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Pindown revisited?

 

The Court of Appeal decision in  The Childrens Rights Alliance v Secretary of State for Justice 2013

 

 

This was an appeal against refusal for judicial review of the Secretary of State’s refusal to provide the Childrens Rights Alliance (or the children concerned) with details of which children were the subjects of illegal restraint methods whilst held in Secure Training Centres in the UK.  That disclosure would obviously have been a prelude to advice about, consideration of, and possibly issue of civil claims on behalf of those children.

 

 

The case can be found here:-

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/34.html

 

 

The Childrens Rights Alliance lost the appeal, and thus won’t get access to the information that is required. That may have been the right decision on a strict formulation of the law on judicial review, but on reading the case I felt that it is a state of affairs that deserved a bit more attention, and perhaps some of my readers might be in a position to do something.

 

 

At the Secure Training Centres, which “accommodate persons who either have been sentenced to custody or have been remanded in custody by a court. Their population contains males aged between 12 and 14; females aged between 12 and 16; and males aged between 15 and 17 and females aged 17 who are classified as vulnerable.”

 

Until about July 2008, there was fairly widespread practice at the four Secure Training Centres, which held about 250 young people, of using restraint techniques that staff genuinely (but mistakenly) believed to be lawful

 

  1. it is first convenient to describe the nature of the techniques with which we are concerned. They took two forms. First there is restraint, or physical restraint, properly so called. This includes a number of holds (such as the Double Embrace, the Figure of Four Armlock, the Wrap Around Arm Hold, the Double Wrap Around Arm Hold, and the Double Embrace Lift) designed to enable up to three members of staff to obtain physical control over an inmate; they were not intended to inflict pain. On 19 April 2004 a 15-year old trainee at Rainsbrook STC, Gareth Myatt, was asphyxiated while being restrained in one of these approved holds. Secondly, there are “distraction techniques”. The PCC Training Manual for 2005 (PCC stands for “physical control in care”) describes three such techniques: nose, thumb and rib distraction. These involve the measured application of pressure on those parts of the body in order to cause a short, controlled burst of pain administered to distract a trainee who is seriously misbehaving in order to bring the incident to a swift and safe conclusion. The nose distraction technique had been applied to a 14-year old called Adam Rickwood, who committed suicide at Hassockfield STC on 8 August 2004. His mother was the applicant in the Pounder case.
  1. At the core of this appeal is the fact that officers at the STCs who applied these various restraint techniques at the material time genuinely but mistakenly believed that the law entitled them to do so for the purpose of maintaining good order and discipline (GOAD). It was definitively established that there was no such entitlement only after the deaths of Adam Rickwood and Gareth Myatt: see paragraphs 14 and 35 of the judgment of the Divisional Court in C ([2008] EWHC Admin 171).

 

 

 

It was clear, and not disputed that these techniques were used on children who were very vulnerable.

 

 

  1. 9.       “It is unequivocally accepted by the Defendant that children in custody are amongst some of the most vulnerable and socially disadvantaged and that they have specific needs which may not be common to the wider population of young people.”

 

 

And it was clear that this happened to a significant number of ‘trainees’ in these institutions

 

  1. 15.   “76… [I]t is highly likely that a large number were indeed the subject of unlawful force at times during their detention, probably from the beginning of the STC regime until at least July 2008. Whilst the use of restraint for GOAD after July 2008 could, of course, have occurred, it is probable that no-one sought formally to justify the use of restraint for such a purpose after the judgment of the Court of Appeal in C.

77… [T]here can be little doubt that a large number of detainees were treated unlawfully at various times during this period. There is no reason to suppose that the situation was materially different at any other time in the history of the STCs at least until July 2008. There is other evidence in the material before me (that I do not need for this purpose to set out in detail) that distraction techniques… were also used as a regular part of the repertoire of force used in STCs. It is, as I have suggested before (see paragraph 14), difficult to see how a distraction technique would ordinarily be used in isolation from a restraint technique. If used as part of a restraint for GOAD, a painful (and often injury-producing) technique would have been used for an unlawful purpose.

78. Leaving aside any conclusion that may be drawn in due course about what the court could or should do about all this, it is, to say the least, a sorry tale…”

 

 

 

The telling and difficult thing for the Childrens Rights Alliance, which is why they invited the Secretary of State to take steps to inform the particular children that they had been illegally restrained and when, was that many of the individual children would not have known at the time that what was happening to them was illegal and would give rise to a claim now

 

  1. At the end of paragraph 91 Foskett J stated that very few, if any, of the trainees appreciated at the time that what was done to them was unlawful. Earlier he had said this:

“88… I do not think that there can be any doubt that in the vast majority of cases the detainees made the subject of a restraint technique would simply have accepted it as part and parcel of the routine in an STC. Furthermore, at least during the period with which this case is concerned, it is likely that if a complaint had been made, the substantive answer to it would have been that the officers who used the restraint techniques were justified in using the force considered necessary at the time.”

 

 

 

Following through the judicial review principles (which is pretty dry and beyond my interest in this piece), the Court of Appeal concluded that there were no grounds for judicially reviewing the Secretary of State’s refusal to carry out this exercise and therefore the court at first instance had not been plainly wrong to refuse it.

 

 

Of course, and the Court hint at this – there is nothing within this judgment which prevents or would inhibit any individual child who had been detained at an STC in asking for information about their records and whether they had been subject to illegal restraint.  But what the Childrens Rights Alliance had wanted was not for the individual children to be obliged to “Pull” to get their rights, but for the Secretary of State to “Push” and be obliged to notify them that they had been treated illegally.

 

 

It is a sobering experience to read of these things happening to children in custody, and reminded me vividly of the Pindown crisis.

 

That might well be ancient history for some of my readers, so I will elaborate.

 

In the 1980s, in Staffordshire, a method of discipline was introduced in children’s homes for children in care who were being difficult or hard to manage, involving locking them in rooms on their own for periods at a time, this method of discipline being called Pindown. It lasted for various periods, but for one child, it lasted for 84 consecutive days. It caused a scandal when it came to light, with World in Action doing a documentary on it, and was the subject of a significant public enquiry.   (In large part, it led to the construction of the legal principles in the Children Act 1989 about “secure accommodation”)

 

 

Very sadly, I have struggled to find a copy of the Pindown report which was written by Allan LevyQC (sadly no longer with us) and even Amazon  say  “Currently unavailable. We don’t know when or if this item will be back in stock.”

 

 

Perhaps this is an example of George Santayana’s well worn remark that those who fail to learn from history are doomed to repeat it.  And for the modern era, those who hide away public enquiries and don’t ensure that access to them is easily found online shouldn’t be surprised that people don’t know the contents.

 

 

Of course I understand that staff on the ground in a Secure Training Centre are doing a difficult job, one that I wouldn’t want to do, and that the children detained there are not little Peter Pan figures full of cheeky (but ultimately harmless) mischief, but incredibly disturbed and challenging young people.  I do understand that managing them is hard and that if guidance was given to those staff that “figure four armlocks” were okay, they were going to follow that guidance.  It is the people who gave them that guidance who let the children down.

 

 [As an incidental detail, I note that in Russia, this armlock technique is known as the ‘militia’ armlock because it is used by the Russian militia and police…. ]

Family preservation versus child rescue

I was kindly sent Dr Peter Dale’s response to the Government consultation on contact with children in care, and sibling placement in adoption.

 

I blogged about those consultations here :-

 

http://suesspiciousminds.com/2012/07/23/we-are-family-ive-got-all-my-sisters-with-me-or-beware-of-the-leopard/ 

 

 

Anyway, here is Dr Dale’s response.

 

http://www.peterdale.co.uk/wp-content/uploads/2011/08/ContactPaperResponseAug2012.pdf

 

 

Whilst I don’t agree with absolutely everything Dr Dale says, I like to read things that I don’t agree with, and I particularly like reading things that make me change my view about things.  This document did that, and for that reason, I commend it to you.

 

It also chimed with some things that were in my mind about where we are currently headed with family justice, and my overriding uneasy impression that there’s nothing in the Family Justice Review or the legislation and practice that’s going to flow from it which is about the fundamentals of whether Society wants what we’re currently doing, and whether we ought to step back from the 1989 Act and see how it is working. 

 

Not in terms of processes, and costs and times – it’s awful on all of those things, and that’s what the Family Justice Review has focussed on, but on the bigger issues of whether the whole interaction between State and parents is what the general public would want, or whether, as is alleged by critics of the system it has created a horrible sense of injustice and unfairness where professionals are powerful and parents are powerless.

 

Are the people working within the Family Justice System out of step with what society as a whole would think about when the State ought to intervene and care for your children, and what is child abuse, and what is what Hedley J described in Re L as Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent.

 

 

It’s always a good thing, I suspect, to question that. It’s very easy to assess any case against the backdrop of your own experience, but even when that experience seems quite large, it is really just tiny and trivial compared to the overall numbers of care proceedings.

 

And whilst I can look at the risks of harm in a case and have a good feel for whether the Courts I appear in will consider it manageable or not manageable, that gives me no proper sense of what UK society as a whole would think.

 

I think that most people in the UK would agree that children should not be sexually abused  (although even on that, one person’s view as whether a man who five years ago groped a fifteen year old daughter of a previous partner is now a risk of sexual abuse to his own baby boy is probably going to differ from anothers),  but I suspect that there’s a multitude of views on physical abuse and where the line is drawn between parental chastisement and abuse  (I think most people would say no to broken arms and legs, but there would be a difference of opinion about bruising) and neglect would be very hard to get a consensus on, and emotional harm even more so.

 

Is there a value in care proceedings calibrating themselves against what the general population or society at large would consider to meet Significant Harm?  Where do we want, as a society, to draw the line of ‘this is unusual or not very good parenting but let them get on with it’  against ‘this child can’t stay at home

 

I think it’s something that’s not really been attempted, and I’d be interested in the results. Should a parent not have a clear idea, long before they ever meet a social worker, of what sort of parenting falls so below society’s standards that the State would intervene?

 

I would like to hope that if you pulled out a random judgment from any care case decided by any  Court in the country since the Children Act came into being, and gave it to a journalist, they might think at worst  “well, that could have gone the other way, and it was finely balanced. I might disagree, but I can see why it happened” but would never think “god, that’s just outrageous, how could they have possibly not got those kids back? This is a scandal”  

 

I’d like to hope that, but I can’t say for certain. Maybe of 1000 random cases, there’d be one that produces the ‘outrageous’ reaction, maybe 60, maybe 300.  We have no way of knowing.  I suspect, hand on heart, that there are more ‘outrageous’ cases than I’d like to believe, but less than the Hemming/Brooker camp would believe.  But either of us could be wrong. We might both be (and probably are)

 

I’d like to see, for example, the collation of anonymised threshold documents from every case, so that research could be done on whether this fluctuates over time and between areas, and to have a proper sense of what it is, in  a family justice system that results in Care Orders being made.

 

Anyway, enough about me, on with Dr Dale.

 

He opens with this :-

 

“there are major philosophical, theoretical, political and cultural differences as to what constitutes a child’s “best interests”. Such differences are apparent throughout the history of childcare literature, and dominant viewpoints rise and fall. The field of child protection in general, and specifically permanent separation/adoption, is permeated by variations and polarities of apparently reasonable opinion. Over time the social policy pendulum has swung back and forth across the continuum that has “familypreservation’’ principles at one pole; and “child rescue” principles at the other. Each position is internally logically consistent and can call on research to support its belief systems (as to what is “best” for children). Notably each paradigm/mindset when implemented gives rise to unintended negative consequences (which may only become apparent over time).”

 

 

And I think he is completely right. I suspect, as he believe, that we are in a period of “child rescue” being the dominant thinking, and that this is colouring Government thinking on the Family Justice Review, on adoption scorecards and on these consultations.

 

[Cynically, if you’re in the Government, and you’re imagining the headlines for ‘another Cleveland’ or ‘another Baby P’ and had to choose one of those two to encounter, I suspect most ministers would choose another Cleveland.   I’m sure it has never been as overt as that]

 

 

Dr Dale talks at some length about the risks of ‘child rescue’ and I think it is worth setting them out in full, because they are well constructed and interesting.

 

“In essence, what the DoE/Narey report recommends is a reinforcement of “childrescue” principles and practices that in the 1940s–1960s saw thousands of children in state care being forcibly emigrated to places such as Australia, Canada and South Africa without the knowledge of their parents (and without any continuing contact). Of course, at the time, the agencies involved (including Children’s charities such as Barnardos) considered that this was “in the best interests” of these children. History informs us otherwise (Humphrey 1996).

 

It is of note that compulsory adoption, and adoption without contact, is anathema in Australia and New Zealand because of the history of mass forced adoption of Aboriginal and Maori children known as the “Stolen Generation(http://reconciliaction.org.au/nsw/education-kit/stolen-generations/). The South Australian government formally apologised on 18 July 2012 for this history of forced adoption. The following notice appeared in the South Australian press on 14/7/2012:

Government of South Australia: Forced Adoption Practices.

“On behalf of the South Australian Government the Premier, the Hon Jay Weatherill MP, will deliver a formal Apology to mothers and fathers whose children were removed because of forced adoption practices from the past, and to people who were separated from their parents as infants as a result of those practices. The Apology will be delivered at the South Australian Parliament from 11am on Wednesday 18 July 2012.”

1.4 I predict a UK government apology for recent and current practices of forced adoption in about 30 years time.

1.5 In this context, the proposals in the DoE/Narey paper are technical measures to further implement “child rescue” principles, policies and practices. In my view, a broader theoretical perspective is required to ensure that the proposed changes do not have adverse outcomes and unintended negative consequences.

 

It is always worth a reality check, and this whole section is one.  Maybe we will recoil in horror in 30 years time at the idea of forced adoptions.

 

It may well be that in years to come, the concept of the State adopting children against the will of the parent may be something that boggles the mind, just as reading that in the 1940s-1960s the State took children in care and forcibly emigrated them to the other side of the world boggles the mind now.  I’m sure that nobody involved in that practice at the time thought that they were doing anything other than something that was good for the children, even if with the passage of time it now seems unfathomable, and we can’t disregard the possibility that in time, things that seem ‘good practice’ now will become anathema.

 

For that reason, I would support a family justice review that didn’t look just at processes and system but the whole overarching philosophy of how the interaction between State and parents who are considered to be not meeting their children’s needs should take place. What does Society want from a family justice system?  How much help does Society want to give struggling parents? More than is delivered at present, I suspect.

 

 

There’s some very detailed deconstruction of the Kenrick research that colours so much of the Government consultation on contact. I’m not going to get in the ring between Dr Dale and Kenrick, but I would suggest that at the very least, and as with any research, accepting it uncritically is not wise to do. If you’re involved in any way with contact between children and parents, I think Dr Dale’s analysis of this is worth reading, even if you eventually settle more on the Kenrick side of the debate, because it is a properly constructed assessment of the other side of the coin.

 

 

Some more on compulsory adoption here :-

 

1.45 Compulsory adoption is often referred to as being the most draconian outcome in UK law since the abolition of the death penalty. In cases of murder, the death penalty was imposed following a finding of guilt by a jury at the criminal standard of proof (beyond reasonable doubt). The outcome of compulsory adoption occurs on the basis of findings by a single judge at the lower civil level of proof (balance of probabilities). In both scenarios, miscarriages of justice are known to occur.

 

1.46 In the same way as a hanged man cannot be revived and reprieved, children who have been wrongly subject to compulsory adoption cannot be returned to their innocent parents. [e.g. Norfolk County Council v Webster [2007] 2 FLR 415]. In the sad case of four-month-old baby Jayden Wray in 2012, two parents were accused of his murder; and had a new baby removed from their care with a plan for adoption, until it was confirmed that Jayden had in fact died from undiagnosed rickets. (LB of Islington v Al Alas and Wray [2012] EWHC 865 (Fam).) Faster compulsory adoption raises risks of inadequate investigation in complex medical cases; proper exploration of alternative (less draconian) placements (e.g. kinship care); and scrutiny of the judicial process.

 

 

 

[As someone within the system – and I am trying here to be honest in accepting that that doesn’t necessarily put me in the best position, I think cases should be determined on the civil standard of proof and by a Judge, rather than to the criminal standard and before a jury – but I do think that a proper debate about this to reach a consensus as to what Society thinks is legitimate. And if Society had a different view to me, the law ought to be looked at.   I can see an argument that can’t be dismissed out of hand  that if a person is accused of stealing from a shop, they can insist on a trial by jury and the criminal standard of proof, but can’t get that for a determination of whether they’ve abused their child]

 

I share Dr Dale’s fears that we are rushing into a faster resolution of the most drastic step that the law can take in a persons life, without having first done the most basic exercise of  “Is the system actually getting the right answers now?”

 

 

As Billy the Kid once said  “Speed’s fine, partner, but accuracy’s final”  

 

I know the stats about the high proportion of cases where the order sought by the Local Authority is the one made by the Court, and also the NSPCC research on the children who were rehabilitated home having too high a proportion going on to suffer further significant harm, or to go on to come back into care.

 

But I am troubled by the fact that we don’t have a clear sense of whether we currently are on the ‘family preservation versus child rescue’ scale is a place where society and the general public would be content with, if they knew.

 

I would like to think that if there were some huge detailed investigation whereby proper impartial researchers with access to proper information and data would conclude that in the vast majority of cases, Courts make Care Orders for proper reasons and that whilst mistakes are made and every one is a human tragedy, they are rare and the appeal process rectifies them.

 

But I have to accept that I am within the system, and maybe I believe that because the alternative is too hard to contemplate. Those outside the system, certainly a significant body of them, believe the opposite, that a proper root and branch investigation would show that the State is letting families down, removing them for insufficient reason and not doing enough to support them, and that social workers are mistreating parents.

 

Dr Dale’s consideration of the case of Re K (A Child: Post Adoption Placement Breakdown) [Neutral Citation Number: [2012] EWHC B9 (Fam)].  Which I have blogged about here    

 

 

http://suesspiciousminds.com/2012/07/30/forensic-ferrets-or-standing-in-the-way-of-beyond-parental-control/

is very interesting. That’s clearly a case where judicial scrutiny of a case has led to the Judge determining that the Local Authority’s treatment of the parents was ‘not only inappropriate and wrong but cruel’    and it’s easy to see, when you read cases like this, why the people who rail against Local Authorities have a point.  Sometimes Local Authorities behave extremely badly. What we don’t know, is how often.

 

This is not the sort of thing that should happen, but it still does, and we have no way of knowing, without a proper independent look at the body of care cases as a whole whether this is an awful aberration (as I would claim) or an illustration of how social workers behave and usually get away with (as the forced adoption camp would claim).

 

3.23 If the UK practice of compulsory adoption continues with no direct contact for the child with natural family members during childhood, I predict in the not-too distant future, an increase in the phenomenon of adoptive parents being rejected and abandoned by their alienated adoptive children who ‘vote with their feet’ and return to their natural families. This is a tragic outcome for all three parties in the ‘adoption triangle’. It is one, in my experience, that adoptive parents are not warned to expect by social/adoption workers.

 

 

 

I suspect that the consultation, as I hinted darkly, is already a done deal, that the new thinking is all about ‘child rescue’   – I note that there’s nothing being launched by the Government to measure the statistics of children successfully rehabilitated to the care of parents, or of interventions with troubled families that avoid the need for care proceedings, or a league table congratulating Local Authorities for being able to keep children within the family.

 

 

It would be nice to have an emphasis on the importance of ‘family preservation’ and balancing it properly against ‘child rescue’ on the basis that it is the right and proper thing to do, rather than as a knee-jerk reaction to another Cleveland, Orkney or Rochdale.

Inquiring minds wanna know (part one – Orkney)

 

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 

 

ORKNEY

 

The actual inquiry can be found here :-

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

The medical examinations showed no evidence of abuse.

 

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

 

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

 

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

 

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

 

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

 

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

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

 

Warrants were extended for a further 21 days.

 

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

 

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

 

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

 

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

 

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

 

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

 

Key amongst them :-

 

The social work department failed to consider the children individually

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

They failed to consider the Cleveland report

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

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

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

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

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

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

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

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

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

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

 

RECOMMENDATIONS

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

 

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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