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 :-
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
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.
suesspiciousminds 
Sorry I started making a comment and then lost it, so I’ll start again in case you have received a partial response:
I was delighted to see someone questioning how far society would approve what is being done in their name in family law. As a national support group trying to help parents who find themselves enmeshed in the system, we have been asking this question for a long time, and have expressed our concerns in response to numerous Select Committee and government consultations. Unfortunately it is the secrecy of the Family Courts which prevents this being questioned, or even properly researched.
As someone with experience of medical litigation cases, I am horrified at the poor quality of mediical evidence accepted without question in Family Courts, which family lawyers seem ill equipped to understand, unlike lawyers who specialise in medical negligence.
On the Kendrick research, it is not a question of “which side of the debate” you come down on. I attended a meeting organized by the Family Justice Council at which this was presented.As a researcher, I pointed out that while the conclusions may be reasonable within the very special, and unusual, conditions in which the study was conducted, the results simply were not applicable generally. However, nothing is so popular as research conclusions which the audience wishes to be true, and it was clear from the response by lawyers, social workers and judges present, that this was saying just what they wanted, and provided “evidence” for what they wanted to do.
We already had experience of numerous cases where foster carers were, in a number of ways, preventing mothers who had been allowed contact for breast-feeding, to do so. Despite the incontrovertible evidence of long term benefits of breast-milk, courts are continually denying this.
I do welcome your blog. Like you, I welcome the chance to read material which is challenging and I am likely to disagree with – though I disagree with a surprisingly small amount of yours.
Best wishes, Jean Robinson
Hello Jean
Thank you for your thoughtful comment. I think your thoughts on the Kendrick research are close to Dr Dales. I’ve read quite a lot of glowing praise about the research, and like you say, there is a ready audience to hear that conclusion, so I thought it was appropriate to highlight the counter argument. Something as important as this should be debated, not smuggled in.
At last someone ,somewhere is beginning to get a grip of the problem. I think perhaps one might look at this unhappy social workers blog-
http://www.communitycare.co.uk/carespace/forums/anti-social-work-websites-and-blogs-9636.aspx#42193
The comments on the CP system of other European countries and the attitudes by social work in them, (and therefore towards social workers), says something about the UK system, the state and its apparatchik control of ‘family’ life.
The same applies to those families, however difficult, (and dangerous to them from the current system- take a look through the Alzheimer’s blog site), take care of incapacitated parents / relatives. The MCA too has not been openly looked at from a wider public perspective. Hence ‘secret CoP’
The public would agree that dealing with abusive situations is necessary to protect those unable to protect themselves. But many situation are not meaningfully abusive just difficult. The larger public, most of whom do not know about, let alone have powers of attorney in place, have no idea how they could be dealt with by the state system should they loose capacity due to illness / accident. They have no idea their friends and family may not be able to do anything to intervene if the state system does not allow it, or the costs of guardianship prevents this etc. I am just getting well educated friends to realise this.
In essence people do not yet fully realise that where once family members dealt with many of the practical issues for their loved ones without any state intervention, this may no longer possible if you are assessed as lacking capacity. This is not the case across the globe. Britain has become a problem society where the state intervenes to ineffectively solve every problem that families face. This is not sustainable nor is it clear society wants this as a whole. People want tangible practical support and a network of such support.
The media frenzy will continue until open debate occurs.
Hello Edna, you make some good points, as ever. I am coming more and more to the view that a proper, healthy debate about where the balance is between the State protecting vulnerable individuals, and individuals having autonomy (with help from the State but not control) at the moment, and whether Society considers that to be in the right spot. Thats why Peter’s discussion about the ever lurching position between too much intervention and too little struck such a chord with me. I don’t think there’s the money, or the political will to have such a debate, and at present the Government seem to think that just doing it quicker and bringing statistics more and more to the forefront will make everything fine. I don’t think they are right about that.
A point on the way statistics are being gathered vis a vis adult safeguarding.
NHS information centre reports around 100K ‘alerts’ for 2010/2011.
Media reports 100K vulnerable being abused.
The statistics actually show nearly 2/3 of these ‘alerts’, which are clearly not all about abuse of anyone, are unsubstantiated or undetermined.
So much social services time and effort for ‘poorly targeted’ effort into investigating alerts- not abuses where something is known to have actually happened, just a suspicion or ‘gut feeling’ and nothing more?
I can tell you the farce of this from personal experience, but not on the web. We need lawyers willing to challenge the whole process because the ‘damned if they do and damned if they don’t’ view is stalling a microscopic look at whole of a now growing ‘safeguarding industry’ : one way to promote and safeguard jobs where these might be cut- a cynical view.
I am pleased for you as a human that somehow you are beginning to re-think some of your previous ideas- because that is what open educational debate is about. It is why I have no problem with either John Hemming or Christopher Booker. After all if social workers make up ‘evidence…/ lie’; their blogs I have looked at clearly recognise this to be true and I have personal evidence of this, journalistic licence is needed to raise the profile of something that is worrying in terms of the vulnerable, their families and can damage society.
Dr Peter Dale is one of the few “experts” called upon by the family courts to give competely objective and unbiased reports that parents can actually trust. I am sure he is right to prophecy an apology in about 30 years time for the way family courts behave now.The law can change dramatically in a short time . The most obvious example of this takes me back to my college days when my good friend Anthony who was gay (queer we called it in those days!) was continually worried that his activities would attract the attention of the police and and that he like Lord Montague at that time would land up in jail.Now of course the pendulum
Dr Dale is one of the few “experts”called upon by the family courts who gives unbiased reports and does not rely totally on reports of social workers to reach his conclusions.He is so right when he predicts an apology in about 30 years time by a future prime mimister for the way family courts procede now.The law can change dramatically in a short time.The best example of that takes me back to my college days when by friend Anthony who was gay (queer we called it in those days) was always worried that his quite harmless gay activities might land him in jail like Lord Montague at that time.Now however any religious person distributing leaflets (quoting the bible) denouncing homosexuality as a sin would themselves have their collar felt!
Two measures are needed to clean up the family courts:-
1:-Family courts should be governed by criminal rules of procedure
2:-Parents should never be gagged if they wish to protest publicly when their children are taken or if the wish to discuss 2the case2 with older children at contact.
has swung violently in the opposite direction so that any religious persons passing out leaflets claiming that homosexuality is a sin (quoting the bible ) are themselves liable to “have their collar felt !”I cannot understand the logic of judging alleged abusive parents to civil standards of proof that rob them of the most basic means of defending themselves.I believe most of the present injustices would be remedied if firstly family courts were all subject to the same rules of procedure as criminal courts,and secondly if the gag was removed from parents wishing to protest publicly when their children have been taken and again wnen wishing to discuss the case with their children at “contact”.At present all such conversations are subject to ss censorship.Orwell’s worst nightmares coming true?
Another good post. I think the international cases will probably create an unstoppable pressure for change in the medium term. (that is where children who are not UK citizens are forcibly removed from their families through adoption).
It will also allow a review as to whether my figures calculated on a statistical basis are right or wrong. (those of 1,000 miscarriages a year through wrongful adoption in England)
This lack of trustable data about the outcomes, (first at final hearing…then over a longer term), of family court proceedings should be cause for concern. The collecting and collating of valuable data should fall within the purview of Cafcass in both public and private law cases….but a look at FOI questions on the What Do They Know website reveals that the Cafcass cupboard is empty…the Government only asks them to record numbers of cases referred to them and then allocated to practitioners and numbers about whether the courts have received a report from Cafcass on time….other than that…nothing….and I cannot be the only person to feel that this is deliberate….to cover up deficiencies and wrongdoing…and i say this as a former Cafcass practitioner who has tried to blow the whistle on serious wrongdoing only to be presented with a whitewash and cover up…oh and the sack….so it goes
Sorry but the paras jumped out of order;I don’t know why but here is how it should be.
Dr Dale is one of the few “experts”called upon by the family courts who gives unbiased reports and does not rely totally on reports of social workers to reach his conclusions.He is so right when he predicts an apology in about 30 years time by a future prime mimister for the way family courts procede now.The law can change dramatically in a short time.The best example of that takes me back to my college days when by friend Anthony who was gay (queer we called it in those days) was always worried that his quite harmless gay activities might land him in jail like Lord Montague at that time.Now however any religious person distributing leaflets (quoting the bible) denouncing homosexuality as a sin would themselves have their collar felt!
Now however the pendulum has swung violently in the opposite direction so that any religious persons passing out leaflets claiming that homosexuality is a sin (quoting the bible ) are themselves liable to “have their collar felt !
Two measures are needed to clean up the family courts:-
1:-Family courts should be governed by criminal rules of procedure
2:-Parents should never be gagged if they wish to protest publicly when their children are taken or if the wish to discuss 2the case2 with older children at contact.
”I cannot understand the logic of judging alleged abusive parents to civil standards of proof that rob them of the most basic means of defending themselves.I believe most of the present injustices would be remedied if firstly family courts were all subject to the same rules of procedure as criminal courts,and secondly if the gag was removed from parents wishing to protest publicly when their children have been taken and again wnen wishing to discuss the case with their children at “contact”.At present all such conversations are subject to ss censorship.Orwell’s worst nightmares coming true?
Sorry my previous contribtion got jumbled,so here is how it should be:-
Dr Dale is one of the few “experts”called upon by the family courts who gives unbiased reports and does not rely totally on reports of social workers to reach his conclusions.He is so right when he predicts an apology in about 30 years time by a future prime mimister for the way family courts procede now.The law can change dramatically in a short time.The best example of that takes me back to my college days when by friend Anthony who was gay (queer we called it in those days) was always worried that his quite harmless gay activities might land him in jail like Lord Montague at that time.Now however any religious person distributing leaflets (quoting the bible) denouncing homosexuality as a sin would themselves have their collar felt!
”I cannot understand the logic of judging alleged abusive parents to civil standards of proof that rob them of the most basic means of defending themselves.I believe most of the present injustices would be remedied if firstly family courts were all subject to the same rules of procedure as criminal courts,and secondly if the gag was removed from parents wishing to protest publicly when their children have been taken and again wnen wishing to discuss the case with their children at “contact”.At present all such conversations are subject to ss censorship.Orwell’s worst nightmares coming true?
Hello Ian,
I think that was what most affected me in Dr Dale’s response, the realisation that with the passage of time it might well be that what is considered good practice done with good intent can actually be seen for something perplexing or inexplicable as society changes. Your example about the criminalisation of homosexuality makes the point very well.
I personally believe that having the criminal standard of proof would place some children at an intolerable risk of harm and that the current standard of proof is the right one. BUT, more importantly than that, I believe that it is not unreasonable for that to be genuinely debated and thrashed out. If my beliefs are right, then they would stand up to rigorous scrutiny – and if they do not, it is right that they be changed. As Justice Munby is fond of quoting (it is an American Judge who first said it) “sunlight is the best disinfectant”
Clearly a move to a higher standard of proof would move us along that spectrum closer to the “family preservation” end and away from the “child rescue” end; but it is a matter for society as a whole to determine where on that spectrum we should sit. It does trouble me that we have not really debated this issue, either in Parliament or as society, at least since the Children Act came into being, and probably long before that.
As a Local Authority lawyer, I hope that I give a lot of attention to both sides of the spectrum, and probably slip slightly on the ‘child rescue’ side, but I hope that I don’t stray too far from ‘Family preservation’. I would have to say that the emphasis has been more on child rescue over the last few years, and as Dr Dale says, it is a pendulum that tends to lurch from one extreme to the other and we haven’t really found the proper balance as a country of keeping families together whenever possible and removing only those children who need to be protected and can’t stay within the family despite all reasonable efforts (but only those children)
As to whether CAFCASS are deliberately covering things up and concealing them, rather than just not asking the right questions and recording the things that are truly important, I tend to think that running a conspiracy would be beyond their capabilities. I don’t disagree with you that raw numbers of cases issued tells you nothing that is truly important.
Well, I frequently come across cases where a parent is arrested for alleged physical or sexual abuse of a child and subsequently the police either drop charges and the case never gets to court or less often it goes to court and the parent is acquitted.Subsequently; to that parent’s horror the “ss” say (in effect) that they know better than the criminal courts and tell the said parent that he/she is forbidden to have any unsupervised contact with the children until the family court meets .Eventually the younger children are sent for adoption by strangers .That decision is made by a single judge who believes that it is more likely than not that the parent did abuse children after all ! Nobody is officially guilty in family courts ,they just lose their children without being found guilty of any crime whatsoever.
Child cruelty used (when I was young) to be strictly a police matter dealt with by criminal courts and that is how it should be today.
Any form of cruelty to a child or vulnerable might, once again become strictly a police matter to be dealt with through criminal courts- there is no purpose in two sets of courts (save for cry by social services for secrecy, the reason for which are not all valid at all times).