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.
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  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  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:  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.