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serious case review versus judicial review – a (cough) review

Who ‘owns’ a Serious Case Review, and what rights or  powers do the Courts have over its disclosure?

 

X (A child) 2014

http://www.bailii.org/ew/cases/EWHC/Admin/2014/2522.html

 

I do complain about the President quite a bit, but the one thing you could never accuse him of is being work-shy. This is yet another very tricky judgment that he has taken on – whilst still having two insanely difficult judgments still to produce –  Q v Q (how to fund litigants whose article 6 rights would be breached by them being unrepresented) and the fallout judgment from Cheshire West (how are the Court of Protection going to deal with the HUGE volume of additional cases that arise from the Supreme Court’s decision on deprivation of liberty).

 

This one relates to a child, X, whose mother stabbed him when he was about ten years old. He is now thirteen. Those care proceedings ended with the making of a Care order, hotly contested by the father, who has been in one form of litigation or another about this perceived injustice over the last three years.

Outside of the Court case itself, the Local Safeguarding Children Board (LSCB) – which is a group of senior representatives from all the relevant agencies in each local authority area (police, schools, health, social services etc), held a Serious Case Review.  These Serious Case Reviews are intended to be a scrutiny of what happened in the case and specifically whether agencies made mistakes, could have predicted what would happen, could learn lessons for the future, might need to change some policies and perhaps even whether someone professional is badly at fault and to blame.

 

The general rule and principle these days are that these Serious Case Reviews are to be published, although with names of children and parents anonymised. This in part, emerged from the public disgust at Baby P and the desire that these exercises were available for all to see. There’s a debate for another day about whether that transparency is a good thing, or whether it inhibits the ability of each agency to properly lay out their shortcomings.

 

The father contributed to this exercise and saw the report, but didn’t have a copy of it, and it was not made public.

 

The LSCB rationale for that was this :-

 

  • The LSCB received the overview report and executive summary on 15 July 2011. The LSCB considered the issue of publication of the reports, taking account of the letter of 10 June 2010, decided that there were such compelling reasons in this case and concluded that any decision on publication should be underpinned by the impact it was likely to have in relation to X’s current and future well-being and that the basis for this decision should be informed by advice from the psychiatric practitioners involved in his care. After careful deliberation the LCSB concluded that the overview report should not be published; that it would consider whether to publish the executive summary following a psychiatric assessment of the potential impact on X of so doing; and that the local authority would make the overview report and executive summary available to the court as part of the current care proceedings in relation to X so that all parties might have access to the relevant background information and that this be communicated to X’s parents.

 

 

 

  • Following a further psychiatric assessment of the situation in relation to X, the independent chair of the LSCB, Mr D, wrote to OFSTED on 26 October 2011:

 

 

“The Board has now been advised by the psychiatrist treating X that it continues to be her considered opinion that the publication of any document relating to the Serious Case Review which would cause comment or discussion in the media or local community would be seriously detrimental to X’s recovery. She has advised that although X is making progress his recovery is likely to be protracted and he is about to begin a course of psychotherapy that is likely initially to be unsettling for him. It is her opinion therefore that the Executive Summary should not be published.”

 

Two competing factors are being balanced – the interests of transparency and open public debate versus the impact on the child.  That underpins most of the transparency debate (and given the President’s well-known views on transparency, the LSCB must have been slightly fearing the worst when the case was listed before the President. That might be why they shelled out for a QC to represent them…)

 

The father’s application was a free-standing one under the Children Act 1989, but on analysis, the President found that this could not be right in law, and that the proper legal mechanism (indeed the only one) would be a judicial review of whether the LSCB had behaved in an unreasonable way (specifically a way that no reasonable body in their position could have behaved) in making the decision not to publish this Serious Case Review

 

 

  • In the final analysis the father’s application turns on quite a narrow point.

 

 

 

  • The first thing to appreciate is that the LSCB is a public body, juridically distinct from and wholly independent of the local authority. It exercises public functions in accordance with the statutory scheme to which I have already referred. In accordance with that statutory scheme it is for the LSCB, not the local authority and not the court, to decide whether or not to publish the overview report and the executive summary: see Re X and Y (Executive Summary of Serious Case Review: Reporting Restrictions) [2012] EWCA Civ 1500, [2013] 2 FLR 628, paras 7, 58.

 

 

 

  • The second thing to appreciate is that this is, as Judge Wildblood correctly said, a free-standing application. It is not an application made in pending proceedings for disclosure of documents into those proceedings. It is not a case (as Re X and Y (Executive Summary of Serious Case Review: Reporting Restrictions) [2012] EWCA Civ 1500, [2013] 2 FLR 628, was) of an application for a reporting restriction order to restrain publication of a document. It is an application by the father for an order requiring the LSCB to disclose to him a document which the LSCB in exercise of its statutory functions has decided should not be disclosed to him except upon terms that he is not willing to accept. It is, in other words, an application challenging the LSCB’s decision, a matter therefore, as Judge Wildblood said, of administrative law.

 

 

 

  • Such a challenge, in circumstances such as this, can in my judgment be made only by means of an application for judicial review in accordance with CPR Part 54. It cannot be made in the Family Court, nor in the High Court except in accordance with CPR Part 54. On that short ground, and irrespective of the factual merits, this application is misconceived.

 

On that basis, the President looked at the father’s arguments

 

  • The father has set out, both in his written statements and in his oral submissions, the various reasons why he wants a copy of the overview report. He says it should be published in the interests of transparency and so that public officials can be made accountable. He says that he should be allowed to study it with more time and scope for careful analysis and understanding than if he is merely allowed to read it at the local authority’s offices. He believes it contains material errors which should be corrected; he wants to ‘set the record straight’. He believes it contains material that will enable him to reopen the care proceedings by way of a further appeal or a renewed application to discharge the care order (thus correcting what he believes to have been a miscarriage of justice) and which may assist him in bringing a civil claim. He says that as X’s father he should be allowed to have a copy.

 

 

 

  • Those are all very understandable reasons why the father should be seeking the relief he is, but none of them demonstrates any proper basis of challenge to the decisions of the LSCB, whether the original decision not to publish or the decision explained in Mr D’s letter of 19 September 2012. As Mr Tolson put it, and I can only agree, the father does not identify, still less demonstrate, any flaw in the LSCB’s decisions or decision-making process.

 

 

With that in mind, the father’s application for judicial review was refused – the only crumb of comfort being that one of the arguments deployed by the LSCB was crushed from a great height by the President

 

  • I have set out the reasons given at the time by the LSCB for its decision not to publish (see paragraphs 6-7 above) and for its later decision not to allow the father a copy (paragraph 10). Those reasons are clear and readily understandable. They disclose, in my judgment, no arguable error of law. They set out matters, including in particular the advice of X’s treating psychiatrist, which plainly entitled the LSCB to conclude, as it did, that there were indeed the “compelling reasons” which had to be demonstrated if there was not to be publication. The LSCB plainly applied its mind carefully to all the relevant material and to the key issue it had to decide. Its process cannot, in my judgment, be faulted. It is impossible to contend that its decisions were irrational. Nor is there any arguable basis for saying that it wrongly struck the balance as between the various competing demands it had to evaluate: the right of the public to know; the quite separate right of the father to demand not merely access to but also to be supplied with a copy; and, most important of all, though not of itself determinative, the compelling demands of X’s welfare.

 

 

 

  • Mr Tolson also submits that permission to apply for judicial review should be refused because the father’s claim lacks any practical substance, because he cannot demonstrate, so it is said, how any flaw in decision-making might materially affect him, nor can he demonstrate why he needs a copy of a document which he has been able to read on three occasions. With all respect to Mr Tolson I find this most unconvincing. I would not have been prepared to refuse permission on this ground. But this does not, of course, affect the ultimate outcome given my conclusions in relation to Mr Tolson’s first two arguments.

 

 

 

 

 

Yet more Serious Case Reviews

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

 

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

 

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

 

 

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

 

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

 

 

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

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

 

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

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

 

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

 

And this is obviously where proceedings finally began, right?

 

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

 

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

 

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

 

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

 

 

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

 

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

 

 

 

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 

 

 

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

Are we learning anything?

 

A discussion on Serious Case Reviews, Keanu Williams and Professor Ray Jones.

 

Tragically, Serious Case Reviews seem to be piling up at the moment. We have just had Daniel Pelka’s, Keanu Williams’ came out last week. No doubt we will have one soon on Hamza Khan and I have already read today of another mother charged with the death of one child and neglect of another three. As we know from recent articles, most social workers don’t manage to find time to read them, and anyone who does read them finds the same themes continuining to crop up.

                   

The Keanu Williams one is here   http://www.lscbbirmingham.org.uk/images/stories/downloads/executive-summaries/Case_25__Final_Overview_Report_02.10.13.pdf

 

 

{This one actually identifies really early on that Keanu’s death could not have been PREDICTED, but that he ought to have been identified as a child who was at risk of significant harm. We actually know from reading the Serious Case Review that his social worker took the case to Child Protection Conference, with a report identifying why Keanu was at risk of significant harm and why he should be placed on the register and have a child protection plan – the Conference took a different view and decided Keanu was a child in need, instead

 

“A well-argued social work report, stating the risks and concerns that had been assessed for Keanu, formed the basis for the Child Protection Conference. However, the Conference concluded that Keanu did not require a Child Protection Plan but was a Child in Need requiring a family support service such as the nursery place as the focus of the meeting changed.

 

 

The outcome of the Child Protection Conference led to a loss of focus on Keanu, because the Child in need services moved the attention towards practical matters such as the lack of settled accommodation and provision of the nursery place.

 

Paradoxically the services failed to consider precisely what the impact was on Keanu’s development and welfare of being moved around and cared for by many different people.” }

 

But what also interested me was Professor Jones take on Serious Case Reviews, as reported in the Daily Telegraph

 

http://www.telegraph.co.uk/news/uknews/law-and-order/10355475/Theres-no-more-learning-left-to-be-done-says-child-protection-expert-in-wake-of-Hamzah-Khan-death.html

 

 

(A brave thing to say, since the gut instinct when reading “we have no more learning left to be done” is  to retort – then why are these cock-ups continuing to happen?)

 

I can sort of see where Professor Jones is coming from. With every child death of this kind there is a clamour for ‘lessons to be learned’ and ‘we must ensure that no other child has to go through this again’  and of course the media clamour that someone in authority must have bungled and they should be identified and sacked. That’s backed very often by central government (at least some element in David Cameron’s rise to power was on his tough handling of Baby P) and their demand that all Serious Case Reviews should be made available to the media and public.

 

The media of course, take a long and dense document, and strip out the bits that show that “Professionals had X chances to save baby Morris” , because that’s what makes the good story. Never mind that any of those chances would only have been a real chance if (a) the professionals could see into the future or (b) were so risk averse that they were removing children with similar histories left,right and centre, most of whom would have been okay at home. 

I will defend professionals from unfair criticisms that they didn’t accurately predict the unpredictable, but mistakes do get made in child protection and where those mistakes are due to sloppy practice or laziness then those responsible ought to be dealt with. If a child died because professionals didn’t make referrals, or the referrals got ignored or visits weren’t made (or you were a paediatrician that can’t spot a broken back), then yes, those involved ought to be rethinking their career – I just don’t believe that having failed to identify that of your thirty kids with bruises and low-level neglect THIS was the one where it was going to go awfully wrong is that sort of mistake.

 

{On the same basis, given how many times serial killers are described as ‘quiet blokes who wouldn’t harm a fly and was nice to his mum’ we could be cutting down serial killing by imprisoning in advance every person like that… Or blaming the police for every such bloke who goes on to commit murder, on the basis that it was obvious that he would turn into a serial killer one day}

 

 

And of course all of those Serious Case Reviews start with the known fact that the child died, and works backwards from that foundation, which allows them to in part discount the very thing that makes social work hard – the tension between family preservation and child rescue.

 

If the child has died, then we KNOW that the child ought to have been removed from home before then and that the family ought not to have been preserved. So the Serious Case Review can just look for any opportunities professionals had to break up that family unit and rescue the child.

 

Here are the things that a Serious Case Review CAN potentially do

 

(a)  Handwringing  (lessons have to be learned)

(b)  Finger-pointing/witch-hunting

(c)  Identifying whether there were flaws in local procedures, or in following those procedures

(d)  If there have been serious and genuine bad practice or negligence, taking action as a result

(e)  Extracting lessons of general principle to be learned in other cases

 

I think that our current system is pretty good at (a), not bad but not great at (b),  pretty poor at (d), okay at (c)  and it THINKS that it is very good at (e) but actually isn’t.

 

So I agree with Professor Jones that most of the ‘lessons to be learned’ are already well-established and well known. We know in advance that common themes from an investigation into a child death will include

 

(i)            That information held by different agencies was never really shared properly and that had one person known all of it, different decisions could have been made

(ii)          That a rule of optimism was applied

(iii)         That a history of low level neglect or bruising continued over time and nobody took it seriously enough

(iv)         That the voice of the child was overlooked or the child simply wasn’t seen enough

(v)          That too much of professional attention was focussed on the adult

 

 

And that having report after report say that, really doesn’t help.

 

I don’t think that the Keanu Williams one is particularly bad, it is fairly typical of these reports (and is to my mind, a better one than Daniel Pelka’s, for example)

 

So do Serious Case Reviews tell us anything at all? Or are they just handwringing and witch-hunting?

 

[I would disagree with Professor Jones on two categories of inquiries  - I think that the Victoria Climbie inquiry did genuinely tell us new and important things about the dangers of walking on eggshells around respecting differences in culture and losing sight of child protection, and I think that all of the inquiries relating to situations where ‘child rescue’ went too far – Rochdale, Cleveland, Orkney Islands, tell us a great deal of significance about what happens not in an individual case where a judgment call went wrong but when there is a systematic failure to properly balance evidence, risk and the desire to keep families together]

 

 

I would myself like to see Serious Case Reviews focussing on whether what had happened in the case throws up issues of poor practice amongst the professionals involved (not that they failed to predict the future correctly, but whether they weren’t alive to the possibility that their prediction might be wrong) or where local procedures need to be improved, and shy away from the ‘broad lessons to be learned’ unless it is a case like Victoria Climbie which genuinely has something new and important to say.

 

Frankly, the only real way to tell whether it was bad luck or bad social work in a Serious Case Review is to run them blind – the board are given information on two cases with children of similar ages and length of professional involvement. One is the child death in question and one is a child who remains at home unharmed.  If child deaths are caused by bungling professionals missing the obvious, then the Serious Case Review ought to have no problem at all in identifying the bad social work that led up to the child death, without knowing which case is which.

 

Always/never

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

 

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

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

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

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

 

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

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

 

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

 

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

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

 

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

 

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

Serious Case Review in relation to Kaiya Blake

Manchester have just published the Serious Case Review in relation to Kaiya Blake. Kaiya was four years old when she was suffocated by her mother, Chantelle, who was convicted of manslaughter in November 2012.  The mother was diagnosed as having suffered from Paranoid Schizophrenia at the time of Kaiya’s death.

The Serious Case Review can be found here :-

http://www.manchesterscb.org.uk/docs/Child%20U%20SCR%20Published%20Overview%20Report%2028-2-13.pdf 

The purpose of a Serious Case Review is to look hard at the involvement of all professionals and consider what lessons can and should be learned over and above the particular circumstances of this case.

The facts involved here are tragic, as is the case with the death of any child, but moreover because the mother was clearly unwell and in need of help and there were multiple agencies involved with her and that help did not reach her and Kaiya.

I don’t want to bash professionals – I’m sure that nobody involved feels anything other than utterly devastated about what has happened, and the last thing they need is a kicking from anyone else. Especially some smart alec with the benefit of hindsight.  But yes, there are lessons to be learned.

Three years before Kaiya’s death, concerns came to light about her mother, with reports that she was hearing voices and expressing that Kaiya (who was a toddler) wanted to have a sexual relationship with her. At that stage the issue of ‘cultural issues’ was raised, with professionals being asked to handle matters sensitively.  On investigation, the mother was disclosing that her light bulbs were giving her messages.  Over the course of the next few months further issues of the mother claiming that her neighbours were following her, stalking her, digging holes in her garden came to light.

In January 2009, mother acknowledged that she was a user of cannabis. In February 2009 the mother was saying peculiar things to other users of the Sure Start children’s centre, particularly to Muslim parents.  In July 2009, she visited the police station with Kaiya and told them that her television was laughing at her and making sexual innuendos to her.  Kaiya was placed into foster care, following Police Protection and was returned the next day. At the return, the mother became agitated that Kaiya may have been sexually abused in foster care and stripped her to check for any signs of abuse.

In April and May of 2010 further peculiar remarks were made by the mother, including “all children are drawn to me because I’m a Pisces and in the bible”  before going on to talk about children being stabbed at school and that she would be home educating Kaiya.

On 23rd July 2010 the GP was asked for an opinion on the mother and expressed that there were no mental health problems, although in 2005 she had been diagnosed as having a schizoid personality.

There were real difficulties in getting mother’s case dealt with by mental health services, and on 16th August they closed the case.

On 13th October 2010, three members of the public rang the police, after having seen the mother hit Kaiya hard about five times outside a supermarket. The police took Kaiya into police protection, and she went into foster care.

 At contact, the mother stripped Kaiya down to check whether she had been sexually abused. Kaiya told the social worker on the drive to the foster carers that her mother slaps her when she doesn’t listen.

 The social workers had planned to return Kaiya to mother’s care on 14th October, but were persuaded by the police to hold a strategy meeting. This took place on 18th October and the outcome was that mother was cautioned and Kaiya returned to her care. The mother had admitted slapping Kaiya.

 On 9th November 2010, at the children’s centre, Kaiya called her mother a derogatory name, when workers asked her to apologise to her mother, Kaiya said “my mum hits me”

 On 15th December, during a visit by Housing officers mother presented aggressively and displaying paranoid thoughts about her neighbours. There were ongoing incidents of worrying behaviour at children’s centre. Further attempts were made to get mental health services to assist mother and get a diagnosis of her, but in August 2011 the mental health assessment was that mother had no mental illness and closed the case.

 On the evening of 22nd September 2011, the mother presented at the accident and emergency department of her local hospital with self-inflicted injuries to her wrist and neck. She was assessed at risk of further self harm, and was seen by an Emergency Medicine Registrar (EMR) for assessment. She  informed medical staff that she had cut her wrists and ankle with a knife as she wanted to end her life; also that she had taken approximately ten paracetamol the previous night and drunk half a bottle of rum that day.

She  went on to say that she ‘did what she did because it needed to be done’, and that ‘the system was corrupt; Social Workers were treating her badly and had taken her daughter’. When asked where her daughter was, she informed medical staff that she was dead at home because she had suffocated her on Tuesday evening. The EMR noted that when disclosing her actions, the mother  showed no signs of regret and was very calm in her demeanour.

The conclusions of the Serious Case Review were, broadly:-

 That there became a preoccupation with obtaining a diagnosis of mother’s mental health and a paralysis once the mental health services were saying that there was no mental illness, rather than focussing on the impact of her behaviour on the child and the risk to the child.  

Whilst on occasions tenacious efforts were made by the Social Worker to achieve mental health assessments, there are two very significant issues for this review. Firstly, two months prior to the death of Child U, MU was assessed by an experienced psychiatrist as having no symptoms indicative of a serious mental illness following a comprehensive assessment. Secondly, each time medical opinion was sought, the outcome was similar, and MU was not considered to have any enduring mental health problems. This left professionals with a dilemma, if MU’s behaviour was not influenced by compromised mental health, why did she act and communicate in an abnormal manner? This question does not appear to have been faced, as ultimately the conclusions could lead only to one of two outcomes, either the medical diagnoses was incorrect or MU had a personality profile that was damaging to those around her, in particular Child U. Either conclusion needed a challenging approach to either health professionals or MU herself. Instead what appeared to happen is that the absence of a formal mental health diagnosis became the arbitrar of the response to the concerns 

That the preoccupations of the mother with sexual abuse in relation to Kaiya were not properly addressed or explored.

That the  physical abuse that had led to Kaiya coming into care in October 2011 was almost completely overlooked or sidelined at subsequent meetings or planning for the child protection plans

The description of the incident by three members of the public was one of a calculated and ferocious nature, and clearly indicated MU’s ability to cause deliberate harm to Child U. In would appear that the focus of the work became on engaging MU, and because MU was considered to have a difficult and volatile personality, achieving any degree of engagement with her was seen a measure of success in itself. This is evidenced by the summary of the Review Conference in February 2011 which stated that MU was now taking advice on board, when in reality no progress had been made.

[This is the rule of optimism that so often dogs Serious Case Reviews, where small improvements or changes are seized upon as evidence that support has made the necessary changes] 

That mental health services had not been sufficiently alert about the history and presentation

The subsequent letter from this assessment sent to the general practitioner was wholly inadequate in terms of identifying fully the reasons for the assessment, the mental state examination at the time of the assessment and documenting much more clearly as to how they had reached their decision not to offer any services.

The mental health services should have been significantly concerned about the evidence of psychosis they found, and this in combination with her apparent lack of insight, and the involvement of her vulnerable child in her delusional system should have rang alarm bells.

 That the opportunity to take action after the episode of physical abuse in October 2011 had not been grasped

No medical took place of Child U during this investigation, the rationale being that MU had admitted causing the injury; however, Child U could have had other undetected injuries. Given three people describing a sustained and severe assault, the decision not to have a medical was flawed and does not accord with good judgment.

 

10.6.5 This second use of police emergency powers led to an Initial Child Protection Conference being convened, as stated, outside of agreed timescales. It is worthy of note that Child U was not seen by a Social Worker until after the Child Protection Conference, and no home visit was made in the intervening period when MU had just been cautioned for assault

That the child was not seen alone sufficiently (another recurring theme of Serious Case Reviews)

Given what was witnessed, and what Child U said, the decision to return Child U to MU seems to have been made with undue haste. A further period of foster care would have allowed time for a deeper assessment of risk, and to work with both Child U and MU from a safe position. In the event, the comments of Child U were never discussed with MU and Child U was seen only twice alone during the period of the Child Protection Plan. The Children’s Social Care IMR reflects that this represents poor judgement and a lack of robustness in managerial oversight.

 

10.7.3 There are a number of occasions where Child U should have been given the opportunity to speak with a Social Worker alone and this did not appear to happen. It is a requirement when undertaking Initial and Core Assessments that a child is seen as part of that assessment and good practice that where it is age appropriate that a child should be seen and spoken to without the parent present. The Initial Assessments in July 2009 and July 2010 record that Child U was seen but do not indicate that she was seen alone or spoken with. The Initial Assessment conducted in June 2010 refers to Child U being asleep at the time of the Social Worker’s visit and therefore there were no observations or specific communications

 

 

The Case Conference system did not work as well as it should have done to pull together professionals and identify risks and a child protection plan

From the point of the Initial Conference, multi agency working together arrangements were compromised for a number of reasons:

• Not all relevant agencies were invited to attend the Child Protection Conference;

• The Child Protection Plan was misguided by a lack of focus on the specific issues of concern;

• The Core Group arrangements did not work well both from an attendance perspective and a lack of common understanding of what needed to be the focus of change;

• The Review Child Protection Conferences did not systematically reevaluate the causes for concern and what had or had not been achieved through the Child Protection Plan;

• The route into mental health assessment and services are not commonly understood or applied by professionals.

 

And most importantly, that the decision to return Kaiya to her mother’s care in October 2011 was not a safe one

 The evidence does not support the decision for Child U to return home so quickly following a significant assault without any depth of understanding as to whether Child U would be safe. IMRs from both GMP and Children’s Social Care acknowledge this to be a decision that cannot be easily understood, and the absence of any contemporaneous minutes from the strategy meeting further exacerbates the lack of explainable rationale. This is a critical error of judgement and the most important missed opportunity to better protect and robustly assess any ongoing risk to Child U.

 

The Review concludes that whilst Kaiya’s death was not predictable given what was known at the time, there were clearly risks present to Kaiya and more should have been done to act upon those risks.  A little like with Baby P, social workers were relying on a medical expert to give them a diagnosis (a paediatrician missing a broken back, a psychiatric service not spotting paranoid schizophrenia) but there were other opportunites to take action and take better stock of the risks.

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