detention of the children in foster care for 21 days. The parents appealed, and that appeal was dismissed on 7th March.

 

[I suspect that this is a theme I will return to, but in my view here, I think the Court is culpable and escapes criticism. Just as the LA took a view on the evidence and made the wrong call, so too did the Court.  If the Court had not sanctioned the removal on 5th March,  or indeed not granted the Place of Safety Orders on 27th March, or granted the appeal on 7th March, those children would not have been in foster care for a month unnecessarily]

 

Curators (like a Guardian) were appointed for the children, and they began investigating matters.

 

The Press became greatly involved, and the local Press named and provided photographs of the children. The case attracted a great deal of media interest and the Local Authority were roundly criticised for both the decision to remove and the manner in which it had been done.

 

A case conference was held, to which none of the parents were invited.

A second sitting of the Children’s Hearing took place on 25th March, to decide whether to extend the Warrant that was allowing the LA to keep the children in foster care. The Court allowed FIFTEEN minutes for each family! In the event, the hearings took much longer. At one stage, an application was made for Counsel and solicitor for Mr and Mrs M to be removed from the court room on the basis that the Acting Reporter  (sort of a cross between a Child’s Solicitor and a Legal Advisor to the Court)  considered they were being disruptive. They were asking the Court, somewhat forcefully, to consider the medical evidence that there were no signs of any abuse on the nine children that the LA claimed had been the victims of organised abuse (The modern reader might well consider that what they were doing was advancing their case that what was happening was a miscarriage of justice)

 

Warrants were extended for a further 21 days.

 

A hearing was fixed for 4th April – and it is at this point that Scottish and English law deviate – the parents argument here was that the case should be dismissed on the basis of Competency; which initially sounds like a submission that there aren’t reasonable grounds to believe that the allegations occurred and that there is thus no risk of harm; but actually is something more technical than that.  The application was to dismiss the case but if successful it would not result in there being anything akin to a finding that the threshold was not met, or that there was no case to answer. [Sadly, the inquiry doesn’t explain the technical aspect terribly well to someone not au fait with Scottish law in the early nineties, and even I am not sad enough to research it. I think it relates to the fact that the legal grounds that Orkney had used was that the police would be making arrests for criminal behaviour, which they didn’t, rather than on the legal grounds that the children had suffered abuse]

 

It is worth noting that one of the children EB was interviewed about these matters TEN times, in the month he was in care!  (I apologise for the exclamation marks, usually I am with F Scott Fitzgerald  – “Cut out all those exclamation points. An exclamation point is like laughing at your own joke” but really, I think they are justified here). Also none of the children had any contact with their parents or their siblings during this time.

 

The children were interviewed multiple times, and some of them did talk about going to dances where there were people with lanterns, and a circle and that a man danced in the middle of the circle and would pull people in to dance with him with a shepherd’s crook.  It simply can’t be known whether this was an account of some innocent activity that the W children embroidered with the florid accounts of sexual elements, or whether in the multiple interviews, the suggestions were made of these things having occurred so many times that the children were eventually agreeing that they had happened.  Some of the interviewers conducting the interviews with various children were conducting four or even six interviews per day.  I don’t think it would be unreasonable to suggest that this is far too much for a process which is emotionally draining on the children and the professionals involved.

 

On the morning of 4th April, the Sherrif dismissed the application for a further extension of the Warrant on the grounds of competency, but also said that in his view the children should be returned home. As indicated earlier, the competency argument is a technical one, not on the merits of the application. The LA successfully appealed that decision, but the children had gone home in the meantime and the LA took their first smart decision in a month and a half and decided not to seek further Place of Safety Orders.

 

On 15th July 1991, the children’s names were removed from the Register. The parents were invited to that Case Conference.

 

The inquiry sets out, after analysing all of the evidence, a Summary of Comments (which are effectively bullet points of bungling) 135 in all.

 

Key amongst them :-

 

The social work department failed to consider the children individually

They failed to keep a wholly open mind about the allegations made by the W children and allowed the investigation to be coloured by suspicions

They failed to consider the Cleveland report

They failed to have a proper case conference to which the parents were invited

They failed to keep a proper record of decisions and of disclosures

They failed to give sufficient thought as to whether it was necessary to remove the children

They failed to appreciate the significance that the allegations of abuse had not come from the children in question

The degree of risk to the nine children was not properly assessed

They acted too precipitately and failed to take time to pause and think

They should have reassessed the situation after the medicals showed no sign of abuse

The parents ought to have been given proper information about the Place of Safety Orders and their rights of challenge and the process

The parents should have had support from the LA after the removal, and much fuller information about the reasons for removal

The interview process was wholly ineffective for investigative work such as was in actuality being carried out.

 

RECOMMENDATIONS

 

  • Those involved in investigating allegations of child sexual abuse must keep an open mind and not fall into the trap of confusing the taking of what a child says seriously with believing what the child has said

 

  • Where allegation are made by a child concerning sexual abuse those allegations should be treated seriously, should not be necessarily accepted as being true but should be examined and tested by whatever means are available before being used as the basis for taking action

 

  • In cases of child sexual abuse, removal should not be undertaken unless both a rigorous objective assessment of the situation has been made and in addition rigorous planning to balance the risk inherent in intervention and removal against the prospects of success in the legal action

 

  • Parents should usually be informed that the suspicion exists and that it is being investigated , their cooperation should be sought and the investigation draw on information from every possible source

 

  • There should be clear guidelines, both nationally and within organisations as to how child sexual abuse allegations are to be dealt with

 

  •  Removal of a child should be considered where no alternative exists and the risk of the situation requires it, caution must be exercised and the gravity of the situation considered

 

  • The reasons for seeking an order should be set down in writing and made available at the time the order is sought

 

  • The child or parent should have an immediate right to challenge the making of that order

 

  • Guidance should be given on the need for maintaining contact with a parent after removal, even where there is considerable hostility from the parent

 

  • Siblings should be placed together unless there are compelling reasons why that should not be the case.

 

 

 

Most of these seem blindingly obvious and barely worth saying, but it is probably the case that the reasons all of these things happen routinely is in part due to the Orkney case.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A County Council v M and F 2011

Although judgment was given in this case in 2011, following a finding of fact hearing in the summer of that year, the judgment has only recently been published. I would preface all of this by saying that the case, and this blog will deal with injuries to a young child which resulted in the child’s death, and it is quite likely that some readers might find this blog entry distressing and upsetting.  I don’t want anyone to read this without having that in mind.

I am likely to want to return to this and blog on it in more detail, as the judgment is significant, and very detailed. Mr Justice Mostyn conducted the finding of fact hearing, and the structure and methodology with which the Judge deals with the judgment is exceptional.  It would be worth reading in its entireity

http://www.bailii.org/ew/cases/EWHC/Fam/2011/1804.html

Much like the recent case involving subdural haematomas, which I have already blogged about, this case involved the Court being asked to make a binary choice about whether a child in question was killed by his parents, or whether there was an accidental/organic explanation. It is the most serious type of finding of fact hearing which can ever occur.  The parents have either suffered the tragic loss of a child through organic reasons, or perhaps by an action which they could not have suspected would lead to harm and are safe around other children, or they have killed a child and concealed this and lied about it throughout a family court finding of fact exercise. There is either no risk at all, or a very high risk.

As indicated earlier, I think any reader who has an interest in finding of fact cases should read the entire judgment, as the entire thought processes, the analysis of the medical and other evidence and the law as it relates to each discrete point is mapped out with extreme care and skill by the Judge (notwithstanding that my gut reaction is one of some disquiet)

The child in question suffered injuries and died during attempts to resuscitate him. The parents explanation was that the father, a cyclist, had a small trailer or bike buggy which went behind his bicycle, which the child would sit in, and that whilst riding the bicycle at speed,the child may have suffered injuries as a result of going over bumps in the road, bouncing over tree roots and stones. There obviously questions about whether any of the injuries to the child could have been sustained during the resuscitative process.   (There is substantially more to the parental defence than this, and obviously if I could reduce the complexity of the case down to a page, it would not have taken 20 days of High Court time, nor required 13 bundles of evidence, so I apologise for the fact that this summary is by its nature not thorough)

Here are the injuries identified on the child :-

RECENT INJURIES

Of the Head Neck

1. On the right side of the occiput, there was a scabbed abrasion 1 mm in diameter.

2. On the right forehead, 45mm above the outer angle of the right eyebrow, there was a purple bruise 4mm in diameter.

3. A similar bruise was present approximately 45mm above the outer canthus of the left eyebrow.

4. There were two purple bruises on the outer aspect of the inferior margin of the left orbit measuring 5mm and 4mm.

5. There was scabbing of the posterior margin of the right nostril.

6. There was a recent tear of the frenulum of the upper lip which was associated with a little erythema but no significant haemorrhage.

7. There was a red mark 2mm in diameter posteriorily in the midline of the hard palate.

8. Within the upper helix of the right ear, there was a purple nodule 7mm in diameter which on sectioning showed a little haemorrhage.

9. There was a fluctuant swelling 25 x 20 x 7mm with overlying purple discoloration of the skin within the left upper pinna. Sectioning revealed an organising cystic haematoma containing some liquid blood.

10. There was a well circumscribed area of superficial haemorrhage in the middle lower left lip measuring 3 x 2mm in the midline.

Of the Right Upper Limb

11. There were two purple bruises on the ventral aspect of the lower right forearm just above the wrist measuring 3mm and 5 x 3mm.

12. There were scattered blue bruises up to 7mm over the dorsum of the right hand and over the back of the index, middle and ring fingers of the right hand

13. On the centre of the right palm and the palmar aspects of the index, middle and ring fingers, there were similar blue bruises up to 7mm in diameter.

14. There were scattered abrasions on the back of the index finger 3 x 2mm and overlying the proximal interphalangeal joint of the ring finger measuring up to 2mm.

15. There was a red/purple bruise over the metacarpophalangeal joint of the middle finger of the right hand measuring 10 x 5mm.

Of the Left Upper Limb

16. At the centre of the left palm, there were similar blue bruises up to 7mm in diameter with at the base of the index finger, there was a transverse apparently post-mortem skin split.

17. On the back of the left hand and on the back of the left index, middle and ring fingers, there were similar blue bruises up to 7mm.

18. Over the metacarpophalangeal joint of the middle finger, there were small scabbed abrasions.

19. Over the proximal interphalangeal joint of the ring finger, there was an abrasion up to 2mm in diameter.

20. An abrasion 2mm in diameter was present over the proximal phalanx of the index finger.

21. There was a red mark on the proximal phalanx of the index finger.

22. There were two purple/brown bruises on the medial aspect of the left forearm measuring 12 x 9mm and 13 x 9mm separated by 10mm. The bruises showed yellowing at the edges.

Of the Lower Limbs

23. Over the 5th metatarsal of the left foot on the dorsal aspect, there was a purple bruise 5mm in diameter.

There was a great deal of consideration about the medical evidence. It appears to me that the Judicial conclusion is that speaking from a purely medical perspective, the medics are in agreement that the injuries were non-accidental in nature.

[It is worth noting  Justice Mostyn's comments about the Guardian's stance - I believe that similar reservations have recently been expressed by Lord Justice McFarlane, though I am still waiting to read the transcript on that authority.  I could not agree more with what Justice Mostyn says here]

The argument on behalf of the guardian of D and S2

    1. Ms D QC and Ms R represent the litigation guardian of D and S2, Ms S. In her written final submissions Ms D QC wrote:

 

“In this hearing the Children’s Guardian takes a neutral and objective position. It is not her role to argue for or against any of the other parties.

Ms S has had the benefit of hearing most although not all of the evidence throughout the hearing. She has had the benefit of the transcripts of the experts and medical witnesses provided. She was represented throughout. She has had the benefit of reading the documentary evidence filed and she has met with and had discussions with the parties. She has met the children. If the Court makes any findings against M or F the Children’s Guardian will be in a good position to consider and formulate her recommendations to the Court for the welfare of the children.

To that end the Children’s Guardian has considered the oral evidence heard, the written evidence submitted and the expert opinion received in the context of the LA’s Schedule of Findings.”

  1. I was surprised to read that. Given that the outcome of this hearing could have a most far-reaching effect on her clients D and S2 I would have thought that I would be offered at least a steer as to what findings I should make. But no, I was firmly told that this is not the practice, and with my slender experience of this kind of work I am not in a position to argue. That said, approaching the matter with an open mind uncluttered by years of experience of this kind of work I would have thought that at the very least the role of the Guardian and those representing her should be akin to Counsel to a Statutory Inquiry, assisting the court in exploring complex scientific evidence and making suggestions to the court as to what findings should properly and tenably be made. The practice of sitting with an assessor has fallen into disuse (notwithstanding that the procedure for appointing an assessor has recently been reiterated in FPR 2010 r25.14), and thus the role of the representative of the Guardian in a case such as this cannot be overstated.

Having heard all of the evidence, the Judge sets out how he proposes to deal with the decision, and sets out this framework

Conclusions

    1. The business of judging in this case is peculiarly difficult.

 

    1. Yet, if I accept Mr S’s submission that there is little, if any, scope for me to gainsay the histological evidence, which must lead me inexorably to find that in the early hours of the morning these parents, acting together, meted out the most extreme sadistic violence to S which involved thrashing his little hands and punching him in the face with sufficient force to snap his fraenulum.

 

    1. The same point is to be made in relation to the allegations in respect of S when the photograph at Exhibit 7 was taken. Standing alone all the allegations suffer from obvious evidential weaknesses, but when viewed through the prism of the histological evidence they present an altogether different image.
    1. But I do not believe that I should judge the histological evidence in isolation. It is part of a wider canvas. This is a recurrent theme from the authorities. I must weigh it against my assessment of the credibility of M and F and the (im)probability, judged from a non-scientific stance, that this ghastly event actually took place. So as regards the components of the evidence the court is, up to a point, in a chicken and egg situation.
    1. What I therefore propose to do is to make judicial observations on:

 

i) The credibility, character and personality of M and F.

ii) The use of generalised empirical statistical paediatric evidence.

iii) The use of photographic evidence.

iv) The reliability of ageing bruises by visual observation.

v) The reliability of the lay evidence from the neighbours.

vi) The histological evidence.

I shall then stand back and pull all the threads together and make my findings applying the law as I have set it out above.

Respectfully, this appears to me to be an entirely sensible and solid approach, taking into account all of the relevant matters and not taking into account anything that is not relevant.

What really appeared to trouble the Judge was that on the binary version of events, either the medics were right and these parents had inflicted horrific injuries on their child resulting in the child dying, and had concealed it and had faked a 999 call;  or the medics were not right and that the injuries were caused in a way that could not be medically explained but was not a deliberate or violent act.

    1. In judging the truthfulness of the parents as to the events of the night one has to reflect on the implausibility of what the LA seeks to prove. Although the LA did not explicitly challenge all the elements of the parents’ account as set out by me above, it should not be taken as accepting any of it, save where it is incontrovertible. Its case is that for the crucial period only M and F can say what actually happened, and they say that they should not be believed. However, stripped to its core elements the sequence that they posit is this:

 

i) At about 3 a.m. one of the parents inflicted extreme injury to S’s palms by repeatedly thrashing them in some way with some weapon. S was also punched in the face with such force that his fraenulum snapped. This would have caused S to suffer extreme pain, and he would have been screaming very loudly. The other parent, if not participating in this awful act, was present and complicit.

ii) D either heard all this, but never mentioned anything to anybody, or slept through the whole thing, even though her bedroom is next to S’s in a very compact area.

iii) None of the neighbours heard anything in this compact estate.

iv) At 7 a.m., as I have found, S died. Either one or both of the parents smothered him, or, by an extraordinary coincidence, he died a cot death.

v) At 8.50 a.m. M dialled 999 and seemingly in great distress told the emergency operator that her baby was dead in his cot.

  1. Obviously, improbable things do happen, but this sequence of events seems very unlikely. It is against this unlikelihood that I have to judge the truthfulness or falsity of the parents’ denials.

[The one element in this that I find problematic, or potentially problematic, is that of course it is very unlikely that parents would do such a thing, but one has to take into account that it becomes less unlikely when faced with a child who HAS those injuries. As the House of Lords considered in Re H and R and  Re B, it may well be inherently unlikely that a parent would abuse a child and the average parent would not, but the unlikeliness of it reduces if the Court is faced with a child who has been abused. I am as certain as anyone could be, however, that Justice Mostyn gave every facet of the case a great deal of care and attention, and it is likely that it is my reading here that is at fault]

His comments on the injuries to the palms show as much

The injuries to the palms, which are the most serious of all, and which can be regarded as a touchstone, are shrouded in mystery. The surface area of the palm of a seven month old infant is very small indeed. No-one, apart from Professor H has ever seen anything like these bruises. He has only seen them twice in people with bleeding disorders. Although Dr L posited that they might have been inflicted by a ruler or cane he admitted that their appearance did not really fit with that hypothesis. In argument I pressed Mr S to advance a likely mechanism but he just fell back on “repeated application of significant blunt force trauma” and declined to be drawn into specificity. So I am being asked to conclude that the parents inflicted with some mystery weapon, which no-one can visualise, repeated beatings on these tiny palms causing bruising the like of which none of these experts, Professor H aside, has ever seen before.

In summarising the medical evidence :-

    1. This evidence leads the four experts to conclude, as confidently as they can, that, by reference to the telos of this science as set out by me at para 40 above:

i) All of these injuries were caused in life and not after death;

ii) The injuries to the ears and knuckle were caused about 3 days before death; and

iii) The injuries to the palms and fraenulum were caused about 4 – 12 hours before death (most likely around 4 hours).

    1. In judging these powerful conclusions, at this stage without reference to the wider body of evidence I have sought to set out and comment on above, I would make the following general observations:

 

i) This science is forensically untested. The reason that I have not been given any medico-legal papers detailing the results of legal cases where responsibility for injuries has been found based on this science is because there have not been any, apparently anywhere.

ii) The science is based largely on research conducted on animals. There is almost no published scientific research in this field performed on humans, and none at all on babies. While it is said that the cellular and vascular features of all mammals are identical, this is mere assertion. I do not have any scientific evidence that tells me that neutrophil and macrophage migration is the same in mice, sheep, human adults and human infants.

iii) Biological science is not nearly as certain or predictable as the science of physics or the laws of mathematics. As Dr L accepted “we have biological systems and so therefore you cannot automatically assume that every one of us in this room will have exactly the same rate of accumulation of polymorphs at the site of inflammation – it doesn’t work that way, and there are other factors that may influence that”.

iv) Science is always moving on. Scientific certainties of a past age are often proved conclusively wrong by later generations. In an address to the British Association for the Advancement of Science in 1900 Lord Kelvin, one of the greatest of all scientists, stated that “there is nothing new to be discovered in physics now. All that remains is more and more precise measurement” and in a 1902 newspaper interview he predicted that “no balloon and no aeroplane will ever be practically successful.”[5]. Thus the warning of the President in Re U, Re B at para 23(v) that “the judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark”.

And the final conclusions – I recommend reading these three or four times, to really let them soak in

My very final conclusions

    1. I conclude:

 

i) Based on my survey of the lay and psychological evidence it is extremely improbable that these parents have ever deliberately inflicted injury on either of these children. It is, however, possible. I do not accept the neighbours’ evidence as to observations of marks or bruises save as to the marks seen by N2 to the backs of S’s hands on the week-end before he died.

ii) However, I believe that injuries to S, were caused by F recklessly taking both children out in the buggy in disregard of plain safety warnings. M would have been complicit in this, up to a point. There was nothing malign in this. It was just stupidity born of an over-enthusiastic and over-energetic immaturity on the part of F, and, up to a point, M. Obviously, it must never happen again, and I do not believe that it ever will.

iii) Based on my survey of the scientific evidence it is extremely improbable that an innocent explanation for S’s injuries is furnished by the eventuation of those things mentioned above. It is, however, possible.

iv) The paediatric evidence from Professor S does not alter my conclusion in (i) above. Nor does the photographic evidence. It is consistent with my conclusion in (ii). The forensic evidence of FS does not alter my primary conclusion. There are perfectly innocent explanations for blood on the sheet, bib and grow-bag. We know that S suffered from nose-bleeds, that he had an erupting tooth, and had bleeding feet.

v) Although the orthodox histological evidence is powerful I am not prepared to rely on it to displace my conclusion in (i) above for the reasons set out by me above. I would venture to suggest that there needs to be consideration within the medico-legal community as to reliance on histological evidence such as this in the forensic process where there is such a dearth of research on humans, and, particularly, babies.

vi) I am not prepared to find that the parents neglected S in relation to his feet. They sought appropriate medical advice for what was certainly a fungal and possibly also a bacterial infection. It is clear to me that there had been a significant postmortem degeneration in S’s feet by the time the photographs of them were taken at the autopsy.

    1. I am therefore left with two improbable explanations namely that S was brutalised and murdered by his parents; alternatively, that he suffered a sequence of pathologically unlikely events that gave rise to his injuries and overwhelmed him. This is a Popi M case. Just as the decision of the House of Lords left no-one knowing why the vessel plunged to the bottom of the Mediterranean Sea, so we are left here with no explanations for the injuries and death of S, other than those I believe were caused in the bike buggy. This is one of those very rare cases where the burden of proof comes (as Baroness Hale put it) to my rescue and so the parents are entitled to the return of Lord Hoffmann’s value of zero, namely that they will be treated in law as if they did not deliberately inflict violence on and to these children.

 

    1. This is not to say that there is not the possibility, even the real possibility (to use the language of Lord Nicholls in Re H and R when discussing the test under the second limb of s31(2) Children Act 1989), that these parents did indeed so grossly mistreat their children. But a suspicion or a risk is not enough on a fact-finding hearing, as the House of Lords so emphatically confirmed in Re B.

 

  1. I appreciate that the parents, and indeed the LA, want definite answers and I am sorry not to be able to supply them. I am only prepared to find on the 51% balance of probability test, having surveyed all the evidence holistically as the authorities mandate I must do, that I am not satisfied that these parents deliberately abused their children (as opposed to treating them recklessly in the buggy), or neglected or murdered S. Thus far I am prepared to go, but no farther.

That is as close as I think one will ever come to seeing a Judge accept that there are limitations to what even the most exhaustive consideration of the situation, with the assistance of extremely able counsel and experts drawn from a range of disciplines can achieve. This was one of those cases where the Court simply has to say that it is impossible to say what happened – whether the medics are right and a child was effectively violently assaulted and died as a result, or whether there is some other cause for the injuries which exonerates the parents. Being unable to decide, the Judge went back to first principles – the balance of proof falls on the LA, and as they could not prove that the parents HAD deliberately abused their children or neglected or murdered one of them, he had to find that they HAD NOT done so  (the test being binary now – mere suspicion falls away – if it is not proved that a person did X following a finding of fact hearing, then it is proved that a person did NOT do X in the eyes of the law)

Read it again – the Judge is essentially saying that both possible versions – the deliberate harm and the accidental explanation are both highly improbable, but not impossible. He is unable, on that basis, to find that either is more likely than not to have happened, and as a consequence, has to resort to the burden of proof to resolve matters. I can’t ever recall seeing a judgment like this – we bandy around the phrase ‘finely balanced’ all the time (and often use it as a substitute for  ‘arguable’  or ‘with some merit’  or ‘not utterly hopeless’, but this really is the finely balanced case.

As I hope I’ve made plain throughout, whilst this conclusion left me very uneasy, I have nothing but admiration for the careful, logical, structured, considered and exhaustive way in which the Judge tackled this exercise. But it does leave huge question marks for the future of really serious injury cases.  There has been a tendency over recent years (and this may well be right considering how badly we now know that cases like Cannings were approached in terms of accepting medical assertions that have since fallen away) to question the medical opinion; not just as to the confidence of diagnosis and differential diagnosis, but that additional step of ‘what you say is consistent with what you currently believe, but it may not always be the case and in time to come, we may find that this medical opinion as to causation of injuries is wrong’

I don’t know what the answer is here  –  a Court choosing between two (or more) competing medical hypotheses each supported by a medical report is a tough situation and perhaps not the best way for a medical controversy to be resolved  (scientific fact isn’t resolved by cross-examination but by science and testing and Poppers falsifiability principles )  but a Court being driven to speculate about the current boundaries of what science believes to be the case is even more difficult.

A fascinating case, which must have been immensely emotionally draining for all concerned.

The problem of the hanged man

 

Bear with me, this is going somewhere.

So,  a man is sentenced to be hanged to death for a crime. He hears the verdict and the sentence, and then addresses the Court. He explains that he knows he has done wrong and that he must pay for it, but that what he wants is to sleep in peace on his last night on earth, and asks if the Judge would agree that he should not know, for certain, when he goes to sleep that he will be hanged the next day. The Judge agrees. He will be hanged sometime in the next week, the Judge tells him, and this is all put down carefully into an official order. He cannot be hanged if he knows for certain the night before that the next day is the day he will be hanged.

 

And at the end of the week, he is not hanged, and goes free.

 

Answer at the end.

 

Now, as some of you may know, the 26 week time cap for new proceedings has been brought in, without fanfare, hullaballoo, announcement or even legislation. None of the new arrangements which will make it possible for the proceedings to conclude in 26 weeks (best interest adoption decision being removed, no more argument about care plans, greater respect for social work evidence, less experts) have come in, but there’s a new computer system that says all new proceedings will end in 26 weeks and the Courts have to give reasons why.

 

So, let’s look at 26 weeks, which might sound initially like quite a long time (it’s more than twice what the original inventors of the Children Act envisaged would be needed to crack all but the most difficult cases)

 

By week 26, we need to have a final hearing. So, let’s work on the basis of a 5 day hearing, at which the Guardian, social worker, allocated judge (since we’re going to get judicial continuity now) and any experts can attend. Let’s be optimistic and say that the Court listing will be able to magic that availability for us with no more than 2 weeks notice.

 

So, by week 24, we need to have our IRH and tell the Court that we need a final hearing and 5 days of Court time. Let’s also, for the sake of argument, have the Guardian file on the same week as the IRH.

 

So, by week 23, giving the Guardian only a week to see the parents evidence, which won’t be late, because it never, ever is, we need the parents to file.

 

By week 21, we need the LA evidence (I squeezed the Guardian down from the usual 10-14 days to seven, but really, the parents do need two weeks to see the LA evidence). If it is an adoption case, the Agency Decision Maker will need to have authorised the Placement Order application the same week. Let’s pretend that can be issued and not lost or misplaced by the Court and served on everyone in a week, just for giggles.

 

So, by week 20, Panel need to have considered the case and made a recommendation to the Agency Decision Maker – there has to be a seven day period for that, until the law gets changed.

 

Let’s be more ruthless and say that the time that Panel members get to see the expert report is cut from the current 3 weeks, to 2  (because the Social worker has to submit a Child Permanence Report to Panel and needs to know what the expert says before that can be finalised. And the law that says Panel have to read the expert report is still law (I hesitate to say ‘good law’)

Thus, by week 18, the expert report needs to be completed.

Now, let’s work from the other end, and see how long the expert gets to do their report, because 18 weeks looks like AGES.Four and a half months.

The proceedings are issued and the clock starts. The first hearing is at the end of week 1.

 

Assuming everyone moves quickly, let’s have a CMC in week 2. Unlikely, but let’s assume we do. And let’s assume that in that week, the parties have considered all of the papers and agreed not only what sort of experts they need, but who they should be, and found out timescales.

 

Lets go further crazy, and assume that the Letter of Instruction is agreed and finalised in Week 3, and that the LOI and papers go off to the expert in Week 4. There’s no hold-up in getting any additional disclosure, or medical records, or documents from past proceedings or other local authorities, or private law proceedings, or police disclosure. Hooray for simplicity.

The expert then has from week 4 to week 18 to do a report. Fourteen weeks. Three and a half months.

But don’t forget, that the expert can’t see anyone until the parties all have their Prior Authority for public funding in place. Let’s be wildly optimistic and say that that takes a fortnight.

 

So, by week 6, the  expert is ready to go, and has 12 weeks to do the report. Don’t forget, that the expert has to be available in weeks 25 or 26 for any contested final hearing.

 

I just don’t think that this is feasible. Worse than that, it means that when the parent sees the expert to demonstrate that they have changed sufficiently to justify a positive care plan, they have not had 26 weeks to make that change, but probably 14-15 weeks, just over half the time. If they are someone with substance misuse problems, or anger issues, they’ve probably just started with any intervention – if they need therapy, they might have got a GP to make the referral but won’t have had any counselling.

 

My point is – you can’t roll out the timescales independently of the new way of working which is going to make cases achieveable in those timescales. Even with a case where nothing goes wrong, you can’t do it on the PLO model and just say “do it in half the time it currently takes”.   The new 26 week cap is going to head slap-bang into “we need this expert, and he can’t report till week 22, so the timetable won’t work, expert instruction refused,Court of Appeal”

 

You can’t have a 26 week system where parents need to be able to demonstrate change by week 18 unless there’s something in place for them to help them make those changes. You could try a model where we divert all the money that’s currently spent on diagnosis onto treatment – task-centred and swift interventions and supports that are ready to roll out and begin once the referral is made, but they don’t currently exist and the funds aren’t there for them. So, if you roll out a 26 week cap without any sea change as to the way proceedings are done, you’re going to end up with a shed-load more cases in the Court of Appeal and a shed-load more cases that end with children in Care, since you haven’t given any ability for the parents to change from the low-point that generally exists when proceedings are issued.

 

And back to the hanged man – he knows he can’t be hanged on Sunday, the seventh day, because if he goes to bed on Saturday, he knows for certain that he’ll be hanged the next day, and that’s prohibited by the order. So, they can’t hang him on Sunday. Which means the latest they can hang him is Saturday. But now he knows that, and so if he goes to bed on FRIDAY, he knows for certain that he’ll be hanged the next day, because there’s only Saturday and Sunday left, and they can’t hang him on Sunday. And so on.

 

 

 

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