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Category Archives: assessment of risk

Intervening lodger

 

 

Intervening lodger

 

 

 

The Court of Appeal decision in Re H (a Child) 2014

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/232.html

 

This case was effectively an appeal of findings of fact made against A, a young man living in the grandmother’s home.  [He might not be a lodger, but the judgment doesn’t say that he is a relative or partner, and I have used a process of deduction]

 

Care Orders and Placement Orders were made in the case, and the only realistic options in the case were those orders or a plan of mother and the children living in grandmother’s home, where A would continue to live.

 

The issue about that was that there were allegations of A having sexually abused children, and the professional opinion was that the mother and children could live with grandmother IF those allegations proved to be false, but not if they were proved to be true.

 

The Court of Appeal say “There was no question that A could or should move out of that household”     – I’m not quite sure why not, but there it is.

 

The preliminary question was A’s ability to appeal the decision – the Court of Appeal don’t actually consider appeals against findings of fact, but rather ORDERS arising from those findings of fact   (that, as Shakespeare put it, is a custom more honoured in the breach than the observance, but every once in a while the Court of Appeal remembers that)

 

There’s no simple answer to whether A could appeal against those conclusions, since he would not have standing to appeal the ORDER, but in the event this thorny problem was sidestepped as the grandmother was given public funding to run the appeal, and SHE of course could appeal the ORDER.

 

The order of course flows from those adverse findings.  

 

My reading of the case is that the lead Judge had some sympathy with the way that Leading Counsel representing the grandmother (and A) looked at the ABE interviews.

 

11.That theme which necessarily dominates this application was that the one option before the judge was for adoption of B with the maternal grandmother. There was no question that A could or should move out of that household. In attractive submissions, Mr Feehan took the Court through the transcripts of the DVD records of the ABE interviews of each of the three cousins and highlighted the flaws in those records which he submitted are sufficient to render the content unreliable. If he is right, then the judge was wrong to place reliance on any part of the same and the findings of fact would then be unsafe.

12To understand the context of that submission, one has to be conversant with the 2007 guidance “Achieving Best Evidence in Criminal Proceedings”, which is the multi agency best practice guidance that makes strong recommendations to those presenting the evidence of children to courts, both family and criminal alike.

13There is then a series of decisions of this court that highlight how a failure to follow that guidance can lead to fatal contamination of the children’s evidence. Mr Feehan took this court in particular to TW v A City Council [2011] 1 FLR 1597 where the agreed failings in the interview process in that case so contaminated the children’s materials that no reliance could be placed on the same. Mr Feehan highlighted the significant similarities between this appeal and Re: TW and invited this court to come to the same conclusion.

14In addition, he highlighted a line of authority on the demeanour of witnesses which caution the Court in deciding credibility issues in its reliance on demeanour alone. The point is obvious. What is the circumstantial material and does it tend to suggest credibility and reliability, or not, as the case may be?

 

 

In passing, I will raise my concern about the quality of ABE interviews, and particularly something which troubles me greatly, the development recently of “Q and A” sessions as a prelude to doing an ABE interview, almost as a sifting process to see if the child is going to make allegations in ABE. That seems to me to entirely miss the point of an ABE interview, which is to ensure that one sees exactly what the child is asked and is able to see whether the allegations emerge naturally from the child or whether they might have emerged by way of careless or inadvertent suggestion by the questioner. I am not sure that the ABE guidance is followed properly throughout the country, and it can cause significant problems either way (either a child’s allegations being contaminated and over-stated leading to a person wrongly being determined to be an abuser, or a genuine account having been contaminated leading to a finding that it is not safe to rely on what the child says)

 

 

15In deconstructing each of the interviews of the three cousins, Mr Feehan has identified varying significant failures. I can summarise them in headline form, but it is important to understand that he took the Court to the detail in the interviews themselves to substantiate his submissions.

a) The boys had been questioned by their own mother and by an aunt in a period of a week during which no-one knows what happened.

b) There was no planning for the ABE interviews and, therefore, no knowledge on the part of the interviewer about the boys’ family circumstances, including the house in which it was said the abuse occurred.

c) The interviews themselves were seriously flawed containing as they did graphic examples of the following:

(i) no understanding of the difference between truth and lies and/or the effect of telling lies on the part of each of the cousins.

(ii) no rapport or ordinary conversation so as to allow the boys to settle and gain appropriate professional trust in the interviewers.

(iii)no free recall or an opportunity for spontaneous recall of what it is that the boys reflected upon.

(iv) seriously leading questions, both open leading questions and closed leading questions, in both cases tending to suggest either that an answer must be known to them or indeed, what the answer should be.

(v) a confusion between asking the boys to recall what has happened and what they had previously told their mother had happened.

(vi) inaccurate rehearsal or summarising of what the boys had said in interview.

16Mr. Feehan was also able to point to the fact that these boys had never repeated the allegations in any other environment or since interview, despite one of them being engaged in some significant therapeutic work. Finally in the context of the proceedings, A was described favourably by the judge, despite some of his evidence being found to be unreliable

 

 

That does appear to be a significantly flawed ABE interview – the issue for the Court is whether, taking careful account of the flaws the Judge was able to still have confidence in the core truth of the allegations, or whether the ABE was so flawed that no reliance could safely be placed on anything that was said within it.

 

17The failings in the ABE interview process are very troubling, but no doubt with the same clarity with which Mr Feehan has addressed this Court they were put to Peter Jackson J who analysed those failings with some care. The judge likewise considered the position of the pre-interview discussions with the relatives. It should be remembered in that regard that the judge heard all of the adults who were also made available for cross-examination.

18Given the failings which were apparent, the judge entered into the task of highlighting the most worrying elements of the allegations made by the boys in their interviews. He did so at paragraph 49 of his judgment. The passages relied on include the graphic use of language by one particular boy who was the youngest about his experience of what happened. The judge found that material to be cogent despite the serious failings of the interview process. In essence, the judge was able to be satisfied that there was a core of truth in what had been described in the interviews.

19 That is a position to which a judge is entitled to come unless the whole of the interview process is so flawed that there is nothing reliable that emerges at the end of the same. Having regard to the way the judge set out at paragraph 49 what he relied upon, his impression of that boy’s evidence is something that it would be very difficult, if not impossible, for this court to undermine. Furthermore, there was nothing in the conduct of the adult relatives which led the judge to conclude that the boys had been coached or contaminated in their discussions with them

 

The remark at para 17 that shows that the trial judge had been very alive to the failings of the ABE interviews and had analysed it carefully was what sank this appeal. The Court of Appeal did not feel that the trial judge had got this wrong.

 

20 At paragraph 63 of the judgment, the judge carefully discusses the evidence from the family about their circumstances, the effect of the flawed interviews and that part of the interview process that led him to identify the cogent material upon which he relied. Finally, he considers the position of the boys and the adults and reminds himself that it was not for A to prove anything in the proceedings before him.

  1. Insofar as there is a submission that a judge hearing evidence from a witness is entitled to disagree with the content of the same and might thereby come to a conclusion which is not otherwise proved by the local authority, I do not consider that to be a reversal of a burden of proof, as submitted by Mr Feehan. It is a part of binary fact finding in a quasi inquisitorial process where the judge has considered what findings he can or cannot come to. At paragraph 63, the judge puts his finding into context and describes and explains why it is he found the younger cousins to be reliable enough. At paragraph 64 of his judgment, he sets out the findings that he makes. In my judgment, the judge was not wrong in the exercise that he undertook.

 

 

The Court of Appeal were unhappy about one finding

 

  1. If I take issue with anything at all, it is in respect of one part of one sentence at paragraph 64 of his judgment where the judge summarises what has gone before and says:

“He attempted to perform anal sex upon K, though it is not clear whether there was any significant penetration.”

  1. The clause: “it is not clear whether there was any significant penetration” must, as a matter of law, read “I make no finding on the evidence that there was penetration” and accordingly there was no finding on that issue at all. That phrase should not have found its way into the schedule of findings that presently appears in the order, and to that extent the order should be corrected.

The Ofsted, and Action for Children research on neglect

You may have heard that Ofsted this week published some research on neglect, the over-arching theme being that some children are being left in neglectful situations for too long

 

http://www.ofsted.gov.uk/resources/childs-time-professional-responses-neglect

 

On the same day, Action for Children published their research into neglect

“Child Neglect : The Scandal that never breaks”

 

http://www.actionforchildren.org.uk/media/8678803/scandal2014.pdf

 

the over-arching theme there being that neglect is happening to far more children than you might expect – their headline figures being

 

73% of UK children know another child who is suffering from neglect. Urgent action is needed to help children and families get the help they need.

 

  • Since 2011, around a third (32% in 2013) of professionals have felt powerless to intervene when they have concerns about child neglect
  • 35% of professionals say Government spending cuts have made it more difficult to intervene in cases of child neglect. In particular, 65% of social workers said cuts impeded their ability to intervene in cases
  • 94% of the public agree people should do something when they are worried about a child but 45% want more information on where to get help

 

Of course, the big headline really depends on (a) how you define the term neglect and (b) whether you think children are the best people to identify neglect in other children that they know

 

Their major demand, that the Government ought to produce a national coherent strategy on child neglect, is a worthwhile one. Perhaps the one two punch of Ofsted and Action for Children saying similar things on the same day will have an impact. (I suspect that Ofsted have much more clout, because they don’t need to scare Government into action, they just have to scare Local Authorities that if they don’t have a Neglect Policy, they’ll get a bad Ofsted review)

 

There’s a bit in the Action for Children research that made me scratch my head. The researchers asked professionals what the barriers were that stopped them intervening on child neglect.

 

 

There are the usual suspects – lack of resources, gaps in services, the point at which intervention can take place being too high. But then there’s “It’s not my job to intervene”

 

10% of the social workers asked gave that as their answer. 10%….

 

That is very worrying to me. It’s at page 18 if you don’t believe me

 

 

The Ofsted research then. They looked at 124 cases, drawn from eleven local authorities. Those local authorities were a spread of inner-city and rural counties, from the North, the South, the East and the West   (though the heaviest proportion was the North West – Liverpool, Manchester, Lancashire, Wigan). They looked at the records, spoke to professionals, to children, to parents and to carers.

 The key findings :-

 

      The quality of professional practice in cases of neglect overall was found to be too variable, although in some of the cases examined at this inspection, children were making progress.

      Nearly half of assessments in the cases seen either did not take sufficient account of the family history, or did not adequately convey or consider the impact of neglect on the child. Some assessments focused almost exclusively on the parents’ needs rather than analysing the impact of adult behaviours on children.In a small number of cases this delayed the action local agencies took to protect children from suffering further harm.

      While the quality of written plans was found to be too variable, there was evidence of some very good support for children that was meeting the short-term needs of the family. However, there was very little evidence of longer-term support being provided to enable sustained change in the care given to the children.

      Some authorities are using effective methods to map and measure the impact of neglect on children over time and to evaluate the effectiveness of interventions. This results in timely and improved decision-making in some cases. However, not all local authorities have such systems in place to support social workers in monitoring the impact of neglect on children and the effectiveness of their interventions.

      Non-compliance and disguised compliance by parents were common features in cases reviewed. Although some multi-agency groups adopted clear strategies to manage such behaviour, this was not evident in all cases. Where parents were not engaging with plans, and outcomes for children were not improving, professionals did not consistently challenge parents.

      Drift was identified at some stage in the child’s journey in a third of all long-term cases examined, delaying appropriate action to meet the needs of children and to protect them from further harm. Drift was caused by a range of factors, including inadequate assessments, poor planning, parents failing to engage and in a small number of cases, lack of understanding by professionals of the cumulative impact of neglect on children’s health and development. Drift and delay have serious consequences for children, resulting in them continuing to be exposed to neglect.

      Front-line social workers and managers have access to research findings in relation to neglect, although the extent to which this is incorporated into practice varies. It is by exception that front-line social workers use specific research to support their work. The impact of training on professional practice with regard to neglect is neither systematically evident nor routinely evaluated.

      Routine performance monitoring and reporting arrangements to LSCBs infrequently profile neglect. Therefore most boards do not receive or collect neglect data except in respect of the number of child protection plans where the category is recorded as neglect. Most boards were not able to provide robust evidence of their evaluation and challenge about the effectiveness of multi-agency working to tackle neglect.

      Those local authorities providing the strongest evidence of the most comprehensive action to tackle neglect were more likely to have a neglect strategy and/or a systematic improvement programme across policy and practice, involving the development of specific approaches to neglect.

      The challenge for local authorities and their partners is to ensure that best practice in cases of neglect is shared in order to drive improvement.

 

 

They make a series of recommendations for Government (to review social work training to have mandatory material on neglect, to require Local Safeguarding Children’s Boards to have a strategy on neglect for their local area) ,

for Local Safeguarding Children’s Boards (to gather data on neglect and assess and monitor it in their area, to ensure front-line training on neglect for professionals, to get agencies working together on the issues, to ensure that all staff know how to escalate concerns, to ensure that all training represents best practice and contemporary research)

and on Local Authorities (robust management oversight of neglect cases to avoid drift, better methods of assessment, proper child protection plans for neglect cases, specialist training in neglect, consistent levels of threshold for intervention, a shift in focus on written evidence presented to Courts so that it is clear, concise and explicitly describes the cumulative impact of neglect on the daily life of the child)

 

The last is interesting, as we brace ourselves for the standardised model of social work reports (having seen the version that went out to consultation, I have serious doubts that this model is going to deliver what Ofsted are recommending)

 

The body of the report picks up as a theme that social work reports and assessments focused on the adults and the parents issues rather than analysis of the impact of this on the children. “Are children getting lost in the assessment in the same way in which they are lost within their own families?”

 and a later quotation  (from a Director of Children’s Services)

“social workers and schools may become desensitised to neglect”

 

 

The headline that was grabbed by the Press (they toss a coin, I think, to decide on any individual day whether social workers are jackbooted child-snatching fascists, or clueless Mavis-Reilly-esque do-gooders who are hopelessly ineffectual)   was that parents were given too many chances

 

66. In the cohort of cases where progress for children was not being achieved, a common feature was parental non-compliance or ‘disguised compliance’. Professionals did not consistently demonstrate clear strategies to manage this behaviour. For example in a small number of cases, the Public Law Outline (PLO) was used to address non-compliance and while this was effective in the majority of cases, where parents breached PLO agreements subsequent action was not always taken. This apparent reluctance by professionals to act assertively and in line with written agreements meant that cases were not escalated at the right time for children and there was a delay in action to protect them.

67. In some of the multi-agency meetings held during the thematic inspection professionals reflected on their practice and accepted, with hindsight, that they had been manipulated by parents. For example, in one case when a mother and father had a new baby, the child was made subject to a child protection plan because the parents both had a history of drug misuse and had had previous children removed due to neglect. When the mother tested positive for cocaine use and the father positive for heroin use, the case was escalated to PLO, but stepped down again very quickly when the parents appeared to cooperate with the plan. The child was removed from the parents some months later due to further evidence of parental drug misuse. The child protection chair told the inspector that they should have been more challenging of the lack of progress at a much earlier stage in the case, and described the parents as ‘very plausible’, ‘always coming up with a reason for not completing tasks that were required of them’.

68. In other cases parents were given too many chances because professionals had not fully recognised or assessed the level of non-compliance and were carrying on regardless. Overall, the evidence in these longer-term cases is of a failure by professionals and their managers to be consistent in identifying non-compliance and disguised compliance, and in some cases failing to assertively challenge parents who were not engaging with plans.

 

For local authority lawyers, Ofsted makes comments about their role in the process too (not particularly flattering comments)

 

74 . Further delays were apparent in some cases because of inconsistency in decisions about whether the threshold for proceedings had been met. A small minority of local authority legal advisers held the view that some courts were not giving enough consideration to the family history when making decisions as to whether the threshold for proceedings had been met. However, most legal advisers reported that the courts and Cafcass were well-informed about research findings and the significance of a history of parental neglect. In a further small minority of cases local authorities appeared too ready to accept legal advice that the threshold for proceedings had not been met. This suggests there was some lack of clarity as to who holds responsibility for making decisions to initiate court proceedings to protect children from significant harm.

75. The general view of legal representatives was that the quality of written and verbal evidence provided by childcare professionals in legal proceedings was not consistently robust. This resulted in some cases failing to progress to proceedings or, when cases did reach the court arena, not achieving the required outcome. Evidence needed to be gathered more effectively, risks and protective factors expressed more clearly, and the impact or potential impact of neglect on children identified. Partner agencies needed to collate evidence of the impact of neglect, including the impact on children’s behaviour and emotional development, from a very early stage.On the basis of this thematic inspection the lack of clarity around thresholds for legal proceedings is a signficiant concern, given that as a result of this some children remain in situations of neglect for too long

 

Of course, one of the issues on ‘threshold’ is that we are talking about two different things – the s38 or s31 ‘threshold’ of significant harm is very easy to identify, we all know that when we see it. But the ‘threshold’ of “If you go to Court and ask for these children to be removed will you succeed?”   is much more dependent on local Courts, local Guardians, knowing how your Courts view neglect, knowing how bad it has to be before you would meet that test, knowing whether your social worker’s evidence will be compelling in the witness box or tentative. How old are the children, how will they be affected, are you going to find foster placements to meet their needs? Of course the answer to the second question varies greatly from case to case, there is never a one-size fits all answer.

It is, of course, very important not to conflate the two questions

 

  1. Is the threshold met
  2. Is the evidence strong enough to persuade a Court to do anything about it

 

 

Neglect is always the hardest type of case to make decisions about – almost always you have missed the right time to issue the proceedings. Neglect is very rarely a steady downward slope, it is more of an undulation, a series of peaks and troughs – little improvements as support is provided, dips as the family struggles. And it always feels that the impact on the children of neglect is viewed less significantly by Courts than a broken leg, an allegation of sexual abuse. Even though the long-term impact of neglect can be very corrosive, there’s a feeling that it isn’t that bad, or that it has to get very bad indeed before anyone is willing to draw a line and say “no more”

As local authorities come under pressure to drop their numbers of looked after children (and they are doing, and a large part of that pressure is from Ofsted themselves), neglect represents the soft target for that reduction.

 

Not many local authorities are going to increase their tolerance for physical abuse at home, or sexual abuse at home. Which leaves, if you want to raise your threshold and lower your number of court proceedings and looked after children, tolerating more neglect at home.

Unless you’re going to put in services and support to change neglectful care into good enough care, but that’s a big ask at a time of cuts and reduction in services.

 

[It might, of course, be a good thing that there’s a recalibration of what is ‘good enough’ care where the State should support but not intervene, and what requires care proceedings and separation – one can’t argue with the fact that the number of children coming into court proceedings has gone up massively over the last ten years, and how do we know whether we are now at the right number and we used to be leaving too many children at home, or whether we were right ten years ago and over-reacting now?  ]

Obtaining a fresh assessment late in proceedings

Re Z (A Child : Independent Social Work Assessment) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/729.html

My compliments to the Judge for giving this a meaningful case name that allows people to find it in the future.

This one was a judgment given in March 2014, for care proceedings arising out of injuries to a child that occurred in September and October 2012. The proceedings were into week 72.  The father applied for a fresh independent social work assessment, and also sought a fresh assessment of the paternal grandmother, challenging the negative viability.

If you are at the moment, thinking, meh, I know how this one ends up – I’ll give you a spoiler.  He gets the assessments.

Ah, now you want to know more…

    1. In any case in which a local authority applies to the court for a care order, the assessment of a parent is of critical importance. That assessment will be a key piece of the evidential jigsaw which informs the local authority’s decision-making, in particular with respect to the formulation of its final care plan. If the assessment is deficient then that is likely to undermine the reliability of the decision-making process. It follows, therefore, that any assessment of a parent must be, and must be seen to be, fair, robust and thorough.

 

    1. Was RD’s assessment of the father fair, robust and thorough? In my judgment it was not. In arriving at that conclusion I bear the following factors in mind. They are not ranked in any particular order:

 

(1) The assessment undertaken by RD was a social work assessment and not a parenting assessment. No parenting assessment of the father has been undertaken. His ability to acquire the skills needed to enable him to care for Z have not been assessed.

(2) To the extent that RD’s observation of contact and reading the contact supervisor’s notes have informed her assessment, the clear evidence is that that contact was positive and that the father was able to learn and apply new skills. He was cooperative and teachable. Despite this the local authority declined either to increase the level of contact or provide him with any form of training to enable him to meet Z’s care needs (unlike the foster carer for whom training has been provided).

(3) Not only has the local authority failed to undertake a parenting assessment it has also failed to give any consideration to the support the father would need in order to care for Z or what support and assistance the local authority is able to offer.

(4) The father is criticised for lack of understanding and insight yet his knowledge of Z’s injuries and prognosis comes not from copies of the relevant reports translated into Punjabi but from having some of those reports – or more likely some parts of those reports – read to him in Punjabi. To this must be added the local authority’s failure to give the father opportunity to meet with any of the health care professionals responsible for Z’s care.

(5) The local authority’s social work assessment proceeded on the assumption that the father wished to return to India and care for Z there. Whilst I acknowledge that some of the things the father said may reasonably have led the local authority to that belief, I am equally satisfied that that is not his position. This is not the only issue in this case in which something has been lost in translation.

(6) The local authority appears to have assumed that a care plan for adoption automatically means that post-adoption contact should be limited to letter-box contact only. It has not given any consideration either to the benefits for Z of contact continuing or, as part of its assessment of the father, what the father has to offer to Z through ongoing direct contact. Whereas the guardian has begun to reconsider her position on contact there is no evidence that the local authority has begun to do so.

  1. I am satisfied that the local authority’s assessment of this father falls short of the standard required.

 

Fair, robust and thorough seems like a good test in appraising the evidence – I expect to see others make use of this test   (whether this authority is binding or not is tricky – but it is a High Court case, so it is at least persuasive)

 

One major part of father’s case was this :-

 

108. As a result of the negative outcome of the social work assessment, on 31st January 2014 the father issued an application for permission to instruct an independent social worker to undertake a parenting assessment. The father complains that the social worker ‘failed to approach the assessment with an open mind’ for which submission he relies on the fact that the social worker informed the LAC review on 12th December 2013 that the outcome of her assessment was negative even though the assessment was still ongoing.

 

If father was able to establish that, which one would hope would be confirmed or refuted by the LAC review minutes, that is fatal to the LA’s opposition to an independent assessment. This is not announcing the outcome when all that is left is to finish dotting the i’s and crossing the t’s in the written report , this was a final view of the outcome of the assessment given whilst it still had six weeks to run.

 

Unhelpfully

    1. The minutes of the LAC review held on 12th December note that,

 

‘Social Worker RD is carrying out 6 assessment sessions with [the father] 5 have been completed. The assessment is negative. He denies any knowledge of the injuries or reasons she was harmed, he has very limited understanding of her health and overall prognosis. He does not understand the impact of the brain damage. He has no clear plan – originally he said his mother would help out in India, then his sister. It is assessed he is not considering Z’s best interests. All professionals shared these concerns. Becky will inform [the father] of the outcome of the assessment and will file the statement by 8.1.14.’

    1. Although the father attended the LAC review he was not permitted to be present throughout the whole of the discussions. He was not present when RD told the meeting that her assessment of him was negative. He was not present when the decision was taken that the local authority’s plan for Z should be one of adoption.

 

    1. The minutes of the LAC review have little to say about contact: ‘Supervised contact takes place twice a week during the assessment period. Z has been fine before and after contact’. If that is an accurate reflection of the information given to the members of the LAC review then it is woefully lacking. The social worker said that she ‘was not asked’ to provide the Review with evidence relating to contact. Given that contact was extremely positive for Z one would have expected the LAC review to have been informed of this and that it would have considered how contact might develop. This is a requirement of the Care Planning Placement and Case Review (England) Regulations 2010 ['the Regulations']. Schedule 7 sets out the considerations to which the responsible authority must have regard when reviewing a child’s case. Schedule 7 paragraph 4 requires the LAC review to consider

 

‘The arrangements for contact and whether there is any need for changes to the arrangements in order to promote contact between [the child and her parents].’

  1. The social worker was asked whether the minutes of the LAC review provided an accurate summary of what was discussed. She confirmed that they do, though she went on to describe them as ‘brief’. The minutes have been signed by the Independent Reviewing Officer. There is space for them to be counter-signed by the social worker. In this case the social worker confirmed that the minutes had been sent to her for approval and signing. She had not responded. She has not signed them. She said that she does not routinely sign minutes of LAC meetings.

The Judge’s comments on LAC reviews, that arise from those failings, are also ones that I expect to see crop up in other cases

    1. LAC meetings are very important meetings. That that is so is made very clear by the Regulations. The records of such meetings are also important. Regulation 38 provides that,

 

“The responsible authority must ensure that a written record of the review is prepared, and that the information obtained in the course of the review, details of proceedings at the review meeting, and any decision made in the course of, or as a result, of the review are included in C’s case records.”

  1. It should be apparent from the minutes of a LAC meeting that the meeting has considered each of the matters which the Regulations require the meeting to consider. The minutes should be balanced. So far as the parents’ relationship with the child is concerned, they should identify any positive points as well as any negative points. Although there is no requirement in the regulations for minutes to be signed, as a matter of good practice it is clearly appropriate that they should be signed. They should be signed by the Independent Reviewing Officer and by the allocated social worker, if present at the meeting, and if not present then by the most senior social worker present at the meeting. Their signatures provide the assurance that the minutes give an accurate and balanced account of the matters discussed at the meeting.

 

Assessment of paternal grandmother next

    1. That leads me back, finally, to what the local authority describes as a viability assessment of PGM. For the reasons set out earlier in this judgment I regard that assessment as inadequate. The notion that a Punjabi speaking grandmother living in India, expressing a clear interest in being assessed as a long-term carer for her granddaughter, not having been provided with any of the background papers translated into Punjabi, can be ruled out on the basis of two telephone conversations one of which was conducted by a Hindi speaking English social worker, is in my judgment wholly unsupportable.

 

    1. Re M-H (Assessment: Father of Half-Brother) [2007] 2 FLR 1715 concerned an application for a viability assessment. The judge at first instance had described the local authority’s viability assessment of the father of the subject child’s half-brother as “wholly inadequate” and “flawed”. The judge nonetheless declined to order a full independent assessment. In the Court of Appeal, giving the leading judgment, Wall LJ (as he then was) said that,

 

‘the exercise of a judicial discretion in a care case is an amalgam of expertise from a number of disciplines, an essential part of which is or should be competent social work assessments which the judge can then appraise and accept or reject….Accordingly, in my judgment, to do proper justice to [the child's] interests in the instant case, the judge required the thorough independent social work input by means of a viability assessment which [the appellant] had sought. The judge denied himself that input whilst at the same time recognising that the local authority had failed to provide it.’

  1. Z’s care needs require support from a multi-disciplinary team of health care professionals. Is there any possibility that a similar package of support could be available in India? If the answer to that question is ‘no’ then it seems to me that notwithstanding PGM’s offer to care for Z and the duty on the local authority pursuant to s.17 Children Act 1989 to promote the upbringing of Z by her family, it would be difficult to argue that a move to India would be in Z’s best welfare interests. However, making that point simply serves to highlight the fact that the court does not, at present, have sufficient evidence to enable it to make that judgment. There needs to be a proper assessment of PGM. Any such assessment also needs to identify and consider the services that would be available to meet Z’s care needs in India. These are now issues for further case management.

 

And the Judge wasn’t finished – given that the Local Authority care plan was for the current foster carers to adopt, he felt that their Re B-S analysis was badly flawed – it had not properly taken into account that such a placement could be under a Care Order (fostering) or a Special Guardianship Order and why those options should be discounted in favour of adoption. He made it plain that even if the independent assessments of father and grandmother weren’t positive, this case was a considerable distance from being “then adoption is the right plan”

136 My decision to allow the father’s application for leave to instruct an Independent Social Worker means that it is unnecessary and inappropriate, at this stage, to go on to consider the local authority’s final care plan. However, it is appropriate that I should make the point that it should not be assumed that if the assessment of the father is negative then that, without more, will lead to endorsement of the present final care plan. Even leaving to one side the local authority’s flawed assessment of the father, it is plain that the current final care plan is deficient. For example, it does not consider and analyse realistic alternatives to adoption (long term foster care, special guardianship); it does not consider whether it is appropriate for Z to remain in a placement in which there is a changing population of children in short term foster care; it assumes that post-adoption letter-box contact is appropriate without making any attempt to consider whether ongoing direct contact would better meet Z’s needs; it proposes by way of contingency plan that if the placement with FC breaks down it will search for an alternative adoptive placement even though it acknowledges that it is highly unlikely that an alternative adoptive placement could be found. These are all issues which must be addressed. The local authority has more work to do before this case can fairly be concluded.

 

I can’t quite find from the judgment what the timescales for the further assessment are, and obviously those assessments will need to be considered, final evidence filed from all parties and a final hearing take place. It probably amounts to a final hearing taking place at around week 90, or week 100.

 

But that is palpably and manifestly the right thing to do, to get the RIGHT answer.

I do worry that now that the Children and Families Act 2014 will lock Judges into 26 weeks, or an extension of 8 weeks, whether cases like this will get their proper determination.

Section 37 reports are not a vehicle into which to pour professional angst

The High Court decision in Re M (Children) 2013, and the strong judicial comments about the need for section 7 and s37 reports to properly analyse the issues, AND a warning for Local Authorities who try to avoid responsibility for children in designated authority disputes. Important guidance for both LA lawyers and social workers within this.

http://www.bailii.org/ew/cases/EWHC/Fam/2013/3758.html

 

The facts of this case are quite extreme and unusual. They involve children who were living with their maternal grandparents. These grandparents had had themselves four children – the mother (who had been unable to care for the children), AM (who had been sexually abused by a man 20 years older than her during her adolescence) and twin boys. The twin boys celebrated their 18th birthday by murdering another grandparent and were convicted and imprisoned.

 

Those twins were subsequently released from prison and there was some suggestion that they might move in with the grandparents and the four children in question.

 

Somehow (it is not clear from the judgment) the case came before the Court and section 7 reports and then a s37 report was commissioned from the Local Authority.

(Non-lawyer note – a section 7 report is one the Court ask for to advise on where the child should live and what contact they should be having, and a section 37 report is one the Court ask for to advise on whether the children are suffering significant harm and if so whether the Local Authority propose to do anything about it)

 

This being a London case, there was a degree of dispute as to which Local Authority was responsible, there being three possible candidates. Anecdotally, I think whilst two warring LA’s can eventually come to terms, it is nigh on impossible for three to reach an accord. (The best you get is that Trumptonshire and Chigley both gang up and agree between themselves that this is a Camblewick Green case, and hope that poor Camblewick Green buckle under pressure) 

In this case, it seems that six months were spent quarelling about that, with in the meantime, no LA actually taking the lead in protecting these children or assessing the obvious risk. The Judge wasn’t very impressed about this, and any LA lawyer needs to be aware of the scathing remark at the end (underlining mine)

 

Against this backdrop, it is, to say the least, profoundly depressing that the Social Services’ response appears to have been, at best, minimal. For months three local authorities – Hackney, Enfield and Haringey – jostled amongst themselves as to who had responsibility to lead child protective measures. It follows that without a lead there can scarcely be focus. Quite how significant that failure was will become clear when I come to determine the disputed allegations in this case. By my calculation, at least six months were lost on this issue. I can see there are many reasons why Local Authorities in this climate might wish to avoid the burden of responsibility for a case like this. It inevitably absorbs already stretched resources, both financial and in terms of personnel. I have not permitted court time to be deflected into an investigation as to whether any particular Authority was acting unreasonably or was wrong in law. There have been too many other pressing issues in this case directly concerned with the welfare of the children now that need to be considered as a priority. I do not therefore condemn any one of those Local Authorities, but I do send this signal: that if Local Authorities seek to evade responsibility for child protection to avoid costs, they are likely to face liability in negligence, administrative law and under human rights legislation. As the family courts embrace the opportunities and advantages that greater transparency may bring, Local Authorities who behave in that way will not be able to avail themselves of the cloak of anonymity under which, in the past, they might have found refuge.

 

 

Having settled on which LA was to do the work, the reports themselves came under some scrutiny

  1. Many of the issues that I have just set out were known to the authors of these reports. They concluded, however, that the children should remain with their grandparents. Quoting from the second of the two reports, which I take to have been prepared sometime in early May or late April 2012 (for, like so many other documents presented in this case, it is undated) the author concludes as follows:

“There are some issues arising from recent interventions in both psychiatry, probation and social services in relation to how disturbed the grandparents’ own children, RM, S and SM present as. These adults have made significant allegations in relation to the treatment that they received at the hands of their parents and parents’ friends. It should also be noted, however, that these three children suffer from significant personality disorders and this fact will have a significant bearing on the reliability of the allegations. However, the allegations remain concerning and will need further assessment.”

The report continues:

It would be the Local Authority’s opinion, however, that at this juncture there is no evidence indicating that this placement should discontinue. Therefore the children should remain in the care of the grandparents.”

Earlier in the report the authors observed that the children appeared to be happy, secure and settled in the placement.

 

 

If you are thinking, that seems a bit skimpy, given the wide range of issues already outlined in this brief summary, you are not alone  (again, underlining mine)

 

 

  1. The Guardian has condemned the analysis in this report as superficial. But, in my view, the real flaw is that there is an absence of analysis altogether. The language is telling. It refers vaguely to “some issues”, “significant allegations”, the ubiquitous “concerns”. These are gateways to analysis, they are not, in and of themselves, analysis, and they are certainly not conclusions. Section 37 reports are prepared for courts in order that they can consider risk and what, if any, intervention is required under the available legal framework. They are not discussion documents or a vehicle in which to pour professional angst. Issues must not only be identified or raised, they must be thought through, evaluated and placed in the wider context as it is assessed at the time. Simple report is rarely valuable; it must be challenged, and an expressed willingness to participate must be measured against evidence of past participation. In other words, at the interim stage the full panoply of risk assessment has to be deployed. Absent these conventional tools any risk assessment is of limited value, perhaps meaningless.
  1. What does one draw in the context of these “concerns” from the observation that “the children appeared happy”, when the report itself refers to killings, sexual abuse, rape and incest? The report includes the following:

“On 23rd January 2012 a legal planning meeting was held to establish whether threshold was met to go into proceedings. We were advised that at present there was not enough evidence for threshold to be met to instigate proceedings to remove the children from the maternal grandparents’ care.”

That the threshold criteria on an interim basis were met is so obvious that it is redundant of any sensible argument. As to the proportionality of a removal, that is a wholly different question. It can hardly have helped sensible decision making that it was conflated into one test.

 

 

Given the facts of this case, the Court was clearly of the view that the threshold criteria were made out, and was unhappy that the s37 report  (and probably from the remarks in para 14 above the legal planning meeting) had blurred the issue of “is the threshold met?”  with “is an application for removal likely to succeed”

 

  1. Ms. Briggs, on behalf of the Local Authority, has spent much energy in her written closing submissions and indeed in her oral submissions addressing this point. Her essential argument is that the children remained with their grandparents until sufficient evidence emerged to establish what she referred to as the high test for interim removal. This, I am afraid, will not do. The fact is that the Local Authority failed to analyse the evidence that was already available to it. Ms. Briggs talks of the need for ‘close scrutiny of all historical facts’; the need for ‘primary material’; for a ‘definitive history from source material’. The court, she submits, must be persuaded that the child’s welfare demands immediate separation. But section 38(2) is an interim protective measure. Of course the best possible evidence is required, both to establish it and the proportionality of intervention, guided by the section 1(3) criteria. It is the two in combination that point to what the child’s best interests require, or even, to adopt Ms. Briggs’ term (itself gleaned from the authorities) ‘demand’. Evaluation of risk requires balancing the two seperate sections: the reasonable grounds for believing that the children had sustained significant harm within the definition of section 31(2) of the Children Act 1989, analysed within the welfare checklist criteria, to evaluate whether or how best a child can be protected until such point as the evidence is fully marshalled and, if necessary, put to the assay in cross-examination. Ms. Briggs put the test too high. She does so, in my belief, in a brave attempt to justify ex post facto the Local Authority’s actions.
  1. In the authority which she relies on, and cites to me, Re GR [2010] EWCA Civ 871, it is absolutely plain that Black LJ is precisely prescribing the process which I have just outlined. She says at para.41:

“The most recent case to which I would refer is Re B and KB [2009] EWCA Civ 1254 in which the appeal was against the dismissal of the local authority’s application for an interim care order. The trial judge had given himself what was described as an ‘immaculate self-direction’ in these terms:

‘whether the continued removal of KB from the care of her parents is proportionate to the risk of harm to which she will be exposed if she is allowed to return to her parents’ care.’

However, Wall LJ [as he then was] with whom Thorpe LJ agreed, was persuaded that the judge had failed to go on properly to conduct the required balancing exercise. He said:

’56. Speaking for myself, I find L-A helpful. I agree with the judge that the section 38 criteria were plainly met in relation to both children, but it is equally clear to me that KB’s welfare did demand her immediate removal from her parents’ care and that there was abundant material (not least the views of the police) which warranted that course of action. In my judgment, KB’s safety, using that word in a broad sense to include her psychological welfare, did require interim protection.’”

  1. My criticism of the Local Authority is, that they did not really evaluate the risk to the child at all, and indeed later to any of the children in the public law proceedings at the interim stage. They have, rather, focused on the forensic difficulties of establishing the case. Even if that were a relevant consideration – and, in my view, it is not – then there was, in my analysis, proper material upon which to undertake the exercise.

 

 

 

I think this is a first for me, seeing an advocate representing the LA being criticised for putting the test for removal “too high”. 

 

 Clearly this case presented some significant forensic challenges and the marshalling of all of the evidence and properly testing it would require a lot of painstaking work, but the Judge’s critique here is that the LA did not assess the risk to these children based on the information that they already had.

 

 

  1. The section 7 report to which I referred earlier is dated 11th February 2011. It is signed by Alison Skerritt, the social worker, and countersigned by her deputy team manager, Dina Sturgeon. I quote only from two passages at pp.19 and 22 of that document:

“AMN, RMN and JMM have suffered little harm in their lives, and this is because they have lived with their grandparents who have protected them and kept them safe from harm. However, it would be fair to say that the children would be at greater risk of suffering significant harm if they were removed from their grandparents’ care to reside with their mother or their mother and LM, as SM is struggling to resolve her mental health problems. Furthermore, due to LM’s conviction, the Local Authority would recommend that he only have supervised contact with the children. [Later:] In conclusion for the reasons above outlined, the children are well placed and settled at their grandparents’ home. No concerns have been identified from any of the agencies involved, and the children and reports have in fact been very positive. As all parents are in agreement with the current arrangements for the moment, Mr. and Mrs. M have applied for a residence order to secure the wellbeing of their grandchildren.”

  1. As I work through the evidence in this case, just how superficial the enquiries of the section 37 report and the 7 report were, I believe will become all too evident.

 

 

Later on in the process, the LA took a rather different view of the risks involved, and sought to remove the children and had a care plan of adoption. There was a long list of findings sought, but just looking at the findings that were AGREED is quite illuminating as to how those earlier assessments of risk were perceived by the Court.

 

  1. (1) The mother has a history of mental health problems. She has a diagnosis of emotionally unstable personality disorder which causes her to behave in a volatile and impulsive manner. She has reported hearing voices. Mother has a history of attempting suicide by taking overdoses and self-harming.

(2) Mother has a history of substance misuse problems. Mother reports having misused cannabis, LSD, meth amphetamines and cocaine.

(3) LM has a history of substance misuse problems. He continues to smoke cannabis.

(4) The relationship between mother and LM is volatile and violent. The parents have hit and punched one another.

(5) On 1st March 2012 mother telephoned the police and reported that LM had cut himself and threatened to jump out of their sixth-floor window. When police attended they found LM on the floor with two deep lacerations to his arm which were self-inflicted.

(6) On 20th March 2013 mother telephoned the police and reported that LM had threatened to self-harm following an argument about money.

(7) The maternal family came to the attention of the Local Authority in 1996 when AM was 12 years old, because she had been running away from home.

(8) Several referrals were made when AM was 14. Referrals came from AM’s school, the police and the maternal grandparents. AM was absconding from school, running away from home, and was in a sexual relationship with KH, a man 20 years her senior, who had previously been in a relationship with the maternal grandmother and who claimed to be the father of JM and RM Jnr.

(9) AM was sexually abused by KH from the age of 13. The sexual abuse included penetrative sex. AM was introduced to KH by FH, her paternal grandfather.

(10) AM was memorandum interviewed on 14th January 1999 and confirmed her allegations that KH had raped her.

(11) The maternal grandmother allowed FH to visit the home, help with the gardening and take A out, despite being highly suspicious of him.

(12) In early February 1999 AM took a knife from the kitchen and held her siblings hostage in a bedroom. She said she wanted to harm herself.

(13) AM was placed at Degra House, a specialist residential, unit on 3rd August 1998 at the age of 14. She received intensive psychotherapy for the sexual abuse she suffered. AM presented as suicidal and self-harming during her stay at Degra.

(14) JM and RM Jnr. had behavioural difficulties in adolescence. They truanted from school, were eventually expelled and were sent to a tuition centre. Both boys were referred to an education psychologist.

(15) In 2006 JM and RM Jnr. were convicted of the manslaughter and robbery of AH, AM’s paternal grandmother. It is recorded that they were sentenced to nine years’ imprisonment.

(16) At the time of the twins’ arrest in 2006, a computer was found at the family home with 68 indecent images of children on it. No action was taken by the police regarding these images in light of the charges of murder against the twins. Ms. Briggs has advised me, and it is not contested, that these images were set at Category 4 by the Crown Prosecution Service, which, as I understand it, means that they involve images of penetrative sex with under-age children.

(17) JM and RM Jnr. both have diagnoses of severe personality disorder. They have both reported hearing voices, have expressed suicidal ideation and have self-harmed. They are assessed to present a high risk in the community.

(18) Prior to the twins being released, the maternal grandparents stated that they did not consider that the twins presented a risk to children and they disagreed with the restrictions placed on the twins.

(19) Maternal grandmother provided mother’s telephone number to JM prior to his release from prison. He then sent several texts of a sexual nature to the mother.

(20) The maternal grandparents have said that they believe the mother deliberately engineered RM Jnr’s recall to prison.

(21) In 2006 F was convicted of two counts of sexual activity with a child under 16. The girl concerned was 13 years old. She disclosed that she was asleep and woke up to find F touching her, her bra undone. F [by which is meant LM] was sentenced to two years conditional discharge, and was on the sexual offenders’ register for two years.

  1. Those 21 findings are all agreed facts in this case. In my view, they tell their own story.

 

 

I won’t recount them all here, but in addition to those 21 agreed findings, a further 24 findings were made, including that at the time his daughter was being sexually abused in adolescence by an older man KH,  the grandfather was aware of this and that KH was boasting of it to him

 

  1. 34.   (1) In evidence and cross-examination both maternal grandparents acknowledge that their daughter was indeed sexually abused by KH – a man 20 years older than she was – and that he had been abusing her since she was 13 years of age.

(2) The grandfather agreed that he knew KH had claimed to be in a relationship with a 13-year-old girl when he, KH, was 19. Moreover, the grandfather emphasised that that was something that KH “boasted about” (I use his phrase) and “bragged about” (again his phrase). The grandfather referred to KH in evidence as “a paedophile”, though it was clear that he was not entirely comfortable with that term, and later withdrew from it. He withdrew on the somewhat tortuous basis that KH might merely have been bragging about this relationship or, to put it another way, pretending to be a paedophile when he was in fact not one. In my view a rather ludicrous proposition.

(3) Both grandparents knew that FH was associated with KH, and they accept that he raped their daughter, A.

(4) The grandfather knew, and spent time with, KH, whom he knew, it seems to me, beyond any doubt, to be a paedophile.

 

 

I don’t think it will terribly surprise anyone that the Court came to the conclusion that the grandparents were not safe and that the children had to live elsewhere.

Untimely ripped part two

Firstly thank you to all the contributors to the debate on the first post, I think this case undoubtedly stirs up not only emotions but some genuinely important issues. No doubt once we get the Court of Protection judgment (which is the really important one) more issues will be stirred up.

I have to point you all towards Pink Tapes very thoughtful and considered analysis of the case

http://pinktape.co.uk/cases/never-let-the-facts-get-in-the-way-of-a-good-story-eh/#more-4418

which makes the very important point that the Press are conflating two separate decisions and applications

1. The Health authority’s application for a determination about capacity and surgery to the Court of Protection, which would have been about health issues

2. The Local Authority’s application for removal of the child on an interim basis, which would have been about risk  (and appears from the reporting to have taken place in mother’s absence and whilst she was not conscious)

It is the conflation of those two separate decisions and applications into one that suggests that the C-section happened to make it easy for social workers to remove the child that raises the temperature so much.   There are still very interesting and important issues in the case, however, and still a legitimate public debate to be had about whether this is right or not.

It occurred to me that I could imagine all sorts of scenarios where this choice was a genuine life-or-death one for both limbs (it would be wrong for me to speculate about those, but it doesn’t involve much of a stretch to concieve of a situation where it appeared that the only way to save A baby’s life was to take this incredibly harsh action). Now, we don’t know whether that was the case here or not, and await the judgments to give us an informed view.

[So from here on out, I am not talking about THIS particular case, I am talking about a hypothetical case, where the Court is satisfied that there is a genuine life-or-death choice to be made, where the issue is either to save the child OR to intervene in the starkest and harshest way  -  the Court is of course bound by Art 2, so would have no choice BUT to act, if the choice were that stark]

Hypothetically, IF the evidence was that this action was the only thing that could have saved the child’s life and the risks there were ones that no Local Authority could sensibly ignore, one still has to consider whether the State (which in my view effectively ‘borrows’ its powers with the consensus of the people) ought to have those sorts of powers, even after a legal process with safeguards and the highest tests before such powers can be used.

I think that there is a very legitimate question, along the lines of Ben Franklin’s famous aphorism  “Those who would trade in their freedom for their protection deserve neither”

If we as a society, and as a free press take the view that even in a life or death situation, an outcome like this is abhorrent and wrong  (and I think I am probably leaning towards that myself, in terms of ‘are these powers that the State should have’ as opposed to ‘those powers existing, was it right to make use of them?’  but I reserve my final position) then in coming to that judgment, we have to accept the consequences of it, which will be that we must be willing to accept that it might be better for the baby faced with this hypothetical situation to die than to use very draconian powers to secure its safety.

That’s a big question put in those terms.  I have immediately thought of  three conflicting positions in relation to that :-

(a) in a life or death situation, pretty much anything goes to save the baby, although the burden to demonstrate that this really is life or death is high

(b) Even in a life or death situation, the State shouldn’t have such powers and it is wrong to exercise them

(c) I would be absolutely opposed to such powers being used in anything short of life or death, and I still feel pretty uncomfortable about the powers existing, because of the draconian nature of them, the fact that the decision is being made in haste and what appears ‘life and death’ might not be in the cold light of day

[I think that in the hypothetical situation, I am probably C, but I MIGHT be B]

I do feel uncomfortable that a removal hearing takes place whilst mother was unconscious, if the reporting is accurate, and I would want evidence of a very high level that there was really nothing that could be done to safeguard the child whilst a hearing took place with mother being present.

I have little doubt, that IF we had a hypothetical situation like this, and the risks were genuine life or death and this draconian action was the only way to save the baby, and the LA HAD NOT acted, there would be equal criticism and vitriol from the Press about bungling social workers who let a baby die even though they knew how big the risks were  – “what were they thinking?”.  Does anyone honestly think that we wouldn’t have been seeing “heads must roll” headlines and speeches in Parliament? 

So whilst this case is based on a particular set of circumstances which may never ever crop up again, it does raise an issue of wider importance – are we as a society willing to accept that if the system is rebalanced so that we have a higher tolerance of risk to allow more children to stay with their families, are we at the same time willing to accept the less palatable consequences of that?

What it feels like

I thought that this was a really excellent piece in Community Care and wanted to share it with my readers  (there’s probably some overlap between people who read this and read Community Care, but not total overlap)

http://www.communitycare.co.uk/2013/11/27/feels-like-child-social-work-teams-caseload-dies/

It is something that we try not to think about, but the potential is there with every phone call, every email, every decision you make, the question you ask or forget to ask.

I know that some of my readers think that all social workers are heartless nazi-fascists  -  too certain, coy and hard to please, who need to be lined up and shot come the Revolution *, and I don’t expect to ever change their mind. We will continue to Agree to Disagree.

Nor do I happen to think that social workers are all harp-playing bewinged ministering angels who descend when fear and anguish wring the brow. 

Like any profession, there are good ones and bad ones  (teachers, doctors, lawyers, pop stars). Everyone will have and is entitled to have their own view on what proportion of good and bad makes up the profession.  

 It happens to be a profession where a bad one can cause a lot of misery, but it is also a profession where those within it have to carry a lot of fear and disquiet about making wrong decisions  (either way – the Always/Never myth is, as I and others have discussed, a myth.  http://suesspiciousminds.com/2013/09/29/alwaysnever/ 

Nobody can get every decision right, every time).  

If we as a society constantly ramp up the pressure and consequences of getting a decision wrong in only one direction (always) we do run the risk of getting too many wrong the other, less criticised way (never) 

 

 

*I’m reminded of the phone call I used to get at 9.15am every Monday without fail in an early job, from a man who would tell me that “come the Revolution, you and people like you will be first up against the wall and shot… no offence to you mate”

Pure and Simple – the Court of Appeal attack hearsay

 

 

To clarify, the Court of Appeal did not attack the manufactured flash-in-the-pan pop sensation that was Hear’say, who deserve it merely for the superfluous apostrophe.  

[In their defence, the band produced not only Kym Marsh who has been ace in Corrie, Myleene Klass who was top viewing on I’m a Celebrity, but also their reject pile produced Jessica from Liberty X, a major factor in keeping Kevin Pieterson happy and in good shape to thrash the Aussies at cricket in the upcoming Ashes series]

 

No, this is really about  Re W (Fact Finding : Hearsay) 2013, and hooray for a meaningful title AND a Court of Appeal case that is not about bloody placement orders.

 http://www.bailii.org/ew/cases/EWCA/Civ/2013/1374.html

For the real people who read this blog, here’s a quick illustration of what hearsay means

 

  1. Kevin Pieterson goes into the witness box and describes how he watched Ian Bell hit a six right over the head of Mitchell Johnson  (direct evidence, no hearsay)

 

  1. Matt Prior goes in the witness box and describes how Kevin Pieterson TOLD him about seeing that six.  (That’s direct evidence that KP SAID it, but only hearsay evidence that Ian Bell did actually hit the six) 
  2. Graham Swann (swanny!) goes in the witness box and says that Matt Prior told him (swann)  that KP told him (prior)  that he (KP) had seen Ian Bell hit a six   (that’s now getting very removed from someone who can say whether Ian hit that six, and is hopeless at establishing whether it happened or not. Hearsay pure and simple)

 

 

 

In crime, there are complicated and technical rules on when hearsay evidence is admissible and when it is not. That’s why we family lawyers put those thick Law of Evidence tomes into cardboard boxes, scotch-tape them shut and put them in the attic as soon as our exams were over.

 

In family law proceedings, hearsay evidence is generally admissible

 

  1. There is a great deal of authority on the subject of hearsay evidence in cases concerning children. I will list below the authorities that were cited to us as of particular relevance to the issue but we were not asked to revisit them or to venture any general guidance, the appeal being approached with commendable practicality on the basis that the judge erred in the way in which she treated the evidence in this particular case. The authorities were: Official Solicitor v K [1965] AC 201; Re W (Minors)(Wardship: Evidence) [1990] 1 FLR 203; R v B County Council, ex parte P [1991] 1 FLR 470; Re N (Child Abuse: Evidence) [1996] 2 FLR 214; Re D (Sexual Abuse Allegations: Evidence of Adult Victim) [2002] 1 FLR 723; Re B (Allegation of Sexual Abuse: Child’s Evidence) [2006] EWCA Civ 773; H v L [2006] EWHC 3099 (Fam); B v Torbay Council [2007] 1 FLR 203; W (a child) [2007] EWCA Civ 1255; JFM v Neath Port Talbot Borough Council [2008] EWCA Civ 3; Enfield LBC v SA (By her Litigation Friend, The Official Solicitor) [2010] EWHC 196 (Admin); Re W (Children)(Abuse: Oral Evidence) [2010] UKSC 12 [2010] 1 FLR 1485; Surrey County Council v M, F and E [2013] EWHC 2400 (Fam).
  1. We were also referred to the Children (Admissibility of Hearsay Evidence) Order 1993, the Civil Evidence Act 1995 and Articles 6 and 8 ECHR.

 

 

In this case, a 28 year old woman T, made allegations that she had been sexually abused as a child. That was important, because she had younger siblings who were still children.  If T’s allegations were false, then there was no risk for those children. If, however, they were true, then there would be a potential risk.

 

A fact finding hearing therefore took place, for the Court to determine which of those two options was correct. The Court made findings that T’s allegations were true. T did not give evidence herself, and that’s why the case was appealed.

 

  1. Much of the local authority’s evidence in relation to the sexual abuse findings was hearsay. The principal source of evidence about what happened to T was obviously T herself. She had spoken to social workers about her experience in late 2012/early 2013 and they reported to the court what she had said. However, Judge Davies (who very properly attended to the case management of this case throughout) was quite rightly intent on ensuring that her evidence should be received by the court in a more direct form and made an order on 20 March 2013 that if the local authority were relying on her evidence, they were to file a statement from her. A date was given for the filing of the statement and when that was not complied with, an extension was given. However, still no statement was forthcoming.
  1. T’s position was discussed at a directions hearing on 6 June 2013. There is a difference of recollection as to the extent to which any reason was given for the absence of a statement from her but it may be that the local authority explained to the judge that T was not co-operating with the process, as Miss Heaton QC explained to us on their behalf during the appeal hearing. No orders were sought from Judge Davies or made by her with a view to resolving such problems as there were.
  1. By the time that the final fact finding hearing commenced on 17 June 2003, nothing had changed. T had not made a statement and she did not attend to give evidence. It seems that the hearing proceeded without any discussion of why this was or what should be done about it.
  1. T is a vulnerable adult who has suffered from depression and she has learning difficulties, although no one suggested that they were such as to prevent her from giving evidence. Social services are involved in relation to her children, of whom there are four, the youngest having been born at the end of April 2013. In her statement of 3 May 2013, Ms McMenemy (one of the social workers who gave evidence to Judge Davies) spoke of reports that T was under a great deal of pressure from her family to write a statement supporting them and said that T was not now willing to provide a statement confirming what she had said about abuse (B62/3). However, it appears that there was no up to date evidence about T’s position offered to the court either at the directions hearing on 6 June 2013 or at the fact finding hearing. The judge should at least have been told, for example, what efforts had been made to obtain a statement from T and/or to secure her attendance at court and why these had foundered, and she should have been fully informed about any continuing personal difficulties on T’s part which it appeared were getting in the way of the process.
  1. It may not be entirely surprising, in the circumstances, that the judgment contained no reference at all to the reasons why direct evidence from T was not available. The judge said only this about T’s absence:

“On behalf of F, I am reminded that he has Article 6 rights to a fair trial. I must bear in mind that he has a right to cross examine witnesses and, if witnesses have not been called to give evidence, I must consider what weight should be given to their evidence.” (§7)

“T has not been called to give evidence, either by the local authority or by the parents; and I must remind myself it is for the local authority to prove the case, it is not for the parents to disprove it.” (§8)

“I have to bear in mind that T has not attended court to be cross examined…” (§22)

 

 

The parents were not arguing that the hearsay evidence in relation to T’s allegations was not admissible (as they might have in a criminal trial) but rather that in the absence of T being available to be challenged, the Judge ought to have given that evidence much less weight.

 

The Court of Appeal took the view, and gave some guidance, that where the allegations that are central to the case are being made by an adult, all endeavours ought to be made to get that adult to give the evidence [particularly where, as here, T had previously retracted the allegations]

 

  1. Where an adult’s evidence is so central to a finding or findings sought, I would normally expect that adult to give evidence, although there can, of course, be situations in which that is not possible. Judge Davies herself made clear by her order of 20 March 2013 that she expected that T would furnish direct evidence. She was never asked to revoke that order, although equally she was not asked to direct that the local authority could not rely on the hearsay material as to what T had said.
  1. Where it is said to be impossible to obtain a statement from a witness or to secure a witness’s attendance at court, the court needs to know the reasons why so that that can be considered when, to use the phraseology of section 4 Civil Evidence Act 1995, “estimating the weight (if any) to be given to hearsay evidence”.
  1. There are ways in which witnesses can be assisted to overcome difficulties in engaging in court proceedings and the various options should always be considered when there are problems in getting evidence from a central witness. They include special measures such as screens in the court room or a video link. Alternatively, a witness summons may be appropriate. None of these options seem to have been considered in this case. We were told that T has recently given a statement to the police by way of an ABE video interview. Had that course been taken before the fact finding hearing, the video interview would at least have covered the ground that would have been covered by a statement. The question of cross examination could then have been addressed as a supplementary issue in the knowledge of what T had said in the ABE interview.
  1. Assuming that none of the available measures secures direct evidence from the witness, the judge has to have regard to the reasons for this in weighing the hearsay evidence on which reliance is placed instead. A judge may be less uncomfortable in giving weight to such evidence where there is a good reason for the witness’s non-engagement (such as the sort of profound psychological difficulties from which C is suffering or a protracted physical illness) than where the reason is hard to divine or the non-engagement appears to be a matter of deliberate choice on the part of the witness.
  1. The estimation of the weight to be given to T’s recent complaints was complicated by the fact that she had retracted what she said. She did so in the form of two letters. She has problems with literacy and they were written by her brother B and signed by her. The first is dated 6 February 2013 (E105). It alleges that social services are trying to “manipulate and intimidate me into making a statement” and says that she is not willing to make a statement about F molesting her as it would be a false statement. The second letter (E253) is undated but I think it was received by social services towards the end of April 2013. It says that social services had blackmailed her by saying they would pay for a deposit for a house move if she made a statement about F but that she would not do so as it would be false.
  1. The judge referred to the two letters in §§20 and 21 of her judgment but went on to make her findings about T’s complaints in §22 without setting out how she had approached them in her evaluation. She had earlier rejected the suggestion that the social workers had put pressure on family members to make untrue allegations (see §10) and found the social workers to be very careful in their evidence and accurate in their note-taking and recollection. This was, of course, material to her approach to the retraction letters in which improper conduct on the part of social services was suggested. She also stated in a different section of the judgment later on (§31) that she found that pressure had been put on T by B and by both parents to withdraw her allegations but this was a bald statement without any supporting analysis or details and without specific reference to the letters.
  1. The retraction of a complaint normally requires careful and specific consideration and this case was no exception. Obviously the fact that a complaint is subsequently retracted does not prevent a judge from accepting that it is in fact true but it gives rise to questions which must be addressed sufficiently fully and directly in the judge’s reasons so that one can be confident that the fact of the retraction has been given proper weight in the judge’s conclusions about the subject matter of the retracted allegation. Where, as here, the only evidence before the court about the complaint is hearsay, it seems to me that this is particularly so and the judgment was insufficiently specific in my view.

The Court of Appeal concluded that the findings made should be set aside and the case sent back for rehearing. In this particular case, they felt that there should be a fresh start before a different judge  (although that was not decided as a principle applicable to all cases)

 

 

[When I find myself in times of trouble, Andy Flower talks to me, we need a batting hero, get KP... Get KP, get KP, get KP, oh get KP, we need a batting hero, get KP]

 

 

Yet more Serious Case Reviews

 

Whatever the collective noun for Serious Case Reviews is  (a flurry, a murmuring, an avalanche, a papering, an omphaloskepsis*, a whitewashing?) that’s what we’ve had over the last few weeks.

 

The first I read about this week was from Glasgow, and involved a foster carer who was murdered by a young person placed in her care.  The main lesson was to have been cautious about the very good progress this vulnerable and damaged young person was making in the early days of the placement and to have had proper access and regard to the full chronology of his troubled life.

 

http://www.glasgowchildprotection.org.uk/CHttpHandler.ashx?id=17069&p=0

 

 

The second was Child T, a four year old in Haringey. 

 

http://www.haringeylscb.org/child_t__full_serious_case_review_overview_report-2.pdf

 

Now, if there’s anywhere in the country that is nervous about Serious Case Reviews, it would be Haringey. They were the authority in Victoria Climbie and Baby P, and they really don’t want to have a third tragedy.  They were brave to hold this one, since it didn’t automatically meet the criteria and they could have ducked conducting one.

 

In my opinion, they did the right thing in conducting one – I may as well say up front here, that there are real problems with the way they managed the case prior to that decision. (Whilst I think professionals are often harshly blamed after the event for failing to see into the future, this isn’t one of those. Sometimes a cock-up is just a cock-up, and I won’t defend those.  I have to call this one as I see it, and children were harmed here over many months as a result of professional error)

 

The child did not die, fortunately, though on removal in 2011 was found to have fifty bruises on his body. On my count, there were four episodes of bruising. Alarmingly, the last happened AFTER he was seen with 50 bruises, a few days later, whilst the case was being prepared for Court with a plan of him continuing to live at home.

 

 

(A) On Wednesday 30/6/10, at 10:30 pm, Child T was taken to the Accident & Emergency Department (A&E) at North Middlesex Hospital (NMHUT) by his mother and Mr C. He had bruising around the eyes, forehead and nose. Bruising and swelling was said to have become worse during the day. Mr C said that Child T often ran around the house and ‘bangs and hits himself on the wall’ 

 

Child T was three years old at the time. You may, if you are familiar with Baby P, be having shuddering sensations at the suggestion that the child’s bruises were self-inflicted. We have heard that before.

 

It gets worse than that though, because what follows is something that the professionals never had in Baby P – a direct disclosure

 

(B)On 4/7/10 a Polish speaking doctor, PR1, spoke to various family members who were visiting the hospital. He was told, by Child W, that Mr C had hit her so as to cause bruising to her bottom. PR1 spoke to CP2 who subsequently spoke to the Enfield Emergency Duty Team2 (EDT) as it was now the evening. It was agreed that there were no grounds to keep Child W in hospital that night but that the concerns raised should be followed up the next day. The following day, 5/7/10, before any follow-up action was taken, Child T was removed from hospital by his mother and Mr C, without the agreement of medical staff. Over the previous days Mr C had increasingly expressed his annoyance about the child’s prolonged stay in hospital, because, he said,of the disruptive consequences for family life

 

[Note the involvement of Enfield, rather than Haringey – it seems that the hospital were slightly confused about which local authority were responsible, but after that referral the case got properly passed on to Haringey]

 

 

I have to say, as a child protection lawyer advising local authorities, having missed (A) would be quite bad but not dreadful, but having missed (B) would be dreadful.  Having missed (B) against the backdrop of Baby P is, on the face of it, hard to fathom.

 

There were bruises to a young child, unexplained, the sibling was saying that the mother’s boyfriend hit the children, the boyfriend was being annoyed in hospital and the child was removed without the consent of the doctors. That is pure alarm bell territory.

 

(It doesn’t HAVE to equate to removal, but it is certainly something that ought to have made everyone involved very very concerned and vigilant)

 

A strategy meeting took place – the medical opinion was reported to be inconclusive  and the police who attended weren’t aware of a domestic violence callout between mum and Mr C that same day.

 

[This is what was actually said, and anyone who thinks that this is ‘inconclusive’ is on another bloody planet

 

The medical report considered at the Strategy Meeting had stated that “I am very uncomfortable with the injury on his forehead. I do not accept that a 3 year old child would bang his head with such severity and not cry out. In addition, bruising on the leftside is in a very unusual place and this cannot be incurred either from fallingor from play. I cannot exclude the possibility that some of these may have arisen from pressure from fingers”  ]

 

 

Despite the strat meeting having concluded and the case progressing to relatively low action on the basis of the social worker and police deciding that the medical opinion was “inconclusive”, the Consultant Paediatrician who first saw the child (CP1) wrote a letter containing this

 

(C) “I would like to highlight that this child had an injury to his forehead resulting in a haematoma… that could only have occurred if there were a large amount of force on impact … the second fact that concerns me greatly is the presence of bruising on the left side of the rib cage. This is an unusual place for bruising to be found in a child and implies a second mechanism of injury taking place, once again for which the parents claim to have no knowledge. My concerns here are that this is a 3 year old boy who has had two separate injuries for which there have been no explanations and each injury individually is concerning and in an area which is quite uncommon in a child of this age”

 

 

I’ve defended social workers before, and I will again, and I defended particularly the social workers in Haringey who worked Baby P because I think that they were fundamentally let down by a paediatrician who didn’t give them the medical evidence they would have needed to act and get the case before a Court.  The paediatricians here did their job properly and they simply weren’t listened to.

 

But I am afraid that this is a smoking gun. If that came across my desk, we would be having an amazingly urgent legal planning meeting (i.e, “I’m on my way to you, RIGHT NOW”)  to discuss this child and work out what we would be doing to keep the child and siblings safe.  If the conclusion was to work with the family to keep the child at home, I’m fairly sure we would have been getting the case before the Court to endorse that plan. I don’t think I’ve ever worked with any local authority lawyer whose advice would not have been “this is going before a Court, as soon as possible”

 

 

(D) On 9th August 2010, Mr C presented at his GP with self-inflicted cuts to his arms. The GP did not make any referral to social services.

 

(E) On 30th August 2010, the mother was seen at an obstetrics appointment with bruising on her arms – the notes showed up the suspicions of domestic violence, the obstetrician invited mother to be admitted overnight, mother declined. She was very nervous and keen to leave, and Mr C was very keen to get out of the hospital. No referral was made.

 

 

(F) On 31/8/10 Mr C took Child T to the GP, saying that he was concerned that he child bruised easily. He had bruises to his back and legs. The GP (GP1) arranged blood tests which indicated no medical explanation for the bruising. On 17/9/10 Child T was seen by a nurse (PN1) for immunisations. She noticed bruises on his arms, legs and back and asked a GP (GP2) to see

him. GP2 examined the child and arranged for him to be seen for follow-up on 22/9/10.

 

 

Now, I already thought that (B) and (C) were bad things to miss, but to add (F) into the equation just reinforces this.  Very often with Serious Case Reviews there’s a prediction bias and hindsight bias that means that working back from a known outcome, we tend to see all the footprints leading up to that event as being obvious and inexorable and that ‘of course that’s where this is all going, how could nobody see it’

 

But regardless of that, which is something to always be very cautious about; if you have suspicious bruises to a child, a strong paediatric opinion about those bruises and then another episode of bruising two months later; something needs to be happening.

 

A worker could, potentially, have gripped the case and made a decision that this risk could be safely managed at home; but that needs to be a conscious and deliberate and deliberated decision, not just inactivity resulting in that happening.  It is STAGGERING that the social worker on the ground didn’t ever share the paediatrician’s letter at (C) with his/her manager.

 

(G) On 14th September 2010, Mr C told his GP that he was injecting heroin every day. Three weeks later, he said he was drug-free and needed no further help.

 

(H) When the sibling child Y was born in December 2010, hospital staff noted tension and arguments between the mother and Mr C

(I) On 15th  February 2011, the case was closed by the social worker

 

(J)  Three days later, on 18/2/11 (a Friday) police were called to the family homeby Ms B who made allegations of violent conduct by Mr C to her and to Child T. Police could see that the child was extensively bruised and they arrested Mr C. Child T was left overnight with his mother. There was no recorded consultation with the EDT at that point

 

(K)The following day Child T was taken by police for medical examination and was seen by a paediatric registrar (PR2). The EDT had been made aware of the situation in the morning and both police officers and an EDT officer, EDT1, attended the medical. Child T was found to have more than 50 bruises of varying ages and sizes. He told the doctor of having been hit with a belt and a

stick by Mr C. The doctor judged that many of the injuries were caused by physical abuse and that others were ‘highly suspicious’

 

(L) The doctor spoke to Ms B who described how she had been the subject of repeated physical assaults by Mr C. She also said that she had suspected that Child T was being abused by Mr C and that Child T had told her this. She further said that Child W had now also spoken of being physically assaulted by Mr C and that he had tried to drown her whilst bathing her a few weeks previously. She said she had not told Ms B at the time as Mr C had made her promise not to do so.

 

And this is obviously where proceedings finally began, right?

 

Wrong. Professionals agreed with mum that Mr C would move out, and that the children would stay with her.

 

(M) On 22nd February 2011, the children were all medically examined. The medical opinion was that the three older children had all been physically abused by Mr C, and that mother had failed to protect them and that the children should be removed to a place of safety.

 

As a result of that conclusion, the LA decided that proceedings were inevitable.

 

(N) The next day, (23.02.11) the social workers met with mum and told her that care proceedings were to be initiated. In a police interview at around the same time, Ms B said that she knew that Child T was hit more frequently when Mr C was taking drugs

 

 

(O) A Strategy Meeting was held on 25/2/11. Information had been gathered from the various health services involved and, for the first time, the facts of repeated bruising to Child T were drawn together with the knowledge of the current and previous injuries. Agencies were concerned that Ms B and MGM were aware of the abuse and had not acted to prevent it. It also appeared that there may have been discrepancies in the accounts they had given to various agencies. However there had been no evidence that either of them was responsible for any previous physical abuse and there was no indication that the children might be directly harmed by them, or did not wish to be with them. It was confirmed that care proceedings were to be initiated but that there should be no immediate attempt to remove the children.

 

(P) On 28/2/11 Ms B told SW2 that Child T had new bruising. Ms B claimed that she had asked Child T about this and he had said that the injuries had been inflicted by that social worker, SW2. Later that day Child T was taken to Accident & Emergency, NMUHT, in the company of his mother, a different Social worker and an interpreter. Child T said that the “lady” hit him. When asked what the lady looked like and how she did it, he was unsure. Following a medical examination, where new bruising was confirmed, and some new bruising was seen on Child W, all four children were brought into the care of the local authority.

 

 

 

 

On this one, I’m afraid that there is blame – it isn’t just a failure to predict something unpredictable, it isn’t taking an informed decision that the risk was manageable and the outcome turned out bad. This is a basic failure not to recognise what risk looks like and what to do with it.

 

I feel bad for the people involved, and who knows what the workloads and pressures were at the time; but I’m afraid that this is systemic failure, not just making a judgment call that proved wrong after the event.  It is REALLY, really hard to see why that vital letter from the paediatrician at (C) never got escalated into a child protection issue. The social worker never discussed it with her manager, and it did not get escalated into a Legal Planning Meeting.

 

If this is happening at Haringey, which must be alive like no other authority to the perils of getting child protection decisions wrong, something has gone very badly awry – perhaps locally, perhaps nationally.

 

Again, as with Keanu Williams, the case was effectively ring-fenced into a ‘child in need’ case at an early stage, and thoughts about child protection disappeared once the decision was made that this was a “child in need” case.  Even then, things aren’t great – he wasn’t properly treated as a “child in need” with a formal plan and review system. He just got lost.

 

 

I agreed with Eileen Munro that when one looks at Daniel Pelka’s case through the eyes of any individual professional it is hard to say that they got it wrong and that another worker in their shoes would not have acted similarly, but that’s not the case here.

 

In many ways, this Serious Case Review raises more worrying issues than the Baby P one – in that case, the local authority never had in their hands the medical evidence that would have allowed them to save Baby P. Here, the evidence was handed over and simply stuck in a filing cabinet without its significance being absorbed or considered until this child and his siblings sustained many more months of physical abuse.

 

I’m not sure that it gives us ‘lessons to be learned’ in general practice – the individual failings here were so pronounced and obvious that the real lesson is ‘if people don’t do their jobs properly, bad things can happen’.

 

Haringey’s Local Safeguarding board response, in the interests of fairness, is here  – and the incidents were two years ago, so they have had time to make some changes.

 

http://www.haringeylscb.org/haringey_lscb_s_response_to_the_scr_of_child_t-3.pdf

 

(I didn’t think it was great, to be honest, and it was very light on how they would prevent social workers wrongly going down the ‘child in need’ path when child protection is the real issue. Or that a strat meeting could so utterly misunderstand what the medics were saying. But at least there’s now a powerpoint strategy.  )

 

 

 

 

*For those who have made it thus far, Omphaloskepsis is ‘navel-gazing’ – it came into prominence during the Renaissance, when there was much debate about what a painter should do when painting the midriffs of Adam and Eve. Did they have belly buttons, or having never been in the womb, were they smooth?  If God made Man in his own image, does God have a belly button, or not? Because this was such a controversial issue, many such paintings just have hands or branches covering the vital area.

“Eggs, eggs, damn all eggs!”

Judicial wrath about the pervasiveness of the word “concerns”  in a care case, and the word being used to mask the lack of substantiated evidence or allegations.

Re Avon, North Somerset and Gloucestershire Public Law Case 2013

 http://www.familylawweek.co.uk/site.aspx?i=ed117568

(The title is taken from the Master, P G Wodehouse, who described Bertie Wooster’s uncle, Lord Worplesden, as having one day come down to breakfast, lifted the silver platter and shouted “Eggs, eggs, damn all eggs!” before fleeing home and never being seen again.   I just like it as a pithy way to convey the feelings of sheer hopeless exasperation)

The Judge in this case made a number of complaints about issues that had arisen in the case – he anonymised the LA involved, by naming all three who regularly appear before him  (nice for the one in trouble, who got to hide in the shadows, but rather rough on the two completely innocent ones who get tarred with the brush of suspicion when they had nothing to do with it)

 

Many of the complaints, though made about the LA, also relate to judicial decision-making (the listing of a finding of fact hearing, the absence of a proper schedule of allegations, the delay, the proliferation of expert evidence – none of which can be done by an LA in isolation, the Court has to shoulder some of the responsibility for this)

 

But then it gets into interesting territory, where the Judge talks about the reasons given by professionals for not wanting to place the children with grandparents

 

 

10.  Time and again I was told that the Local Authority had ‘concerns’ about issues (the word ‘concern was used by the Local Authority advocate more than twenty times in one day). Those ‘concerns’ were not substantiated by direct evidence and should have been. I give this very clear example. The head teacher of a school was called to give evidence about events relating to the other children in the grandmother’s household. Her statement was about events in July 2013 and suggested difficulties within the grandmother’s home then. I asked [sic] whether the events of which she was speaking were representative of the school’s perception of the grandmother’s overall care of those children. I was told from the witness box that there were many other things that the school could say and would want to say. They were not contained in any statement but, I was told by counsel for one of the Respondent parties, reference to them could be found ‘dotted around’ the four lever arch files. Evidence was also available from the health visitor (but did not feature in any statement). If a Local Authority seeks to substantiate an important contention it must do so on direct evidence where that evidence is available. Hearsay evidence is admissible but that does not mean that a Local Authority can dot its contentions around a bundle and then expect a court to reach satisfactory conclusions on issues of such fundamental importance to children and families.

 

 

That does, to me, raise two very important issues.

 

Firstly that the word concern can be waved around in Court and be emphasised and repeated so much that ‘concerns’  (which end up being rather less than ‘allegations’ and far far less than “proven or determined facts”) begin to morph from an insubstantial wisp to solid reasons for not doing something.  I think the Court is right to drag everyone back to the foundation that we work on evidence and proven or provable FACTS, not flights of fancy.  Even where a risk is put as being one that “Cannot sensibly be ignored”   that determination has to be made on the Court establishing that facts that lead up to that risk are made out on the balance of probabilities.

 

Secondly, we are back on the issue that “Judges are not forensic ferrets”  – if the nub of the case is not gathered together in one place (with cross-referencing) but is dotted around the papers hither and thither, to be found by only assiduous reading, that simply won’t do.

 

 

This led on to the Judge’s proper criticism that what seemed to happen with the assessment of the grandparents is that professionals devoted all of their attention to negative criticisms and gave no thought or weight to the potential advantage of a child being cared for within the family or the potential disadvantages to the child of being cared for by strangers (the very heart of Re BS)

 

11. the unprincipled approach to welfare issues. Entirely omitted from the special guardianship report and much of the other welfare analysis were two matters which were of utterly elementary and fundamental importance:

i) The effect now of removing the boy from the grandmother. In welfare checklist language, what would be the effect on the boy of the proposed change in his circumstances that would arise if removed from his current home and what are his emotional needs to remain a part of his current household?

ii) The significance of the boy maintaining his place as a child cared for within his natural family. The boy has an established family life with his grandmother (Article 8 of the Convention was therefore engaged). He had spent the majority of his life in a household with other children there (aged 10, 12 and 15). His step grandfather had played a very full role in his upbringing. By remaining in his family he would continue to see his mother in structured contact.

12. I found it deeply demoralising that these simplistic issues could pass without even being mentioned. What happened in the hearing is that all possible negative points about the grandmother were explored in evidence. At least some of them had no foundation at all. Some of these negative ‘concerns’ were expressed in superlative, wholly unjustifiable and internally contradictory terms, especially within the special guardianship report. For instance I heard in oral evidence that the grandmother was not child focussed and did not co operate with professionals; that was not borne out by the report of the person who said it (or by the evidence of others) and was manifestly unbalanced. It is to the credit of the grandmother that she maintained her decorum whilst this whirl of ill considered evidence was being given about her.

 

Following Re BS, the obvious remaining piece of the jigsaw is going to be how the Court approach the assessment of family members and having a much more robust approach to testing the Local Authority’s assessments where these are ‘negative’   – and indeed whether there ought to be some ‘test’ that ought to be applied by the Court to determining whether a child could be placed with a relative notwithstanding that this is not the Local Authority’s plan.

 

I believe that the Court of Appeal might be mulling this issue at present…

Always/never

I’ve been reading a book by Eric Schlosser recently, called “Command and Control”  – it is primarily about the history of incidents and accidents in America with nuclear weapons, Schlosser’s research turning up an eye-watering number of hushed-up accidents with nuclear bombs and missiles in America, including the centrepiece of his story a fire in a nuclear missile silo where workers battled to stop the fire detonating the warheads.

 

http://www.amazon.co.uk/Command-Control-Eric-Schlosser/dp/1846141486/ref=sr_1_1?s=books&ie=UTF8&qid=1380449302&sr=1-1&keywords=command+and+control

It is a great book, with there being something good on every page (following the Raymond Chandler edict of “put a diamond on every page”) – whether that be Fermi’s calculations about the possibility of the first nuclear explosion potentially going wrong and setting fire to every atom of oxygen in earth’s atmosphere (that would be a bad thing), the fact that in the early days of the Cold War whilst US media politicians and military spoke about how the US military stockpile of nukes could wipe Russia off the map they actually had just one functioning nuclear weapon (“for all the talk about the stockpile, there was no stock, and there was not even a pile”), the naming of the early computer system to plan nuclear conflict being called M.A.N.I.A.C, the British nuclear bunker to plan for life after the apocalypse having a pub called “The Rose and Crown” in it, and much more.

But the bit that struck me, and is applicable to this blog generally, is the battle that the US had over this dilemma, “Always/Never”.  They wanted to make nuclear weapons that would ALWAYS detonate and work when they wanted them to, but would NEVER go off when they weren’t intended to. That means that they had to be reliable and ALWAYS detonate when fired, but had to be sturdy and strong enough to survive maintenance, fires, the planes they were in crashing or being shot down, even accidents with testing.

And that was a goal on paper, but the reality was that the show was being run by the military, and thus the “ALWAYS” part had priority. For them, it was more important that they knew that if the Russian planes or missiles went up, they could launch and hit their own targets and get the job done; than the risk that an accident might occur. Whilst the calculations on “NEVER” seemed pretty good – a one in ten million chance that any individual nuke would go off accidentally, when multiplied by the number that they ended up with, the risk ended up feeling pretty unpalatable. (And as Schlosser identifies, there ended up being hundreds of incidents where things went wrong with nukes, sometimes quite badly wrong)

 

Now, in child protection, we also run an “ALWAYS/NEVER” ideal.  Children who are going to be seriously hurt or killed by their parents should ALWAYS be protected and kept safe, and children who ought to be at home with their parents should NEVER be removed.  As Munro and others have identified, this ideal is never going to actually work 100% of the time in practice. The myth for a long time was that with more information, more assessment, more structure, more procedures, more rigour, we could get very very close to that 100% figure, but that’s only a myth.

At the moment, like the US military in the Fifties and Sixties, we are more focussed on the “ALWAYS” portion of the equation – we strive for ALWAYS/NEVER but the ALWAYS bit is more important. I can’t really think of a time when the fear of getting another child death has been higher, post Baby P, but as you can see, even with that heavy focus on child rescue, individual tragedies still occur.  Looking at the Looked after Children statistics recently published by the Department for Education https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/244872/SFR36_2013.pdf  in amongst the (imho wrongly triumphalist) boasting about the increase in number of adoptive placements found for children, is the incredible statistic that the numbers of children currently the subject of Placement Orders   (the legal order which sanctions an adoptive placement being found for the child) has gone up by 95% since 2009.   Ninety-five per cent.

 

Even against that backdrop, the Serious Case Reviews and child deaths continue to happen. Even when everyone is very heavily focussed on ALWAYS, the truth is that you can’t keep all children safe.

 

And of course, whilst a mistake in the ALWAYS part of the equation is easy to detect – the child dies, there is an inquest, a criminal trial, a serious case review – everyone knows that something went badly wrong;  any mistake in the NEVER part of the equation is harder to pick up. You can tell if you took too much of a risk with a child, because something awful happens. But you can’t tell if you were far too cautious with a child, because that child doesn’t go home, the family is broken up and you never know whether that was the right call or not.

Our legal system is intended to be the check and balance on the NEVER part of the equation – we have laws and case law which makes it plain how important family preservation is, and a forensic process that gives parents free legal advice, the opportunity to present their own evidence and to test the evidence against them, with independent judges to make decisions, and an appeal process as a safeguard for those individual judgments getting it wrong.

 

All of that isn’t foolproof though. It would be hard to devise a foolproof system – I know that some of my regulars believe that the threshold for child protection intervention ought to be more like criminal offences, and that cases should be decided by juries not judges. That may or may not help, but we only have to look at criminal trials to realise that things go wrong with those – the wrong people do get convicted; and undoubtedly a criminal definition of threshold, a criminal standard of proof, a jury system would be moving much more towards the NEVER side of the equation.  ( In our criminal justice system we accept the possibility that guilty people may go free as an acceptable price for ensuring that innocent people are not punished – and even then sometimes it still goes wrong and innocent people go to prison)

 

I don’t have any solutions – I think really my point is that there isn’t a solution that will deliver ALWAYS/NEVER in child protection – you’ll make mistakes on both sides of that equation, and lurching too much to either side produces more mistakes on the other.  It is important to remember that you are trying to balance family preservation and child rescue, and that this is a difficult task and there’s no easy shortcut to getting it right, and that sometimes with all the best intentions, individual mistakes will happen and get past the system. Each of those individual mistakes is life-destroying for families and for children.

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