Oh, that’s a clickbait title if ever there was one. The case in question does contain all of that stuff though.
Re IMA (care proceedings :no threshold) 2014
This is a set of care proceedings heard in Manchester County Court, but it raises some important issues of wider importance.
It was a case in which the Local Authority obtained an Emergency Protection Order removing IMA in August 2013, and after that Interim Care Orders sanctioning IMA remaining in foster care, up until the final hearing, which took place in August 2014 a year after the initial removal.
The Local Authority had been seeking a plan of adoption, supported by the Guardian, but this had changed to permanent placement with a relative. It is of note that the plan of adoption had been supported by the Agency Decision Makers (whose job it is to assess separately to social workers whether the circumstances of an individual case mean that adoption is the right plan)
The Judge at final hearing found that the threshold criteria were not made out, and thus the child would be going home and no statutory orders would be made.
The threshold criteria was based on the risk of the child being exposed to domestic violence (which is, on the revised wording of the Children Act 1989 a matter which on its own is capable of meeting threshold). That had two aspects really (i) Was father a risk of violence or violent behaviour and (ii) was the child in mother’s care going to be exposed to the father.
The fact that the Judge found that threshold was not met therefore was significant. This wasn’t a case with a suspicious injury which on full investigation was found to be an accident or a peculiar medical condition, but rather that the child ought never really to have been removed. The Judge was not saying that the threshold HAD been met but due to changes the risks had dissipated or become manageable, but that the situation of this family had NEVER crossed the section 31 threshold.
And the Judge had advised the Local Authority in a number of hearings that he was concerned that the section 31 threshold was not made out on the evidence that they had presented and was giving them the opportunity to flesh out their evidence if they had more information which was not before the Court. He told them that on 17th February 2014, 14th April 2014 and 23rd June, before making it official at the final hearing by ruling that threshold was not met.
The Judge starts off scathing and continues in that vein
These proceedings concern a new born baby who has never suffered any harm in his parents’ care. If he has suffered any harm to date, it is the loss of the relationship with his mother during the first year of his life due to the fact that he was removed from her care when he was a week old.
The Court did say that the LA were not wrong to have brought the case, but hints strongly that they were wrong not to have taken stock after any of those hearings where the Court indicated that they considered satisfying s31 threshold to be an issue.
133. There is no suggestion that the local authority has not acted in good faith in seeking to bring the proceedings relating to IMA before the court. The court accepts that the local authority was bound to consider and act on the information provided by the police. The question, however, arises as to whether a more experienced social worker would have acted with greater circumspection and sought to clarify the factual basis for the “intelligence” he was given and its accuracy. This should have been apparent when the father was released from custody and bailed for further enquiry on the 19th August and should have resulted in the social worker re-evaluating the Children’s Services position. None of the information provided by the police as disclosed to this court and the parties appeared to establish that he was a direct risk to a child or children and, it seems to me, on my analysis of the evidence available open to question as to what the “emergency” was that justified the application for the Emergency Protection Order.
A major part of the Local Authority’s case was that the father’s convictions established that first part of their threshold – that he presented a risk. [In large part, that was because there was no evidence of any domestic violence in the relationship between mother and father – no injuries, no police call outs, no referrals from neighbours, no allegations from either of them] They were relying on two things – firstly the father’s convictions and secondly the history of domestic violence in his previous relationship
The Judge took a very different view as to whether the criminal convictions in themselves established that father was a risk. A major part of that was that offences which looked on paper very serious received such light sentences that the Judge (who sits as a criminal Judge) brought his experience to bear in saying that one had to treat the offences on paper in the light of the very light sentences – they cannot have been at the high end of the spectrum of those offences.
51. In reviewing the evidence, it is I think pertinent to remind myself that both the mother and the father have criminal records. The records for the mother appear at F6-12 and F131-137 in the bundle and for the father at F13-19 and F124-130. The mother has convictions for robbery and racially threatening and abusive behaviour in December 2007 in respect of which she received a custodial sentence of a 12 month Detention and Training Order. She was then aged 15. She is now 22. Her subsequent convictions are for what might be property described as minor offences and failing to comply with the requirements of community orders imposed as sentences. It is self-evident from the nature of the convictions, that she is not likely to respond well when attempts are made by those in authority to impose on her. It is unclear to me whether the social worker ever appreciated that.
52. The father has 3 convictions between 2000 and 2006 for offences involving possession of offensive weapons for which he has received sentences of a fine and community orders. None of those could properly be described by anyone who has a knowledge and understanding of criminal justice as serious offences. He has other convictions for disorderly behaviour and driving offences which demonstrate that he is something of a social nuisance. In 2010 he was sentenced to two separate terms of suspended imprisonment for dangerous driving and benefit fraud. In May 2011 he was sentenced to 12 months imprisonment for offences of possession of class B controlled drugs – cannabis – with intent to supply. Finally, there is a conviction for an offence of harassment on the 10th December 2013 in respect of which he was made the subject of a community order with an unpaid work requirement and a restraining order. This conviction relates to his former partner, RK. I will say more about this later. These convictions are of course a matter of record and are not disputed by either the mother or the father. The issue, as will become apparent, is how they have been interpreted and relied on by the local authority to substantiate the ‘threshold criteria’ it contends for.
By the time of the final hearing, the Local Authority’s threshold document was as follows (I commend the Judge for including it in full, it is extremely helpful when this is done, as one can then see the basis on which the case is put)
MAA is the father, JG the mother.
142 “The nature of the likelihood of harm alleged is expressed as “(i) Impairment to the child’s physical, intellectual, emotional, social and behavioural development; (ii) Impairment to the child’s physical and mental health; and (ii) Impairment suffered from seeing or hearing the ill-treatment of another.
(1) The father, MAA, has an extensive criminal history. This includes:-
(a) Possession of a machete in 2001;
(b) Arrested 8 February 2006 in possession of a knuckle duster, wearing body armour and in a car with 4 other men similarly equipped; drugs found at his home
(c) Drugs offences including possession, intent to supply and cultivation of cannabis for which he served a 13 month prison sentence in 2011
(2) On 19 August 2013, the day of IMA’s birth, MAA was arrested at the hospital in relation to an offence which took place on 29 November 2012 when he and two other males were alleged to have attacked an acquaintance and driven off in his car with the victim’s legs hanging out of the open door; a considerable quantity of cannabis was found in the boot. The case was not proceeded with by the CPS
(3) In 2013, MAA pursued a campaign of harassment against his ex-wife, involving regularly attending at her home threatening her, threatening violence to any new boyfriend, and stating he would persuade Children’s Services to remove her children from her
(4) She was so frightened that she moved into a women’s refuge with her children for 4 weeks in August 2013. (On a further 10 occasions recorded between 2 September and 8 October 2013 he visited her home and made similar threats)
(5) MAA was arrested on 13 October 2013 and charged with harassment. MAA’s ex-wife gave a police statement in which she stated that he had been violent towards her during their relationship as well as extremely controlling and she had been “terrified” by him.
(6) Following a strategy meeting on 13 August 2013, when JG was identified as a vulnerable person who may be at risk from MAA, a joint police and social work visit caused further concern when MAA would not provide his name, and refused to accept any concerns or co-operate with any form of assessment. JG took the same position. It was therefore not possible to obtain a clear assessment of any risk posed by MAA due to the failure of the parents to engage with Children’s Services either during the first visit or thereafter. This attitude of complete non-co-operation continued.
(7) JG failed to allow social workers into her home to discuss the issues, minimised the seriousness of previous domestic violence incidents and criminal drugs history involving MAA and refused to sign a working agreement.
(8) Although she agreed to reside at her parents’ home following her discharge from hospital with IMA in August 2013, neither JG nor IMA were at home when agencies visited on 3 consecutive days between 9am and 10am.
(9) JG’s refusal to engage in assessment or to accept any possibility of risk, despite information provided to her, demonstrated that she was unable and/or unwilling to prioritise IMA’s safety and protect him.
(10) Following the making of an emergency protection order on 23 August 2013, JG and MAA evaded the attention of police and Children’s Services until 25 August 2013 when they were eventually found at a property in Prestwich. Both their families colluded in the family hiding from agencies.
(11) There is evidence that the parents were involved in drug dealing activity at least up until IMA’s birth, as also found at the property in Prestwich were a further quantity of cannabis, drug paraphernalia and paperwork implicating the couple in fraud and money laundering offences. Although the CPS have not proceeded against MAA, JG faces criminal charges in relation to intent to supply cannabis, 165g having been found at the property.
Whilst that looks, on the face of it like a pretty decent threshold to establish that MAA (the father) posed a risk of harm -there’s a recent offence, offences including weapons, violent and controlling behaviour towards a former partner and that being recent, we already know that threshold was not found. So we need to see why.
The Judge deals with those matters in the following way (that is, in short, to reject all of them as being made out)
143. In respect of this amended threshold document I make the following observations and findings based on my assessment of all the evidence which has been put before the court –
(1) The father’s convictions are a matter of record which, absent specific offences involving harm to children or violence to women with whom he is or was in a relationship, have no relevance for the purpose of threshold and relate only to the character and personality of the father and not to parental care. This paragraph should be struck out.
(2) Given that the police took no further action against the father in respect of these allegations and did not prosecute him, none of what is alleged in this paragraph can be established as a fact. This paragraph should be struck out.
(3) So far as paragraphs (3), (4) and (5) are concerned, the issues cited post date the local authority intervention in respect of IMA. The issues raised relate to the father’s character and personality and not directly to any aspect of parental care relevant to IMA. These paragraphs should be struck out.
(4) A refusal to co-operate with Children’s Services (or the police) as identified at paragraphs (6), (7), (8) (9) and (10) does not go to threshold as there is no legal duty to co-operate unless the threshold is crossed. See Lady Hale at paragraph 207 of In the matter of B (A Child). These five paragraphs should be struck out.
(5) In respect of paragraph (11), any evidence of alleged drug dealing cannot go to threshold unless there is clearly established factual link to demonstrate that there is likelihood that a child will suffer harm resulting from a failing in parental care arising from such activity. There is no such evidence against either parent it being noted that, in any event, the father has not been charged with any offences arising from the circumstances related. This paragraph should be struck out.
If you are keeping count, the Judge struck out every paragraph of the Local Authority’s final threshold document. The whole lot, gone.
(The Local Authority did not appeal this decision. I think that they COULD have done on points 3, 4 and 5 – these are surely ‘risks that cannot sensibly be ignored’ and they go to the heart of ‘is the father a risk of domestic violence’)
I have reviewed the evidence in this case and have borne in mind all the guidance for the Supreme Court set out above in arriving at my conclusion which is that I do not find the ‘threshold criteria’ established for the purposes of section 31.
I am acutely aware of the consequences of any finding that the ‘threshold criteria’ is not made out and especially in proceedings which have been ongoing for as long as these because of the impact and implications such a finding has for the child and parents. On any view, a finding that the ‘threshold criteria’ is not made out self evidently means that not only has a considerable disservice been suffered by the parents and the child but also an injustice given the way in which these proceedings have been conducted and the length of time the proceedings have been ongoing. That, however, is no basis to shrink from doing what I consider to be right for the child, IMA, on the basis of the evidence before me which I can properly accept.
The Judge did identify that there were issues and concerns, but that these fell short of satisfying the threshold
47. Both the local authority and the children’s guardian rightly have criticisms in relation to the parents’ failure to co-operate and their lack of openness and honesty in their dealings with professionals. In fairness to the mother it has to be said that she did engage with the proceedings and the assessment undertaken by the psychologist and co-operated with the children’s guardian in his enquiries. She engaged with the local authority assessment and attended al the sessions as required despite her apparently limited understanding of what the assessment was for. She has made a very strong commitment to contact with IMA albeit there have sometimes been issues around her timeliness. She has been available at contact if the social worker has ever wanted to contact her and I have some difficulties now reflecting on the evidence as to why the social worker did not on occasions make more effort to go to see her at the contact venue if he needed to discuss issues with her. It is, I think, very clear that the mother has had issues around her relationship with the social worker and communication. However, these are not issues which go to threshold and, as Ms Kilvington observed in her submissions the mother’s lack of honesty on occasions or the lies she admits to having told do not denote harm.
48. The social worker and the children’s guardian were both clearly very troubled by having no clear understanding of how the mother and the father might conduct their relationship in the future. Let me say that I entirely agree that the father as demonstrated by him in his evidence is a very unprepossessing, and unappealing character based on what he said about the conduct of his relationships with women and the children he has. Having said that there is no reliable evidence before this court to indicate that he has ever harmed any child or posed any risk of significant harm to a child. I accept the submission made by Ms Kilvington that it is a matter for the mother and the father how they might conduct their relationship and whether they should be part of the same household or not. It is not for this court or others to judge or interfere with parental relationships unless it can be properly established that there is an identifiable risk of harm for the child or children.
The Judge was very critical of the written and oral evidence of both the social worker and the Guardian
61. [The social worker] gave evidence over nearly one and half days. He was subjected to lengthy and challenging cross-examination around many issues including his assessment of the mother. He was also questioned about his understanding of the police intelligence and information upon which he had acted and formed his views about the parents and the risk he considered they posed to IMA. He was uncertain about some specific dates and unable to demonstrate from the written records available some of what he was saying. His lack of experience as a social worker was evident.
69. He became very defensive in reply to Ms Kilvington asserting in very strong terms that it was a “very thorough assessment” when she sought to explore some of the issues in respect of it. That was a worrying response which smacked of the over confidence of someone who did not have the knowledge and experience to demonstrate a degree of circumspection and humility since it was clear, to me at any rate, that the thoroughness of the assessment was not evidenced in what has been produced to the court. [The social worker’s] response on the issues raised in connection with the conduct of the assessment and the confirmation of the unreliability of his evidence in respect of the assessment process was profoundly worrying.
155. I have real concerns about how the local authority responded to the initial referral and subsequent information given by the police. I do not understand why the PLO pre-proceedings procedures were apparently never initiated when dealing with a young, first time mother who should have been encouraged to seek early legal advice which might, and I cannot put it any higher, have resulted in a different direction being taken in respect of the removal of IMA from her care under the Emergency Protection Order when he was a week old. The social worker was not able to give an adequate explanation for not implementing the relevant procedures.
156. I was also troubled by the Child and Family Assessment record and the process of the assessment undertaken by the social worker. I have commented above on the timing of the relevant sessions with the mother which demonstrates what I would consider a real training issue which needs to be addressed with the social worker. However, I was also troubled by the electronic record of the assessment which appears to make no provision to actually describe what questions were actually asked of or explored with the mother in circumstances where this social worker failed to keep any contemporaneous notes which he was able to produce when being challenged about it. This is a practice issue which the local authority and its managers need to consider and address since it is likely to arise as an issue in many cases which are brought before the courts.
157. There are I think real issues about this social worker and his role in these proceedings which largely emanate from his lack of experience. The view I formed of him was that he was an inexperienced but highly intelligent and articulate young man who was committed to trying to promote and safeguard the welfare of IMA in circumstances which he found to be extremely challenging. He unfortunately appeared to me to have a lack of understanding and awareness of how to communicate with the mother in particular at a level which was basic enough to enable her to engage effectively. There were times in his evidence where he became very confused and resorted to saying things he was unable to properly substantiate. That was regrettable since it undermined his reliability so far as this court was concerned.
The social worker’s manager also takes some flak
158. I should also add that I am troubled by the role of the social worker’s manager in relation to steps taken within the proceedings. It was clear from the social worker’s evidence that many of the decisions made had not been his but those of his manager. The clearest example being in relation to the decision not to continue with any rehabilitation proposal or plan in or around the 7th May 2014. I found it surprising that the local authority did not consider it either appropriate or necessary to ask her to provide a statement or indeed to invite her to attend at court to provide an explanation.
And in relation to the Guardian
106. The guardian also premised his conclusions in respect of the mother on the basis of an acceptance of the risks that the father may pose to the child as if that had an established factual basis which is not evident in the evidence before the court at that time. This is evident at E37 where he asserts that
“the father in my view presents serious risk to IMA”.
107. However, he later goes on to say at E39
“In view of the father’s lack of engagement in the local authority’s assessment, the risks that the father presents to IMA remain unassessed. His criminal history and his relationship history raise understandable concerns. He appears to play a peripheral role in the lives of his other children. It is unclear what role he would play in IMAs life if he was placed in his mother’s care……. I share the local authority’s view that the potential risks presented by the father to IMA remain as relevant as at the outset of these proceedings”.
108. His report proliferates with references to the risk the father presents to IMA as being “unassessed”.
113. At paragraphs 106 to 114 of his report the guardian purports to address the ‘threshold criteria’ and refers to having considered the judgment in Re B. His approach has been to ask three questions – (i) what is the risk of harm? (ii) is it significant?; and (iii) how likely is it to happen? The answers he purports to give are both unsatisfactory and confusing, in my judgement. The suggestion that the risk of harm is that IMA will be a member of a household in which his emotional and social development is impaired is not evidence based on any factual foundation before the court. The suggestion that the father’s circumstances provide a “potential for disagreement and tension” with the mother that does not provide “a sound basis for a stable and harmonious household” does not appear to be factually founded. It is speculative and ignores the fact that there is no evidence of any domestic violence between the mother and the father
114. At paragraph 110 he says he “finds it difficult to assess whether the risk of harm is significant or not” and that “it may be significant or it may not.” He then asserts that he is satisfied that the “risk may be significant” but he then goes on to consider that the parents’ ability to work openly and honestly is relevant to the assessment of whether the risk, as opposed to the harm, is significant which misses the point. His conclusion at paragraph 113 that
“there is a real possibility of IMA suffering significant harm. There is a real possibility of him living in a household characterised by instability, disharmony and the use of intimidating or threatening behaviour. There is a risk of his emotional and social development being impaired if he is living in such an environment”
appears to lack any factual basis evidenced in the information available to the court to satisfy the ‘threshold criteria’ at the time the local authority implemented it protective measures for the child.
[The scattering of the ‘unassessed risk’ phrase is quite reminiscent of the case that Ryder LJ recently granted permission to appeal on - Ryder LJ's remark there was "We are ALL unassessed risks". Is there an issue with professionals confusing absence of an assessment due to non-engagement with evidence of risk?]
The Judge was also very critical of the ‘chinese whispers’ and assertions being repeated and reported as fact, particularly around the police intelligence
150. There are real issues in this case about the Children’s Services reliance on police “intelligence” as a basis for the actions taken by the social worker and others. The “intelligence” referred to has never been produced to this court or the parties and it is unclear as to exactly what information has been given by the police to the social worker or others within Children’s Services. There are two written documents before the court from the police which I found to be worrying within the context of these proceedings. There is an e-mail which appears at C1 in the bundle dated the 28th August 2013 which follows some meeting with the police on the previous day after the recovery of IMA and the arrest of his parents on the 25th August. I can understand how a social worker as inexperienced as Mr Baker reacted the way he did to this. However, I question the validity of the police risk assessment in relation to contact made by this police officer which, as I understand it, was put before the court when it was considering the extension to the Emergency Protection Order and the court was invited by the local authority to refuse contact between the mother and IMA until after a risk assessment had been undertaken. Fortunately, the court refused the local authority application.
151. Perhaps more worrying though is a statement from a CD Acton at F208 dated the 24th March 2014 which was written in response to a request for clarification as to why it was thought that the father was a risk to women and children. She describes that the case was deemed as high risk according to a DASH assessment. DASH assessments are based on a victim’s self report in answer to set questions. They are not objectively evidence based. That is an issue in this case given that the father has never been prosecuted for any offences of actual violence against his former wife, RK. This statement is I think very much open to question in respect of much of its content but for the present purposes I simply make the final observation that the assertion that the father “has been arrested in regards to sexual offences against females as well as violent offences against this victim” is not evidenced on the basis of any information before this court and appears demonstrably unreliable. It calls into question the reliability of any of the “intelligence” given to this social worker and how he responded to it.