Monthly Archives: March 2013

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.

Keep feeling FAScination, or Bolt-On Wanderers

(Yes, two awful puns in one title)

If you do any advocacy in family proceedings, you will be familiar with the FAS form  (the Family Advocacy Scheme) that the advocate has to hand in to the Court to have stamped, in order to get paid for their work.

It is a peculiar creature, and the scheme has been plagued by inconsistencies about what one has to have stamped, or signed, or initialled.

If you are not the advocate, but another participant in the hearing, you may have wondered what that form was all about. It all seems very unseemly that you see advocates at the end of the hearing waving pieces of paper about like a bunch of Tory backbenchers

You can find the form here

http://www.justice.gov.uk/downloads/forms/legal-aid/advocates-attendance-form-0212.pdf

The FAS form came about in part because the previous form called SIPS had allowed advocates to claim some time for “special preparation”  i.e that the case had taken more hours of preparation than one would usually expect. There were suspicions (and in one high profile case, more than suspicions) that these “special preparation” hours were sometimes padded to make the attendance at Court pay a bit better.  Everyone has to eat, after all.

The other big change about FAS was that it suddenly applied to solicitors as well as barristers, and that while it was a reduction in fees for a barrister, it was quite an increase for solicitors, making advocacy now the ‘juiciest’ part of a case for a solicitor to do, thus placing solicitors and barristers in competition for the advocacy task in cases.  Classic divide and rule stuff.

The first thing this FAS form ushered in was the need for advocates to record on the form :

Start time or time court required you to attend (if earlier):

And that in turn ushered in the otherwise inexplicable practice of everyone wanting to turn up an hour before the hearing starts, and the Court orders always incorporating a direction that they do so.

The next peculiar things relate to the “Bolt ons”, or uplifts to the fee for attending.

There are 4 of them :-

1. Representation of a client who is facing allegations that they have caused significant harm to a child which have been made or adopted by the Local Authority and are a live issue in proceedings

2. Representation of a person who has difficulty in giving instructions or understanding advice

3. The evidence of an independent expert witness being cross-examined and substantially challenged by a party at the hearing

4. The size of the Court bundle  (there being a higher fee once the bundle passes 350 pages and then another higher fee once the bundle passes 700 pages)

The first 3 represent a 25% increase each.

To be honest, there’s an element of that that seems fair enough. If you are representing a parent who has learning difficulties or mental health problems, then explaining the process, taking instructions and getting a sense of what is happening on the ground is harder.  [Although helpfully, you don’t get the bonus unless there’s a cognitive assessment, so the first hearing, where you really earn the money, you don’t get it, and the later hearing where you take instructions from the Official Solicitor and the task is made easier, you then do get it]

Likewise if you are going to a hearing knowing that you are going to need to cross-examine an expert then you have to put more work into it.  And if you are going to have to read 700 pages rather than 350, it takes longer to read them.

But as any economist would tell you (and sadly, the LSC don’t seem to have asked any), if you give any group of individuals a reward and remuneration system based on certain indicators, they will work at meeting those indicators. It’s called ‘gaming the system’ and is found in pretty much any walk of life where there’s a performance related pay system.

For example, the LSC wanted to pay advocates less for any hearing that took less than an hour. That seemed like a pretty smart scheme, but in reality, it was only going to have two outcomes (as the payment for doing a hearing less than an hour was perceived as being far too low)

  1. If the start clock for the hearing time starts at 10.00am (when the Court starts hearing cases), then nobody would be ready before 11.00am, to make sure they go into the second hour and get a proper payment.  Thus keeping the Court waiting, and losing one of the five hours of Court sitting time a day. So yay, reducing effective Court sitting hours by 20% !
  1. OR, and the above is why it happened, the Courts acquiescing to the request of advocates for a direction that they attend at 9.00am, or 9.15am, so that the clock just starts running earlier.

Another example would be that it now being rewarding to pad the court bundle out with documents to get it past the 350, or 700 page mark (and ideally documents that don’t really have to be read that thoroughly) led to a proliferation of contact notes, medical records, police disclosure, foster care diaries and such to go into the bundle.  That in turn leads to the cost of everyone else reading them (assuming they get read at all)

Don’t get me wrong, there are occasions when those disclosure documents are very important and necessary – but they don’t go in only when important and necessary, but as run of the mill.  And there’s no attempt to try to agree the key pages and winnow the disclosure documents down   (firstly because nobody really reads them to find the key documents until the days before the final hearing, and secondly because why would you want to spend hours reading them in order to winnow them down so that you can cut your fees?)

And then we have the peculiar quirk in the section of

 Representation of a client who is facing allegations that they have caused significant harm to a child which have been made or adopted by the Local Authority and are a live issue in proceedings

[25% bonus to the fee if it applies]

Firstly, that it only applies where the allegations are a ‘live issue’ in proceedings.  That means there is no bonus in cases where the threshold has been agreed   (which is something the court tries to encourage, as part of the process of narrowing the issues and to concentrate on those things that are in dispute) or determined by the Court.

Secondly, the criteria for what constitutes significant harm is a little perplexing, since it is not ‘significant harm’ in the sense which is defined by the actual bloody Act that we deal with, or the wealth of caselaw by which that definition has been polished, glossed and finessed, but instead a particularly narrow subset of it :-

For the purposes of the bolt-on the following conditions constitute significant harm:

 

a) death

b) significant head and/or fracture injuries

c) burns or scalds

d) fabricated illness

e) extensive bruising involving more than one part of the body

f) multiple injuries of different kinds

g) other significant ill-treatment (such as suffocation or starvation) likely to endanger life

h) sexual abuse.

You will note that the big loser here is neglect  [and also emotional harm]. Unless the neglect is likely to endanger life (which is very rarely the case), you don’t get an uplift for neglect.  But you will get an uplift if the child has five bruises, even if that’s a really small part of the threshold.

Anyone who has done care proceedings knows that neglect cases require a lot of thought, a lot of effort, a lot of preparation and really are cases where the ‘devil is in the detail’.   An advocate representing a parent in a case where the harm alleged is neglect is going to have to go through a wealth of material often many years of records, looking at reports of home conditions and children’s presentation, watching how they fluctuate, looking at the support that has been offered and how that has impacted, looking at the chronology for periods when the care was good enough and Local Authority concerns subsided, working out how best to refute the allegations of neglect, or to reduce the risk for the future, how to get the situation to a level where the Court can have confidence in the future care of the children.

If you add into that mix that the child also has five bruises, and that finds its way into the threshold, the advocate will get 25% more on their fee, when the extra work involved is really looking at one medical report, a bodymap and perhaps some GP notes at around the time the injuries were observed.

 

Frankly, if the potential consequences for a parent of the allegations of significant harm are that they might lose their child, even temporarily, isn’t that the key aspect which means that they want their advocate to be totally prepared and recompensed properly to fight their case?

 

You probably can’t ever design a scheme for the payment of advocates which is flawless, but this particular one has ended up with Courts routinely directing parties to attend an hour before the hearing with no thought as to whether that’s actually necessary   (including doing that for hearings where there will have been an advocates meeting the night before to get an order pulled together), an expansion of court bundles, and there being no recognition that preparation and defence of neglect cases is actually pretty labour intensive compared to a case of five bruises.

I do miss the old days where we just wrote on the directions “Certified fit for counsel” and any grubby issues of money were dealt with solely by the clerks and nobody at the Court ever had to think about money and fees and could focus exclusively on the case and the client.  I really don’t like those forms being handed in at the end of the hearing, just at the time when the client really needs 100% focus on them.

It does feel to me like a shame that so much of our hearings these days seem to be focussed on money, and who is going to pay for this and that, whether the LSC will pay for this or that, what the expert is going to cost, what can be filled in on the FAS form, whether the LSC will accept the FAS form if the Judge hasn’t initialled it here, here and again here.

In a Jonathon Swift style suggestion, perhaps in the interests of making advocates feel too ashamed to hand in the form and thus reduce costs, the LSC should name the next form “Ski-holiday fund form”  or “the ME-ME-ME” form, and insist that if advocates do not hand it up to the Judge in front of the clients saying “May I now hand in my Ski-holiday Fund form?”  it is null and void.   Further protocol should be for the Judge to look at the form, whistle in amazement and say the phrase “Gosh, you’ve done really well out of this, haven’t you? Bet you’re off shopping now at Harvey Nicks”   or alternatively, depending on circumstances “Bloody hell, money for old rope” *

And now, because it is Friday, and it is an excuse to please some of my readership, here is a picture of the handsome Michael FASSbender

to be fair, he is handsome

* That is intended to be satirical. Good Barristers do work very hard for their clients and put in long hard and unsociable hours, and those doing care work don’t necessarily  live a salubrious lifestyle, and some of them are allergic to fondue and don’t go ski-ing.

[And last minute edit – I am being too harsh overall – the vast majority of advocates are worse off under FAS then they used to be and are doing the same hard job for less money, and nobody wants to do that.  It only takes a few of the sharper advocates, the Edgar Venal’s of this world (as if he would sully his hands with care work) to make the system’s rules favour them to create that bad impression. I honestly don’t like, and never have, the idea that the last thing we do in a court hearing involving people’s children is connected with getting paid and think it is ugly and charmless that the system forces advocates to do it. Also in fairness to FAS I should have said that the one really good thing is that finally, one gets paid more for representing parents – which is the hardest job and one which takes the most preparation, than for representing the child]