Category Archives: assessment of risk

Devon knows how they make it so… necessary

Posted on April 25, 2013 by suesspiciousminds

I was going to blog about the new High Court decision in Devon County Council v EB and Others 2013, but John Bolch of Family Lore not only beat me to it (which is usual) but he said everything that I wanted to say.

So, I commend his feature on it to you. If you don’t already follow the Family Lore blog, then you should.

I suspect we are about to get a Court of Appeal decision (I hear these whispers) that clarifies that “necessary” in the context of “is this expert necessary” means something rather akin to “If I am to continue living, it is necessary that you stop strangling me” [what we lawyers might call the Dudley v Stephens interpretation of the word 'necessary'] and moving away from this namby-pamby idea of necessary in that context being anything to do with uncovering the truth, or delivering justice, or providing a fresh pair of eyes on a pivotal and life changing decision, or article 6.

Anyway, in the meantime, read this authority whilst you can still potentially rely on it.

http://www.familylore.co.uk/2013/04/devon-county-council-v-eb-ors-minors.html

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Posted in assessment of risk, case law, experts, fact finding, family justice modernisation and tagged article 6, care proceedings, devon v eb 2013, expert, expert evidence, fair hearing, fair trial, right to fair hearing. Bookmark the permalink.

“How safe are our children?”

Posted on April 19, 2013 by suesspiciousminds

The NSPCC report on child abuse and neglect.

The report can be found here

http://www.nspcc.org.uk/Inform/research/findings/howsafe/how-safe-2013-report_wdf95435.pdf

and is interesting and well worth a read. It is quite stat heavy, but there are decent graphs which make the points well, and they set out how the stats were arrived at. (One of their core ones, I have an issue with, but will deal with that a bit later on)

The latter bits of the report set out the risk indicators for children, nearly all of which are not likely to come to a shock to anyone working within the family justice system.

You are more likely, as a child, to be physically abused or neglected if these factors are present in your family :-

Domestic violence, substance misuse, parents with mental health problems, parents with learning difficulties, children with physical or mental impairments, children from certain ethnic or minority backgrounds, parents who suffered abuse themselves as a child, and poverty.

The poverty one is interesting, because it is the elephant in the room at the moment. Is part of our child protection system, as might be argued by John Hemming and perhaps Dr Dale, a punitive way of dealing with the poorest members of our society (and perhaps even a redistribution of children from those who have them, to those with greater means and income who would adopt them?)

Also of course, from everything we know about the political climate of the country at present, poverty is only going to get worse over the next few years (unless you were on the Board of HBOS or are a stockholder in Vodafone, Starbucks, Google et al)

Here’s what the report says about poverty as a risk factor [underlining is mine, as I think this is a VITAL point]

Children living with poverty, debt and financial pressures

Why is this a risk factor?

Although there is no evidence to show that poverty causes child maltreatment, poverty and child maltreatment share many similar risk factors. Numerous explanations try to explain the relationship between poverty and child abuse and neglect. The impact of the stress associated with poverty and social deprivation on parenting is the most common explanation.

Researchers have found that parents with a low income are four times more likely to feel chronically stressed than parents with higher incomes. Stress levels of parents living in poorer neighbourhoods have been shown to be high. One study identified a “strong relationship between parents’ levels of stress and greater use of physical discipline”. Another associated being in a lower socio-economic group with a more significant level of physical discipline and abuse.

An analysis of women’s childhood experiences of abuse and neglect found evidence that women from poorer childhood homes were twice as likely to have suffered from abuse or neglect and three times as likely to have suffered from more than one form of abuse than those from more well-off childhood homes. Emerging findings from research in England highlight the impact of poor and inadequate housing on families and poor housing is a common characteristic of families in poverty. The unsafe environment and the impact of parental stress have been found to be factors in some SCRs and where children are subject to child protection plans.

This does not mean that parents who are poor will abuse or neglect their children. The relationship has been described as “circular and interdependent as opposed to linear and causal”.

What we know about prevalence

The Institute for Fiscal Studies estimates that the number of children living in relative poverty in the UK85 was around 2.5 million in 2012, rising to about 2.9 million in 2015.86

Being poor doesn’t mean that you will neglect your children, but being poor of course means that you are much more likely to have to make difficult choices about budgeting and poor choices have a much more detrimental effect. (If you are choosing between whether to spend £80 or £110 one week on food shopping for the next week, choosing the latter one week doesn’t massively affect your family, but if you are choosing between whether to spend £15 or £25 on shopping that week, and perhaps to spend the extra £10 means not having the heating on, those choices do make a proportionately greater difference to the wellbeing of the family.

There is an interesting tack in the main body of the report. The NSPCC calculate that for every child known to the authorities to be suffering from abuse or neglect, there are another 8 who are not known. [This is the statistic I am most cautious about, since it is drawn from an extrapolation of their 2011 study that showed children self-reported abuse or neglect (6% of over 11s, and 2.5% of under 11s) and applied that to the population at large. For me, I would need the 2011 study to be much larger and more robust before you could start extrapolating it to the population at large – for example, if you are asking a 14 year old whether they have been seriously mistreated by their parents in the last year, that 14 year old’s idea of serious mistreatment might be very different to society’s idea of it. There might well be days when almost any 14 year old would say that his parents were mistreating him]

But, setting aside my quibble about the number of children who are the bottom part of that iceberg, under the surface and unknown to professionals, the NSPCC say this

The gap is unlikely to close

Could services ever reach all maltreated children? Even if this were desirable (and few would consider this level of state intrusion into family life appropriate) it is very unlikely in the current context. If children’s social services were to become aware of just one quarter of those children who were maltreated (but not currently known to them), we estimate the number of children subject to child protection plans or on registers in the UK would triple. The resources required for this would be significant: an estimated additional £360 million to £490 million in public spending. In today’s fiscal climate this kind of investment is unlikely; to close the gap altogether is highly improbable. Nor is this the most effective approach. While it is vital to support children and adults in speaking up about abuse, in order to stop abuse in its tracks, this will never be enough to prevent children from being harmed in the first place.

This seems to be a bold, if pragmatic, thing to say about child abuse. Particularly for an organisation has been campaigning for the last few years on the basis of ending child abuse. Cruelty to children must end, FULL STOP (remember?)

They are now accepting that society simply can’t end it or stop it. There will always be child abuse and neglect. And as they point out, even if you raised detection levels to a much higher point, that would have a huge and detrimental impact on freedom and privacy and family life, and the resourcing of the services would be utterly unmanageable for our society to fund.

So, are the NSPCC throwing in the towel? Unsurprisingly, not. What they instead posit is moving towards the very early period of child abuse and neglect and nipping that in the bud before it escalates into more serious problems.

We need a different approach to child protection

Which is why a different approach to child protection is needed, one that does more to prevent abuse “upstream” rather than intervening to stop it once it has already happened. Most public spending goes towards picking up the pieces rather than into “upstream” prevention. The National Audit Office estimates that only 6 per cent of public expenditure is focused on stopping problems from emerging in the first place.

While intervening to address abuse once it is known will always be a moral and legal imperative, child abuse and neglect will never be substantially reduced unless we become smarter at preventing it from happening at all.

Understanding the circumstances in which children are at increased risk is essential for prevention. Research points to the personal characteristics, family circumstances and environments that place children at greater risk of abuse and neglect. In Part 3, we set out the available evidence on this, highlighting nine key risk factors. There is no direct causality between these factors and abuse; they are not predictive of maltreatment. But by recognising that children living in such circumstances are at heightened risk, greater support could be directed towards families to reduce the chances of abuse and neglect from occurring at all. While this support comes at a price, it is ultimately more cost-effective to prevent abuse from occurring than to meet the many costs that fall across society because of the damage caused to children who were abused or neglected in their childhood.

Wider society also has an important role to play. Abusive behaviour cannot be stamped out by the state alone; individuals, families and communities must also be responsible for the change. Most adults think parents, families, friends and neighbours have a responsibility to prevent child abuse – and that greater responsibility lies with these groups than with government.

So while government can do much to influence the conditions in which children live and while professionals play an important role in intervening to protect children and helping those who are at risk of abuse, wider society has a responsibility too. However, all too often people frame this responsibility in terms of being willing to act if worried about a child, rather than being willing to address faults in their own or others’ behaviour. Perhaps it is time to reassert our responsibilities to children as citizens.

I can’t say I’m sure how the NSPCC vision here gets translated into action, but I think it is a legitimate and interesting debate to have as a society. I thought the report as a whole (although I don’t agree with every aspect) was a challenging and thought-provoking document.

There are some very mind-boggling figures in it

There were a total of 21,493 sexual offences against children recorded by police in the UK in 2011/12.*

There were 4,991 rapes of children recorded by police in England and Wales in 2011/12.

There were 7,812 cruelty and neglect offences recorded by police in the UK in 2011/12.

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Posted in assessment of risk, research and tagged abuse, child abuse, child neglect, how safe are our children, neglect, NSPCC. Bookmark the permalink.

What to do in the interim?

Posted on March 28, 2013 by suesspiciousminds

Interlocutory orders when the Court is faced with disputed allegations of non-accidental injury

Long term readers of this blog will know of the number of cases that have come before the senior Courts in the last year where what seemed compelling evidence for non-accidental injury perpetrated by the parents turned out to have a medical explanation (the rickets/vitamin D cases) http://suesspiciousminds.com/2012/04/24/subdural-haematomas-fractures-and-rickets/

, a cyst http://suesspiciousminds.com/2012/10/12/a-tapestry-of-justice/

or where the Judge didn’t like either of the competing theories and fell back on the burden of proof, http://suesspiciousminds.com/2012/05/04/a-county-council-v-m-and-f-2011/

or where the Court just felt that the injuries just lay outside current medical knowledge and could not be explained http://suesspiciousminds.com/2012/12/20/what-does-donald-rumsfeld-have-to-do-with-paediatric-head-injuries/

and I have speculated about when we might get a case that says what a Court are supposed to do with interlocutory applications for removal, when faced with serious allegations of non-accidental injury and the parents say “well, there’s a whole other possibility, which is that we have done nothing wrong and the child should remain with us”

Well, now we have such an authority, the Court of Appeal considering this very issue in Re B (Children) 2013

http://www.familylawweek.co.uk/site.aspx?i=ed112720

The Judge at first instance had heard the application for an Interim Care Order and removal, and refused it, and the Local Authority appealed.

There were two fractures, and the radiological evidence was that there was not an organic cause and that they were likely to be non-accidental in nature.

The parents were arguing that the fracture had occurred in hospital during an examination, and marshalled other arguments as well.

The Judge at first instance accepted that there were matters on both sides of the equation and that a finding of fact hearing would be necessary to come to a determination of the causation of the injury, but that [as the Court of Appeal say] a significant body of evidence pointing to the distinct possibility (I deliberately use a relatively neutral description) that L had sustained non-accidental injuries.

The Judge’s exact wording was

“I make it plain that there are plainly on the evidence matters which might be going in the opposite direction. But it appears to me that both of these fractures and the circumstances surrounding them suggest that there are grounds for believing that one or the other of the parents may have caused those injuries.”

The issue really was, having crossed the interim threshold, for the purposes of section 38 (which with the above formulation was plainly crossed and was not in dispute) ; but mindful that the ultimate issue of causation was not yet resolved and was in considerable dispute, should the Court go on to make Interim Care Orders, or should he, as he in fact did, make Interim Supervision Orders allowing the two children to be at home pending the finding of fact hearing.

The Court of Appeal were pretty clear that they did not want to strike a new formulation of the test for removal [nonetheless, I like the way that they put it, which is a reset to Re B’s much clearer test than the murkier waters the authorities later dipped a toe into]

23. So, with that caveat that this is not intended to be in any way a reformulation of the test with regard to interim care orders, one might say that it is the welfare of the child that dictates the result, that dictates the order that the judge should impose at the welfare stage of an interim hearing. The welfare is, as HHJ Murdoch says, the court’s paramount consideration and what the court is looking for is whether the child’s welfare demands that he or she should be removed immediately from his or her parents’ care for his or her safety or whether, putting it another way, removal from their care is a proportionate response to the circumstances as they appear to be to the court. In carrying out that evaluation the court must, as HHJ Murdoch said, bear in mind the welfare checklist set out in section 1(3) of the Children Act.

The Court of Appeal then look at what the Judge laid on the other side of the scales [underlining is my own, as that is the key passage]

. When the judge went on to consider the welfare issue, he said this at paragraph 33:

“When, however, I come to look at the second stage of the decision making process at this hearing, I must look at the matter in the round. I must look at the existence of arguments which go in the other direction in respect of the femoral fracture and the possibility that there is that the findings at the fact finding hearing in February may not be to the effect that non accidental injury has been caused.”

40. One might have expected that that passage in the judgment would then have been followed by an enumeration by the judge of the various features which gave the judge reassurance in placing the children with the parents in the interim period or at least a closer examination of the risk that there was to the children in the parents’ care, including the features that gave rise to concern, not just in the shape of the medical evidence available so far but also the other matters such as the existence of the 31 January incident and the absence of injury whilst under the supervision of the grandparent or, subject to a hand swelling which is noted in the clinical records, in the care of the foster parents.

41. In short one would have expected the judge, faced with the seriousness of the injuries which L had suffered so far and which he had found there were grounds for believing had been caused by one or the other of the parents, to go on at that point to explain why nevertheless he felt the risk was one that he could take. One would have expected him at that stage, I think, to have explained what he thought the risk was and what, if any, he thought was the chance of such harm as the children risked actually happening, whether it was predictable as to whether it would happen and what protective features there were in the case that would guard against it. The judge does not go on to deal with matters in that way. He sees the matter in terms of a balance between the risk of physical harm and the risk of harm to the children’s bond with their parents. He clearly arrived at the view that the risk of the harm to the bond was greater than the risk of the physical harm, but he does not explain in his judgment how it was that he arrived at that evaluation. Given the gravity of the circumstances here I see that as a fundamental flaw in his evaluation of the matter or at least in his articulation of how he saw the respective risks.

42. We were asked to say that no judge could have arrived at the decision that was arrived at in this case. I am reluctant ever to say never in a family case, because each case depends upon a sophisticated mixture of the particular facts in the particular case. I may have taken a lot of persuasion to have countenanced a return of children in circumstances such as these, but I would not translate that into saying that no judge could take that course. But what a judge would need to do in those circumstances is to spell out very clearly why it was that he felt that the risk could be taken. That is missing from this judgment and I would therefore overturn the decision made by the judge and would hear further submissions, insofar as those are necessary, with regard to what needs to happen next.

That is very different, of course, from suggesting that there is a burden on the parent to satisfy the Court that the risks are low or manageable, but of course in reality, given that the Local Authority (and often the Guardian) are putting the case that the risks are not manageable, it will be for the parents advocate to make sure that the Judge is given evidence and reasons for taking that course of action. The risk of separation and the harm that might cause is not, in and of itself sufficient.

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Posted in assessment of risk, case law, experts, fact finding, threshold criteria and tagged disputed injuries, finding of fact hearing, interim care order, medical evidence, non-accidental injury, re b children 2013, separation. Bookmark the permalink.

Haranguing Haringey

Posted on March 19, 2013 by suesspiciousminds

The case of AB and Another v London Borough of Haringey 2013 and the valuable lessons that can be learned from it.

The case itself can be found here:-

http://www.bailii.org/ew/cases/EWHC/Admin/2013/416.html

And there’s an exceptionally good piece on it here, written by Celtic Knot, [@Celticknottweet] a fellow blogger, who was involved in the case and thus has both first hand knowledge and a very good perspective on it.

http://notsobigsociety.wordpress.com/2013/03/15/data-gathering-damned-if-we-do-damned-if-we-dont/

The issue was broadly this. Haringey social workers became concerned about the children of a family and sought information from other professionals about those children. They did not seek the consent of the parents to obtain that information. The parents, who were professionals working in the child protection sphere (one a social worker, one not) considered that, with their knowledge of procedures, that the procedures had not been properly followed and that their confidentiality had been breached and sought to challenge matters.

The nub of the case was this – was Haringey’s decision to conduct a section 47 investigation a fair and reasonable one, following proper processes? There are two distinct categories of social work involvement at this early stage – one is the initial assessment, and one is a section 47 investigation. The Court were looking at what needs to be in place before one crosses from initial assessment and investigation and information gathering to a formal child protection investigation under section 47.

The Court sum up the law on section 47 investigations very neatly

Section 47 of the Children Act 1989, in Part 5 of the Act entitled Child Protection, provides as follows:

“47 Local authority’s duty to investigate.

(1) Where a local authority— …

(a) are informed that a child who lives, or is found, in their area—

(b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,

the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare … .”

Section 47 enquiries are one of the principal measures available to a local authority to enable it to exercise its child protection functions to protect children who are at risk of suffering or are suffering significant harm whether it be physical, emotional or psychological harm. Such harm and such risks are often very difficult to ascertain and root out and the purpose of section 47 is to provide a readily available means whereby a local authority can ascertain the facts and risks that a child is running and then to identify and implement necessary protective, supportive and developmental measures to safeguard and to promote that child’s welfare. The objective of a section 47 enquiry is to protect children who are suffering from or are threatened with significant harm and the threshold for its operation in any given case is the need for the local authority concerned to have reasonable cause to suspect that that child is suffering or is likely to suffer significant harm.

The use of section 47 and the measures that may be taken by a local authority following its use are predominantly aimed at securing the best interests of children. Its use is intended to be child-focused and to take account of the child’s views and wishes without unduly and unfairly disrupting her family life. The use of section 47 should also take account of the personal and family rights of a child’s parents or carers so long as that does not interfere with the overriding duty of child protection and development.

Section 47 enquiries are multi-agency in their scope and they will usually include such agencies as the child’s school, medical practitioner, social workers and the police. The police have an important role to play given the likelihood that in most cases where a child is suffering or is at risk of suffering significant harm, the perpetrator or perpetrators of that risk or that harm will have committed or will still be committing serious criminal offences whose victim is a child.

A section 47 enquiry involves an in-depth child-centred assessment of a child’s developmental needs, of the harm she is suffering or may suffer, of the capacity of the child’s parents or carers to respond to the child’s needs and of the family and environmental factors that are playing a role in the harm she is suffering or may suffer. This intrusive assessment should take account of the views of the different agencies involved with and the external influences on the child and it must also directly involve both the parents and the child unless this will endanger the child. The necessary fact-gathering should include sessions with the child without her parents or carers present and it should ascertain that child’s wishes and aspirations wherever possible. The assessment, known as a core assessment, must be concluded so that a holistic view may be taken of the child’s needs, of the significant harm that the child is being or is at risk of being subjected to and the steps that can be implemented for the eradication of negative influences on the child and the promotion of favourable ones on her.

A section 47 enquiry has in recent years become very damaging for the life, career and family relationships of many who are parenting or caring for the child being assessed. There are now extensive statutory checks that must be made about adults who are caring for or working with children or who are coming into contact with them in an educational, health, pastoral or care context. Thus, involvement in a section 47 enquiry may often result in the ending of a career involving contact with children. This will usually be for good reason but this is not always so and there will rarely be a means for those unfairly marked out by involvement in a section 47 enquiry to eradicate that stain on their professional and personal reputation.

A section 47 enquiry can of course prove to be very damaging for a child, for her parents and for their mutual relationships. In particular, the lives of parents can be badly affected if and when adverse conclusions are made about the harm that they have inflicted on their child. These can include criminal prosecution, the loss or their child, intrusive involvement in their family and private lives, loss of employment or being barred from working with children and an adverse entry on their records held by reporting authorities such as the police and various regulatory bodies. A particular trigger for any of these adverse effects is the fact that a section 47 enquiry was undertaken in relation to their child at all since its threshold is that significant harm has occurred or that there is a risk of it occurring. Thus, a section 47 enquiry, which will often be reportable by the parents concerned, can blight their lives irrespective of the nature and extent of the significant harm or of their involvement in it or of the reasonableness of the suspicion that generated the enquiry in the first place.

For all these reasons, the simple and apparently straightforward terms of section 47 mask a myriad of problems and to help deal with these, a plethora of rules, procedures and guidance have been produced. These are largely found in the statutory guidance issued by the Department for Children, Schools and Families and by statutory authorities such as the London Safeguarding Board. Statutory guidance is issued with statutory authority and it must therefore be complied with unless local circumstances indicate exceptional reasons to justify a departure from it in a specific case. This body of guidance is intended, if followed, to enable the very difficult decisions and exercises of professional judgment to be made satisfactorily on a case by case basis. These judgments are taken so that the substantial harm affecting the child may be investigated, her best interests may be protected and the rights of parents and carers are taken into account.

If you want it even shorter than that, it is that section 47 investigations are an important tool to protect children, but using them has consequences for the parents and the State must be careful that they are used in accordance with the guidance given, to avoid abuses.

The threshold for deciding whether a set of circumstances triggers section 47 is as below (underlining mine)

18. The relevant service has a statutory duty to initiate a section 47 enquiry but only if it has decided that it has reasonable cause to suspect that the child is suffering significant harm or is at risk of suffering such harm. That reasonable suspicion must arise in and be tested by the initial assessment process which may only be short-circuited in exceptional circumstances. The objectives of the resulting core section 47 enquiry are essentially to determine what is likely to happen if nothing changes in the child’s present situation and what the likely consequences for the child are.

Of course, the section 47 investigation process might well either develop those concerns about the risk that the child is exposed to, or reveal that the concerns held are either baseless or that the risk is comfortably managed or has dissipated; but the crux is that in order to embark upon a section 47 investigation, the LA MUST have reasonable cause to suspect that the child is suffering significant harm.

That’s the reason why social workers can’t just knock on a persons door and ask to come in and snoop for some evidence of harm – they have to have reasonable cause to suspect (or what, if you want to borrow from American cop shows, you might call “Probable cause”) that the child is at risk of harm in order to commence an investigation.

This is what prompted the Haringey s47 investigation

An unsigned letter dated 11 March 2011 addressed to LBH’s “Social Services Child abuse Department” was received by SFR on 15 April 2011. There is no record of when it was sent by the anonymous author or first received by LBH. The letter read:

“Dear Social Workers

Worried about the family living at [full postal address given].

I am a neighbour of the family living at the above address and I have some very big worries about how they are looking after the young girl in the house. I think the little girl is about 7 years old and there (sic) girl. The mother is always screaming at the little girl shouting and screaming. I have seen the mother pulling the little girl along by her arm and slapping her. The little girl looks so unhappy she is not allowed to speak to anyone and when you see her in the street the little girl looks very sad and never raises her head to look at you. There is often shouting late at night from the house. The man in the house is much older and could be granddad or a lodger.

I am worried to talk to the family because they don’t speak but I know they have been rude to other people in the street. Please could you make sure that the little girl is alright.”

As a result, Haringey social workers made what are called ‘background checks’, contacting the police, GP and school to see if there was anything known about the family.

It was only after these checks were conducted, that Haringey contacted the parents to notify them of the concerns, and to begin their investigation/assessment. [AB and CD are the parents in this case, LBH refers to the London Borough of Haringey, EF is the child]

AB reacted strongly to this call for a number of related reasons. These were:

(1) It seemed to AB, with her knowledge of child protection procedures, that LBH had made several serious errors in the way it had dealt with her daughter’s case.

(2) LBH should have obtained her or CD’s permission before making any contact EF’s GP and school but had in fact approached those agencies without even attempting to obtain it.

(3) LBH appeared to have embarked on an initial assessment of her daughter without first evaluating her risk to satisfy itself that one was needed. In her view, a risk assessment was particularly necessary since the referral had been made by an anonymous member of the public so that it could not be tested or evaluated.

(4) Before deciding on an initial assessment, a social worker should have seen EF on her own to assess whether it was possible that she had been subjected to a significant risk of being seriously harmed.

(5) The threshold for the decision to start an initial assessment had not objectively been reached in this case.

(6) Even if it turned out that it was wholly unjustified to carry out an initial assessment, the fact that it had taken place could ruin the careers of both her and CD as professionals involved in child protection work.

(7) None of the appropriate steps had been taken that would have enabled an objective and fair decision to be taken that it was necessary to embark on an initial assessment of her and her family.

AB had grounds for legitimate complaint about each of these features of the decision-making process leading to the initiation of an initial assessment process.

At the end of the s47 process, the conclusion was that EF was not at any risk and the referral had been malicious

54. On 10 May, Ms Mawdsley noted the following about the investigations and assessments that he had carried out:

“Following the home visit to [EF] and her parents and having considered information shared from other agencies, it is my opinion that it is highly likely that the referral received was malicious. It is my assessment that [EF] is not at risk of significant harm in the care of her parents.”

The key issue in dispute therefore was whether Haringey were able to legitimately commence a s47 investigation on the family BASED on the referral, and thus seek the background checks without parent consent, or whether a s47 investigation could not legitimately begin until the workers had actually talked to the parents (this not being a case where there would be a difficulty in finding them).

The Court broke this down into four questions

These grounds require these issues to be addressed:

(1) Was a section 47 enquiry decided upon?

(2) If so, was it unlawful?

(3) Was the data-gathering exercise before and during the initial assessment process unlawful?

(4) What remedies are the claimants entitled to?

The Court concluded that at the time, there had not been a formal decision to move this consideration of the anonymous referral from an initial assessment to a section 47 investigation (looking specifically at the failure to have any record of such a decision, there being no approval by a manager of that decision and

(5) Particularly significantly, the family were visited and AB and CD were interviewed separately from EF. These interviews were not in structure or content part of a core assessment but were part of, indeed the principal component part of, an initial assessment.

(6) Whereas it is perfectly possible to terminate and abort an initial assessment, the guidance provides that a core assessment should be completed even if it emerges that the criteria for a section 47 assessment are not in fact present. In such a case, the outcome resulting from the completed core assessment will be that the child is not subject to significant harm and any recommendations for future interventions or that no future interventions are needed will be recorded.

(7) The guidance also makes it clear that the section 47 decision must be taken at a strategy meeting, held if necessary, if the situation is one of extreme emergency, over the telephone. Such meetings were held and both decided upon there being no further action and that decision was recorded by Mr Baker, albeit long after the fact in the core assessment document.

(8) Ms Chew appears to have taken the section 47 decision after Mr Baker had left her and, it now seems from an analysis of the evidence, only after she had sight of AB’s email to the Head of Service dated 4 May 2011. She then appears to have reacted hastily and as a direct response to seeing that email and only communicated her decision to AB and CD in her letter dated 5 May 2011 which was delivered on 7 May 2011. That cannot be regarded as a final and conclusive section 47 decision given all the shortcomings that I have described.

They went further, to say that IF a section 47 investigation had been decided upon before meeting with the parents and seeing the child, that would have been unlawful. The only circumstance in which a s47 investigation can be triggered without seeing the parents and the child, would be where there was extreme urgency or an assessment (based on evidence) that a home visit would put the child at risk of harm, neither of which were present.

The Court’s decision that Haringey had not been in fact conducting a section 47 investigation was critical, because it would be the fact of a s47 investigation that would allow the obtaining of information from third parties without the direct express consent of the parents

The initial data-gathering exercise was unlawful in two respects:

(1) The initial request for data was sent to EF’s GP accompanied by the erroneous information that LBH was currently working with the family, that LBH was already undertaking a CYPS assessment and that confidential details including the possible presence of risk indicators of physical abuse, should be provided. In addition to these statements or implications being erroneous, no consent had been obtained from EF’s parents and it was not a justification to seek the information without consent that their identity was not at that time known since this statement was also untrue.

(2) The consent of the parents had not been obtained before the school was approached. Moreover, it was impermissible to post details of the referral on RIO to enable the school nurse to read them prior to obtaining the parents’ consent.

These were serious departures from permissible practice and these actions were unlawful.

The Court then moved on to remedies

77. Issue 4: What remedies are the claimants entitled to?

The claimants are entitled to a quashing order quashing the purported section 47 enquiry decision and to declarations that there never was a section 47 enquiry decision, that the initial assessment was terminated because EF was not at risk of significant harm and because it was highly likely that the anonymous referral was malicious. In consequence, the Manager and the Practice Manager decided to close the case. They are also entitled to declarations that LBH acted unlawfully in not seeking AB and CD’s consent before approaching EF’s GP and school and seeking information from them.

That leaves over for further argument what steps should be ordered to be taken to ensure that all references to AB and CD having been subject to a section 47 enquiry are removed from all data bases and that all appropriate persons who should be notified of this are notified and what the terms of that notification should be. Furthermore, it leaves over a claim for damages on which I need further argument as to both entitlement and amount.

The relevance of this decision is therefore this :-

That unless there is urgency, or an assessment based on evidence that a home visit would endanger the child, it is unlawful to commence a section 47 investigation without visiting the child and speaking with the parents (that process would instead be an initial assessment)
Seeking background checks without parental consent would be unlawful UNLESS a legitimate s47 investigation had been formally convened and was taking place (and frankly, even then, one ought to try to get parental consent)
A breach of (1) or (2) above, can result in financial compensation.

There’s big discussion over at the blog I referenced initially as to whether the parents in this case got a better outcome because they were social workers. It is certainly the case that knowing the procedures and guidance led them to know that the procedures and guidance hadn’t been followed, and of course, the consequences for them of a malicious referral had professional consequences for them as well as for their family. But the principles here apply to all families and all investigations.

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Posted in assessment of risk, case law and tagged AB and Another v Haringey, AB and London Borough of Haringey, anonymous referral, background checks, initial assessment, section 47, section 47 investigation. Bookmark the permalink.

“A pair of star-cross’d lovers…”

Posted on February 5, 2013 by suesspiciousminds

Written agreements, love and difficult choices in care proceedings.

This written agreement is prepared and entered into by the parents of Rose Smellsweet Capulet

It is accepted that the father of Rose, Romeo Montague, will live apart from Rose and the mother, Juliet Capulet, whilst assessments are undertaken of him.

It is accepted that there is a need to undertake such assessments based on these three factors :-

(i) The age of Juliet when the relationship began, she being thirteen(nearly fourteen) at the time

(ii) The conflict and tension between the paternal and maternal family

(iii) The incident where Romeo is alleged to have stabbed Juliet’s cousin Tybalt

(iv) The incident where it is alleged that both parents planned to commit suicide

The parents agree :-

That Romeo will not visit the home of Juliet.
That he will not visit the immediate boundaries of Juliet’s home (this having been added due to incidents where he was singing up at her balcony)
That all contact between Romeo and Rose will be supervised by the Local Authority
That Romeo and Juliet will not have communication face to face, or by letter, text message, email, instant messaging, , Lutebook or through intermediaries such as Nurse or Benvolio.
That this written agreement will be reviewed once Dr Falstaff’s risk assessment has been received.

Ridiculous, of course, but some serious points emerge.

Within care proceedings, it is often the case that one parent is asked to separate, either temporarily or permanently , from another parent who they love, as a result of a risk posed by that parent to the safety of a child.

It is hoped that once assessments are in, or factual allegations determined, that the parents will be able to resume that relationship, with either there being no risk or the risk being determined as one which can be safely managed or reduced with specialist help. But that doesn’t always happen.

Sometimes the care proceedings and decisions about the future turn on whether a parent can stick to their word and stay away from the risky partner.

[I am trying hard within this piece not to fall into the stereotypical pitfall of implying that it is always safe mums and risky dads, although that is the more common category we see, I have had significant numbers of safe dads and risky mums too, and of course risky dads and risky mums in the same case]

There are really only three options where one parent is found to be a risk (and where the risk is determined to be substantial):-

Let mum and dad look after the child together and take that risk that the child will be harmed
Remove the child from harm and the mum and dad can live together but without the baby
Ask the parents to live apart and for the child to live with the safe parent and manage the contact with the risky parent

Frankly, none of these are ideal, and the third one is the compromise position that is often reached, not as the best, but the least worst of the three.

Now, onto the points the fake written agreement is trying to touch on by using Romeo and Juliet as the particular example.

I think most people in the Western world would agree that Romeo and Juliet is one of our touchstones of romantic love and what it means to be in love. It means intensity, it means passion, it means one person in the entire world who is the one for you. It means not being kept apart, no matter how much external forces try to split you up. It means being bound together being unable to live if not with the person you love. It may even mean that if the world says you can’t be together you must keep your love a secret.

The way the world sees and sells love, it is that consuming passion, the fire that burns within us.

All of which are really bad for option 3 above.

How realistic is it, really, to ask two people who are genuinely in love to be apart for the sake of a child when neither of them really wants to end the relationship? No matter what someone external might see as inherent crappiness of their relationship or how one partner “could do so much better” the truth of the matter is that for THOSE people, that love is real and vivid and powerful and emotional and painful as it is for any one of us who has ever been in love.

The point of using Romeo and Juliet is to remind ourselves that these parents in any particular case that we are looking at, are in love, bound up with another person, with all that this means. It is easy enough to look at it purely from the outside and say “of course he should leave this woman, she is awful to him and so dangerous to the child, it’s a no-brainer” but you have to remind yourself that love and logic are strange bedfellows, and that for these people, their feelings and emotions and pain are just the same as yours would be, if you found yourself in that awful dilemma.

It is very hard to countenance, if you try to put yourself in these parents shoes for a moment, ending that relationship because someone else tells you that you should. It is hard to end a relationship when you really want to, harder still when the other person ends it and you weren’t at that same place. It is almost inconceivable to think of ending a relationship when the flames in both your hearts haven’t gone out.

That’s not to say that it is the wrong thing to do – looking at the three options above, the third is the least damaging for the child, who gets to live safely with one parent.

Just that really, what we ask of parents in this situation, whether we be social workers, experts, lawyers, family members or even the Courts, is HARD. It might actually be the hardest thing that the parent will ever have to do in their life, and for that reason, it is not surprising that often these imposed separations don’t work out.

They crumble, or sometimes the risky parent (who after all has lost their lover but not gained a child) applies pressure for the relationship to continue, or attempts are made to keep the relationship going in secret.

The temptation to introduce an option 4 to that unappealing list

4. The child lives with the safe parent, and so far as social services and the court are concerned, the relationship is over, but we keep it going and don’t get caught

Must be a massive one.

[Actually, I think the word “clandestine” is probably used more in care proceedings than any other walk of life, for exactly that reason. ]

The other, slightly cheap shot, reason for using Romeo and Juliet to illustrate this piece, is that our greatest imagery of love and passion, our Platonic ideal of it if you like, is involving a young man pursuing a 13 year old girl….

[There’s probably a whole other piece on looking at the examples people would give of “famous or inspiring lovers” - Romeo and Juliet, Anthony and Cleopatra, Richard Burton and Elizabeth Taylor, Heathcliffe and Cathy, Scarlett O’Hara and Rhett Butler, whoever the heck the couple are in Les Miserables, Peter Venkman and Dana Barratt, Jane Eyre and Mr Rochester, Lancelot and Guinevere, Juliet Roberts and Richard Gere in Pretty Woman, Elizabeth Bennett and Mr Darcy…. They are all pretty dysfunctional couples and a heck of a lot of hearts get broken or even stopped along the way]

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Neurology, new neurology, old neurology, neurotic neurology… let’s have a heated debate!

Posted on January 21, 2013 by suesspiciousminds

Am beginning to think that I should move into the new field of paediatric neurology law blogging, as it seemed very popular last time. [Although I am going to have to work harder on titles if I have to do a fourth, because I'm running dry]

This is my third post on this issue.

The last one was here:-

http://suesspiciousminds.com/2013/01/14/semantics-pedantics-and-neuro-mantics/

Which was about the Wastell and White report suggesting that too much political weight is being placed on headlines of neuroscience research when the actual research is more fragile than the headlines would suggest.

You may recall that the thrust of that was whether the impression that is being disseminated that neuroscience is at one on the principle that neglect in early childhood can cause longstanding harm to children, possibly even irreparable harm in the first years of life, is a genuine one on which important decisions can rightly be taken, or whether there is a schism within neuroscience which might need resolution before we start constructing metaphorical housing estates on those foundations.

The key debate seems to be about plasticity of the brain in an infant – is that damage long-lasting and irreparable, or does the brain form new structures and overcome it (obviously ideally with the neglect ceasing and positive parenting being in place) ?

I don’t think anyone would argue that children suffering neglect is BAD, the issue here is whether science is now showing that it is FAR MORE BAD than we had previously believed.

As a result, a kind subscriber has sent me this new report “The Foundations of Life” compiled by Harvard University, which is firmly in the Family Justice Review camp, of neglect causing much greater and more irreparable harm than had earlier been understood.

My initial reading suggests that this is not new research, or commenting on fresh experiments or studies, but again a drawing together of existing research and formulating conclusions from it.

That report can be found here: -

http://developingchild.harvard.edu/index.php/resources/reports_and_working_papers/foundations-of-lifelong-health/

There is a summary of essential findings, which I shall set out here.

(The analysis of whether those findings are made out from the research is a task beyond me, but some of my new readers who have lovely neurosciency brains will probably set to work on considering that).

Advances in molecular biology, and genomics have converged on three compelling conclusions:

Early experiences are built into our bodies.

Significant adversity can produce physiological disruptions or biological “memories” that undermine the development of the body’s stress response systems and affect the developing brain, cardiovascular system, immune system, and metabolic regulatory controls.

These physiological disruptions can persist far into adulthood and lead to lifelong impairments in both physical and mental health.

Messages for Decision-Makers

The biological sciences have two clear and powerful messages for leaders who are searching for more effective ways to improve the health of the nation.

First, current health promotion and disease prevention policies focused on adults would be more effective if evidence-based investments were also made to strengthen the foundations of health in the prenatal and early childhood periods.

Second, significant reductions in chronic disease could be achieved across the life course by decreasing the number and severity of adverse experiences that threaten the wellbeing of young children and by strengthening the protective relationships that help mitigate the harmful effects of toxic stress.

A New Framework for Early Childhood Policy and Practice

The following four interrelated dimensions offer a promising framework for innovative approaches to improving physical and mental well-being. The biology of health explains how experiences and environmental influences “get under the skin” and interact with genetic predispositions, which then result in various combinations of physiological adaptation and disruption that affect lifelong outcomes in learning, behavior, and both physical and mental well-being.

These findings call for us to augment adult-focused approaches to health promotion and disease prevention by addressing the early childhood origins of lifelong illness and disability.

From the report itself, this is interesting – the suggestion that child abuse should start being treated as a public health issue, and treatment programmes designed and delivered.

Child Welfare.

For more than a century, child protective services have focused on issues re¬lated to physical safety, reduction of repeated injury, and child custody.

Now, recent scientific advances are increasing our understanding of the extent to which the toxic stress of abuse, neglect, or exposure to family or community violence can produce physiological changes in young children that increase the likelihood of mental health problems and physical disease throughout their lives.

Based on this heightened risk of stress-related illness, science suggests that all investigations of suspected child abuse or neglect should include a comprehensive assessment of the child’s cognitive, language, emo¬tional, social, and physical development, followed by the provision of effective therapeutic services as needed. This could be accomplished through regularized referrals from the child welfare system (which is a mandated service in each state) to the early intervention system for children with developmental delays or dis¬abilities (which provides services under an en¬titlement established by federal law).

Although the most recent federal reauthorizations of the Keeping Children and Families Safe Act and the Individuals with Disabilities Education Act both included requirements for establishing such linkages, sufficient funding has not been provided, and the implementation of these requirements has moved slowly.

The availability of new, evidence-based interventions that have been shown to improve outcomes for children in the child welfare system168 underscores the compelling need to transform “child protection” from its traditional concern with physical safety and custody to a broader, more science-based focus on health promotion and disease prevention.

The Centers for Disease Control and Prevention has taken an important step in advancing this issue by promoting the prevention of child maltreatment as a public health concern.169,170

I remain in the dark as to whether the current path we are on, of policy decisions being taken, and perhaps individual ones too, on the basis of neglect being irreparably harmful to infants and that our timeframe for making decisions is much more narrow than previously believed, is the right one and that we have some mavericks suggesting otherwise, or whether the current trendy thinking on that is wrong and the naysayers are actually pointing out that this emperor has no clothes on.

I would like someone to find out. Or perhaps we lawyers just have an over-optimistic view of the social sciences, and think that there is a definitive answer out there to be found out (like there really is a definite number for the co-efficient of the expansion of brass and that every scientist in the field would agree on what the number is, and how you could prove it). Maybe there isn’t.

Perhaps the truth of the world of neuroscience is that we are still stumbling in the dark and that every theory is going to have its proponents and opponents.

In which case, we perhaps ought to know THAT, and not be treating the findings and theories of neuroscience as though they represent the final word on any given subject.

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Posted in assessment of risk, research and tagged david wastell, impact of neglect on infants, impact of neglect on the brain, is neglect irreparable, neglect, neurology, paediatric neuroscience, plasticity, plasticity of the brain, sue white. Bookmark the permalink.

Imaginary written submissions

Posted on January 9, 2013 by suesspiciousminds

[These are imaginary written submissions, in relation to an application for an Emergency Protection order - in reality, one wouldn’t have the opportunity to make them, but they bear some resemblance to what the advocate representing the mother might have said in addressing the bench, though almost certainly in less florid and melodramatic terms. I have been very careful, as any advocate would, not to misrepresent any facts]

This application for an Emergency Protection Order is made by the Local Authority. The mother has had very limited notice of the hearing, and very limited opportunity to see the case put against her. She has had to defend her position and persuade the Court not to make this most draconian of orders without having the opportunity to see the Local Authority case in writing, or to put into writing her own account of events.

It is for those very reasons that the Courts have set down authorities that making an order of this kind is draconian, and requires “compelling evidence”, particularly, the decision of RE X (A CHILD) sub nom RE X (EMERGENCY PROTECTION ORDERS) (2006) [2006] EWHC 510 (Fam)

I will come on to those matters in a moment; but the Court should have in mind the context that to remove a child from a parent at any stage requires cogent evidence that there are reasonable grounds to believe that the threshold is made out, but that beyond that, that the decision to remove is a proportionate one to make far in advance of assessments or a final hearing bearing in mind the alleged nature of the risk, and that to do so at an Emergency Protection Order stage requires extraordinarily compelling evidence that it is effectively the only thing to do, it is an order of last resort. And that it should only be contemplated if imminent danger is actually established.

The legal context is then set out in Re X, and the predecessor case, also Re X. In X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam); [2005]1 FLR 341,

Quoting from the earlier case :-

An EPO, summarily removing a child from his parents, is a ‘draconian’ and

‘extremely harsh’ measure, requiring ‘exceptional justification’ and

‘extraordinarily compelling reasons’. Such an order should not be made

unless the FPC is satisfied that it is both necessary and proportionate and that

no other less radical form of order will achieve the essential end of promoting

the welfare of the child. Separation is only to be contemplated if immediate

separation is essential to secure the child’s safety: ‘imminent danger’ must be

‘actually established’.

The evidence in support of the application for an EPO must be full,

detailed, precise and compelling. Unparticularised generalities will not

suffice.

The sources of hearsay evidence must be identified. Expressions of opinion

must be supported by detailed evidence and properly articulated reasoning

So there must be a serious emergency, to justify having such an important hearing in such a rush, and there must be compelling and detailed evidence that an EPO is the only real course of action, and the applicant has to establish imminent danger; the burden of proof is on them to prove that there IS, not on the parent to prove that there ISN’T.

Let us look at what the Local Authority claim this “emergency” is. The child is thirteen months old. It is said by them that he has been known to Social Services throughout his life, and that is true. It is also said by them that he has spent a period of time in voluntary foster care, and that is also true. He was in voluntary foster care for around two months, but has been at home with mother for nearly six months since then. There have been periods of his life where he has been on the child protection register – the same is of course true of many children.

It is accepted that there are positive reports from the health visitor and childminder, and the social worker accepts that the mother’s presentation around the child, and the child around her, is illustrative of a loving relationship.

They say that the ‘emergency’ triggering event, is that yesterday, the mother took the child to a hospital appointment, and that the child had visible bruises.

That is also true. But what is also true is that the doctor who examined him has said is that the child was unwell and miserable and probably had a viral infection, that he had a history of aggressive behaviour including head-butting the floor, and that there is nowhere within the medical report a conclusion that those bruises were non-accidental, or likely to be non-accidental, or could possibly be non-accidental.

The best evidence about these bruises comes from the paediatrician – she saw the bruises, she saw the child, she took the history, she is after all, the expert in these matters. That’s the evidence before the Court, and it concludes that the bruises were caused accidentally. We deal in evidence, not mere suspicion. Where there is suspicion and it is relied upon, there must be evidence to support that suspicion.

The Local Authority say that there is a history of previous bruising, and again, that is true. But it is not for them to put two and two together and make sixteen. The doctor examining him saw the child, took the history from mother, read the previous history, and if the doctor felt that there were reasonable grounds to believe that the bruises were non-accidental, then she would have said so when asked to prepare this report for Court.

The case has been brought to Court, for what I have to remind the Court is the most draconian type of order, requiring compelling evidence, because the social worker has made her own diagnosis that the doctor, who is qualified to examine children and draw conclusions, has got this wrong.

Well, in the spirit of generosity, perhaps the doctor has got this wrong. Perhaps, and this is not the mother’s case at all, there is a history here which needs looking at with a fresh pair of eyes. The mother is confident that another paediatrician will come to the same conclusions and that these lingering suspicions will be removed.

But to REMOVE this child from mother’s care, because the paediatrician might have got this wrong, cannot be the right thing to do. If the Local Authority consider that there is something here which needs to be investigated, then they can issue an application for a care order, set out their concerns and their evidence for those concerns on paper, and the Court can consider whether an independent paediatric assessment of the child is warranted. That is an argument for another day.

What these circumstances do not add up to, in any way shape or form, is the sort of compelling evidence that this child has been suffering significant harm or is likely to do so, and that he should be removed from his mother’s care and put in foster care, much less so on such short notice, with such a paucity of evidence before the Court.

The Local Authority point to some historical bruising – seven months ago, there was some bruising. The mother says that this was caused in play with some other children. A medical report at that time felt that it was suspicious and might be non-accidental. The child came into foster care during a police investigation – the mother cooperated with that, and as we have heard, two months later the child came home.

What they try to do now, is to add that, where they have a medical report which does give rise to some legitimate concern, to the situation today, where they have a medical report that raises no concerns at all, and try to force the two things together. As I said earlier, this is a case of trying to make two and two make five.

Respectfully, they cannot do that. If we had been here seven months ago, with the report from the doctor saying there were suspicious bruises, then perhaps there would be a case to deal with. But something can’t be an emergency, if you wait for seven months to bring it up. Something can’t require the court to urgently intervene to protect the child if the LA had him in care and were happy to send him home five months ago. And something that the paediatrician who saw the child yesterday already knew about and had read in the medical records, when they decided that the child was safe to go home from hospital with his mother, can’t now become evidence that the child is not safe at home and has to be removed.

If the previous bruises made the paediatrician yesterday look at the bruises with a more cynical and suspicious eye, then that is one thing, but that isn’t what happened. In the light of knowing about those previous bruises, the paediatrician was satisfied that what mum was saying, what her own eyes showed her – an aggressive hyperactive child with a temperature and a virus who was head-banging, had got those bruises by doing just that.

The Local Authority essentially say, “well, she should have done”, but that is neither here nor there. In terms of actual evidence, she didn’t. There is no medical opinion that those bruises seen yesterday were caused non-accidental.

This isn’t an emergency. The child is at home with mum, safe and well. The hospital didn’t feel the need yesterday to say “this is risky, we can’t send him home”.

The child doesn’t need protection. There is no evidence of significant harm here. The highest it can be put is that the Local Authority would want a fresh medical opinion looking at all the notes.

There is no need for an order, particularly the most draconian order that can be made by a Court.

Is the evidence here “extraordinary compelling”? Have the Local Authority actually established imminent danger? In setting out why the evidence of the social worker, who has not seen these bruises, should be preferred to that of the independent expert paediatrician, who has, have the Local Authority provided evidence which is “full, detailed, precise and compelling”? With “detailed evidence and properly articulated reasoning”?

In my respectful submissions, they have come nowhere near, and the application should be refused.

Well, unless you have been under a rock for a few years, you will know that the name of the child in the case is Peter Connolly, and you probably twigged that very early on.

You will also know that the Local Authority DID NOT issue an emergency court application, on either the day the paediatrician saw the child or the day after.

If they had, would it have saved Peter? Probably not, as you can see here, the case against making the EPO is overwhelming. I have to be candid and say that if they had rung me, with the medical opinion being as it was, I would have advised that an EPO had no prospect of success. It wasn’t even finely balanced.

You may be thinking that I have stacked the deck here, by making it an Emergency Protection Order, where the bar is so much higher following the Re X decisions than the test for an ICO.

Well, I haven’t stacked the deck, because there were just two days, and only 1 full working day between the paediatrician seeing Peter and him being killed. So an Emergency Protection Order was the only order that Haringey could have applied for that would have had him out of the home before he was killed.

If such an application had been made, it would have been resisted, along similar lines to this – the test for an EPO is very high, it needs extraordinarily compelling evidence, the Court need to be satisfied that there is actual evidence of imminent danger, and that the paediatrician who examined the child didn’t make a diagnosis of NAI.

That’s not to defend Haringey – there were clearly mistakes made, largely at the point when having got an earlier paediatric report saying non-accidental bruises, they didn’t issue. Nor did they issue at the point where they had the child in foster care and the point came where he was going home to mother unless they got a Court order.

Nor is it to castigate those who would represent a parent in this situation. Far from it, those are exactly the points that should have been made, and any barrister or solicitor representing a parent against those facts would have been pretty shabby if they hadn’t left the court room with their client going home with the child.

If I’d been representing Peter’s mother on that day, with those facts, I would have fought to make sure the EPO wasn’t made. And it would have been the right thing to do, regardless of how it later turned out. The Court have to decide cases on evidence, and in this case, the medical evidence to justify an EPO wasn’t there.

My point is that it would have been extraordinarily hard to save baby Peter’s life AT that critical point, the last chance to intervene to save him simply would not have worked. If the LA had flown in the face of the paediatric evidence and sought an EPO, they would not have got one. The best they could have hoped for would be that there would be an ICO hearing a week later. By which time it was too late.

From what information there was, at the last possible moment to save him, you would not have persuaded a Court that he needed to be taken into foster care there and then. It is very easy to make all sorts of different decisions in hindsight, but I do believe that it is worth bearing that in mind – the media portrayal is that this was an inevitable course of action that could have been averted at any time, but I would suggest that things often appear inevitable when you are working back from a known outcome. If you had been there, at an EPO hearing on that day, with the facts that were known at the time, you would have been appalled if the Court had granted the EPO.

[of course, had the paediatrician seen all that was there to be seen, then firstly Peter would have remained in hospital instead of going home, and secondly, there would have been compelling evidence of imminent danger, and the whole case is transformed]

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Posted in assessment of risk, experts and tagged baby p, baby peter, could baby p have been saved?, draconian order, emergency protection order, extraordinarily compelling evidence, peter connolly, Re X, wise after the event. Bookmark the permalink.

There’s a small boat made of china, going nowhere on my mantelpiece

Posted on January 8, 2013 by suesspiciousminds

Laplace, prediction, and why we might, everywhere we go, always take the weather with us in care proceedings

By the start of the nineteenth century, scientists had discovered a great many of the principles of physics and particularly how various forces acted on objects in predictable and mathematical ways. This led some scientists to hubristically predict that there was nothing new to be found in the world of physics (obviously not aware that radioactivity, splitting the atom and quantum physics were completely unknown to them at that point).

Anyway, once you discover the various mathematical principles about forces and objects and how forces act upon objects, one starts thinking about whether you could predict something with absolute certainty if you had enough information.

Being a previously sad geeky sciency Suesspiciousminds Junior, I had certainly wondered in my adolescence whether you could, if you had really fast computers and knew everything, no longer be guessing a toin coss, but knowing how it would end up.

That’s something which has also exercised the minds of a great many gamblers, since Roulette is essentially just an exercise in predictable physics (speed of spin of the table, angle and speed at which the ball is dropped) – predictable, but extremely complex, and if you could actually predict which slot the ball would drop into, with certainty, you would be an extraordinarily rich person.

Well, someone else, Pierre-Simon Laplace took that a stage further, and suggested that with a great enough intellect (computers weren’t really around at that stage, other than Babbage’s mechanical one which was more of a theoretical concept than something you could actually boot up and play Farmville on), you could calculate the entire future of the universe and the movement of every particle.

“We may regard the present state of the universe as the effect of its past and the cause of its future. An intellect which at a certain moment would know all forces that set nature in motion, and all positions of all items of which nature is composed, if this intellect were also vast enough to submit these data to analysis, it would embrace in a single formula the movements of the greatest bodies of the universe and those of the tiniest atom; for such an intellect nothing would be uncertain and the future just like the past would be present before its eyes.”

This is really the birth of determinism, the idea that you can, given enough information, accurately predict future outcomes, or more broadly, that given a set of conditions, the outcome which emerges from those conditions is the only one which COULD have emerged.

[Sadly, I learned when doing a bit of quick research, that Laplace’s other claim, that Pope Callixtus had once excommunicated a comet, was fallacious. I have a later essay planned on how the law has treated animals and inanimate objects, and that would have fitted perfectly with the excommunication of beetles and the pig who was put on trial for murder]

I won’t get any further into whether Laplace’s grand conjecture is true or not (if only in a deeply theoretical sense), and it is still debated – Einstein firmly lined up with Laplace on believing that there were firm mathematical laws and principles underpinning all matter and physics and that it would therefore be possible to predict things with certainly, but that there were just things that were yet unknown to us that prevented such predictions being made. Many others think otherwise, and that there’s an element of randomness, particularly at the quantum level that makes that impossible.

Let’s move away from correctly predicting the motion, position and velocity of every particle in the universe and onto a smaller scale, and some predictions which are common to every one of us, and which enter our homes on a daily basis.

And that allows me to yank it back to care proceedings – in one of the dominant cases of the 1990’s, Re H and R 1996, the House of Lords grappled with the issue of what ‘likely’ meant, when considering whether a child was ‘likely to suffer significant harm’ and this is one of the more memorable passages from Lord Nicholls of Birkenhead :-

In everyday usage one meaning of the word likely, perhaps its primary meaning, is probable, in the sense of more likely than not. This is not its only meaning. If I am going walking on Kinder Scout and ask whether it is likely to rain, I am using likely in a different sense. I am enquiring whether there is a real risk of rain, a risk that ought not to be ignored. In which sense is likely being used in this subsection?

And if you know the law, you will grasp that the latter is where we ended up at in terms of likelihood – it does not mean something that is more likely than not to happen, but a risk that cannot sensibly be ignored.

But in a real sense now, I am going to talk about the science of predicting the weather – will it rain on Kinder Scout today or not?

As you will know, the field of predicting the weather has moved beyond hanging up pine-cones or (my standby) looking at whether cows are lying down in a field (a belief I can’t shed, despite knowing how stupid it is, and one which gets me regularly mocked by Ms SuesspiciousMinds)

Meteorology instead uses a combination of :-

Gathering lots of information about the current situation
Applying mathematical principles and formula to predict how features in one part of the system will interact with another
Calculating therefore what a particular part of the system is likely to do at a future point

And thus, is a system that would make Laplace very proud.

The principles that govern whether we get rain, or snow, or a nice bright sunny day, are pretty uncontroversial. There isn’t a band of quarrelling meteorologists bickering about whether isobars are of any significance at all or whether the warm fronts we see so much of on the television are merely illusory. So, the principles are all there. The mathematical models for what these set of conditions will do over the next few hours are there (based largely on thermodynamics and fluid dynamics), and have been refined and improved, the collection of information about those conditions has vastly improved over the last thirty years, as has the quality of computers doing the calculations.

But what is your first answer, quickly, when I ask

“Do you think we can reliably forecast the weather?”

Making my own little forecast, your instant reaction was no, or that we are hopeless. You may, if you are a fair-minded person, have had a momentary recalibration and decided that we are better at it than we used to be, or even that we are not bad at it now.

But let’s go back to Lord Nicholls – it is March, you are about to go up Kinder Scout and the weather forecast says that it is probably not going to rain. Do you take a coat, or not?

Is the risk that the weather forecast will be wrong when it says there won’t be rain, a risk that cannot be sensibly be ignored, if you find yourself up on a mountain without a coat?

You may have had nagging at the back of your mind, or the front of your mind if you are a science geek or liked Jeff Goldlum’s character in JurassicPark, the notion of chaos theory at this point. You may even have recalled the image of a butterfly flapping its wings and causing a hurricane on the other side of the world [incidentally, probably the most misunderstood image in the history of science - it doesn’t CAUSE the hurricane, it is about how small factors can amplify and make things harder to predict]

Essentially, small factors amplify with time, and the way they amplify is hard to predict, so even the very best computer forecasts become more and more unreliable with the passage of time. Forecasts are far more reliable about the next few hours than they are about next week, and break down almost entirely after sixteen days. In numerical models, extremely small errors in initial values double roughly every five days for variables such as temperature and wind velocity

[So every time the newspapers tell you that there are predictions that this is going to be a “barbecue summer” remember that the accuracy beyond 16 days is all to cock]

Okay, so predicting the weather, which is based on inanimate objects, which act under the influence of known forces, in known ways, and which the science of meteorology has been refining and checking against known outcomes to improve the prediction models, isn’t all that accurate and is not very accurate at all after 16 days.

Now, I will pull us back to law.

At the conclusion of a criminal trial, things are simple – did this person do what they were accused of, and has that been proven. It’s similar with any other sort of legal dispute – did one person prove that x happened, and what punishment / compensation should the Court give. The Court doesn’t really have to predict the future – a burglar isn’t convicted of an offence of burglary only if the Court think he will do another burglary next week.

Care proceedings aren’t like that – whilst we may well spend some time arguing about precisely what happened in the past and the Court may have to decide that if we can’t hit on a form of words which everyone can agree, mostly what we are doing is predicting the future.

Have the improvements seen in the mother’s parenting at a mother and baby placement, or in contact, mean that she can now safely care for the child, or is she going to slip back into her old ways once she stops being watched all the time?
Is this father, who has been using heroin for 6 years but has been clean for 4 months, going to remain clean, or will he slip back? (What if he was clean for 6 months, but had one lapse?)
Will the mother, now that she has seen how risky an individual her new boyfriend is, stay away from him when the proceedings are over, or will he be back in her life and have the chance to hurt the child?
Will the parents who broke their four year old’s leg by handling him far too roughly, ever do anything like that again?

I have probably sledge-hammered this point, rather than making it in a subtle way, but if top scientists with huge computers can’t predict whether it will rain on Kinder Scout tomorrow, how can we possibly predict with certainty whether the mother will succumb to text messages from the dodgy boyfriend and keep seeing him in secret?

Professor Monroe touched on this in her first report - there was for a long time a body of thought in social work, or social work management, that we could avoid the twin pitfalls of social work – being too soft and letting children get hurt, or being too hard and breaking up families who could have stayed together (Baby P at one end, Cleveland and Orkney at the other) by having more information, more accurate models, and getting the decisions just right.

1.43

Professionals can make two types of error: they can over-estimate or underestimate the dangers facing a child or young person. Error cannot be eradicated and this review is conscious of how trying to reduce one type of error increases the other.

1.44

The public tend to learn of cases of abuse after a child or young person has died or suffered serious harm and then, with the benefit of hindsight, make judgments on how it was easy to see that the child or young person was in danger and would have been safer if removed. This is of course not the way the issue looks for the professionals who only have foresight. Removing a child or young person can protect them from immediate risk of significant harm, but is understandably traumatic for them. Maltreated children or young people who come into care often benefit in the long term, but although the outcomes achieved by looked after children have improved, in too many cases, the potential of the care system to compensate for early harm is unrealised for reasons which are well documented.

Our society rightly values the birth family as the primary source of care for children and young people and disrupting that bond is seen as a serious step to take, requiring close scrutiny before the courts will grant the legal authority to do so.

The birth family equally presents a mixture of benefits and dangers. A good assessment involves weighing up these relative risks and benefits and deciding which option, on balance, carries the highest probability of the best outcomes for the child. Neither option carries zero risk of harm.

1.45

In assessing the value of leaving the child in the same situation, professionals have to consider a balance of possibilities: to estimate how harmful it will be, to consider whether it might escalate and cause very serious harm or death. They also need to consider whether resources are locally available so that families can be helped to provide safer care and estimate how effective such interventions are likely to be.

1.46

All of these areas of uncertainty make decisions about children and young people’s safety and well-being very challenging. A well thought out decision may conclude that the probability of significant harm in the birth family is low. However, low probability events happen and sometimes the child left in the birth family is a victim of extreme violence and dies or is seriously injured is therefore very important. Public understanding that the death of a child may follow even when the quality of professional practice is high is therefore very important.

She says, and as you can see, I agree, that you just can’t hope to get every case right, when you predict the future, your predictions have limitations to their accuracy. If you try to move down the safety first side of the scale, you will take children away unnecessarily. If you try to move down the keeping families together side of the scale, some children will be badly harmed at home. The aim to just make the right decisions at the right time, in all case is simply never going to happen.

If the weather forecasters can’t get it right, neither can we.

You are dealing with people, with all their uncertainties, capriciousness and emotions, and you can’t predict exactly what they will do. The cases where you get it ‘just right’ may well end up being few and far between, and may well be more by luck than judgment.

A mother who is utterly resolute about remaining separate from her dangerous ex-boyfriend, who understands what is at stake and how bad he is from her, may on any given day fluctuate about just how resolute she is. Maybe someone handsome smiled at her at a bus stop and she feels good about herself when he sends the text message and she deletes it without reading it. Maybe just before the text message came in, she caught sight of herself in a mirror and felt fat and unloveable. It is utterly impossible to predict that. It seems easier to predict that a mother that tried to separate from ex boyfriend six times and always went back to him, and was caught out two weeks ago, probably won’t stick to her claims that it is all over and she will never see him again. But we can’t be SURE, we can only predict whether the risk is one that cannot be sensibly ignored.

None of that means that we simply give up, and either leave all children at home with their parents, or take away every child where there is a sniff of danger, but we do have to be honest with ourselves, and honest with society as a whole.

And we have to constantly test where we find ourselves on the scale of child rescue and family preservation – are we lurching too far down one end or another? Are we risk averse, fearful of a Baby P headline and ignoring that those actions break up a family which could have stayed together, or running with a rule of optimism that small changes mean a good future prognosis and not seeing the full picture?

We are attempting to predict what human beings, with human emotions, will do in the future – not just in the next few days, or 16 days, but over the course of their children’s childhood. And the very sort of parents that we attempt to do that with tend, not always, but more often than not, to be emotionally fragile, damaged people who are chaotic and unpredictable in their actions.

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Posted in assessment of risk, threshold criteria, timescales and tagged baby p, child rescue, cleveland, do i lie like a lounge-room lizard, family preservation, laplace, or do i sing like a bird released, predicting risk, predicting the future, weather forecast. Bookmark the permalink.

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