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Supreme Court and emotional harm

The Supreme Court judgment in Re B is out, and can be read in full here:-

 

http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2013_0022_Judgment.pdf

For the too-long didn’t read version, the parents lost. The case was hoped to clarify emotional harm, and whether it justifies State intervention, and whether the risk of future emotional harm (when it becomes somewhat tenuous and predictive) justifies the most draconian of orders, a plan for adoption.

There was an excellent preview of the case by Celtic Knot over on Pink Tape, here

http://pinktape.co.uk/cases/rescuing-children-from-significant-harm-looking-forward-with-trepidation-and-hope/

and it sets out the backdrop to this case very clearly and why it was that he and I were both hoping that the parents would succeed. In all of this debate, I am mindful that  (a) I haven’t had the chance to read or hear all of the evidence and (b) that the case sadly involves real people and a real child.  Sadly, as it has important principles, it is something that needs to be discussed in broader terms than just the tragedy for the immediate family.

Frankly, my reading of the Re B Court of Appeal decision was that there was a lot that professionals were worried about or anxious about, but none of it actually amounted to proof that the child was at risk of significant harm. [I stress, this may very well be a fault of the Court of Appeal judgment in not properly framing how they found threshold to be crossed, rather than on professionals involved in the case]

 

I think the closest it came to threshold was in this passage here

It was the diagnosis of Dr Bass, which Judge Cryan accepted, that, beyond  abnormal personality traits and in additi on to, and more significantly than, her  somatisation disorder, M suffers a factitious  disorder of mild to moderate intensity.

This is a related psychiatric disorder in  which the sufferer is driven repeatedly to exaggerate symptoms or altogether to fabricate them and to offer false histories.

There is therefore a deceptive dimension to  the disorder which was replicated in a  mass of other evidence before the judg e, unrelated to M’s medical condition,  which raised questions about  her ability, and for that matter  also the ability of F, to behave honestly with professionals. Dr Bass  stressed that M’s psychiatric disorders required psychotherapy which might last for a year and which could be undertaken  only if she were to acknowledge the problems and to engage honestly with the therapist.

 

 

Undoubtedly within the case, and the Supreme Court gave multiple examples, there had been incidents where claims had been made by M which the Court found to be untrue, and they were florid claims. That much, I don’t disagree with.  The decision of the Court of Appeal that this crossed the threshold seemed, to me, to fall short on the critical area of actual evidence that it HAD harmed the child or was a risk of harming the child, and not merely in nebulous “Jedi-hand-wave” terms – what was it that was said the parents might do that would harm this child, and how likely was it that they would do it?

 

The original trial judge said this:-

The judge concluded: “Ultimately, I find that I am persuaded… that what the evidence  clearly demonstrates is that these parents do not have the capacity to  engage with professionals in such  a way that their behaviour will be  either controlled or amended to  bring about an environment where  [Amelia] would be safe… In short I cannot see that there is any  sufficiently reliable way that I can fulfil my duty  to [Amelia] to  protect her from harm and still place her with her parents. I  appreciate that in so saying I am depriving her of a relationship  which, young though she  is, is important to  her and depriving her  and her parents of that family life which this court strives to promote.”

 

Again, that seems to me to be a legitimate decision for the Judge who heard the evidence to take ONCE it was established that the threshold was crossed. If there WAS a risk of harm, then whether the parents could manage that harm, take advice, work with professionals and change their behaviour is massively relevant.

But did we ever cross the threshold on the facts as reported?

My fundamental issue is this – if one cannot put into a paragraph, or a page, what harm it was that the State was protecting this child from, I am not sure that the harm is actually properly made out. [Not a criticism of the LA involved – I  haven’t read the papers, I don’t know the whole case, but from the twin judgments I have seen, I don’t see anything that comes close to telling the parents, or the public, what it was that this child was being protected FROM – other than very peculiar behaviour short of abuse]

 

One focus of the appeal was the wording of the threshold criteria (the test that the State has to cross before a Care Order can be made) which is “significant harm”  and whether the law has wrongly developed to an extent where it is now hard to see the distinction, in law, between harm and significant harm.

 

If one were to get a family lawyer to draw up two columns, one headed Harm, and one headed Significant Harm, and then gave them a series of allegations, would all of the family lawyers put each allegation in the same column ? would there be broad consistency about which is which, perhaps with a few grey areas? Or in fact, would nearly everything go into the “significant harm” column.

 

Here is what the Supreme Court have to say

26.  In my view this court should avoid attempting to explain the word “significant”. It would be a gloss; attention might then turn to the meaning of the  gloss and, albeit with the best of intentions, the courts might find in due course that they had travelled far from  the word itself. Nevertheless it might be worthwhile to  note that in the White Paper which preceded the 1989 Act, namely The Law on  Child Care and Family Services, Cm 62, January 1987, the government stated, at para 60:

“It is intended that “likely ha rm” should cover all cases of unacceptable risk in which it may be necessary to balance the chance of the harm occurring against the magnitude of that harm if it does”

The Supreme Court also rejected the applicant’s submission that when a Court determines whether or not the threshold is crossed, article 8 is engaged, and determined that article 8 only arises when the Court are deciding whether or not to make an order.   [I can’t say that i am happy about THAT either]

 

The second matter relates to Mr Feehan’s submission that the threshold set  by section 31(2) is not crossed if the deficits relate only to the character of the parents rather than to the quality of their parenting. His alternative submission is  that harm suffered or likely to be suffered by a child as a result of parental action or inaction may cross the threshold only if,  in so acting or failing to act, the parent or parents were deliberately or intentionally to have caused or to be likely to cause such harm. M is, of course, not responsible for her personality traits nor for her psychiatric disorders; and in effect the submission is that the dishonesty,animosities and obstructionism of the parents represent deficits only of character

and that, if and insofar as they might cause harm to Amelia,whom they love, the harm is neither deliberate nor intentional

 

This is an interesting one, taking us into issues of free will and determinism. I would agree partly with Mr Feehan QC  - I think that the threshold ought to get into quality of parenting or how the parenting impacts on the child, but I don’t go as far as saying that a parent is not responsible for elements of their personality which are beyond their control. (The latter, seems to me, to invite later ligitation on the basis of paedophilia being intrinsic to a person, rather than a conscious or deliberate choice on their part)

The Supreme Court rejected this anyway.  

 

One interesting addition from the Supreme Court was their debate about whether, when deciding whether a lower Court had mistakenly found threshold to be crossed (or vice versa) the test for the appellant Court should be the usual one (derived from Piglowska) that the Court had been “plainly wrong”  or whether in the context of the threshold, which is a binary value judgment – the evidence is there to satisfy it, or it is not, the test should simply be whether they were “wrong”

it is generally better to allow adjectives to speak for themselves without adverbial  support. What does “plainly” add to “wrong”? Either the word adds nothing or it serves to treat the determination under challenge with some slight extra level of generosity apt to one which is discretionary but not to one which is evaluative.

Like all other members of the court, I  consider that appellate review of a  determination whether the threshold is crossed should be conducted by reference  simply to whether it was wrong.

 

 

I think they may come to regret that formulation.

 

Going to the issue of threshold this passage in the judgment outlines why the majority of the Judges found that it was met and the decision was not wrong

The nature of the harm which concerned Judge Cryan was (i) “the emotional harm to [Amelia] likely to be caused by” (a) “the Mother’s somatisation disorder and factitious illness disorder”,

(b) “concerns … about the parents’ personality traits”,

(c) “her mother’s lying”,

(d) her father’s “active, but less chronic, tendency to dishonest

y and vulnerability to the misuse of drugs”, and

(ii) “physical harm to [Amelia]” which “can not be discounted, for example, by over treatment or inappropriate treatment by doctors”.

As to the possibility of such harm being prevented or acceptably mitigated, the Judge concluded that Amelia’s parents did not have “the capacity to engage with professionals in such a way that their behaviour will either be controlled or amended to bring about an environment where [Amelia] would be safe”. He explained that the result of this was that he could think of no “sufficiently reliable way” in which he could “fulfil [his] duty”

to Amelia “to protect her from harm and still place her with her parents”.

 

66. Those conclusions are concerned with what may be characterised as risks, prospects or possible outcomes, and they

are not, therefore, findings of primary fact, let alone conclusions of law. As explained above, they are evaluations based

on the findings of primary fact, and on assessments of character and likely behaviour and attitudes, made by the Judge

as a result of many days of considering oral and written evidence and also as a result of hearing argument. They are

evaluations which are also plainly dependant on the Judge’s overall assessment of  the witnesses, and in particular on his opinion as to the character and dependability of Amelia’s mother and father, and as tothe reliability of the assessments of the expert witnesses. His conclusions appear to me to be ones to which, to put it at its lowest, he was fully entitled to come on the evidence he had heard and assessed. In other words, they were justified in terms of logic and common sense in the light of his findings of primary fact and his assessment of the witnesses, and they were coherently formulated. There is no basis in my view, for saying that they were wrong.

 

Sadly, to me, it seems that the Supreme Court have tackled this case in that very narrow way, rather than comparing the threshold said to be met in this case with the doctrines of Lord Templeman and Justice Hedley, about the difference between abusive parenting which harms a child or is likely to harm a child, and eccentric odd or even poor parenting which falls short of that mark.  I slightly have to wonder why they agreed to hear the appeal at all if they were not going to roll up their sleeves and tackle the issue of emotional harm. They just really said that it was a matter for the trial judge which side of the line the case fell on, unless it was apparent that he had got that wrong.

 

Lady Hale in her judgment, which in my mind actually tackled the issues and concluded in the dissenting judgment that the original judge was wrong to have made a Care Order,  sets out what practitioners felt was the key issue in the case in her opening paragraphs

 

143. This case raises some profound questions about the scope of courts’ powers to take away children from their birth families when what is feared is, not physical abuse or neglect, but emotional or psychological harm. We are all frail human beings, with our fair share of unattractive character traits, which sometimes manifest themselves in bad behaviours which may be copied by our children. But the State does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, who suffer from physical or mental illnesses or disabilities, or who espouse anti-social political or religious beliefs. Indeed, in Dickson v United Kingdom (2007) 46 EHRR 937, the Strasbourg court held that the refusal of artificial insemination facilities to a convicted murderer and the wife whom he had met while they were both in prison was a breach of their rights under article 8 of the European Convention.

 

How is the law to distinguish between emotional or psychological harm, which warrants the compulsory intervention of the State, and the normal and natural tendency of children to grow up to be and behave like their parents?

 

144.Added to this is the problem that the harm which is feared may take many years to materialise, if indeed it ever does. Every child is an individual, with her own character and personality. Many children are remarkably resilient. They do not all inherit their parents’ less attractive characters or copy their less attractive behaviours. Indeed some will consciously reject them. They have many other positive influences in their lives which can help them to resist the negative, whether it is their schools, their friends, or other people around them. How confident do we have to be that a child will indeed suffer harm because of her parents’ character and behaviour before we separate them for good?

 

Hear hear

 

 

Sadly all of this next bit is by the by, since it is from the dissenting judgment, but I think it is all correct, and I wish it were an accurate reflection of what the law was, post Re B

The reason for adopting a comparatively low threshold of likelihood is clear: some harm is so catastrophic that even a relatively small degree of likelihood should be sufficient to justify the state in intervening to protect the child before it happens, for example from death or serious injury or sexual abuse. But it is clear that Lord Nichollsdid not contemplate that a relatively small degree of likelihood would be sufficient in all cases.

 

The corollary of “the more serious the harm, the less likely it has to be” is that “the less serious the harm, the more likely it has to be”.

 

 

Of course, another reason for adopting a test of “real possibility”, rather than “more likely than not”, is that it is extremely difficult to predict the future and to do so with the sort of accuracy which would enable a court to say that it was more likely than not that a parent would harm a child in the future. Once again, this is a particular problem with emotional or psychological harm, which may take many years to manifest itself. The Act does not set limits upon when the harm may be likely to occur and clearly the court is entitled to look to the medium and longer term as well as to the child’s immediate future.

 

190 However, the longer term the prospect of harm, the greater the degree of uncertainty about whether it will actually happen. The child’s resilience or resistance, and the many protective influences at work in the community, whether from the wider family, their friends, their neighbourhoods, the health and social services and, perhaps above all, their schools, mean that it may never happen. The degree of likelihood must be such as justify compulsory intervention now, for there is always the possibility of compulsory intervention later, should the “real possibility” solidify

191. The second element in the threshold sheds some light upon these questions. The harm, or the likelihood of harm, must be “attributable to the care given to the child, or likely to be given to him if an order were not made, not being what it would be reasonable to expect a parent to give to him”(s 31(2)(b)). This reinforces the view that it is a deficiency in parental care, rather than in parental character, which must cause the harm. It also means that the court should be able to identify what that deficiency in care might be and how likely it is to happen.

 

For my part, I am unsure why the other Judges did not share those views, they seem to me eminently sensible and fair. In reality, it is merely a sieve to remove the sort of cases that Lord Templeman and Hedley LJ were referring to as being short of the level of parenting that requires State intervention.

I also feel somewhat for Lady Hale, who has given excellent judgments in many of the Supreme Court cases but seems to be being characterised as the dissenter who does not sway the majority.

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Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

52 responses

  1. This is a tragic outcome in more then one way. Certainly tragic for the people of the UK and the children. The judgement will legally damage generations to come. The legal team of this couple made a major mistake by ever accepting a diagnosis such as this, by a Dr Bass who is a disputed expert in the field of psycho-somatic conditions, in short, he is an expert on hysteria.

    http://meagenda.wordpress.com/2008/12/26/dr-chris-bass-pulse-somatoform-disorders-article-and-unum/

    The focus of his expertise was apparently entirely on the woman, and the result is bizarre and destructive to put it mildly. The child is removed for good in response to a potential future harm from her mother’s alleged “hysteria”. Is “hysteria” and somatisation disorder” even a recognized disorder? This is a complete travesty,

    This is just one angle of many in which this case is just completely wrong and should have never taken place in the first instance. More and much more devastating judgments will come in it’s wake,.

    Another farcical wrong and another abuse of human rights on the grounds of bizarre experts and judges lacking common sense and legal sense.

    • I am deeply unhappy for justice, for children, for families and for the kind of society we are living in; and thank you for giving us the opportunity of getting together to give our voice about how disgusted we are about it.

  2. The Supreme Court majority judgment ‘re B’ is a disaster for this delightful 3-year-old girl, and for many families in the UK who are now even more likely to lose their children to forced adoption on the grounds of ‘likely emotional harm’.

    The child (now referred to as ‘Amelia’) was removed from her parents at birth on these grounds. She has recently had her third birthday in ‘temporary’ foster care. Amelia has contact with both parents three times a week, and her parents are diligent in their attendance. All social services records of contact are positive. Amelia has a strong relationship with each parent, and is an extremely bright and articulate little girl who is already asking questions about her situation. She has begun to chide her foster carer saying: “You are not my Mummy…”

    The outcome of the Supreme Court judgment is that (in all likelihood) Amelia will eventually be moved to a stranger adoptive placement. She will lose everything: strong relationships with her parents; her foster carer; and the environments that are familiar and comforting for her. She will, in effect, be ‘re-potted’.

    Children (with existing strong relationship s/attachments) cannot easily be ‘re-potted’.

    Predictions:
    1. Amelia is going to suffer great trauma from the pending loss of all that is familiar to her. In the short-term she will be devastated, and totally confused. She may gradually adjust and comply (largely in the way that kidnapped children do) during her pre-adolescent years – but there is no certainty about that. There is a non-trivial statistical possibility that her adoption placement will break down prior to adolescence (and a higher likelihood during adolescence).

    2. During adolescence Amelia will increasingly question and challenge her family status. She is highly likely to suffer psychological and emotional adversity from her history of separation/loss, dislocation and impaired identity development.

    3. In a socially networked world, it is inconceivable that Amelia will not seek out and establish contact with her natural mother and father in her teenage years. She will then acquire a very different perspective about her history (than that which will be given to her by her adoptive parents and social services). She will learn how hard her mother and father fought, for so long, to be her parents.

    4. Amelia will be angry. Her adoptive parents will bear the brunt of this anger. Amelia will ‘vote with her feet’ and return to live with her natural family. Her adoptive parents will be left feeling abandoned, rejected, bewildered – and deeply hurt.

    5. Amelia will read all of the papers relating to her childhood up until her forced adoption. She will learn how flimsy, and unspecific, were the concerns that resulted in her being denied the right to family life by her forced adoption.

    6. Amelia will consult solicitors.

    Lady Justice Hale, in her dissenting judgment, has argued cogently yet in vain, that the proposed forced adoption for Amelia is disproportionate and unnecessary. It is deeply ironic that the majority Supreme Court decision is committing Amelia to “future emotional harm” on a much more definite, greater and specific basis than was ever identified in relation to her parents at the time of her birth.

  3. forcedadoption

    LOCK UP THE JUDGES (EXCEPT FOR BARONESS HALE THE DISSENTING VOICE°)
    There should be no punishment without crime.These parents never hurt or harmed their child and it would be strange if they enjoyed good relations with “professionals” whose avowed intent was to give their DAUGHTER Amelia away to strangers for adoption !
    The judges committed the crime ,not the parents !

  4. Jerry Lonsdale

    There are still more profound questions than answers, I would desist from commenting further regarding the judgment I will however say that Mr Justice Wilson LJ refused point blank an appeal application “totally without Merit” no oral permitted either, well that case went to the ECHR and they did not agree, that case I mention is one where on the 5th July a Judgment will be handed down which I hope will shift the pendulum again towards parents, if only the 5th of July was given on the 5th June then I am almost certain it would have influenced the Supreme Court Judges

  5. Reading between the lines of some of the court judgments both on childcare and “vulnerable adults safeguarding”, you see, as in this case, that people get their lives turned upside down and their families ripped apart basically because they disagree with, or do not defer to, “experts”: social workers, psychiatrists and the like. How did the world’ oldest modern democracy allow its much-vaunted welfare state to become a coercive monster?

  6. forcedadoption

    The ambition of most politicians is to control ,control,control,;power is all to most of them;This inevitably leads to an attack on the family unit so that they become obedient sterotypes dependent on and obedient to the State whether on benefits or working but taxed and regulated to the point of destruction.
    25,000+ families in the UK are destroyed every year by UK secret family courts and the equally secret Court of Protection.What is a democracy? It is surely a country allowing the right of its citizens to protest publicly if they feel oppressed by the State; Elections by themselves are no guarantee. Hitler was legally elected, but was revealed as a dictator by suppressing any form of open dissent or protest. In the UK now secret family courts take newborn babies from their mothers for “risk of emotional abuse”, give them for adoption to strangers, and JAIL any parent going to the media to protest! Similarly elderly folk are snatched from caring relatives by the court of so called “Protection”, and put into expensive private nursing homes, their bank accounts are then looted and houses sold (ejecting their relatives) to pay the fees! If relatives protest to the media they too are JAILED! The democratic right of public protest should be restored to victims of UK secret courts NOW.

  7. Philip Measures

    Peter Dale seems to be professionally dangerous – I urge people not to use him. He cannot make such firm “is” / “will” predictions regarding Amelia when at best it should be “may.”

    I have to say that as a so-called ‘expert witness’ I have never encountered anyone with what seems to be such a closed mind – he certainly appears to have an ‘agenda’ which is unhelpful when each Case should be examined on its own merits. I doubt that he has met either the parents or Amelia in this Case.

    The Judge’s dissenting opinion is well made and the majority view may be unhelpful to Amelia in the long-term but she may have excellent foster / adoptive parents who will continue to portray a positive view of her parents within what needs to be a sensitive but realistic framework. It may also be that on-going parental Contact is also deemed to be in her best interests.

    • Dr dale I feel u should not critise is this manner he has infact meet us
      And he has out of all the right to state what he wishes as one he knows the whole case unlike yourself

      As clearly you know nothing at all about the case your comments are uncalled for

      • Philip Measures

        If you are the child’s mother and Peter Dale has met you then I fully accept that. Did he also meet your daughter and carry out any assessment on her?

        Your daughter was legally represented and had a Guardian, I presume.

        I am sure that the Court had available a wider amount of information and knowledge than is written up but decisions have to be arrived at which, in child care cases, are based more on probability than absolute certainty.

        Your daughter may have a very positive future and you may continue to be able to play some part in that – I assume that you will be involved in such discussions.

        Peter Dale is, however, in my opinion quite wrong to state so dogmatically what a bleak future your daughter will have. He cannot possible know or predict the future with such certainty.

    • Edna Fletcher

      The only people that are dangerous in Britain today are those with power and ‘herd like’ attitudes (unlike Lady Hale who has the understanding of what being human is).

      Those that wield power are not about to have their children ‘snatched’, although if there were flies on the wall in their lives/homes there may be good reason to deem many of their children at risk of emotional harm.

      Those with some ability to dissect the history and development of the ‘new professions’, based on assessment by and the personal opinions/ judgement of flawed individuals, are reminded of the excellent ‘One Flew Over the Cuckoo’s Nest’ as a testimony to what actually does happen.

      The newly established College of Social Work whose Chair has been for long keen to get adult social work on the same footing as Child Protection, because it has not the same status, is now asking social workers to decide which tasks must be reserved for them. I.e. making a case for their own importance to the government. Adult safeguarding, an industry that has grown exponentially since the MCA, has given adult social work the springboard it needed to exert power. Yet, in a Guardian newspaper article not long ago the Chair of the College noted that social workers did not have any special skills / ability not found in a whole range of other people. This is how these non scientifically and unsound ‘professions’ have come about. No large scale randomised double blind controlled studies of large cohorts of subjects, just judgements of individuals assessing behaviours of small numbers of individuals.

      The more intelligent and philosophically minded might ask how you can see and understand something of human behaviour unless it is reflected within you. If you understand that, as does Lady Hale, then you know in judging others one must be very balanced to avoid being cruel.

      Just in case some do not see quite see the danger, if you look at the publication Community Care on line you will see that there is not only no consensus as to what the definition / role of social work is, but that just about every health problem- from cancer to stroke is beginning to be deemed to need a social worker. Social work as practised in the UK is growing like a cancer in all directions and threatens to destroy society together with those that work with it but do not question what it presents.

    • Yes he meet her to and I feel you may not understand the bond between daughter and us parents … As he says and has the social worker said no one has concerns as we can care for her all this is based upon the fact that one I went to hospital and would not tell then what was wrong I knew what had happened to me was scared for my other child to speak out .. Since thy time over 4 years now only time at hospital was to have baby as clearly I am not being physically and emotionally abused … The cooperation is because I complained why they took her and when I was going through the horrendous ordeal nothing untoward happened to my other child… You see little one lucky enough is a bright little girl knows all her sisters all 5 of them her grandparents uncles ain’t us and proud to say she is very advanced for her age .. The FC has no control she will try and tell her why to do or stop her and we refuses to listen and it me and dad that the FC turned to to tell her and only then does she listen …

  8. For the record, I have met with both parents (several times) separately and together; and have observed them in contact with Amelia (as we must call her). I also interviewed the social worker at length (and my account of this was not challenged in cross examination).

    Both Guardians’ recommended reunification.

    I have no idea who Phillip Measures is; nor why he holds such over-generalised negative opinions. Mr Measures, can you explain?

    • Philip Measures

      There are seemingly some serious deficiencies concerning both the first Guardian (and reference to lack of CAFCASS resources) as well as to lack of detail of Peter Dale’s recommendation concerning a ‘family support programme.’ :

      218.
      But what about the need for co-operation with the social services? Even Dr
      Dale, the professional who was most supportive of the parents’ case, accepted that
      there would need to be a “risk management and family support programme” (First
      report, para 20.1) although details would require clarification. There was little
      evidence about what this might entail, other than the brief enquiries made by the
      guardian during the hearing….

      As a Registered social worker I am expressing concerns regarding statements by Peter Dale regarding Amelia’s future care and general prognosis which are not able to be tested as being anything more than assumptions. He ought not to make such unsubstantiated dogmatic statements. Research MAY indicate his worst-case scenario COULD occur but not that it necessarily will – and I, for one, hope that it won’t.

      One cannot have anything other than immense sorrow for mother’s upbringing but those of us involved in ‘safeguarding’ have to present openly and honestly our assessments to Courts and decisions have to then be made – those are often difficult decisions but that is the system we work under and one which, overall, I am still convinced is the best for children and young people despite not always getting it right.

      • “I am still convinced is the best for children and young people”

        Do children in the UK have generally a better life compared to other democracies with comparable living standards where forced adoption is outlawed or not practiced?

      • It is noted from you comment on PINK TAPE site that you are also an adoptive parent, so clearly would feel ruffled with Dr Dales comments. By the way, I have people adopted or who have adopted in my immediate family and social networks. Those doing so more recently have been subjected to the most gruelling examinations by social workers than those who adopted decades ago- neither has proved to be problem parents.

        My personal view is why do those that cannot have children insist on ‘the pretence’ of adopting a child as if it was their own born’? I for one would want to know where I came from and my birth family from the outset and to judge for myself.

        I have known many couples who could not have children whose emotional balance was exemplary in accepting this and getting on with their lives without IVF, adoption etc. Just because someone can afford such a route when childless does not make it the best decision in the interests of the child, but in the interests of those who want the child and of course the state apparatchik.

        I am not against adoption, but for the right reasons and by people who can have children who want to give a home an care to a child in need. I do not assume your personal situation on this… I am only giving my personal viewpoint on adoption, something I myself have remained keen on rather than producing ‘those in my own image’.

        As Allan Norman rightly notes the issue of child protective measures has as much to do with ‘trends’ in policy, practise and interpretation of the law as much, if not more than an increase in ‘defective’ parenting of children, which should if England was a democracy allow for differences . But the state apparatchik in the new found powers given to them like conformity to their notion of ‘normal’ behaviours in the UK- so we get child and adult snatching for no good reason and which other countries cannot comprehend.

        Arhivitka asks: “Do children in the UK have generally a better life compared to other democracies with comparable living standards where forced adoption is outlawed or not practiced?”

        Perhaps you can answer.

        My answer from what I have read and personal knowledge of people in various countries visited is a resounding NO’. Children grow up in all kinds of homes but unless they are subject to a criminal offence or cruel regular beatings by their parents they grow up ‘normal’ in general and rarely hating or blaming parents. Children form natural bonds with their mother so unless she is actually emotionally and phsysically cruel, taking her child away is an unnatural act- likely to lead to future emotional harm.

      • Philip Measures

        You make valid points Edna Fletcher – there are certainly issues arising from the breakdown of the ‘nuclear family’ – but in this Case it is clear that close family members also have had significant problems.

        It is absolutely correct that with adoption all avenues are carefully explored – both in assessing potential adopters and in making sure that it can be demonstrated to the child later in life that it was, indeed, the only viable option at the time.

        I remain uneasy in this specific Case with the initial lack of thoroughness by the CAFCASS Guardian and Dr peter dale seemingly not submitting the details Family Support Programme that he felt would have been required for Amelia to return to her parents care – it is never good enough to recommend a line of action without detailing it quite specifically and from an evidence-based perspective.

        The other issue in this Case seems to be around the abilities of parents to work positively and constructively with professionals – certainly mother’s mental illness, as described, is very real and she would not act inappropriately intentionally or maliciously but because she is genuinely ill – that may be able to be ameliorated sufficiently if she could have been demonstrated to have a willingness to better cooperate – but when something is ‘real’ to a person it really is real in every sense and not necessarily amenable to logical or evidence-based reasoning.

        I worry about immensely about the new ‘headlong’ rush into adoption – all done and dusted within 26 weeks – it is the other extreme to the over-lengthy processes that used to exist when 4-5 years was not uncommon. What I passionately feel is that we must ensure that lack of resources are never a barrier to assessing parenting abilities and also that the closest attention is given to issues of bonding – again, in this case Contact has been on-going BUT I still would expect that Amelia’s primary attachment is to her foster-carers. If she has a positive attachment to them we know that the signs that it can be positively transferred to adopters is also high – but not able to be 100% proven.

        We also have to take into account the impact of electronic media (FaceBook etc) where separated children and birth parents are able to ‘thwart’ the previous timescales and need for counselling before renewing contacts later in life and, therefore, ‘open’ adoptions become even more important which, if in the child’s best interests, need to have legal force to ensure that any Orders are probably abided by by adopters.

  9. I’m surprised you say that Lady Hale has given excellent judgments in many cases. My impression is that she has given a lot of bad judgments and has got up the noses of her colleagues in the process.

    But in this case I think she may well be right. It is indeed a pity that she could not convince her colleagues, on a case which is within her area of specialism.

    • What I was mulling this morning was whether, in her time as a High Court Judge, she would have given the same judgment (when it would then have been binding authority). One would like to think yes, but perhaps it is rather easier to be outspoken and direct when you already know that you are on the losing side.

      As to her other judgments, I’m sure that you are right about her having not made friends amongst her fellow Supreme Court judges, but just thinking of a couple of Hale judgments that spring to mind – I think she was right on the s20 case, I think she was right on the correction of the ‘gloss’ that had been put upon threshold in the previous Re B, I think she was right (but not listened to) on the Kensington case with the adult woman who was put in diapers overnight as a cost-saving exercise that this was no way to treat a person. I’m sure there are many other cases where I wouldn’t agree with her (or where she went too far on cases that were not her forte) but those are the big community care judgments that sprang to my mind.

  10. Philip Measures my education has been one where assessing the strength of the evidence base is the norm, unlike social sciences where methods are quite frankly biased towards the perspectives of the academics, with use of statistics to give credibility to small sample sizes. They rarely have unbiased objectivity as I stated earlier in this site.

    I do not accept, therefore, the mere theories, on which some of your assumptions are made. I also take the human and non mechanistic view of the imperfection of human beings, including all parents. The majority in the UK would be found wanting (divorce rates are a surrogate for this).

    I also, like some of the other posters, do not accept ever that failure to co-operate with professionals should underpin a child’s removal from someone with mental ill health on the grounds of ‘odd behaviour’, which in some echelons of society and other areas of the globe might seem eccentric or results from personal views, but are not directly and immediately harmful.

    The number of adults with mental health problems is not in decline and many do not seek help or co-operate with ‘professionals’ (One Few Over The Cuckoo’s Nest is a good reason not to as are some studies of normal ‘patients’ ‘faking mental illness’ in research and being given diagnosis which are false. If you really think that failure to want to talk to a social worker is a reason to remove a child in these circumstances , (then all such persons will have potential for future risk), then social workers can expect an increasing public reaction against them (and judges who support their reports) in time. A cancer in society cannot be allowed to grow and the more it spreads the more alarmed will sensible people become.

  11. forcedadoption

    For goodness sake ! These non criminal,non addictive parents never harmed their daughter so it was a wicked crime to take her to be adoption by strangers !
    Can’t anyone call a spade ,a spade ?

    • Philip Measures

      You need to properly read the Judgement ‘forceadoption’ – that was my original failure but it is lengthy and detailed.

      In respect to father:

      15.
      F has a long criminal history and has spent about 15 years of his adult life in
      prison. He was convicted of 52 offences between 1980 and 2008. Some related to
      drugs; some included violence but most were offences of dishonesty.
      In the 1990s he sustained three convictions for robbery,
      for each of which he received sentences of imprisonment of between two and three and a half years. In 2001 he was sentenced to four years for burglary. In 2007
      he was sentenced to three years for further burglary; and the pre-sentence report recorded
      his admission of a crack cocaine habit and of the occasional use of heroin. But, following his release on licence in May 2009, F has sustained no further convictions. For the first year
      following his release he was subjected to regular drug tests,of which two proved
      positive. At a hearing in June 2010 into whether an interim care order in relation to
      Amelia should be continued, F refused a judge’s invitation to submit strands of his
      hair to drug-testing; and he later announced that Barn et could “kiss [his] arse”
      when they next wanted to test him. Ultimately, in July 2011, he underwent a test
      which showed use of cannabis but not of Class A drugs; and there was no evidence before Judge Cryan that, although admitting to the continued use of cannabis, F was then also using Class A drugs.

      • The above passage (about the father) begs questions such as:
        1) should children be taken from lying politicians?
        2) from functionaries of the state who embezzle public funds?
        3) from ministers who award contracts to their cronies? Etc.

        I’ve known people who grew in families where someone had a drinking habit, or a criminal conviction, or had bad manners, or had propensity to rudeness. In short, in families where all sorts of human weaknesses were present. Now, being adult persons, no one wishes he or she would have been “taken” from their “bad” parents and “given” to some “good” ones, as assigned by a Committee.

        This is not to say that drinking or rudeness is a good thing. It is not. My point is that there seems to be no obvious benefit in the state’s intervention into family life, unless there is a criminal harm proven beyond reasonable doubt.

      • You may be interested in the piece I am just about to put up…

    • I think the point should be that they never harmed their daughter, criminal offences are committed by many in public life, some even go to prison- but I have never heard of their children being deemed at risk. Also it seems the parent in this case has other children not stated to be harmed- so singling out A is perverse.

  12. forcedadoption

    As Edna said the father may be a criminal but he never harmed his daughter or any other child.I personally neither smoke nor drug myself but I cannot believe that all parents who smoke cannabis should lose their children to adoption !Amelia is 3 and any criminal activity long before she was born must be irrelevant.Here is the big question……!
    Does ANY other country in the world take children for forced adoption for mere RISK of emotional abuse???????????????????
    I FANCY NOT,AND IF SO WHY NOT ?

  13. Pingback: Empathy, anxiety and resilience: Lady Hale in the Supreme Court yesterday | The Not So Big Society

  14. In further response to Mr Measures (and for the record) my third report for the court (dated 28/3/2012) in the care proceedings spelled out very specifically over 9 pages the precise components of my recommended risk management and family support programme.

    In my view, the parents (and extended family members) would have cooperated fully with this proposed programme.

    I do not understand why Mr Measures is suggesting that this detail was not provided.

    • Philip Measures

      Peter Dale – See my Post of 10-31pm of 12-06-2013 – it is a direct quotation from the Judgement. if this is incorrect then you clearly need to raise that issue.

  15. Rather then stressing yet again if “possible future emotional harm” alone can justify a forced adoption (which is unethical by all definitions) I want to point out that within family law proceedings in the UK the standard are bodged proceedings and lawyers providing poor work as a standard. These parents were set to loose their child from the beginning, by the way their counsel put their arguments to Judge Cryan and forcing the parents down a legal avenue which they could not leave once set and which lead them straight to doom.

    Judge Cryan has the unfortunate habit of not sticking to correct proceedings and not taking the time and the consideration he should. He likes fast proceedings and brush statements on characters he decided to dislike based on class prejudice. He uses experts to back up his prejudices against individuals, and is selective in his choice of experts. He is known for that and he has made many tragic decisions in this manner, admittingly with the help of lawyers and barristers who are not interested in protection of children, the law and justice but only in their business as usual.

    What should have really happened is a Judicial Review of Judge Cryan’s original work and a close look at the work of the counsel and social services with the help of a counsel that has a real interest and does not just want to pocket the fees. Instead lawyers and barristers and yet more experts made more money and this family has to carry the bill until the end of their lives. Whoever has experienced the shoddy work of UK family courts and the experts circus around them knows very well how tragically misguided these courts often work and how little they care about the consequences on society and individuals.

    • Philip Measures

      But Judge Cryan was supported by 4:1 and found to have acted correctly. We may dispute the Threshold Criteria but that is completely different from your allegations ‘Red Mama.’

  16. forcedadoption

    Can’t anyone see that it is simply wicked to take a child from parents for RISK of emotional abuse and subsequent adoption by strangers without writing lengthy discussions of unimportant sideissues ???????????????

    • Philip Measures

      Not necessarily – parents have to be demonstrated to be doing something ‘wrong’ – it is the matter of whether the Threshold Criteria is met – the ‘Welfare Checklist’ as set out in the Children Act 1989 or additions such as a child witnessing Domestic Violence. Is it fair on the child to do nothing when emotionally abusive actions are taking place and just HOPE that it will not be adversely affected?

      • forcedadoption

        Jargon jargon and more jargon Philip ! We are not talking about “emotionally abusive actions taking place” Risk is a plain English word meaning “CHANCE of bad consequences ” (oxford dictonary) yes chance; Babies and toddlers should never be taken on that basis and put into the far far more risky care system with a fifty fifty chance of ending up in prison and/or prostitution. 10,000 children in care DISAPPEARED in one year;Now there’s a risk for you Philip!
        Source:-
        In June 2012, the All-Party Parliamentary Group (APPG) for Runaway and Missing Children and Adults and the APPG for Looked-after Children and Care Leavers published the report of their joint inquiry into children who go missing from care.

        The report argued that the Government was under-reporting the number of children going missing from care. While the official figure for 2011 was 930, the report argues that, according to police data, an estimated 10,000 individual children went missing. The report cited that this high number was symptomatic of a care system which was far from being fit for purpose and in need of an urgent rethink.

      • Slight difference between 10,000 children DISAPPEARED in one year and 10,000 children went missing in one year. That’s not to say that the latter figure isn’t still very worrying, but the former suggests that they vanished never to be seen again. It is of course right that the police are informed when a child goes missing from care, but of course that counts all of those who turn up hours late, but turn up.

        But in general, Ian, I am on your side on the issue of emotional harm; I lean far more towards the Baroness Hale formulation of this than the Supreme Court decision as a whole. I am not sure that I would want to issue on any of my examples.

  17. forcedadoption

    True suespiciousminds ,missing is a more accurate term ,but if even half of the 10,000 missing turned up again,then 5000 missing without turning up, still presents a far greater risk in care for children who could also quite likely end up as prostitutes(career choice accordind to social workers !) or in prison,than leaving them with slightly dysfunctional parents who have never harmed their child or any other children.

    • Philip Measures

      You need to be very careful in your use of statistics – you also would need to compare children ‘in care’ against the general population. Also, the period of time a child was ‘missing’ – the lower figure the Government uses is probably where the absence is for 24 hours or more.

      • forcedadoption

        Well PHILIP surveys have shown that nearly half those in prison were once in care and similarly 42% of prostitutes on the streets were also in care as children.Compare that against the general population together with the abysmal standards of education attained by children in care and even you Philip must surely admit that “Care ” represents a terrible risk for any child.

      • Don’t blame Ian for for misuse of use ‘data / evidence’, the government do it frequently, so do social scientists who use selective studies/ evidence/ data to support whatever they believe or seek for an outcome. So therefore do social workers and those who rely on their reports/ opinions (Judges/ lazier lawyers) …therein lies the cloud that is looming large over families in conflict with ‘the system’.

        The use of tock in trade terms is now so widespread in social work they act as as a surrogate for factual evidence of real harm/ abuse. That Celtic Knot’s lawyer was also a qualified social worker no doubt was useful to the social worker couple who became the subject of an investigation over an allegation regarding their child. The ‘plebs’ in similar situations, unless they are rich, do not have social work trained lawyers unfortunately to forensically question bad social work practices and fight their corner when they have done nothing that is not normal to many parents.

        Fir what it is worth Mr Measures humans are more resilient than the laws in England on ‘abuse’ suggest. I can recall emotionally abusive instances (not in the family) at school, when not even a teenager, with teachers, One gets over it, without scars.

  18. Okay let me help you all understand the removal of a… Firstly the biggest mistake I did was ask for help la said I never told then the whole truth (I did) I asked for help the day I attended with the midwife and the scars was shown and she suggested she get in touch with barnet la and advise that I need help …they phoned told them everything regarding my oldest child arrangements was made for myself to meet .. On that day I was in pain as baby was pushing against the scars on my body called and explained told go straight to hospital … I did where I was knocked out and baby removed … Then ask solicitor to pass all info to barnet regarding oldest child she did next get a call I was in court nothing from barnet at all in court they say a barrage of bullshit all based after they had spoken to the person I was fleeing that I was involved in inappropriate pic of children and that I abused and left my oldest daughter ( I did not ) at that hearing this was the threshold they said was going to look into it and baby return to parents .i then complained as to why they took diva … I obtained the files to see that already a meeting had taken place for adoption … The illness never was another document was found from my prior criminal hearing which doctor wrote and stated he had made a mistake … New doctors comes along from the la says the same rubbish and it would take four years after final hearing goes down to a year and that I can care for diva … Had a another assessment from summers she telling me that the abuse in my life never happened I am saying it did she then says she can’t work with me as I won’t say it never happened ( I am not prepared to lie ) so we fail that I the judgment they say I say about my own father this is the truth what I say and have always maintained this … They say lack of cooperation but when I asked and documents prove this what they the la want from us they say nothing u done everything we asked for … Now for just over 3 years of diva life we have never missed a day she has been christened she has meet her sisters we even ended up taking the other girls on holiday to be faced with the FC and diva there what did we do I speak to the FC and ask her to try and avoid us as do not wish to confuse diva or her sisters … The la still gained the the care order based upon issues the judge found false in the fact finding of the oldest child the la never attended but this is what gets me the judge the same judge for both girls in my oldest praises me profoundly in my youngest I am a bad mum … Make sence of that

    • And another point baby was rushed to hospital required rests twice in 90 mins I said she nearly died while the FC sat there playing god telling no one now anyone tell me if your child or anyone for that matter required resus twice in 90 min what would you think me I get told oh it’s part of her condition …

      • Just to be a bit safer on anonymity, I have taken your email address out, mother M, since it might have allowed people to identify your name. Quite happy to put a contact email up for you, if you want me to, but one without your surname in it.

    • Philip Measures

      You make some interesting and powerful points ‘Mother m’ and I was sorry to read about the poor quality of the original CAFCASS Guardian’s contribution (with reference to CAFCASS Resource issues – whatever they were).

      It seems to me – and no doubt if I am incorrect someone will say so – that the limitations of this Judgement were more around not a ‘re-visiting’ of all full issues but, rather, whether the original Judge had acted in a sufficiently correct manner.

      There is also little doubt that in recent times Local Authorities are more exercised by ‘emotional abuse’ as a stand-alone issue than was previously the case – the real challenges here are, therefore, inevitably around the predictive factors.

      We do know the long-term damage that emotional abuse can cause – and we know that if stopped in its early stages that positive parenting can lessen its long-term effects. Social Workers (and others) have to try to make judgements on available facts and this is, of course, compounded when trying to assess future ‘likelihood’ of abuse.

      I fully accept the dangers of the ‘Care’ system but it is also dangerous to generalise that it is always bad – on many occasions it actually saves and enhances children’s lives.

      In this Case I also worry about the effects around Contact – it was maintained at a significant level for a significant period of time although the primary attachment of ‘Amelia’ is probably with her foster-carers – if she has a good attachment then the outcome for being able to ‘transfer’ it to long-term (hopefully) adoptive carers is enhanced.

      There has to be, though, a strong case for continued Contact to parents (‘open’ adoption) and given the role that the electronic media now plays reality is that she may well seek out her birth parents earlier than would have been the case in the past.

      This whole Case is a difficult one and mother is also clearly a victim – I find it distasteful that anyone would seek to minimise what she has gone through.

      • Okay in this case a did not have a close attachment to the FC … It was always having to blackmail and lie to a when it is time to leave parents this is how strong the bond is … Neve ideal situation as one hand I are accused of maybe teaching a child to lie in the future and in the other u have to lie for her to leave u at each contact session … I was a victim now a survivor and woul fully understand the concerns if one was still in that situation I am no longer … No need for hospital or doctors as. One I not going through events that happened prior … The biggest issue is one cannot understand how u can be accused of non cooperation when u r never asked to cooperate with anything … The emotional abuse of a will happen now and not by the parents but by the ones who have her

  19. The mother in this case always cooperated fully with the other social services department that was/is involved with her elder daughter. With regard to ‘Amelia’ the parents are criticised for ‘not cooperating’ with a different social services department that removed her at birth and intends to have her adopted. To expect parental ‘cooperation’ in such a situation, and to use the lack of such cooperation as evidence for the need for forced adoption is socially chilling.

    The implications for other children and families are enormous.

  20. The strange and most dangerous aspect of all this reporting is believing that all social workers are outstanding reliable ‘witness’ to removing a child.
    In this area alone there are heavily documented cases where lies by social workers are vast and the social workers totally unreliable to give evidence in food tasting let alone a family court.
    So I believe all social workers should undergo pyschiatric testing before being let loose on children.
    Best advice to any solicitor (I know many get their bread and butter money from LAs) is this.
    If you really are trying to work in the best interests of children, leave your automactic reaction to believe a social worker before a parent on the doorstep when beginning a case and view the whole as a private investigator who’s job it is to seperate the wheat from the chaff so to speak.
    And start with these ideals. If a social worker has to lie, make false allegations, bring in petty arguments of emotional harm, keep inaccurate records, bring in false witness, expert opinion to make up pyschological disorders, etc then there is no case. And maybe its the social worker who should be seeking help for her obsession in believing there is abuse when there is non.
    Please also remember that for every child taken, cash is changing hands and many people profit. Where there is money there is corruption
    As for social care. my experience of that is quite extensive and if you are aware of the fiqures of children kea

    • Philip Measures

      I am surprised that you allow such nonsense as that by ‘son4justice2′ above – of all the postings this is the most unhelpful and,frankly, absurd. It reduces the serious debating issues on both sides to trivia.

      • forcedadoption

        Booker continues “But more evidence is emerging, despite the wall of secrecy our “child-protection” system has built to protect itself, that this is far from being always the case, and that the system can too often make a horrible mockery of that mantra beloved by lawyers that all is being done in “the best interests of the child”. When judges rubber-stamp requests for children to be taken into care, this is the half of the equation they too readily ignore. They act as if taking of children into “care” means what it says, instead of the very opposite.

        One of the few judges who seems to have given careful thought to this crucial question is our most senior female judge, Baroness Hale of the Supreme Court, as she displayed in a recent dissenting judgment which has become quite a talking point in legal circles. To her measured thinking in the case of “B” (a child) I hope soon to return”

  21. forcedadoption

    To Peter Dale one can only say “hear hear” and applaud one of the only honest experts attending the family courts.

  22. forcedadoption

    Perhaps Philip Measures will take the latest Sunday Telegraph commentary more seriously !
    By Christopher Booker
    3:48PM BST 29 Jun 2013
    In Leicester recently a jury was shown a 93-minute police video of a 14-year-old boy describing how, after being taken by social workers into care, he was for three years subjected by a care worker to sexual abuse so horrendous that he repeatedly pleaded for help from other members of staff. His pleas were ignored. He finally went to the police, who shot the video but did nothing. Shortly afterwards, the boy hanged himself with a curtain cord. Only when his “carer” was charged with 10 offences did the prosecution produce in evidence the video on which the police had failed to act.

    Last week five men were given life sentences for raping, torturing and sex-trafficking six girls – one as young as 12 – over six years. Three girls were in council care. Their “carers” not only ignored the girls’ pleas for help but also connived in what was going on. Remarkably similar stories have recently come from Rotherham, Derby and Rochdale, also involving the
    systematic abuse of young girls in care that social workers encouraged to continue.

    One victim of the Oxford case, Jane, appeared in last Monday’s Panorama: Kids Lost in Care. This described the horrific experiences of several children removed from their families and placed in care. One distraught couple described how their grand-daughter had been moved 13 times to different care homes in two years, and how their pleas to her social workers were repeatedly ignored, until days after running away again from one home she was found dead of a drug overdose. The film ended with Jane, who had been sold for sex on the streets of Soho while in care, observing of those charged with looking after her: “They’re meant to be responsible for innocent and vulnerable children. To put them in a situation where they are even worse off than they were to begin with is confusing. A lot of this wouldn’t have happened if they had done their job properly.”

    Since the start of 2008, when the “Baby P” scandal was in the headlines, applications by social workers to take children into care have more than doubled, from fewer than 400 a month to nearly 1,000. In England alone, 67,000 children are now in care. Yet many are so unhappy that, according to the police, some 10,000 a year “go missing”. Having followed hundreds of such stories in recent years, few things have struck me more forcefully than the number of children taken from their families, often for the most dubious of reasons, who then, in “care”, report abuse and ill-treatment far worse than anything alleged against the parents from whom they were removed.

    Such is the other half of the equation of what goes on behind the scenes of our “child-protection” system that too often gets overlooked. It is one thing to take children from their parents for no good reason. But just as tragic is the fate of far too many children when they enter the murky underworld of state care. Of course, there are times when it is right for the state to intervene on behalf of children who are being genuinely abused. Of course, there are good foster carers, and nothing could be more heart-warming than those cases where children removed from a cruel and dysfunctional home find a new life with loving adoptive parents

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