Section 37 reports are not a vehicle into which to pour professional angst

The High Court decision in Re M (Children) 2013, and the strong judicial comments about the need for section 7 and s37 reports to properly analyse the issues, AND a warning for Local Authorities who try to avoid responsibility for children in designated authority disputes. Important guidance for both LA lawyers and social workers within this.

http://www.bailii.org/ew/cases/EWHC/Fam/2013/3758.html

The facts of this case are quite extreme and unusual. They involve children who were living with their maternal grandparents. These grandparents had had themselves four children – the mother (who had been unable to care for the children), AM (who had been sexually abused by a man 20 years older than her during her adolescence) and twin boys. The twin boys celebrated their 18^th birthday by murdering another grandparent and were convicted and imprisoned.

Those twins were subsequently released from prison and there was some suggestion that they might move in with the grandparents and the four children in question.

Somehow (it is not clear from the judgment) the case came before the Court and section 7 reports and then a s37 report was commissioned from the Local Authority.

(Non-lawyer note – a section 7 report is one the Court ask for to advise on where the child should live and what contact they should be having, and a section 37 report is one the Court ask for to advise on whether the children are suffering significant harm and if so whether the Local Authority propose to do anything about it)

This being a London case, there was a degree of dispute as to which Local Authority was responsible, there being three possible candidates. Anecdotally, I think whilst two warring LA’s can eventually come to terms, it is nigh on impossible for three to reach an accord. (The best you get is that Trumptonshire and Chigley both gang up and agree between themselves that this is a Camblewick Green case, and hope that poor Camblewick Green buckle under pressure) 

In this case, it seems that six months were spent quarelling about that, with in the meantime, no LA actually taking the lead in protecting these children or assessing the obvious risk. The Judge wasn’t very impressed about this, and any LA lawyer needs to be aware of the scathing remark at the end (underlining mine)

Against this backdrop, it is, to say the least, profoundly depressing that the Social Services’ response appears to have been, at best, minimal. For months three local authorities – Hackney, Enfield and Haringey – jostled amongst themselves as to who had responsibility to lead child protective measures. It follows that without a lead there can scarcely be focus. Quite how significant that failure was will become clear when I come to determine the disputed allegations in this case. By my calculation, at least six months were lost on this issue. I can see there are many reasons why Local Authorities in this climate might wish to avoid the burden of responsibility for a case like this. It inevitably absorbs already stretched resources, both financial and in terms of personnel. I have not permitted court time to be deflected into an investigation as to whether any particular Authority was acting unreasonably or was wrong in law. There have been too many other pressing issues in this case directly concerned with the welfare of the children now that need to be considered as a priority. I do not therefore condemn any one of those Local Authorities, but I do send this signal: that if Local Authorities seek to evade responsibility for child protection to avoid costs, they are likely to face liability in negligence, administrative law and under human rights legislation. As the family courts embrace the opportunities and advantages that greater transparency may bring, Local Authorities who behave in that way will not be able to avail themselves of the cloak of anonymity under which, in the past, they might have found refuge.

Having settled on which LA was to do the work, the reports themselves came under some scrutiny

12. Many of the issues that I have just set out were known to the authors of these reports. They concluded, however, that the children should remain with their grandparents. Quoting from the second of the two reports, which I take to have been prepared sometime in early May or late April 2012 (for, like so many other documents presented in this case, it is undated) the author concludes as follows:

“There are some issues arising from recent interventions in both psychiatry, probation and social services in relation to how disturbed the grandparents’ own children, RM, S and SM present as. These adults have made significant allegations in relation to the treatment that they received at the hands of their parents and parents’ friends. It should also be noted, however, that these three children suffer from significant personality disorders and this fact will have a significant bearing on the reliability of the allegations. However, the allegations remain concerning and will need further assessment.”

The report continues:

It would be the Local Authority’s opinion, however, that at this juncture there is no evidence indicating that this placement should discontinue. Therefore the children should remain in the care of the grandparents.”

Earlier in the report the authors observed that the children appeared to be happy, secure and settled in the placement.

If you are thinking, that seems a bit skimpy, given the wide range of issues already outlined in this brief summary, you are not alone  (again, underlining mine)

13. The Guardian has condemned the analysis in this report as superficial. But, in my view, the real flaw is that there is an absence of analysis altogether. The language is telling. It refers vaguely to “some issues”, “significant allegations”, the ubiquitous “concerns”. These are gateways to analysis, they are not, in and of themselves, analysis, and they are certainly not conclusions. Section 37 reports are prepared for courts in order that they can consider risk and what, if any, intervention is required under the available legal framework. They are not discussion documents or a vehicle in which to pour professional angst. Issues must not only be identified or raised, they must be thought through, evaluated and placed in the wider context as it is assessed at the time. Simple report is rarely valuable; it must be challenged, and an expressed willingness to participate must be measured against evidence of past participation. In other words, at the interim stage the full panoply of risk assessment has to be deployed. Absent these conventional tools any risk assessment is of limited value, perhaps meaningless.

14. What does one draw in the context of these “concerns” from the observation that “the children appeared happy”, when the report itself refers to killings, sexual abuse, rape and incest? The report includes the following:

“On 23^rd January 2012 a legal planning meeting was held to establish whether threshold was met to go into proceedings. We were advised that at present there was not enough evidence for threshold to be met to instigate proceedings to remove the children from the maternal grandparents’ care.”

That the threshold criteria on an interim basis were met is so obvious that it is redundant of any sensible argument. As to the proportionality of a removal, that is a wholly different question. It can hardly have helped sensible decision making that it was conflated into one test.

Given the facts of this case, the Court was clearly of the view that the threshold criteria were made out, and was unhappy that the s37 report  (and probably from the remarks in para 14 above the legal planning meeting) had blurred the issue of “is the threshold met?”  with “is an application for removal likely to succeed”

15. Ms. Briggs, on behalf of the Local Authority, has spent much energy in her written closing submissions and indeed in her oral submissions addressing this point. Her essential argument is that the children remained with their grandparents until sufficient evidence emerged to establish what she referred to as the high test for interim removal. This, I am afraid, will not do. The fact is that the Local Authority failed to analyse the evidence that was already available to it. Ms. Briggs talks of the need for ‘close scrutiny of all historical facts’; the need for ‘primary material’; for a ‘definitive history from source material’. The court, she submits, must be persuaded that the child’s welfare demands immediate separation. But section 38(2) is an interim protective measure. Of course the best possible evidence is required, both to establish it and the proportionality of intervention, guided by the section 1(3) criteria. It is the two in combination that point to what the child’s best interests require, or even, to adopt Ms. Briggs’ term (itself gleaned from the authorities) ‘demand’. Evaluation of risk requires balancing the two seperate sections: the reasonable grounds for believing that the children had sustained significant harm within the definition of section 31(2) of the Children Act 1989, analysed within the welfare checklist criteria, to evaluate whether or how best a child can be protected until such point as the evidence is fully marshalled and, if necessary, put to the assay in cross-examination. Ms. Briggs put the test too high. She does so, in my belief, in a brave attempt to justify ex post facto the Local Authority’s actions.

16. In the authority which she relies on, and cites to me, Re GR [2010] EWCA Civ 871, it is absolutely plain that Black LJ is precisely prescribing the process which I have just outlined. She says at para.41:

“The most recent case to which I would refer is Re B and KB [2009] EWCA Civ 1254 in which the appeal was against the dismissal of the local authority’s application for an interim care order. The trial judge had given himself what was described as an ‘immaculate self-direction’ in these terms:

‘whether the continued removal of KB from the care of her parents is proportionate to the risk of harm to which she will be exposed if she is allowed to return to her parents’ care.’

However, Wall LJ [as he then was] with whom Thorpe LJ agreed, was persuaded that the judge had failed to go on properly to conduct the required balancing exercise. He said:

’56. Speaking for myself, I find L-A helpful. I agree with the judge that the section 38 criteria were plainly met in relation to both children, but it is equally clear to me that KB’s welfare did demand her immediate removal from her parents’ care and that there was abundant material (not least the views of the police) which warranted that course of action. In my judgment, KB’s safety, using that word in a broad sense to include her psychological welfare, did require interim protection.'”

17. My criticism of the Local Authority is, that they did not really evaluate the risk to the child at all, and indeed later to any of the children in the public law proceedings at the interim stage. They have, rather, focused on the forensic difficulties of establishing the case. Even if that were a relevant consideration – and, in my view, it is not – then there was, in my analysis, proper material upon which to undertake the exercise.

I think this is a first for me, seeing an advocate representing the LA being criticised for putting the test for removal “too high”. 

 Clearly this case presented some significant forensic challenges and the marshalling of all of the evidence and properly testing it would require a lot of painstaking work, but the Judge’s critique here is that the LA did not assess the risk to these children based on the information that they already had.

18. The section 7 report to which I referred earlier is dated 11^th February 2011. It is signed by Alison Skerritt, the social worker, and countersigned by her deputy team manager, Dina Sturgeon. I quote only from two passages at pp.19 and 22 of that document:

“AMN, RMN and JMM have suffered little harm in their lives, and this is because they have lived with their grandparents who have protected them and kept them safe from harm. However, it would be fair to say that the children would be at greater risk of suffering significant harm if they were removed from their grandparents’ care to reside with their mother or their mother and LM, as SM is struggling to resolve her mental health problems. Furthermore, due to LM’s conviction, the Local Authority would recommend that he only have supervised contact with the children. [Later:] In conclusion for the reasons above outlined, the children are well placed and settled at their grandparents’ home. No concerns have been identified from any of the agencies involved, and the children and reports have in fact been very positive. As all parents are in agreement with the current arrangements for the moment, Mr. and Mrs. M have applied for a residence order to secure the wellbeing of their grandchildren.”

19. As I work through the evidence in this case, just how superficial the enquiries of the section 37 report and the 7 report were, I believe will become all too evident.

Later on in the process, the LA took a rather different view of the risks involved, and sought to remove the children and had a care plan of adoption. There was a long list of findings sought, but just looking at the findings that were AGREED is quite illuminating as to how those earlier assessments of risk were perceived by the Court.

23. (1) The mother has a history of mental health problems. She has a diagnosis of emotionally unstable personality disorder which causes her to behave in a volatile and impulsive manner. She has reported hearing voices. Mother has a history of attempting suicide by taking overdoses and self-harming.

(2) Mother has a history of substance misuse problems. Mother reports having misused cannabis, LSD, meth amphetamines and cocaine.

(3) LM has a history of substance misuse problems. He continues to smoke cannabis.

(4) The relationship between mother and LM is volatile and violent. The parents have hit and punched one another.

(5) On 1^st March 2012 mother telephoned the police and reported that LM had cut himself and threatened to jump out of their sixth-floor window. When police attended they found LM on the floor with two deep lacerations to his arm which were self-inflicted.

(6) On 20^th March 2013 mother telephoned the police and reported that LM had threatened to self-harm following an argument about money.

(7) The maternal family came to the attention of the Local Authority in 1996 when AM was 12 years old, because she had been running away from home.

(8) Several referrals were made when AM was 14. Referrals came from AM’s school, the police and the maternal grandparents. AM was absconding from school, running away from home, and was in a sexual relationship with KH, a man 20 years her senior, who had previously been in a relationship with the maternal grandmother and who claimed to be the father of JM and RM Jnr.

(9) AM was sexually abused by KH from the age of 13. The sexual abuse included penetrative sex. AM was introduced to KH by FH, her paternal grandfather.

(10) AM was memorandum interviewed on 14^th January 1999 and confirmed her allegations that KH had raped her.

(11) The maternal grandmother allowed FH to visit the home, help with the gardening and take A out, despite being highly suspicious of him.

(12) In early February 1999 AM took a knife from the kitchen and held her siblings hostage in a bedroom. She said she wanted to harm herself.

(13) AM was placed at Degra House, a specialist residential, unit on 3^rd August 1998 at the age of 14. She received intensive psychotherapy for the sexual abuse she suffered. AM presented as suicidal and self-harming during her stay at Degra.

(14) JM and RM Jnr. had behavioural difficulties in adolescence. They truanted from school, were eventually expelled and were sent to a tuition centre. Both boys were referred to an education psychologist.

(15) In 2006 JM and RM Jnr. were convicted of the manslaughter and robbery of AH, AM’s paternal grandmother. It is recorded that they were sentenced to nine years’ imprisonment.

(16) At the time of the twins’ arrest in 2006, a computer was found at the family home with 68 indecent images of children on it. No action was taken by the police regarding these images in light of the charges of murder against the twins. Ms. Briggs has advised me, and it is not contested, that these images were set at Category 4 by the Crown Prosecution Service, which, as I understand it, means that they involve images of penetrative sex with under-age children.

(17) JM and RM Jnr. both have diagnoses of severe personality disorder. They have both reported hearing voices, have expressed suicidal ideation and have self-harmed. They are assessed to present a high risk in the community.

(18) Prior to the twins being released, the maternal grandparents stated that they did not consider that the twins presented a risk to children and they disagreed with the restrictions placed on the twins.

(19) Maternal grandmother provided mother’s telephone number to JM prior to his release from prison. He then sent several texts of a sexual nature to the mother.

(20) The maternal grandparents have said that they believe the mother deliberately engineered RM Jnr’s recall to prison.

(21) In 2006 F was convicted of two counts of sexual activity with a child under 16. The girl concerned was 13 years old. She disclosed that she was asleep and woke up to find F touching her, her bra undone. F [by which is meant LM] was sentenced to two years conditional discharge, and was on the sexual offenders’ register for two years.

24. Those 21 findings are all agreed facts in this case. In my view, they tell their own story.

I won’t recount them all here, but in addition to those 21 agreed findings, a further 24 findings were made, including that at the time his daughter was being sexually abused in adolescence by an older man KH,  the grandfather was aware of this and that KH was boasting of it to him

1. 34.   (1) In evidence and cross-examination both maternal grandparents acknowledge that their daughter was indeed sexually abused by KH – a man 20 years older than she was – and that he had been abusing her since she was 13 years of age.

(2) The grandfather agreed that he knew KH had claimed to be in a relationship with a 13-year-old girl when he, KH, was 19. Moreover, the grandfather emphasised that that was something that KH “boasted about” (I use his phrase) and “bragged about” (again his phrase). The grandfather referred to KH in evidence as “a paedophile”, though it was clear that he was not entirely comfortable with that term, and later withdrew from it. He withdrew on the somewhat tortuous basis that KH might merely have been bragging about this relationship or, to put it another way, pretending to be a paedophile when he was in fact not one. In my view a rather ludicrous proposition.

(3) Both grandparents knew that FH was associated with KH, and they accept that he raped their daughter, A.

(4) The grandfather knew, and spent time with, KH, whom he knew, it seems to me, beyond any doubt, to be a paedophile.

I don’t think it will terribly surprise anyone that the Court came to the conclusion that the grandparents were not safe and that the children had to live elsewhere.