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Tape recording paying off

Prepare to be very shocked. And then very angry.

At the Transparency Project Conference on Monday, a question was asked about whether parents should be allowed to tape record discussions and conversations. Both Lucy Reed (www.pinktape.co.uk) and myself gave the opinion that where a parent wants to do this, they should be able to.  Social work can involve an imbalance of power with a parent, and where a parent feels that they want their own record of what was said, or to be able to go back to it later to hear it again, they should be able to.  That’s my own opinion, I don’t speak (as always in this blog) for anyone other than myself. But I think that the mood and the ground has shifted on that.

It is easier and easier for a parent to record conversations, and I can absolutely see why they might want to do it. I’ve always said to social workers that they should never say or write anything that they wouldn’t be happy hearing being read out loud in Court. Good social workers have nothing to fear from a parent recording them. It is awkward, it feels uncomfortable, but if you put yourself in the parents shoes for a moment, that must be how they feel all of the time. If it levels the playing field a little, that may be a good thing.

This case, decided by Her Honour Judge Lazarus in Medway County Court is a good example of how that really paid off.  Without the recording, would the mother have been believed? Hard to know, but it certainly provided incontravertible evidence of the most appalling behaviour that she was subjected to by those who were supposed to be helping her.

The case involves a huge catalogue of errors and lessons that need to be learned, and I think I’ll tackle it in two posts rather than one.

This particular issue of recording (both written records and sound recording) is worthy of its own piece, I think

Medway Council v A and Others (Learning Disability: Foster Placement) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B66.html

 

The case involved a mother with a learning disability, and an IQ of 54, who was British but of Indian origin.  The case began very poorly with the Local Authority placing the child in care through a section 20 agreement.  It seems that the lessons about misuse of section 20 are still not being learned. She eventually went to a mother and baby foster placement. There were arguments about whether that placement was the right sort of placement for someone with the mother’s needs – it wasn’t a specialist placement or one experienced in teaching and supporting parents with learning difficulties or disabilities.

 

  1. I find, and the SW accepted, that this was not an appropriate placement. I accept that Ms McG is an experienced foster carer and has successfully cared for children including her current charges for many years. I also accept that in the first couple of weeks she described getting on very well with the parents. However, Ms McG was not a specialist foster carer with specific training and/or expertise in working in partnership with parents with learning disability, as is recommended in the DoH Guidance (at 2.2.15). This placed A and the Mother, and indeed Ms McG, at a disadvantage which it was Medway’s responsibility to avoid. Ms McG explained that she underwent two days training a year as a foster carer, and that this contained elements relevant to learning disability such as having to speak slowly and make sure that parents understood. It was absolutely clear from her oral evidence that any comprehension she had of Mother’s difficulties was extremely limited. She described her as ‘unwell’ or that ‘she wasn’t well’. And she also, at the strategy meeting described the Mother as trying to ‘turn the tables on me’. She repeated this in her oral evidence, saying that Mother was ‘devious’, and ‘building [a case] up so that she would be removed from the house’ and that her actions had been ‘calculated to provoke me’. This implies a degree of cleverness, cunning and forethought that it is clearly beyond the Mother’s abilities, and thoroughly demonstrates Ms McG’s lack of understanding of learning disability. It is clear to me that Ms Mc G’s lack of experience and understanding in this area, and the attitude to Mother’s learning disability that she betrayed in her evidence, must have meant that her interactions with Mother were unlikely to have been sympathetic to Mother’s needs and therefore unlikely to have been successful in supporting Mother.
  2. I also accept that it was not ideal to place Mother in a non-Muslim household. While Ms McG had a Muslim teenager placed with her, this is vastly different to living in a Muslim household and being in an environment geared to and familiar with the practices and expectations of a very different culture. Ms McG was asked about her accommodation of Mother’s needs as a Muslim and gave three practical examples in that she had provided a mat for prayer and had bought halal food and not cooked pork, and had provided separate eating utensils which were not used after the first occasion. These were appropriate steps and I do not criticise the foster carer for doing her best in this respect. Parents cannot always expect to be placed in culturally matched placements, and it should not necessarily have determined whether this placement should be used, but it was an additional difficulty for an already vulnerable mother to cope with in an otherwise ill-suited placement in terms of meeting her and A’s primary need for an environment skilled in supporting parents with a learning disability.
  3. The SW acknowledged that a specialist foster placement or a ‘specialist placement setting’ (as in her email of 10.9.14 to her managers) should have been provided. She asked for a specialist foster placement and was offered this placement. I appreciate that Mother and Baby placements are a scarce resource, but if it was not suitable it was not suitable and an alternative resource should have been pressed for. The success of Mother and Baby placements often relies heavily on the direct relationship forged between a mother and the foster carer. This will become all the more crucial and potentially fragile where the mother suffers from a difficulty such as a learning disability. I find that Medway fundamentally let down A, his Mother and indeed Ms McG, by placing them together in what should have been evident at the time was an unsuitable arrangement.

 

 

Additionally, there were differing accounts of a dispute between the mother and foster carer. Each said that the other had been aggressive and hostile during an incident towards the other.  I am sure that parents who read this will be imagining how that plays out – the foster carer has recordings and credibility, the parent won’t be believed.

What happened in this case was truly extraordinary.

 

Firstly, the foster carers notes:-

 

  1. The foster carer’s records and statements gave me great concern. Her initial recordings are in the form of brief and informal emails. These recordings progress in late August/early September to more formal notes using a set form. The first set of her records filed by Medway in these proceedings was missing all her notes from 8.8.14 to 3.9.14 and the note of 14.9.14 and the document entitled My Personal Statement dated 15.9.14. By day 3 of this hearing most of those missing documents had been provided, at my direction, but notes for 11, 12, 19, 26, 27, 28, 30 and 31 August, and 3 and 8 September were still missing.
  2. When the foster carer attended to give her evidence, I directed her to email and bring on the following day any of those remaining missing notes that had been emailed at the time in August and September. I stipulated that these should only be the original emails bearing the original notes to ISP, so that we could be quite clear that they had been sent at the time and what they had said at the time. I also clearly explained that they should not be newly written up, but that I was directing the provision of only the original recordings sent at the time in August and September. This was not done by Ms McG. Instead she chose to bring newly written notes of most of those dates, unconnected to any emails. She confirmed that they had not been sent at the time, but she had written them up that night before returning to court with them, and had done so from her handwritten notes that she had found for the purpose.
  3. This was concerning in a number of respects. Firstly, they had not been written up at the time and thus were not sent, but neither ISP nor the SW noticed that these dates were missing. This is indicative of poor management and supervision of this placement by ISP and Medway. Secondly, she had claimed the day before that she had shredded all the hand-written notes that she had made, but was now claiming that she had found some notes. She had also claimed that she used a ‘diary’ to record her observations. This then became a ‘notebook’, the pages of which she tore out and shredded, and so she said she was unable to bring any original notes to court. I have taken into account her submissions that this was all a misunderstanding, and that she meant that she had only shredded the notes she had written up and sent. This was not what she told me during her oral evidence, and I find that Ms McG was dishonest and actively misleading about her note-keeping practice. I find that I cannot rely on her assertion that none of her original notes could be inspected, as she clearly then found some in order to cover up her gaps in recording. I also find that she did not regularly write up her notes each evening as she claimed, or there would have been no such gaps.

 

 

[This would have been a good point to deploy the nice bit of case law which was excavated in the Mirror phone-hacking case –  Armory v Delamarie  1722 http://www.bailii.org/ew/cases/EWHC/KB/1722/J94.html  a case in which a chimney sweep boy went to a jeweller to ask him to value a jewel. The jeweller pocketed the jewel and would not return it. Because the jeweller then concealed the jewel, how could one establish how much it was worth and what the chimney sweep was owed?

“. If the wrongdoer prevents the innocent party proving how much of his property has been taken, then the wrongdoer is liable to the greatest extent that is possible in the circumstances.”  

 

In short, if a foster carer shreds her notes, then the Court is entitled to take the dimmest view possible of what might have been contained within them.  ]

 

I have not before encountered a finding that a foster carer had been dishonest and misleading about their records. It gets worse

  1. The document My Personal Statement dated 15.9.14 (N45-46) differs from the placement recording note she completed bearing that date (N21-22). It appears to have been sent to Ms Down at ISP either late that night or the next morning as Ms Down attaches it to her email to the SW at 09:01 on 16.9.14. Ms McG claimed in her oral evidence that she thinks she wrote it several days later over the following weekend (20-21.9.14) and that is why it was not in her foster placement recording of that date. I do not believe that it was written so long afterward given Ms Down’s email. I note that My Personal Statement contains an inaccurate reference to the conversation in which Ms McG viciously shouts ‘piss off’ repeatedly at the Mother before slamming the door on her, characterising it instead in both the note recording and My Personal Statement as a rude attack by Mother to which Ms McG claims she mildly responded.
  2. We know however, having listened to the recording and read its transcript, that in fact the Mother was calmly and fairly meekly pointing out that the conversation was noisy for the baby and that Ms McG was ‘shouting so loud’ and that she did not ask who Ms McG was talking to as Ms McG claims. After a few exchanges of this nature Ms McG explodes against the Mother, shouting and using a remarkably vicious, loud and nasty tone:

    R….. piss off out I’m getting it on the phone piss off out R….. piss off out I’m on the phone when you on the phone chatting loud in your in your Pakistani language I don’t say anything I just grin and bear it yeah I don’t (indistinct) so piss off out and leave me on the phone piss off. Piss off when (indistinct) your Pakistani language I not saying anything I leave you (indistinct) but get with I don’t say anything to you right, so get lost”

    This is then followed by the sound of steps walking away and a door loudly slammed.

    Ms McG accepted that this is her voice and this was how she behaved to Mother on this occasion. She was unrepentant during her oral evidence, but in her submissions indicates she has now reflected on this and accepts that she behaved inappropriately, for which she now apologises and will be seeking support from her fostering agency. She claims that this inappropriate behaviour was as a result of repeated provocation and the breakdown of the placement. I shall return to that assertion later.

  3. I find it is significant that My Personal Document is written after this incident and is then sent to Ms Down, and contains an allegation against the Mother that she had slapped Ms McG that is not in the recording note covering that period; and that it also contains an inaccurately anodyne account of this wholly inappropriate loss of temper and swearing at Mother. I do not understand why its content about Mother slapping her was not included in the recording note of 15.9.14, unless it simply had not happened and so had not been written up into it earlier that evening.

 

So not only had the foster carer shouted at mother and racially abused her, but she lied about it in her notes and made up an allegation that it had been the mother who behaved badly towards her.  It isn’t easy to be sympathetic to a professional who has said the things set out above – and I’m afraid that I can’t manage it.  I do, however, place it in the context that this was a wholly unsuitable match from the outset and the blame for that doesn’t lie at the foster carers door.

 

I am afraid that it continues to get worse.

 

  1. Ms McG tried to claim in cross-examination that her tirade against the Mother on 15.9.14 that I have set out above did not use swearing, and that it was not ‘abuse’. This is obviously an absurd minimisation in the face of wholly inappropriate behaviour. She was thoroughly and vehemently unrepentant, claiming she would do ‘absolutely nothing’ differently. She also tried to claim that this was the only occasion she spoke this way to the Mother, and that the Mother had deliberately provoked her by coming down and asking her to be quiet. In her submissions she further claims that the parents began a campaign to complain about her and repeatedly provoke her in order to bring about the end of the placement so that they could live together and thereby preserve the Father’s immigration status. I do not accept these assertions. A good point well made by the Children’s Guardian’s advocate was how unlikely it was that on the occasion that Mother tries to record the foster carer it happens to be the only occasion the foster carer swears loudly and viciously at her. The Mother’s case is that she was recording her as she was not being believed about being treated abusively and that this was a regular occurrence. I find that it is highly unlikely that this was the only occasion, and that the Mother was indeed trying to record her following a series of such occasions of verbal abuse and mistreatment that she had tried to complain about. I also consider that it is highly unlikely that the parents could have planned such a campaign, hoping to get such a response from the foster carer, or could have predicted what outcome would arise from highlighting the problems they were experiencing.
  2. Ms McG also submits that her allegations against the Mother that the Mother was abusing and slapping her were not properly investigated and so she could not present her explanation fully. Ms McG attended a strategy meeting on 17.9.14 at which she repeated at least some of those claims, and was assisted by Medway’s legal department to prepare her first statement filed in these proceedings. Her agency ISP has supported her in making her statements and by attending court to support her attendance. Until a point in this hearing after Ms McG had completed her evidence, Medway itself was pursuing these findings against the parents. Ms McG was the source of these allegations and has been able to set them out in statements and repeat them to me and be questioned about them, and therefore I do not follow and reject this submission.
  3. There is no contemporaneous written note by the foster carer of her allegation that she saw Mother shaking the baby. It only appears via the recordings of professionals involved at the time and in the foster carer’s first statement dated 11.3.15 which provides little clarifying detail. The foster carer’s oral evidence was inconsistent with accounts recorded by those professionals. She said it took place soon after midnight and she demonstrated two slow shakes by Mother while saying ‘shush shush’ to A. The records suggest she claimed there were three shakes to the SW and paediatrician, and she subsequently accepted she may have said three shakes to them. ISP worker Ms Hannett’s account of what Ms McG told her was noted by the duty SW in the early hours of 17.9.14 and state that Ms McG told her she saw Mother holding A under the arms but with her hands behind his head. The call from a PC French also set out in the duty SW recording at 04:51 states that ‘the actual shaking incident did not involve the baby’s head moving separately from its body’. I conclude from these recordings made very soon after these professionals had spoken with the foster carer that they are recounting a description given by her of a limited kind of shake involving some protection of the head from moving, although it is difficult to imagine someone both holding a baby under the arms and holding their hands behind his head. This contrasts with the ‘vigorous shaking’ described by the foster carer to the paediatrician and repeated in the strategy meeting notes. Finally, Ms McG’s submissions refer to seeing Mother “jolt the baby whilst trying to shush him”, and this is a slightly different version again, and certainly not one shared at the time with the child protection and medical professionals. These descriptions were not greatly assisted by Ms McG’s oral evidence where she demonstrated two limited forward and backward movements. She was unclear when pressed about the position of Mother’s hands. She said she had not seen Mother’s face as Mother’s back was to her. She described Mother as holding A out in front of her, in which case I am not convinced that she could have had the clear view of what was happening in front of Mother’s body as she claims. For these reasons, and as outlined already in conjunction with the timing of her extremely abusive reaction to Mother on the night of 15.9.14 and the timing of Mother’s complaint against her on 16.9.14 of being pushed and hurt, I do not consider that this can be seen as a reliable account by the foster carer of having witnessed Mother shaking A. I was unsurprised when Medway chose not to pursue these allegations against Mother further.
  4. The second conversation, in which her adult son can be heard speaking, I also find to have been wholly inappropriate. The foster carer claims that some disrespectful comment by the Mother precedes the start of the recording and led to her son’s reaction challenging the Mother not to disrespect his mother. I acknowledge that her son does not raise his voice and I accept that on one level they do simply point out that she is not prevented from leaving but if she were to do so they would have to inform social services, but the foster carer does not intervene to control or limit the conversation which repeatedly challenges the Mother and in which she is accused of being attention-seeking. She joins in the conversation with a number of challenges and some sarcastic laughter. However, it is all conducted with a level of inconsideration bordering on scorn for her predicament and her learning disability. Ms McG claimed that there was nothing wrong with this conversation and that the Mother was attention-seeking. She should not have permitted or conducted such a conversation with the Mother, and (until receipt of her submissions) has clearly failed or refused to see why. As I have already discussed, this conversation is likely to have taken place some time on the morning of 16.9.14 before the situation escalated further.
  5. I am asked to consider whether the foster carer was racially abusive to the parents. She denies it, claiming that as she is black she is aware of how inappropriate it would be, and countering with her own accusations that the Mother called her a ‘black bitch’. In her oral evidence she added that the Mother had called her a ‘black bastard’ and said that she had never wanted to live in a black home. Being called a ‘black bastard’ has not featured previously in any account given by the foster carer. I am aware that the parents were indeed very unhappy at not being in a Muslim household, but given the manifest difficulties with the foster carer’s evidence and that Medway do not seek such a finding, I do not consider making such a finding against the parents.
  6. In her oral evidence the foster carer made some notable remarks. She repeated several times, and with almost as much venom and resentment as in the recording I have quoted above, that she had to ‘grin and bear it’ while the Mother was talking on the telephone ‘in her Pakistani language’. Mother speaks Urdu and is British of Indian origin. She never once in her recordings or her evidence correctly used A’s name, but dismissed this due to the name having been changed. She denied using the terms ‘Indian dog’ or ‘Pakistani dog’. She described the parents as ‘reeking’ of body odour that permeated her home, and in her emailed note of 15.8.14 wrote that they ‘absolutely stink’, a phrase she repeated more than once and with emphasis in her oral evidence. While I accept that she needed to draw attention to examples of poor hygiene, I find that the manner in which she did so was vindictive and pointed, and not simply a straightforward observation. Overall I find that there was an ongoing vigorous antipathy to the very physical presence of the parents in her home, that she resented listening to Mother speaking in Urdu, and I do find that she demonstrated in court gross racial insensitivity and a visceral dislike of the parents, nastily expressed. The evidence is however insufficiently clear to make any finding of racial abuse and I do not make such a finding against the foster carer.

 

 

Bear in mind that not only was the mother having to live in a home with this foster carer, but that this foster carer was (a) going to be a large part of the assessment of how mother was doing and whether she could parent AND (b) was supposed to be providing her with support and guidance, and one can see just how catastrophic a failure this placement was.  It must have been utterly unbearable.

 

The Council were rightly criticised for their failure to investigate the complaints made by mother about the placement and to take action

  1. It will be evident from what I have set out so far, that Medway did not adequately investigate these complaints by the parents. It is unclear whether Ms Down of ISP was requested to look into the earliest set of complaints, which included verbal abuse by the foster carer, or whether she was simply informed of these complaints and looked into them automatically as part of her role as supervising SW at ISP. It can immediately be seen that the SW of the agency being paid by Medway to provide this foster carer is in a compromised position with an obvious conflict of interest in doing so. The brief discussion of the complaints at the pre-proceedings meeting and LAC review meeting on 3 and 4.9.14 were not adequate: full details were never sought from the parents, nor their complaints properly noted in the social work records; the only forum for exploring the issues was at formal child protection meetings primarily concerned with other matters; no complaints process was offered or explained to the parents; and even the ‘agreement’ referred to at the end of the LAC review minutes was never pursued. This forms part of my concern that the parents’ complaints were never properly attended to or taken seriously by the professionals, but were dismissed as insignificant or unworthy of proper attention. This was a serious corporate failing by all concerned.
  2. It beggars belief that after the events of 16.9.14, when the foster carer was claiming that she had been slapped by Mother and Mother was claiming she had been pushed and hurt by the foster carer, that the SW encouraged Mother to return to the placement and her management sanctioned its continuation. Notwithstanding where the truth of those allegations lay, this was clearly not an appropriate environment for A, nor his vulnerable Mother. As I have already mentioned in considering the Children’s Guardian’s evidence, I find that this environment would undoubtedly have had an extremely negative effect on Mother, depriving her of the support of the Father, exposing her to unskilled and unsympathetic foster care, and in a hostile environment about which she complained but where her complaints were dismissed. It is unsurprising that she became anxious, upset and distressed and that the placement broke down.

 

 

This is the most dramatic of the failings of the case, but there were many many others, which I’ll deal with in part 2.  This case is a perfect illustration of the benefits of the President’s drive for transparency.  Her Honour Judge Lazarus is not (yet) in a position to make binding case law [though she does earn herself a Tag in ther blog], and so a case of this kind three years ago would not have been reported, I would never have seen it and the dreadful catalogue of poor practice and decisions would have been brushed under the carpet.  Never has the President’s motto of “sunlight is the best disenfectant” been truer.  We need to drag cases like this into the light, and hold them up to public exposure.

What happened here was dreadful and the only hope of stopping it happening again is to make sure that everyone sees just how bad it was.

If you want to know the outcome – the Local Authority were seeking a Placement Order – to place the child with adopters, and the Judge instead granted the application that mother and father should be placed with their child in a specialist assessment centre who could report fairly and accurately on whether they would be able to care for their child with the right support.

 

 

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

18 responses

  1. As you might guess from my nickname on this blog, I am a foster carer.

    This article leads me to want to make two comments.

    First, I’d love to say all carers are good, but like most walks of life it’s not true. My sad experience is that there are two essentially different kinds of people who become carers; those who do it because the want to help children, and those who want the cash. I’d like to think my actions over the years show I’m in the former group, especially the fact that to date I’ve never claimed beyond the most basic maintenance payments for the children in my care. I know, however, a fair number of carers (perhaps as high as 25% of the total in LA schemes, and maybe 50% in private agencies) who are of the “pack’em high and take the cash” approach. I mention this point first, because I neither want to claim all carers are perfect, nor allow all carers to be tarred with the same brush.

    In this particular case I don’t know enough to know which group the carer in question falls into, but I have my suspicions.

    Second, over the years, I’ve often found that recordings offer a huge degree of support in what can be an amazingly exposed role. I’ve had several extremely serious disputes with the LA, one of which ended up in the High Court, and whilst I’ve never had the nerve to actually present recordings, I did use them to produce near verbatim notes on key meetings, and these notes were critical to supporting our case. I suspect the LA in the end folded purely because they feared that recordings existed which would prove them to be liars if they challenged the contents of the notes. If I hadn’t had the recordings, and hence been able to produce the very detailed notes, it would have simply been their word against ours, and we might well have lost.

    However, it is worth nothing that all our recordings were without the agreement of the other party (if challenged we would still defend them as an aide memoire), because the moment you even broach the subject, you get a very cold response, the strong suggestion that you are acting in bad faith, and that your request shows a breakdown in your relationship with the department so serious that questions are raised over whether should still foster at all.

    I strongly feel this pressure to make recordings secretly is wrong, and that the default position when having meetings with social services is that recording those meetings should be your right if you feel appropriate. Police forces are increasingly moving to having body cams, and CCTV is common pretty much everywhere, so why not allow recording of what can be absolutely critical meetings with other representatives of the State?

    • More than one kind of FC, most are great and I love working with them to look after our children in care, but the most complicated ate those who see it as a status symbol – making them pillars of the community to be revered or saints. Carers also move as social workers do, looking for good practice in agencies as much as income. Motivation to foster is very important, as is motivation to be a social worker tbh.

      • Agreed. Sainthood syndrome doesn’t help anyone.

        I have to be honest and say that default recording is a double edged sword, and would, over the years, have caught a number of mistakes on my part for which I could have been dragged over the coals. Not lies, but examples of failure through omission, etc.

        One of the real problems in many walks of life is how you deal with mistakes. The problem is we’re all human and _will_ make mistakes. Early in the morning after a sleepless night dealing with challenging children is a common time for mistakes, but many other opportunities present themselves. If you are in a role where you are responsible for others, the consequences of mistakes can be serious. Many instances will also look much worse with the benefit of hindsight, than they do at the time.

        Personally I take the view that if it is a honest mistake, if you weren’t being reckless, if you don’t try and hide it, and you do all you can to put things right (and avoid re-occurrence), then many mistakes should be forgiven. This is very rarely the case if you are a foster carer, and I know people whole have been deregistered due to honest mistakes.

        This attitude actively encourages people to hide mistakes for fear of the consequences, which in turn stops people improving and leads to a cover-up culture.

        It is worth noting that one of the reason flying is so safe, it because the value of honest reporting is valued above punishment.

      • No one minds a mistake, we’re all only human, IF the other person was to say “oh gosh! I really did not mean it to sound that way” or “I’ve made a mistake saying that” but they don’t, they lie to cover the first lie then accuse the parents of lying about the lies.
        Record everything, I’m so gladiator did or there’d be one blue eyed, blonde haired baby long adopted on the basis of many, many lies

      • Gladiator = Glad I

        The worlds most stupid smart phone, autocorrect get it correct!!

    • Right right and right again, I’ve always said they should record as if in a police setting, only the liars have something to fear

  2. Jerry Lonsdale

    I don’t think there is a need in this case for “I Told You So’s” I am pleased that the recording issue is in the spotlight after the matter was debated on Monday at Conference,

    I will however like to place a huge amount of praise towards HHJ Lazarus in what must be used to set standards of how Judgments should be produced, being an outsider looking in there is no distinctions to be made where we are left with questions rather than answers,

    Every avenue covered in an easy to read fashion perfectly detailed and the flow of the judgment pointed directly to the concerns of both parents and the Local Authority, hat tipping is in order for that.

    It is quite a sorry case and criticisms are rife in the Judgment, it goes further to show how the solutions were found and pursued, that to me is more important than getting angry at the parents treatment especially towards the mother and although the anger is indeed justified, the Judgment reads that while the treatment of the parents is of grave concern the emphasis is about doing the right things now for the parents and child then deal with the failings later, that is far more important in these types of cases

  3. I think there is absolutely no problem with recording. As you say, it might feel a bit odd, but good practice can take scrutiny. My only reservation is the ease that digital recordings can be edited but I am sure something could be put in place to ameliorate that.

    I did refuse a recording once, foster carers wanted to record me. I wasn’t worried about content at all, in fact it would have helped my case if anything, but they are supposed to be professionals working in partnership with the LA & there was a need to explore the impact of that breakdown of trust.

    There was nothing good about the outcomes in that case for anyone.

    • It is tough when things get to that stage, but having been on the opposite side, I can tell you that refusing a request to record a meeting, makes the requesting party even more nervous.

      Generally the LA have much greater power than a foster carer (or in this case the carer has more power than the parent), and if trust has broken down, it is often because the carer (or parent) was verbally told (or believe they were told) X and then it turns out that this is not the case, and sometimes it is even denied that X was said.

      I’m not saying this is always deliberate (or that the fault is always with the LA/carer), but with the lack of any verbatim record these kinds of misunderstanding can occur. This is especially a problem given the frequent staffing changes which often occur in LAs, meaning that carers/parents can end up referring to critical conversations for which there are no record and where the LA representative involved is no longer around.

      Personally I now err on the side of very detailed emails after key meetings, noting exactly what I believe was said, but this can be very time consuming and in itself can appear to be over to top.

      In these cases, _both_ sides being willing to make regular, verbatim recordings of what is said, can be an excellent, low overhead, way of avoiding misunderstanding (because you have something you can go back and check), and can actually be part of rebuilding trust.

      Having said that, as mentioned in my initial comment, any such request is normally met with suspicion and a response about “professionals working in partnership”. This is frankly an unhelpful attitude.

      • I guess it can be, overall in that case, without going into too much detail; what I was saying was not heard because they didn’t like it. The recording wasn’t going to help more than the notes that were then typed up and checked back before being agreed. There is an issue with communication at the best of times, what we mean when we say what we mean is fraught with difficulties.

        I do think transparency and clarity are always important. As I say there were no good outcomes and no winners. and the request was symptomatic of issues I won’t draw out here.I often over record when things are tricky. Detailed emails are fine, again communication can go awry but they can be copied into case files verbatim.

  4. I cannot express enough how important it is to record! Everything, phone calls, drop ins, contact, meetings, they lie about everything … And don’t let them tell you its not allowed, that’s bs, they can say they don’t sgree, that’s fine, but if they don’t want to be recorded, it’s best they just don’t say nuttin’ at all

  5. Lots to think about here, but on the issue of recording. I have to say I’ve never really understood why Local Authority SW teams have such concerns about this . ( And it is an agency decision, not an individual one).
    In my own Independent SW assessments, I have asked family members if I can record our meetings on occassion – this saves me taking written notes which tbh I find somewhat opressive and can be offputting for those concerned.
    I would say though ( only speaking from my own experience ) that the way individuals request to record meetings can have an impact on the SW response – if the SW perceives it as threatening then they may be less open to it. Overall however I am of the view it can only be a good thing. As Suess said, it can seek to redress imbalance of power.

    • I agree entirely. Manner of asking is important, but so is the common default negative position from LAs. If everyone could get their head round the idea that a recording just represents an impartial, verbatim aide memoire, than life would be a lot easier.

      As noted recording is now default in many scenarios (courts, police interviews, applications for insurance, ATM machines, banks, even cycle cams) so people should just accept them in other environments where misunderstandings might have serious consequences.

  6. RoughRaabbit

    Great judgment – and the comment from Fosterer5 really shows the value of illicit recording, as a way f providing word for word recall, that can scare the other party into acceptance. But my favourite treasured nugget to take from/this post is definitely Armory v. Delamarie 1772. How useful is that in those many situations where the LA claim that the documentation went missing, for some reason the case notes weren`t written up, etc.? Might it be used in a situation that arose recently where a locum did a favourable assessment and said that the children would be home within 12 weeks, and then the LA denied the assessment existed, and said another would have ro be carried out… which they will of course ensure is negative?ssi

    • The Armory v Delamarie point was a bit tongue in cheek – not sure how much that would stand up. But there is already a principle in English family law that where a parent refuses to give evidence or provide evidence (ie refusing to do a DNA test or drug test) then adverse inferences can be drawn (and what is sauce for the goose is sauce for the gander). The Local Authority do have a legal duty to disclose material that may be unhelpful to their case (just as the police have a similar duty). If there ought to be recordings but they aren’t produced, I think the Court could be invited to draw adverse inferences that the documents would be damaging to the LA case.

      And as for getting a report, deciding you don’t like it and not disclosing it, that would be a breach. There is no such thing as litigation privilege in family cases (in criminal cases, a defendant can decide to get an expert report, read it and decide that it is unhelpful and thus ignore it).

      18. In Re L (Police Investigation: Privilege) [1996] 2 FLR 731 the House of Lords decided that litigation privilege does not apply in care proceedings. Lord Jauncey of Tullichettle, with whom the majority agreed, was of the view that care proceedings are non-adversarial in nature. Litigation privilege has no place, therefore, in relation to reports based on the papers disclosed in the proceedings and obtained from a third party within them. Accordingly all such reports must routinely be disclosed and served within proceedings; as should communications from any party with court appointed experts.

      19. However if the report in question was not prepared for the purposes of the care proceedings but for the purposes of criminal proceedings, legal professional privilege may still arise. In S County Council v B[2000] 2 FLR 161, Charles J. held (at 174/C-E) that the father could claim legal professional privilege in care proceedings in respect of his communications with medical experts who had been instructed solely for the purposes of criminal proceedings. Further the privilege is absolute (see p173/B-D) and the duty of full and frank disclosure which arises in care proceedings does not override that privilege (see p183/E-185/H).

  7. Dear Amber – your comment got swallowed up in all of the “Cheap Chanel Sunglasses” spam that I get every day, not sure why, and it deleted in front of my eyes as I was reading it. Could you post it again?

  8. Pingback: Tape recording paying off | Children In Law | ...

  9. As a mum of two boys stolen because 1) I was sexually abused as a child for 6 years (didn’t tell anyone until j was 16 and he was dead and 2) because my oldest was conceived as a result of being raped and I refused to give him for adoption or have an abortion when they told me too at 16 weeks I find this disgusting. Im working on a campaign tp reform the system. In the process of setting up a petition and also bringing a human rights case on behalf of my oldest who has suffered actual emotional harm at the hands of his social worker. If anybody would like to see what my campaign is about please feel free to search up the people against negligent social workers on facebook or follow the Link above. Heart goes out to this mother and her child for what they experienced

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