These aren’t earth-shattering judgments (though I think that both are very well written and constructed, and worth sharing for that alone) and they aren’t precedent authorities for any points, but both raise practice issues which are valuable, and they also show that Judges are prepared to call out faults when they see them.
They also both have happy endings for the families concerned, and that’s nice to see.
The first is in relation to a Guardian,
Re R (Care proceedings :Rehabilitation) 2014
http://www.bailii.org/ew/cases/EWFC/OJ/2014/B193.html
It involved two children, one nearly 8 and one 4 1/2. The Local Authority final plan was for both children to be returned to their mother’s care, the Guardian opposed that and wanted the children to be made the subject of a Special Guardianship Order and to live with their current foster carer (a family friend).
This is what the Judge said about the Guardian’s evidence and report.
217 There are two aspects of the guardian’s final report that concern me. I have noted that in his analysis of the advantages of being brought up by a natural parent the guardian said very little about the benefits of that, although it is universally accepted by professionals and the courts. He provided helpful answers when I specifically asked him about it, and Miss Shah in her oral submissions suggested that the advantages are so obvious that the guardian did not need to set them out in his report. In my view, that is not the appropriate or just approach to the analysis by a guardian who, in a final report, asks the court not to return the children to their mother’s care, and it would be a pity if that omission perpetuated the mother’s impression that the guardian remained set in his views against her.
218 I also found it remarkable that in his final analysis the guardian did not mention Miss Jones’ report. There was no summary, no analysis, nor any explanation of his reasons for rejecting the views of a jointly instructed expert. That he does reject her views is obvious from his position, and he had raised questions with her at an earlier stage. Nevertheless I consider that a serious omission.
219 Further, I noted that the guardian described the carer as a member of the children’s family and argued for a different approach to the right to family life on that basis, although he had previously described her as a “family friend”. Also in his oral evidence he referred to the children’s attachment to their mother as “insecure”, although he had previously described it in his report as “secure”.
220 These two matters have raised a concern that at the final hearing aspects of the guardian’s case have been overstated in an effort to support his argument that the children should remain in the care of the carer.
221 The guardian considers the case as finely balanced, but ultimately prefers the “status quo”, the continuation of the children’s placement with the carer under a special guardianship arrangement. He considers the local authority’s final care plan to be “high risk”. I accept that if the mother does relapse and the rehabilitation plan breaks down it would be catastrophic for the children. I have considered the other risks. I am persuaded that the mother will deal with them with support robustly.
And in case you think that as a Local Authority lawyer, I’m just reporting a Guardian getting a hard time for my own amusement, the next case involves a Judge seriously criticising social workers.
This is Re EH (Supervision Order) 2014
http://www.bailii.org/ew/cases/EWCC/Fam/2014/B78.html
This case involves a girl aged 6 1/2. The final order made was a Supervision Order , which means that the girl would live with her father.
This is what the Judge had to say about the complaints that the parents made about the way they were treated by the Local Authority.
63. a) I deal with this issue here, not because the local authority’s capacity to care for EH arises, but because its approach has had an evident impact on all those discussed above, and with the agreement by all parties that there should be a Supervision Order it is clear that the Local Authority’s future conduct of the case will have an important effect upon EH’s future care.
(b) The parents, Mr and Mrs B and the Guardian have all raised concerns about the approach taken by the Local Authority in general and this Social Worker in particular.
(c) I am aware that it can be said that parents are bound to criticise a Social Worker involved in child protection proceedings relating to their child, and that the Social Worker is in a no-win situation, but it is not as simple as that. The roles a social worker and a local authority play are crucial and must demonstrate a real effort to work in partnership with a family, a readiness to try and rebuild a family and identify support to do so, a fair and robust analysis of all the information available, and sensitive interaction with the family to support all the above.
(d) I have already noted a number of concerning features earlier in this judgment: a failure by the Social Worker to include and consider carefully all the available evidence of the Father’s relationship and interaction with EH, and particularly her own s37 analysis; an unquestioning acceptance of the extreme analysis of the FAST assessor; a failure to include in the social work analysis of EH’s presentation during the FAST assessment crucial information that the Mother had told EH she might be removed into foster care and other potentially relevant factors; a failure to provide any adequate analysis of EH’s needs in terms of her close and loving relationships with her parents and the impact upon her of being removed from their care with limited contact; and an excessively rigid and negative reaction to the concerns raised in Mr and Mrs B’s viability assessment.
(e) As already mentioned, the downturn in the Local Authority’s approach and the parents’ relationship with the Local Authority and the Social Worker appears to have begun with the angry response received by the Social Worker and Practice Manager Jenny Jones in mid-March 2013 when Father was requested at short notice to extend his weekend staying contact. The negative viability assessment of Mr and Mrs B by the Social Worker followed in May 2013. This appears to have been communicated excessively bluntly and negatively to Mr and Mrs B, according to their account to the Guardian (E125). I take into account that they were not questioned directly about this while giving evidence and so I have to rely on the Guardian’s account of her conversation with them, but I also note that they were not challenged that this had been their experience, and I find that they had no reason to lie about this to the Guardian and they came across as entirely honest and helpful witnesses. I have subsequently seen an entirely proper letter, sent on 5.6.13 shortly after these conversations took place, setting out advice to Mr and Mrs B as to what steps they could take. By then however, that damage was done.
(f) The proceedings were then issued and first steps taken to progress the case. On 21.8.13 a FAST planning meeting took place between the Social Worker, Ms Mayet the FAST assessor and the Father. I have already found that his approach was hostile and unhelpful in trying to arrange dates for the FAST assessment. However, it was followed by the Social Worker, later at the same meeting, pressing Father to sign adoption medical consent and parental health forms. I accept the Guardian’s evidence that this was poor professional practice, and in any event it lacked sensitivity or any awareness of the meaning of these proceedings and assessments for the parents. A meeting about the Local Authority’s plan for adoption (even if a parallel plan) should not ride immediately on the back of a meeting that is about the assessment of that parent’s parenting. It will instantly undermine the parent’s faith in that assessment, particularly where the Local Authority is the assessor, and will appear to be grossly insensitive and as if the Local Authority are approaching the case with a closed mind. A separate meeting with a proper explanation of the parallel planning process should have been conducted.
(g) A similar and wholly unnecessary pressure and insensitivity was evident in the Social Worker’s actions on 8.11.13. On that date DJ Pilling’s judgment relating to the parents’ and Guardian’s applications for further assessment by ISWs was awaited from the contested hearing the day before on 7.11.13, and was handed down by email on the afternoon of 8.11.13. However, the Social Worker persisted with a meeting with Mother on 8.11.13, with the approval of her manager Jenny Jones, at which she sat with her for a lengthy period of time persuading her to complete parts of the Child Permanence Report which covers the views of the parent in relation to the proposed plan for adoption and contains a section relating to what information the parent would like the child to know in the future if adopted. I have seen that document. Understandably, the Mother described herself as intensely distressed by this exercise. The excuse for putting this highly vulnerable Mother through this was that the Social Worker had to prepare documents for the Agency Decision Maker to consider the Local Authority’s plan for adoption and that she would have been in trouble if the documents were not ready. However, she of course conceded that as soon as an assessment is to be carried out an ADM is not in a position to approve a plan for adoption, and of course it turned out that DJ Pilling’s judgment confirmed that both the Father and Mr and Mrs B should be further and independently assessed. Simply waiting one day for that decision would have saved the Mother a great deal of unnecessary distress and saved the Social Worker a waste of her time on preparing wholly unneeded documents. I could not fathom what drove the Social Worker and her manager to continue with this course of action in those circumstances. It cannot but have led the family to be convinced that the Local Authority was not prepared to think supportively and openly about the possibility of EH remaining in her family, and that the Social Worker was prepared to put the Mother through an intensely distressing experience come what may.
(h) Given that one of the key criticisms of the Mother was that she was failing to engage with the Social Worker, and of the Father was that he was aggressive and abusive to the Social Worker, I find it astonishing that she should take (or have been advised to take) such insensitive steps that cannot but have worsened the prospect of improving her working relationship with each of them.
(i) The Guardian was also concerned that the Social Worker called the police twice to EH’s home, in summer 2013 and February 2014. She considered that this was excessive and heavy-handed, particularly where a child is attending school and contact with another parent, and she could be seen through the window in summer 2013. It had a frightening impact on EH and again must have led the family to feel that the Social Worker had an excessively negative attitude towards the family.
(j) I note and accept that the Social Worker has agreed with hindsight in her oral evidence that some of these steps were not best practice and expressed regret through the Local Authority’s advocate for some of these actions. However, the matter unfortunately goes a stage further.
(k) In her final statement dated 21.2.14 at C143 the Social Worker reported a comment of the Mother’s that she had not in fact wanted the Father to spend Christmas with her and EH. The Social Worker then used this comment to suggest that the Father was again being inappropriately overbearing and that the Mother was being excessively weak, with consequent damaging exposure of EH to their relationship difficulties. However, during her oral evidence the Social Worker let slip that the Mother had in fact invited the Father to come for Christmas as EH had requested it. This is wholly absent from her written account and as a result it becomes a distorted and wholly misleading version of what occurred. Nowhere is the Mother’s willing and appropriate response to her daughter’s request mentioned. I am astonished that this could be characterised by the Social Worker as the Father overlooking the Mother’s feelings and the Mother being too uncomfortable to assert her wishes against him, when it was clearly nothing of the sort. This level of distortion to fit the Local Authority’s case is unhelpful in the extreme, unprofessional and frankly a misrepresentation of the true situation.
(l) Additionally, last week the Social Worker concedes that she answered Mother’s questions about what would happened at the end of this case by openly discussing in front of EH the need to pack a bag for EH. I fail to see how this should have arisen at all. The Social Worker should have either had this discussion long before with the Mother or should have deflected her questions so as to have the conversation in EH’s absence. This was a hugely insensitive and potentially destabilising discussion for EH to overhear. It is frankly flabbergasting to hear that that a child protection professional has acted this way. It is as if the child’s feelings are invisible.
(m) I must express my disappointment at having to consider these examples of the Local Authority failing to approach this case sensitively and with the aim of truly working in partnership with a family, and I consider that the family’s concerns as to the insensitive and negative approach they have been treated to are justified. Some examples appear to be the responsibility of the Social Worker and some of her management within her team. The attitudes betrayed by these examples must change for the Supervision Order to be properly administered by the Local Authority in EH’s interests. This is particularly the case given my findings in relation to EH and her Father that do not follow the Local Authority’s position adopted thus far.
(n) I am very grateful to the Local Authority for the addendum document dated 13.3.14 which adds to their care plan. I am also grateful for the Local Authority’s decision of which I have been informed this morning: to change the team which will be responsible for the Supervision Order. The Local Authority had originally confirmed that the Social Worker would change but that the team would remain the same and the manager Jenny Jones would remain in direct charge of the case. The Guardian had expressed the view that it would be preferable for the team and the manager to change. While aware of the limitations on my powers, I concurred and I had invited the Local Authority to think carefully and creatively about how to achieve the fresh start that it appears from the concerns set out above are urgently required to serve this family fairly, to enable the Local Authority, the Senior Social Worker and the Professional Assistant to look at these parents with a fresh eye, and to be able to work in partnership with them successfully. I had reminded the Local Authority to consider the guidance of Sir James Munby P in Re BS (2013) at §29 in terms of doing what is necessary to make the orders of the court work and not to be limited by resource arguments.
It is important, and in saying this, I’m aware that my own words might come back to haunt me in the future, that where parents have not been treated fairly and professionals have not behaved as they should, that Judges properly call them out on this, as these two Judges have done. Care proceedings are terrifying and confusing for parents and the very least that they can expect is that professionals treat them fairly and with dignity.
suesspiciousminds 
treat parents failry? thats too much wishful thinking !! lol
in the latter case I like the use of the “Lucas Direction” I had to use such a few years back, and if we cast our minds back to the early judgments of the Re. B case UKSC, prior to its red-carpet event at the Supreme it was also a pivotal factor in the early proceedings in that because a Parent was prone to lie was it detrimental to the child’s upbringing, obviously we know the determination of that.
I am still lost in translation that insofar back as 2010 and the infamous Re.D 1000 Civ case that every now and again we come across these cases that do make critical findings against an L.A the criticisms made should not be happening despite the wraith of Judgments that have followed since Re D in 2010.
I am almost certain that when significant or value judgments are published like the EH case are those findings passed down to the front line workers, do any form of meetings ever take place between middle management and Social Workers to the feel of the courts and recent court judgments, I would hazard a guess that it doesn’t and maybe that is why we see on the odd occasions these EH Judgments describe.
It is plain that although we see Social Workers present in court hearings do they really take on board the discussions being had
Should there be a new policy in place that DCS’s should ensure that the feelings and critical judgments from the courts are passed to those on the front line, which I know would avoid further embarrassment
Unfortunately, the Transparency Project has not been effective in getting social workers to be held to account for their failings. Universities are still producing social workers trained to think that all parents can be helped and trusted but when this fails they feel let down and tend to become punitive.
The College of Social Work is part of the problem because it is not interested in training children’s social workers so that they have the skills for constructive work during care proceedings. Brigid Featherstone, the Children and Families Faculty Chair at the College, is more interested in ‘reclaiming humane social work’ – but there is a curious absence in her recent book of any attention to the law and statutory duties. She is speaking at the conference organised by The Transparency Project on 1st June. Seems likes a good opportunity to ask her why social workers do not take heed of these criticisms from judges.
I have been involved in far too many cases where local authority social workers have deliberately portrayed very negatively slanted opinions of parents and extended family members. Often, this stance is part of a ‘groupthink’ mindset within the social services team and management structure. As with the case you reported yesterday, management supports and reinforces the bias, rather than providing proper professional supervision for the social worker to address his/her biases.
I have often wondered what is the formal responsibility of the local authority solicitor in such situations. It will be apparent to many such solicitors that the documents prepared by their ‘client’ (the social worker and management) are significantly biased (with the regular pasted-in phrases that are used in so many reports).
What is the responsibility of the local authority solicitor in such circumstances? Is the responsibility to the ‘client’ – in that ultimately ‘instructions’ have to be acceded to? Or, is the ultimate professional responsibility to the court to prevent misleading and biased reports being admitted as evidence?
How do local authority solicitors resolve this dilemma?
That’s a really good question Peter. As with parents lawyers, our primary duty is to our clients, but that also comes with the overarching principle that we must never mislead the Court. In order to give the best advice to a social worker, one has to be alive to the risk of a statement being too hard-line and giving an impression of unfairness and where that happens it would be right to advise about that. Particularly in the light of recent judicial comments about those matters.
It doesn’t help that court timetables (particularly post the President’s ire about being even half an hour late) don’t always give time for the lawyer and author to have as much discussion and meaningful dialogue about the statement as one would hope.
I have to be fair and say that it probably depends a lot on the lawyer and their personality – there’s a spectrum ranging from scrupulously fair even if it might weaken your case to dogmatic focus on the client’s wishes. I hope that I’m on the fair end of the spectrum, but I’m probably exactly the wrong person to try to decide that. Wherever you are on the spectrum, a statement that reads as a fair piece of writing and work can only be helpful to the Court making these difficult and life-changing decisions.