Judicial wrath about the pervasiveness of the word “concerns” in a care case, and the word being used to mask the lack of substantiated evidence or allegations.
Re Avon, North Somerset and Gloucestershire Public Law Case 2013
(The title is taken from the Master, P G Wodehouse, who described Bertie Wooster’s uncle, Lord Worplesden, as having one day come down to breakfast, lifted the silver platter and shouted “Eggs, eggs, damn all eggs!” before fleeing home and never being seen again. I just like it as a pithy way to convey the feelings of sheer hopeless exasperation)
The Judge in this case made a number of complaints about issues that had arisen in the case – he anonymised the LA involved, by naming all three who regularly appear before him (nice for the one in trouble, who got to hide in the shadows, but rather rough on the two completely innocent ones who get tarred with the brush of suspicion when they had nothing to do with it)
Many of the complaints, though made about the LA, also relate to judicial decision-making (the listing of a finding of fact hearing, the absence of a proper schedule of allegations, the delay, the proliferation of expert evidence – none of which can be done by an LA in isolation, the Court has to shoulder some of the responsibility for this)
But then it gets into interesting territory, where the Judge talks about the reasons given by professionals for not wanting to place the children with grandparents
10. Time and again I was told that the Local Authority had ‘concerns’ about issues (the word ‘concern was used by the Local Authority advocate more than twenty times in one day). Those ‘concerns’ were not substantiated by direct evidence and should have been. I give this very clear example. The head teacher of a school was called to give evidence about events relating to the other children in the grandmother’s household. Her statement was about events in July 2013 and suggested difficulties within the grandmother’s home then. I asked [sic] whether the events of which she was speaking were representative of the school’s perception of the grandmother’s overall care of those children. I was told from the witness box that there were many other things that the school could say and would want to say. They were not contained in any statement but, I was told by counsel for one of the Respondent parties, reference to them could be found ‘dotted around’ the four lever arch files. Evidence was also available from the health visitor (but did not feature in any statement). If a Local Authority seeks to substantiate an important contention it must do so on direct evidence where that evidence is available. Hearsay evidence is admissible but that does not mean that a Local Authority can dot its contentions around a bundle and then expect a court to reach satisfactory conclusions on issues of such fundamental importance to children and families.
That does, to me, raise two very important issues.
Firstly that the word concern can be waved around in Court and be emphasised and repeated so much that ‘concerns’ (which end up being rather less than ‘allegations’ and far far less than “proven or determined facts”) begin to morph from an insubstantial wisp to solid reasons for not doing something. I think the Court is right to drag everyone back to the foundation that we work on evidence and proven or provable FACTS, not flights of fancy. Even where a risk is put as being one that “Cannot sensibly be ignored” that determination has to be made on the Court establishing that facts that lead up to that risk are made out on the balance of probabilities.
Secondly, we are back on the issue that “Judges are not forensic ferrets” – if the nub of the case is not gathered together in one place (with cross-referencing) but is dotted around the papers hither and thither, to be found by only assiduous reading, that simply won’t do.
This led on to the Judge’s proper criticism that what seemed to happen with the assessment of the grandparents is that professionals devoted all of their attention to negative criticisms and gave no thought or weight to the potential advantage of a child being cared for within the family or the potential disadvantages to the child of being cared for by strangers (the very heart of Re BS)
11. the unprincipled approach to welfare issues. Entirely omitted from the special guardianship report and much of the other welfare analysis were two matters which were of utterly elementary and fundamental importance:
i) The effect now of removing the boy from the grandmother. In welfare checklist language, what would be the effect on the boy of the proposed change in his circumstances that would arise if removed from his current home and what are his emotional needs to remain a part of his current household?
ii) The significance of the boy maintaining his place as a child cared for within his natural family. The boy has an established family life with his grandmother (Article 8 of the Convention was therefore engaged). He had spent the majority of his life in a household with other children there (aged 10, 12 and 15). His step grandfather had played a very full role in his upbringing. By remaining in his family he would continue to see his mother in structured contact.
12. I found it deeply demoralising that these simplistic issues could pass without even being mentioned. What happened in the hearing is that all possible negative points about the grandmother were explored in evidence. At least some of them had no foundation at all. Some of these negative ‘concerns’ were expressed in superlative, wholly unjustifiable and internally contradictory terms, especially within the special guardianship report. For instance I heard in oral evidence that the grandmother was not child focussed and did not co operate with professionals; that was not borne out by the report of the person who said it (or by the evidence of others) and was manifestly unbalanced. It is to the credit of the grandmother that she maintained her decorum whilst this whirl of ill considered evidence was being given about her.
Following Re BS, the obvious remaining piece of the jigsaw is going to be how the Court approach the assessment of family members and having a much more robust approach to testing the Local Authority’s assessments where these are ‘negative’ – and indeed whether there ought to be some ‘test’ that ought to be applied by the Court to determining whether a child could be placed with a relative notwithstanding that this is not the Local Authority’s plan.
I believe that the Court of Appeal might be mulling this issue at present…