Author Archives: suesspiciousminds

Lies and the Lying Liars who tell them

Posted on November 16, 2012 by suesspiciousminds

 

A discussion of Re B (A Child) 2012

 

 

The case can be found here

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1475.html

 

 

I think this case is of interest, and it certainly interested two of the Appeal Judges, because it looks in quite a lot of detail at the intersection between odd, unusual and peculiar parenting and significant harm where the State has to intervene.

 

 

The case is rather neatly summed up by these two passages, firstly from Lewison LJ’s  judgment :-

 

  1. I have found this a very worrying case. In a long, detailed and careful judgment HHJ Cryan found that:

“I am satisfied that the threshold has been crossed, not perhaps in the most extreme way that is seen in some cases, but crossed it has been.”

  1. Yet when he came to make his ultimate order he made an order with a view to placing A for adoption; in other words to remove her from her parents forever. As I understand it that is, for practical purposes, the most extreme order that he could have made. How is that to be reconciled with his finding?

 

And then from Rix LJ’s judgment

 

However, standing back, I also wonder whether this case illustrates a powerful but also troubling example of the state exercising its precautionary responsibilities for a much loved child in the face of parenting whose unsatisfactory nature lies not so much in the area of physical abuse but in the more subjective area of moral and emotional risk

 

 

I know, from the comments I get on this blog, that emotional risk  or emotional harm is the area that concerns many of them the most. It feels nebulous and vague and tenuous, and rather as though it could catch anyone in the net and snare them, if they just happened to fall foul of the State.  And of course, it is the one area of child abuse that couldn’t  result in criminal proceedings being brought – what the parents are alleged to have done is not treat their child in an illegal way, but just an improper one.

 

 

Let’s have a look at the harm that the LA alleged was posed by these parents

 

 

  1. The local authority’s case was that each of the parents posed a significant risk to A. The cornerstone of their threshold case was as follows:

“[M] and [F] have innate psychological and/or personality issues and/or anger management issues (in relation to the father) which are likely to impair their ability to provide good enough physical and emotional care of their daughter. [M] has been assessed as suffering from a significant disturbance of psychological functioning, being best described as somatisation disorder and has a long standing history of engaging in deceptive behaviour.

There is a real risk that A’s emotional, education and social development will be impaired as a result of the parenting and emotional nurturing she is likely to receive by her parents due to their own innate issues; this leading to a real risk of significant harm.

[F] does not accept the fact that [M] can be untruthful nor that she is a risk to A. He is not therefore a protective adult for A.

[F] is unable to communicate in an open and honest way with professionals and accordingly exacerbates the risks to A.”

  1. As the foundation for this, the local authority relied upon findings made by Judge Cryan in the proceedings relating to AE about M’s relationship with Mr E and about M’s untruthfulness, demonstrated inter alia by her criminal convictions. They also relied upon a number of other features including:

i) M having continued to live with Mr E despite his abusive behaviour and, when she left, having left AE behind with him;

ii) The apparent difficulties in M’s relationship with AE;

iii) The risk to A of unnecessary medical investigations and treatment flowing from the somatisation disorder that two psychiatrists had diagnosed in M;

iv) The risk that M may impair A’s moral, emotional and social development by involving A in her deceptions and exaggerations, termed in the threshold document a “tendency to pathological lying”;

v) The problem created by social services and other professionals being unable to rely on the truth of what M says;

vi) F’s long history of criminality and drug use;

vii) F’s refusal to engage with the local authority’s attempts to find out about him and to assess him, his failure to be open and honest with professionals and his deep hostility to social services including his threatening and aggressive behaviour towards them;

viii) F’s unwillingness to accept that M poses any risk to A and therefore inability to protect A from her.

 

 

 

Apart from the issue of father’s drug abuse, of which not much seems to be made, the rest of this seems to boil down to  ‘the mother is a pathological liar’ and that might bring about harm to the child.

 

Whilst the totality of the case makes it pretty clear to me that there were sound reasons for believing the mother to be a pathological liar, and the Court of Appeal were very complimentary to the way that the trial judge had carefully sifted and weighed all of the evidence,  I have to confess that I am struggling for concrete risks that having a pathological liar as a parent causes to the child.  Some of the lies she is reported to have told are bizarre, odd and strange, and it is not a massive leap to suggest that a child exposed to them might find it bizarre, odd and strange that such lies were routinely told by a parent. But, I’m not sure that amounts to significant harm, or risk thereof.

 

There’s a hint at it in this line :-

iii) The risk to A of unnecessary medical investigations and treatment flowing from the somatisation disorder that two psychiatrists had diagnosed in M;

 

which implies that mother’s pathological lying might extend to making up illnesses or need for treatment of the child.  In part because some of her pathological lying has manifested in her lying about her own medical situation to get attention. So it might transpose to the child (back at Munchausen by proxy again).

 

Well, it might.  They don’t say that it HAD done this, and if it HAD, the LA would surely have been relying on it, and I think that’s a bit of a stretch.

 

It seems to me that this risk could be pretty comprehensively managed by the GP and local paediatric department being alerted to mother’s somatisation disorder, which presumably they had on the files about her anyway, so they would know not to take everything she said about A’s health at face value.

 

 

 

There is an interesting criticism of the Guardian by the original trial judge, which I think flows from working practices rather than any poor work on her part as an individual  (yes, I am back on my Homeopathic Guardians hobbyhorse)  – although the fact that in the previous paragraph she had not understood the limitations of an Interim Supervision Order was pretty troubling.

 

 

Judge Cryan’s judgment set out the limited role that the guardian had played during the care proceedings and the judge’s concern that in a case of this complexity she had not been able to engage more closely so that she could help the court from a more personally informed position. Her assessment of the family support network was described by the judge as “virtually useless”. His overall conclusion about the guardian was that she was “an unimpressive witness whose input to this complex case was little short of superficial”.

 

 

 

On threshold, this was the passage where the Judge decided whether it had been crossed

 

  1. Judge Cryan said [189]:

“I am satisfied that the threshold has been crossed, not perhaps in the most extreme way that is seen in some cases, but crossed it has been. I am satisfied from the evidence of Drs Bass and Taylor that when A was taken into the care of the local authority some two years ago now she would have been at risk of significant harm from the care likely to be given to her by her parents. I am satisfied that the mother suffered from each of the disorders which the doctors have diagnosed and following on from that I accept their evidence that in the way described by them there was a risk of significant harm being caused to A. In addition, though for the purpose of the section 31 threshold such considerations are otiose, I am satisfied that the matters identified by Ms Summer, whose evidence I accept, cause me considerable concerns. In particular, curious as it may seem in light of the parents’ obvious commitment to contact, I would be seriously concerned about the parents’ capacity adequately to promote her emotional welfare if she was in their full-time care.”

 

 

The parents appealed, relying in large part on the doubt that the behaviour alleged by the LA, could (even if proven) constitute a risk of significant harm.

 

I liked this passage from their submissions

 

  1. Counsel invited our attention to a number of authorities, domestic and European, in order to provide a framework for the consideration of their factual submissions, whilst rightly identifying that there is relatively little authority on the meaning of “significant harm”; I will consider some of this jurisprudence a little later. Counsel submitted that the section 31 threshold is not a low threshold and that the requirement that the harm should be “significant” should not be diluted but interpreted in the light of the fact that any interference with family life must be “necessary”.
  1. They argued that the risk at its highest is that A “may develop unacceptable or unusual behaviour” but that it is not said how that would harm her or others.
  1. In a passage of their skeleton argument which brings to mind some often-quoted words from Hedley J’s judgment in Re L (Threshold Conditions) [2007] 1 FLR 2050 (see below), they said:

“Many parents are hypochondriacs, many parents are criminals or benefit cheats, many parents discriminate against ethnic or sexual minorities, many parents support vile political parties or belong to unusual or militant religions. All of these follies are visited upon their children, who may well adopt or ‘model’ them in their own lives but those children could not be removed for those reasons.”

  1. They submitted that to justify interference in family life, the harm which is foreseen must have some element of immediacy or at least reasonable proximity which is lacking here given the number of contingencies upon which it depended and given that the general practitioner would act as a safeguard against problems developing.

 

 

And I have to say, I don’t really disagree with any of that.  To this point in the judgment, I am still struggling to see what transforms this from being a child who will be brought up in an odd, unusual and possibly downright peculiar environment to one who would be significantly harmed by the parenting she received.

 

 

 

 

 

 

 

 

 

 

This is how Black LJ squared that particular circle

 

 

  1. Although a significant focus of the argument before us was upon M’s medical behaviour and particularly upon whether her somatisation was sufficient to justify the orders the judge made given that there was no evidence of inappropriate consultation since she left Mr E, and whether she could additionally be said to suffer from factitious illness disorder, in fact the judge’s consideration of the case was rightly considerably wider than this. All the professionals involved in the case, whether or not advising that A should be united with her parents, accepted that there were risks. The focus of each individual witness varied depending on their point of view but the field was not limited to the acknowledged risk that M’s distorted behaviour in relation to illness (whatever it may be termed) may not be historical only and may revive. It included also wider risks to A’s emotional welfare posed by M’s personality problems and her non-medical behaviour, as well as F’s conduct separately and in conjunction with her.
  1. Given the focus of the hearing before us, I will deal in some detail with the type of harm that I consider the judge was entitled to find was a real possibility here. I do not accept that he erred either in the harm that he identified or in treating it as of significance. Furthermore I do not accept that the judge’s reasoning about harm and risk is confined to the latter parts of his judgment; he refers to both issues repeatedly throughout it as I hope can be seen from my earlier summary of the judgment.
  1. The judge was clearly aware of the need to look critically at what harm there actually was and in particular to separate that issue from the question of whether the parents would cooperate sufficiently with social services. This was evident not only from the judgment but also from a passage to which we were taken in the cross-examination of the social worker where at one point the judge intervened to explain to her that it did not matter how uncooperative parents were with social services if there was no risk against which social services needed to guard. He isolated for her the questions, “What is the risk to A that is actually being guarded against?” and “Why is it necessary [for social services] to engage with M?” (transcript 7/35).
  1. The corollary of the risk of M’s medical behaviour reasserting itself was the risk that A would be harmed by the “intergenerational transmission of abnormal health behaviour” and “excessive medicalisation”, which terms are self-explanatory even if not part of everyday language. This harm would not necessarily be physical but the judge did not discount the risk of physical harm. He is criticised for his acceptance of such a risk. The criticism is misplaced in my view. He found only that there was a risk of over-treatment or inappropriate medical treatment. He was undoubtedly entitled to find that there was a risk that M’s illness related difficulties, if they reappeared, would lead her to present A inappropriately to doctors and unnecessary treatment was a logical potential consequence of that. His finding about the parents’ approach to A’s health whilst she has been in foster care added substance to this risk as did M’s exaggerated description of A’s condition on her hospital admission to which both Dr Taylor and Dr Bass attached significance and which might, if repeated or made to those not in possession of the facts, influence her medical care as the judge said.
  1. Ms Summers dealt with the harm flowing from M’s chronic lying and F’s active tendency to dishonesty [192] in her report at paragraph 6.5. She considered that as A got older and reached more sophisticated levels of understanding, she would become aware that her mother’s version of the truth differed from her own which would be confusing for her and force upon her difficult decisions about whether or not to collude with her mother against the outside world such as friends, school and professional agencies. She said that exposure to persistent and longstanding patterns of lying would present a moral risk to A, potentially making it difficult to differentiate right from wrong which could lead to problems with her social and emotional development affecting school life, friendships and other relationships. Continued exposure to deceptive behaviour was likely, she thought, to result in A adopting similar styles of behaviour which would potentially have serious consequences in later life, such as delinquent/criminal behaviour.
  1. The judge said he shared Ms Summers’ view but he had plainly also made his own assessment of the likely emotional risk/harm to A from features of the case other than M’s illness related behaviour. He had the evidence of Dr Bass and Dr Taylor that M had personality problems and he had found a catalogue of ongoing deception which Dr Bass had indicated he would find very concerning. The catalogue can be found in full in the judge’s judgment and I have referred to it above so I will only briefly draw together a few of the features here.
  1. I would attach particular importance to the findings that the judge made about M’s position in the E household. M had plainly suffered very considerably in that household and she deserves sympathy for the abuse inflicted upon her there but the judge’s findings disentitle her from arguing that she was solely a passive victim and that her problematic behaviour will not recur. There was, to borrow phraseology from the guardian’s skeleton argument, a problem about learned or ingrained behaviour. The judge did not see M’s role in the E household as entirely inert [22]. In the April 2011 judgment, he described her as “a habitual and purposeful liar and accomplished fraudster” and said he could not see that there had been any very marked improvement in her truthfulness despite her nearly two year separation from Mr E. Her use of complaining tactics since she separated from Mr E, as detailed in the judge’s current judgment, led him to describe her as “an accomplished pupil of Mr E” [131]. The incident when M behaved vindictively with CN was redolent of the E household and worrying. It will be remembered that the judge also found that her dishonesty was pervasive and not merely reactive to a given situation such as the proposal that A should be adopted [165], giving examples which substantiated this assessment.
  1. F could not be relied on to curb the excesses as he had known of M’s inappropriate activities and furthermore had not been entirely candid himself in ways which the judge described. The judge also found him to have very poor impulse control and to have an assertive wilfulness about him as well as a problematic way of approaching authority including social services. The wider context was that F had not played a full role in the upbringing of his other four children and had an extended history of criminal behaviour and of taking Class A drugs, albeit that in more recent times he had not been convicted of any offences and had confined himself to cannabis.
  1. The judge’s assessment of the couple’s relationship was that they were deeply loyal to each other against the world, viewing the world of authority with great suspicion and sharing a disregard for the truth and integrity of conduct [54]. It will be recalled that he referred to their “characteristically toxic reaction” when matters did not please them as they probably would not at times [177] and said that they were “controlling and wilful” when challenged on some of the distorted elements of their world view or faced with a refusal to be compliant [196]. Commenting that there was a high probability that F would not separate from M in any meaningful sense in order to bring up A alone, he said that “their mutual tendency to lie and deceive is so profound and effective that there would be no way in which the situation could be effectively monitored and A safeguarded” [199].

 

 

You may, like me, still be at the  ‘it is all pretty unsavoury, but am still not sure it crosses threshold and results in adoption, because it still boils down to being mum is a lying liar’ point

 

Black LJ presses on

 

  1. Counsel for M submitted that non-medical risks of the sort identified by the local authority and the judge were not what the Children Act was driving at. However, I agree with counsel for the local authority who submitted that it is a question of degree. The judge was best placed to assess the situation as a whole and to make the necessary value judgment about whether the threshold criteria were established and whether a care order was required. Somatisation might not have been an active problem for M in recent times but the same could not be said of her other maladapted behaviour and the judge was entitled to take the view that he would have to proceed upon the basis that there would continue to be problems. The emotionally harmful effects of maladjusted behaviour, albeit it may be said that they were in a more extreme form, had been amply demonstrated in the course of AE’s case. That the judge had made the link with this can be seen from his remark at [155] that the “highly undesirable isolation of the E household comes to mind”.
  1. It was argued on the parents’ behalf that the risk/harm was not sufficiently immediate. No doubt it could be said that A, at her present age, would not be old enough to appreciate the difficulties in her parents’ behaviour. However, a child’s emotional and social development begins from the earliest stages whether he is conscious of the influences upon him or not and, as the social worker said in her statement (C44), the actions and behaviours of parents can have a long lasting effect on children from an early age. Furthermore, this was not a case in which there appeared to be any realistic hope that things would change in future and a placement of A at home followed by a later removal into care would import a danger of more emotional damage plus even greater difficulties in finding a suitable permanent placement.
  1. In short, the catalogue of problems identified by the judge went beyond the routine; the problems were undoubtedly more than commonplace human failure or inadequacy. They were also of long standing and had not only manifested themselves in response to the intervention of this local authority. There is no doubt that the judge was entitled to take the view that any strategy to manage the risks would have to go beyond the safeguard of the watchful eye of the general practitioner and would need to involve social services. The parents needed to have the capacity to engage with professionals to ensure that A was safe from harm and there was ample evidence on which the judge was entitled to conclude that they would not be able to do this.

 

 

Nope, I’m still with the parents on this. The two other Judges basically came down to saying that the trial Judge could not be said to have been plainly wrong, though hinting that they might have reached a different conclusion, and the appeal was refused.

 

My gut feeling, and of course seeing the full case and hearing all of the evidence is an entirely different affair, is that on the headlines of what is alleged to have given rise to threshold, I don’t believe threshold is met. But I am wrong, because the Court of Appeal have decided otherwise.

 

I don’t think we have seen the last of risk of emotional harm as a topic ripe for litigation and clarification.

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Take my breath away

Posted on November 16, 2012 by suesspiciousminds

A discussion of A Local Authority v A mother and others 2012    (which has to be the most anonymous of anonymisations I have seen to date… I  almost wish they had called it  Some organisation versus Someone 2012  – or  Applicant versus Respondent 2012, you can’t get much more anonymous than that)   – let’s call it “the Asthma case” so that we can remember it.

 

 

The case can be found here

 

http://www.bailii.org/ew/cases/EWHC/Fam/2012/2969.html

 

 

It is a High Court case, dealt with by the Honourable Mr Justice Peter Jackson (of whom regular readers of this blog will know that I have something of a brain-crush on)

It is an interesting one  – the child in question is nine, and has had an extensive history of medical treatment and interventions arising from her asthma

 

  1. The circumstances relating to J are highly unusual. She suffers from asthma, which has since her removal from her parents been well controlled by common basic inhaled steroid medication (Seretide) and occasional use of an inhaled bronchodilator (Salbutomol). Her asthma does not currently impinge on her daily life to any significant extent, although she had one hospital admission for two days in March 2012 for exacerbation of asthma following an infection. She does not suffer from any other life-limiting conditions. Her regular clinical reviews are all clear. Her attendance at school has been excellent and her participation has been full, in the physical and social aspects of school life as well academically. She is currently a well child physically, and there are soundly-based professional hopes that her current medication can progressively be reduced. Asked how she was in July 2012 by the jointly-instructed medical expert Dr H, J said she was ‘much better now’.
  1. A year ago, before her removal from her parents, J’s apparent health status could hardly have been more different. Her asthma was uncontrolled, despite receiving the most extreme treatments available. She was on intensive treatment to combat reported nocturnal desaturations (reduction in blood-oxygen levels). She had also suffered a number of reported Apparent Life-Threatening Events (ALTEs) while in the care of her parents.
  1. J, aged just 8, then described herself as ‘a very poorly little girl’. This is not surprising, because since she was under a year old she had been under continuous medical care and her condition had baffled and defeated the efforts of the country’s leading specialists, despite every conceivable strategy to control her asthma and to diagnose the cause of desaturations and ALTEs. None of the three specialists who gave evidence had encountered a child who has had more varied or intensive treatment.
  1. J’s medical records spanning 8 years run to over 4500 pages (12 lever arch files). The history is set out in full and uncontested detail in the reports of Dr H, referred to above, and Dr C, referred to below. Any summary is bound to be incomplete, but it must include:

A Specialist care

J has had the following care:

  • Primary: her GP
  • Secondary: her local hospital, under Dr O, since September 2004
  • Tertiary: the leading regional hospital, under Dr C, since October 2006
  • Quaternary: the leading national hospital, under Professor B, since January 2007.

B Hospital admissions

Between 2005 and 2011, in addition to countless routine hospital appointments

  • J was admitted to hospital over 50 times, ranging from overnight to a three-month admission in April 2010.
  • these admissions included 22 by ambulance, frequently at night.

C Medical examinations

J has been assessed or examined during planned reviews or emergency admissions by

  • her GP
  • a Paediatric Dietician
  • a Consultant Paediatric Cardiologist
  • a Consultant Child & Adolescent Psychiatrist
  • a Consultant Paediatric Neurologist
  • a Consultant Community Paediatrician (Dr O)
  • a Clinical Psychologist
  • a Consultant Ear, Nose & Throat Surgeon
  • specialist Respiratory Nurses
  • a Consultant in Paediatric Respiratory Medicine (Dr C)
  • two further Consultants in Paediatric Respiratory Medicine at leading specialist hospitals
  • a Professor in Paediatric Respirology (Professor B)
  • a Consultant in Paediatric Intensive Care, Respiratory and Sleep Medicine (Dr H, providing an independent overview for these proceedings)
  • many specialist Registrars locally and across the country
  • numerous other doctors not listed above

D Intensive medical treatment

For her asthma, J’s treatment progressed rapidly through the recognised stages of asthma treatment, in accordance with the British Guidelines on the Management of Asthma, and then beyond those guidelines. The following are prominent among the many drugs that she has been given:

  • inhaled bronchodilators (Salbutomol)
  • inhaled steroids (Seretide)
  • oral steroids (Prednisolone)
  • eventually, unlicensed drug treatments for a child of her age:
    • Omalizumab (Xolair) by highly distressing monthly intramuscular injection
    • Triamcinoline, an intramuscular steroid
    • Methotrexate, an oral steroid to suppress her immune system
    • Terbutaline (Bricanyl), delivered subcutaneously via an infusion pump visibly attached to the body for four months prior to her removal from the parents

For her reported desaturations, J had since 2006

  • slept wearing a positive airway pressure face mask (BIPAP)
  • slept with an oximeter (blood/oxygen level monitor) attached to her toe
  • had a large oxygen concentrator at her bedside

E Tests

J has had

  • sleep studies at three hospitals
  • blood tests and sweat tests
  • an echocardiogram, an ECG and a CT scan (whilst sedated)
  • a barium swallow
  • a bronchoscopy (under general anaesthetic)
  • an ENT investigation, leading to removal of her adenoids

F Side effects

The physical risks from this escalating treatment were substantial. For example:

  • Steroids can cause weight gain and change in facial appearance, slowing of growth, adrenal suppression, and in the long term high blood pressure and diabetes
  • Methotraxate is used in chemotherapy. It carries the risk of nausea, severe infection, liver or renal damage, gastro-intestinal upset and suppression of bone marrow; it requires weekly hospital blood testing to check blood count
  • General anaesthetics carry their own risks

Fortunately there is no evidence that J has suffered lasting physical side-effects, but it cannot be known that she has not been affected in some way in the longer term.

G Pain and suffering

J’s overall treatment is described by Professor B as having been invasive and unpleasant. She was often extremely frightened and sometimes had to be held down. She developed needle phobia. The distress caused to J by the Xolair injections was such that the nursing staff became so concerned that they asked for the treatment to be discontinued, which it was.

H Emotional, psychological and social consequences

J has been profoundly affected by her experiences. Writing this year, an educational psychologist describes her as ‘a youngster who is the product of her life’s experiences which until very recently have been those of a child with a life threatening condition requiring considerable accommodation to her medical needs by J herself and all those in contact with her.’ During each of her three years at Infant School her attendance record was just 55-60%. A child with no apparent learning difficulty, her spelling and reading is delayed by two years or more. Her social development has also suffered severely. She adopts an adult style of conversation, speaking with knowledge and fluency about her medical condition, which until recently has been a fixation for her. She does not relate well to other children, and has had no friends. Dr H described the amount of medical intervention as being comparable to that with a child with leukaemia. He said that J has had ‘a very, very stressful life’.

  1. In the light of the above, it is sad and indeed shocking to record that there is now a firm medical consensus, ostensibly accepted by the parents during the course of this hearing, that most of the treatment that J has received down the years has been unnecessary.

 

 

 

What happened, eventually, is that one of the doctors in the case alerted the Local Authority and recommended that J be placed in foster care, because he was of the view that the extreme treatments this young girl was having were not required by her condition and that her being away from the parents might demonstrate that.

 

To an extent, they did – in foster care, her asthma condition was entirely controlled by the same twice-daily administration of steroids through an inhaler as the parents had been told to give the child.

 

On the face of it, this looked like it might be a factitious illness case (we don’t call them Munchausen’s Syndrome any more, that being rather tainted, and we never did call it the correct name which was Raspe’s Syndrome  – as Munchausen was invented by Raspe and is a fictional character, although actually there’s some doubt as to whether it is a syndrome at all, rather than just being a small subset of behaviour… end of sidetrack)

 

But the thrust of the case and the medical evidence  rather than being whether the girls symptoms were being faked, eventually turned on whether the parents were actually giving this very poorly young girl the twice a day inhaler that she needed. Straightforward, though particularly unusual, neglect

 

  1. The LA’s case, in reliance on unanimous medical opinion, is that the parents failed to administer J’s steroid medication (Seretide and possibly also Prednisolone) to her, either properly or at all, and that this explains why her asthma remained uncontrolled for so long. It also alleges that the parents have misrepresented and exaggerated descriptions of J’s desaturations and ALTEs.
  1. In their written evidence, the parents denied any shortcomings in the way they have managed J’s care. Faced with her statement about not having a purple inhaler, they said that they administered the Seretide to her morning and night while she was asleep. During the hearing, they then admitted that on a significant number of occasions (a quarter, M thought, though F thought fewer) they did not administer steroids and that there were other times when they did try but when J would not accept her medicine. They also stated on the first day of the hearing that they were giving half the prescribed dose of Seretide (i.e. one puff twice a day rather than two puffs), saying that this was as a result of a misunderstanding. They now say that they accept the medical opinion that their failure to administer the correct doses regularly was the cause of J’s uncontrolled asthma.
  1. As to the desaturations and ALTEs, the parents say that these were real and frightening events. Insofar as they may ever have mishandled them, they point to the huge stress of looking after such a sick child, latterly with a new baby in the household. M in particular is described as having been permanently exhausted.

 

 

 

On this key issue, the Judge determined that the parents had not been giving their daughter her medication and that this is what had led to her asthma being so uncontrolled and problematic

 

  1. The evidence in relation to J’s apparently intractable asthma is clear. Over 95% of sufferers have their asthma readily controlled by the use of common safe and effective remedies such as Salbutomol (a reliever of symptoms) and Seretide (a preventer of symptoms). In the remaining number, half are resolved by ensuring compliance with the drug regime and improving inhaler technique.
  1. The probable explanation for J’s uncontrolled asthma is simple. As Professor B put it, there is a strong argument that very little steroids of any kind were being given, in the light of the fact that her asthma has for the last year been controlled by two puffs of Seretide twice a day, and little else.
  1. Dr H considers that lack of adequate Seretide led to poor asthmatic control, and that it was tantamount to no anti-inflammatory drug being delivered to J. Had it been delivered, the escalation of treatment that took place over the years would not have been expected. There has been no change in environmental factors to explain the change in J’s health. The only other explanation for her presentation now is that she has severe asthma that is coincidentally in remission, a prospect that cannot absolutely be dismissed but is remote.
  1. Dr C considers that J cannot have been given her oral Prednisolone either, as this would in her view have delivered a substantial dose of steroid, which J cannot have been getting. In this she differs from Dr H. I do not find it possible or necessary to resolve this issue.
  1. The parents’ account is that they did their best to give J her Seretide (which she did not like) by giving it when asleep, and her Prednisolone by dissolving the tablet and administering it orally by syringe, rewarding J with chocolate for taking it. They missed some occasions, and J sometimes refused, but they honestly thought they were doing what was required and using the required doses.
  1. It was at first thought, including by Professor B, that evidence about prescription uptake strongly demonstrated a gross underuse of Seretide and Prednisolone. On closer inspection, it shows an overuse of Salbutomol and a somewhat lower uptake of the steroids than would be expected, but not such as might lead to any definite conclusion. Likewise, the amount of drugs discovered in the home after the children’s removal does not suggest hoarding.
  1. There are a number of possibilities in relation to the prescription evidence. It is on the face of it not inconsistent with the parents’ evidence that they were giving J the quantities that were dispensed, at the level they thought was being prescribed. Alternatively, the parents may have disposed of unused medication, something that they deny.
  1. Taking the evidence as a whole, I accept the unanimous medical evidence that J was not receiving any Seretide. My findings go further than the parents’ concessions:

(i) I reject their case that they were routinely giving J Seretide while J was asleep, a convoluted and inconvenient procedure.

(ii) I do not accept that they genuinely believed that administration of Seretide to a sleeping child would be effective. Any reasonably competent parent would realise that this could not possibly be so, and M, as a nurse, would know that it was absurd. I do not accept that the parents learned to do it by watching nurses administer a different drug (Salbutomol) during sleep, or that they were encouraged or allowed to do so themselves; if that happened, it can have been on no more than an insignificant handful of occasions.

(iii) The fact that the parents never spoke to anyone about a practice of administering drugs to J in her sleep, even remaining silent when J’s inhaler technique was being checked, makes it highly improbable that they were in fact doing it.

(iv) I accept the evidence of Dr C that both she and the nurses would repeatedly reinforce the need for good inhaler technique to M and that the parents knew that J needed a good dose of steroids every day.

(v) I do not accept that the parents genuinely thought J should be on one puff of Seretide twice a day, when she had been prescribed two puffs for more than two years. The fact that some letters and labels described the dosage in different ways did not in my view mislead the parents; they are now relying on it after the event. If there was any doubt about whether the parents know the correct dosage, it is firmly dispelled by Mrs H’s evidence about her conversation with M on 10 November 2011.

(vi) M is unlikely to make careless mistakes about J’s prescriptions. She was punctilious with the school about J’s medication, and took a zero tolerance approach to any stepping out of line on their part.

  1. My view of the parents’ evidence about Seretide causes me to doubt that they administered Prednisolone in the way that they described (orally by syringe, rather than simply dissolving it in J’s breakfast), but I can reach no clear conclusion about this. At all events, I find that she was probably receiving considerably less Prednisolone than was being prescribed:

(i) M understandably did not like the use of steroids.

(ii) J did not like taking her medication, and the parents are both notably ready to defer to her.

  1. Insofar as the prescription records show an inflow of steroidal medication into the home, I conclude that it cannot have been effectively administered to J. The medical opinion is to this effect, and I accept it.
  1. My assessment of the parents is therefore that they are not reliable witnesses in matters relating to J’s health, either in relation to the administration of medication, or in relation to the management of J’s acute episodes. Their evidence about asthma treatment has evolved in response to the case as it has developed. The concession that ‘only one puff’ of Seretide was being given was made on the opening day of the hearing. Their evidence about J’s supposed ALTEs is, I find, exaggerated and unreliable in its detail. They have both given unreliable descriptions of J’s condition to the school and to the emergency services.

 

 

The final part is what lifts the case from being very fact specific  (I’ve done an insane amount of care proceedings in twenty years of practice, but have never come across one that arose from parents not giving their child asthma medicine  – some that come close on children with naso-gastric tubes for feeding perhaps) to one of broader interest.   (the underlining is my own, for emphasis)

 

  1. My final observation is that each of the doctors recognised that there are lessons to be learned from J’s case. Paediatricians are conditioned to trust parents, particularly where a child has a genuine medical condition. That instinct was strong in this case, despite indications that it needed to be examined. Dr C had concerns about the reliability of these parents as long ago as 2008 but, having taken advice from her child protection lead, she did not pursue her doubts, a decision she regrets. The doctors will form their own conclusions, but those may include the following:

(1) Faced with a possible conflict of interest in circumstances involving serious consequences, the preservation of a working relationship with parents cannot take precedence over the interests of the child.

(2) The principle of diagnostic parsimony (c.f. Occam’s Razor) proposes that simple explanations for medical conditions are exhausted before complex and unusual treatments are attempted.

(3) Fragmentation of responsibility between different hospitals carries the risk that the whole picture is not seen and understood by anyone – in J’s case, no proper meeting was held until November 2011, and even that did not involve the LA.

(4) Where dilemmas of this kind arise, involving social as well as medical issues, doctors and schools should not be reluctant to call for a comprehensive assessment that can only be carried out by the ordinary child protection services.

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If you’re thinking of placing my baby, it don’t matter if it’s black or white

Posted on November 13, 2012 by suesspiciousminds

[Well, this is almost certainly the only time Michael Jackson has appeared in a blog on child protection…oh, wait, maybe not]

The Government have published its draft proposals to amend the Adoption and Children Act 2002.

They can be found here :-

http://www.official-documents.gov.uk/document/cm84/8473/8473.pdf

The first is a duty on Local Authorities to place children who they intend to adopt in a Fostering for Adoption placement (more usually called ‘concurrency’ placement) if possible.

The second is the removal of section 1 (5) from the Act.

Section 1(5) currently reads :- In placing the child for adoption, the adoption agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background.

And it follows section 1(4) which is the welfare checklist.

It seems to be the view of the Government that those meddling politically correct Local Authorities   (can you be politically correct if politicians correct you?)  have been viewing s 1(5) as if it has superior status to s 1 (4)  – in which case, the thing to do would have been to shift it to one item in the welfare checklist, surely?

So they have just nuked it from orbit, that being, after all, the only way to be sure.

So the new section 1(5) will say “In Wales only In placing the child for adoption, the adoption agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background.”

For some reason there aren’t any politically correct meddling do-gooder social workers, or perhaps there are no ethnic minorities, or maybe there’s some other reason inexplicable to me.

The explanatory notes do suggest that those factors still come into the welfare checklist as part of the child’s background and other relevant characteristics; but will no longer require any additional weight.

I don’t know – I have seen in my travels about the country some quirky adoption panels who wanted to talk at length about the African heritage of someone whose paternal great–great-grandfather had been from Senegal, though the other 31/32nds of their heritage was British and had lived in Britain all their lives.  But on the other hand, I am not as convinced as Michael Gove seems to be that there is a queue of white people desperate to adopt children of ethnic minorities, if only those pesky social workers would let them.

Nor am I convinced that nuking s1(5) has any real impact on s33 (6) of the Children Act

(6)While a care order is in force with respect to a child, the local authority designated by the order shall not—

(a)cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made;

So if the child in question had been more example, from parents who were practising Muslims, or Sikhs, I think there are still issues about whether a Local Authority is in breach of s33(6) by not at least TRYING to match with people who will follow that faith. If they search and fail, then so be it, but it seems to me that s33(6) still envisages that a LA will try to have the child brought up in the religious faith he or she would have been brought up in had the Care Order (and by extension Placement Order) were not made.

Unless we’re going to start doing that nifty and little known Adoption and Children  Act trick where you can make a section 21 Placement Order without ever making a Care Order PROVIDED the threshold criteria are made out.  (I’ve only ever done that once, in a peculiar case where the parents agreed s20 of the child and so care order wasn’t needed, but opposed Placement Order)

Anyway, if you have a view on the proposals, feed them back to the Government. They seem to be happy to make policy on about 50 people responding to a consultation, so you may be in luck…

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Rule 16.4 Guardians have a duty to take the initiative

Posted on November 9, 2012 by suesspiciousminds

A discussion of the Re G  Court of Appeal decision and what it means for Rule 16.4 Guardians and those representing them.

 

The case can be found here

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1434.html

Bit of explanatory background – in private law proceedings (i.e where a mother and father are in disagreement about the arrangements for their child and ask the Court to resolve things) sometimes the Court appoint a Guardian (effectively a social work qualified professional who is independent and doesn’t work for Social Services)  to represent the interests of the child. This is called a Rule 16.4 Guardian, or often just a 16.4 Guardian.  (To confuse things still further, a lot of people still call them 9.5 Guardians, as that was what they used to be called and people aren’t good at change)

 

It generally happens in really tricky cases where the Court is feeling that some independent presence would be helpful to defuse the situation.

 

 

Now, Rule 16.4 Guardians are employed by CAFCASS. Over recent years, CAFCASS have been more and more stretched by demand and have responded to this by directing their individual Guardians to do less and less on individual cases, so they can spread the larger number of cases across the same number of Guardians (by each taking on more cases, but doing less work on each)

 

At the same time, the solicitors representing Rule 16.4 Guardians are under increasing financial pressures to do less on the case too, because they get fixed fees, and the more time they spent on the case, the less profitable it becomes (often getting close to break-even or worse)

 

So, that’s the context.

 

The facts of this case are problematic – it is a case that has been plagued by litigation and appeals, and has already been up to the  Appeal Court twice and the House of Lords once. It relates to a father who provided gametes for a lesbian couple to have children, and there was then a falling out about whether he was supposed to play a part in the children’s lives (as he wished) or whether his work and involvement was over at the point the gametes were handed over (as the two mothers wished)

 

 

It is not terribly surprising given the massive conflict in this case that a Rule 16.4 Guardian was appointed.

 

What probably was surprising, both to the Rule 16.4 Guardian and those representing her was that they took a bit of a  kicking from the Court of Appeal. 

 

And the Court of Appeal set down, probably for the first time, what the expectations of a Rule 16.4 Guardian is, and it turns out that the Court expect them to ensure that the case is brought back before the Court if problems start to arise.  Indeed, the phrase “a clear duty to take the initiative” is used.

 

This case well illustrates the difficulties that courts presently face, and will more frequently face in the future, when the parties are unrepresented, particularly in a case as complex as the present. What is the duty of the rule 16.4 (formerly rule 9.5) guardian in such circumstances? There is no doubt that the burden on the judge to avoid legal misdirection and to ensure a fair outcome is magnified in such circumstances. At a minimum the children’s guardian, as the only party with the benefit of legal advice and representation must also be vigilant to avoid procedural or other unfairness to one or other of the unrepresented parties.

 

 

 

  1. The order of October 2010 created a common endeavour, the parties to which were the parents, the guardian, Dr Asen and the court. The duration of the joint endeavour was 12 months. If all went according to plan the parties would reassemble a year later to decide the future. If the joint endeavour did not run its intended course it was extremely important for the parties to decide swiftly the immediate future in the light of the unexpected development. The longer the delay the more difficult it would be to repair the breakdown. Absent agreement the court had to be re-engaged. CG had no incentive to return to court. CW who had every incentive failed to do so. In my judgment in the particular circumstances of this case, the guardian had a clear duty to take the initiative. He knew that CW had no advice or representation. He knew that she was appealing to him to act. Perhaps he did not know, but ought to have known from the history, that the maintenance of a relationship between the children and CW’s family had been declared both by the appellate courts and by Dr Asen to be of first importance. He also knew that Dr Asen was not a party, but an expert, whose continuing expertise was both crucial and available.
  1. It is not fanciful to speculate that had the guardian applied to the court for urgent directions in December 2010 there would have been options that were no longer there 16 months later. Had CW advanced her application as modified on the 19th April 2011, to the judge in December 2010 surely it would have succeeded. But was the delay such as to render it futile? The importance of restoring rather than abandoning relationships was obvious. The advice of Dr Asen was crucially required. Had CW been represented at the directions hearing in January 2012, surely the involvement of Dr Asen would have been canvassed. I do not understand why the guardian did not apply for a direction that would ensure that his advice would be available to the court at what was to be a final hearing.
  1. I emphasise that there can be no criticism of the court. As soon as the judge was made aware of the situation he acted decisively to bring about an early hearing.

 

One can see why the Courts want to put down such a marker, particularly as we move into a future where more and more of these intractable private law cases will have only one legally represented party (the rule 16.4 Guardian) who will understand the process and how to get hearings listed.

 

But unless this is accompanied by some change in the way CAFCASS ask 16.4 Guardians to run the cases, and the LSC funding the representation of 16.4 Guardians in such a way that it is open to the solicitor for the child to be proactively case managing the case rather than simply representing the child, I don’t see it working.

 

In fact, I think a telephone call asking a solicitor whether they will represent a 16.4 Guardian might now cause a mild shiver down the spine of whether this is a case that is economically worth taking at all. 

 

We already know, for example, that solicitors representing 16.4 Guardians come under huge pressure from the Courts to be the sole funder of expert assessments, when the LSC (who pay for them) won’t allow that, and leaving them arguing with a Judge or being stuck with huge expert bills to pay from the solicitors own pocket. 

And if you’re now going to have to run around after unrepresented and warring parties to make sure the case is on track and if not whip it back into Court or face blame, it becomes pretty unattractive to represent even the most charming and personable of Guardians.

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Taking neglect seriously

Posted on November 5, 2012 by suesspiciousminds

 

 

Some interesting research about children’s timescales and the Court process, which has been conducted by the Childhood Wellbeing Research Council. It is the first piece of the research that was commissioned under the Family Justice Review, and therefore worthy of attention.  (More attention than it has received)

 

It is heavy, and I can’t say yet whether its conclusions will necessarily be unchallenged, but it is, I think, for the first time, a proper drawing together of all of the important research on delay, decision-making, impact of neglect on children and attachment issues.  If the other pieces of FJR research are going to be as important as this, I will be a very happy law geek.

 

 

http://www.cwrc.ac.uk/news/documents/Decision_making_within_a_childs_timeframe_Oct_2012_CWRC_WP_16.pdf

 

 

It is long and detailed, so my cursory summary of it is absolutely no substitute for reading it.  It also contains some important research about the impact of child abuse, particularly neglect, on children.  A lot of it is pulling together of research that is already out there, but might be less widely known than it should be.

 

 

 

1.1 This overview of research evidence has been commissioned in response to the Family Justice Review recommendation for consistent training and development for family justice professionals, including a greater emphasis on child development. It aims to bring together key research evidence to facilitate understanding among professionals working in the family justice system in areas relating to:

  • · neuroscience perspectives on children’s cognitive, social and emotional development;
  • · the implications of maltreatment on childhood and adulthood wellbeing;
  • · evidence concerning the outcomes of interventions by the courts and children’s social care; and
  • · timeframes for intervening and why they are out of kilter with those for children.

 

 

I am hoping to whet your appetite to read the research, because this is some big important stuff.  (I will stop nudging you in the ribs at some point, but really, this needs to be read)

 

 1.19 While the issues covered in this chapter are intended to help the reader develop a critical approach to the understanding of research findings they should not detract from the value of the research itself. The following chapters consider robust findings from a number of well received research studies into parents’ problems and the impact of abuse on early childhood development; family justice professionals need to be aware of this research, particularly because it points to the importance of making timely decisions when children are suffering, or likely to suffer, significant harm.

 

 

We start with some basic principles  (the first few are of the “no-s*** Sherlock variety, but the last two are perhaps startling to see in such stark form)

 

 

Summary points

  • · Children growing up with parents who experience problems such as mental illness, learning disability, substance misuse and domestic violence are at greater risk of being maltreated.

 

  • · Not all parents with these problems will abuse or neglect their children; however these factors interlock in complex combinations which substantially increase the likelihood of maltreatment.

 

  • · Protective factors such as the presence of a non-abusive partner and/or a supportive extended family, parents’ ability to understand and overcome the consequences of their own experiences of childhood abuse, their recognition that their adverse behaviour patterns constitute a problem and their willingness to engage with services can substantially reduce the likelihood of maltreatment.

 

  • · Where insufficient protective factors are present, parents’ problems can undermine their ability to meet the needs of their children and inhibit the child’s capacity to form secure attachments.

 

  • · Healthy child development depends on the child’s relationships, and particularly their attachment to the primary caregiver.

 

  • · The process of attachment formation begins at birth. The four basic attachment styles: secure, insecure ambivalent, insecure avoidant and disorganised illustrate different adaptive strategies in response to different types of caregiving.

 

  • · Up to 80% of children brought up in neglectful or abusive environments develop disorganised attachment styles. These children behave unpredictably and have difficulty regulating their emotions.

 

  • · Disorganised attachment is strongly associated with later psychopathology.

 

 

 

 

 

This is interesting :-

 

 

The risk of recurrence (of child abuse) was reduced when medical and/or legal services were involved.

 

So the PLO may have been onto something, when they wanted to draw lawyers for parents into the process earlier – it is just a shame that the funding system means that they really can’t come in until proceedings are almost inevitable, rather than at the Initial Assessment process, when legal advice could make a real difference.

 

  

The mitigating value of protective factors

2.10 There is substantial evidence that certain protective factors can interact positively with parental problems to mitigate their impact, thus reducing the likelihood of maltreatment and improving the chances of better long-term outcomes for children. Jones and colleaguesidentified the following factors to be particularly pertinent: the presence of a non-abusive partner; the presence of a supportive extended family; parents’ adaptation to their own experience of childhood abuse; parents’ recognition that there is a problem and their willingness to take responsibility for it; and parents’ willingness to engage with services.

 

 

Whilst these are all things that we intuitively look at in care proceedings, it is helpful to see that the things we take for granted as common sense protective factors actually are.  And the phrase ‘insight’, which we hear so often, really is instrinsically bundled up in this.

 

 

[I do wonder, on a 26 week timetable, how the “Ostriches”  – those parents who bury their heads in the sand and pretend none of this awful situation is happening to them, before finally realising, will fare.  I suspect that there will no longer be enough time to turn the Ostrich cases around to a positive outcome]

 

2.11 Cleaver and colleagues40 have provided a comprehensive analysis of the manner in which, where there are insufficient protective factors, parents’ problems can impact on parenting capacity and trigger maltreatment and poor child outcomes. To summarise:

 

  • · Parental mental illness can seriously affect functioning. For example someone suffering from schizophrenia can experience delusions and hallucinations and be preoccupied with a private world. A person who is depressed can have feelings of gloom, worthlessness and hopelessness, which may mean that everyday activities are not carried out. Mental illness can blunt parents’ emotions and feelings towards their children, cause them to be emotionally unavailable or behave unpredictably, or occasionally cause them to be violent.

 

  • · Learning disability can affect parents’ capacity to learn and retain the new skills that are necessary to parent a child. Parents with a learning disability may also have had a negative experience of their own childhood which can leave them with low self-esteem and a poor sense of self-worth. Consequently, parents with learning disabilities and their children are vulnerable to financial and sexual exploitation, domestic violence, harassment and bullying.

 

  • · Parents who abuse drugs and/or alcohol can be subject to erratic mood swings, paranoia and hallucinations, or feelings of elation and calm, diminished concentration, memory impairment and a loss of consciousness. This can leave them unable to: meet the basic needs of their children, be emotionally available to them or at times keep them safe.

 

  • · Being the victim of domestic violence is likely to undermine parents’ self-esteem and confidence in their parenting skills. Such parents may have their attention focussed on the necessity to placate the perpetrator rather than on their children’s needs. They may not be able to protect those of their children who get caught up in or witness an attack from physical abuse and emotional trauma. Perpetrators of domestic violence are likely to cause physical and emotional harm to their children as well as to their partners.

 

2.12 Behaviour patterns such as these undermine a parent’s ability to meet their children’s needs. They have a particularly damaging impact on the child’s emerging capacity to form attachments.

 

 

The report then goes on to specifically look at attachment issues – I think lawyers (and perhaps some others in the family justice system) are often a bit muddled about attachment, and what the significance or otherwise of it is.  I often see it being conflated with an concept of whether the parent loves the child and vice versa. If you know a bit about attachment theory, not much of this is new, but it is helpful to have it pulled into one place and be able to take the Courts to this one document.

 

 

The importance of a secure attachment base for healthy child Development

 

Young children experience their world as an environment of relationships, and these relationships affect virtually all aspects of their development – intellectual, social, emotional, physical, behavioural, and moral.

 

 

2.13 Healthy child development depends on the establishment of these relationships. Early secure attachments contribute to the growth of a broad range of competencies, which can include: a love of learning; a comfortable sense of oneself; positive social skills; multiple successful relationships at later ages; and a sophisticated understanding of emotions, commitment, morality, and other aspects of human relationships.

 

2.14 Howe asserts that, biologically, attachment is a means of survival. It is defined as proximity seeking behaviour to an attachment figure, the primary caregiver, by a baby or child when he or she experiences discomfort such as pain, fear, cold or hunger.This behaviour is instinctive and is based on the assumption that the primary caregiver will be able to reduce the discomfort.

 

The baby gradually constructs an internal working model of themselves and of their primary caregiver on the basis of their caregiver’s responses to their attachment needs:

These mental representations refer to the kind of memories, experiences, outcomes, feelings and knowledge about what tends to happen in relationships, particularly with attachment figures at times of need.

 

2.15 Thus, the primary purpose of an internal working model is to help regulate the negative emotions of fear, distress and anxiety triggered when a child feels insecure.

 

2.16 The process of attachment formation begins at birth. A newborn infant seeks care and protection through proximity to their attachment figures. Following birth, a baby is instantly alert to messages they receive about the world around them, such as those reflected in the face of their caregiver(s) and the way in which their urgent needs are met. From about the age of three months a baby is increasingly selective and begins to smile less readily for strangers, tending to target their attachment behaviours more accurately towards their significant carers. By the age of six to seven months, an infant can generally show a clear cut attachment to their primary caregiver(s), and will show distress and anxiety about being separated from them. For instance, infants of this age become less likely to tolerate being held by strangers. However, from this point onwards a securely attached infant is able to use their caregiver as a secure base for exploration.

 

2.17 During toddler and pre-school years children learn to define themselves and others in increasingly sophisticated ways. They develop their locomotive skills, their cognitive capacity, their communicating and negotiating abilities, and increase their knowledge and understanding of the perspectives of others. A child’s secure foundations from infancy help them to achieve these developments.

 

2.18 Researchers have identified four basic attachment styles, each relating to the type of caregiving received. These are: secure, insecure ambivalent, insecure avoidant and disorganised. Each of these styles of attachment illustrates different adaptive strategies in response to different types of caregiving, and are developed by children to enable them to ‘stay close and connected to their attachment figures at times of intense negative arousal’.

 

Whilst these categories are very useful in facilitating understanding of different attachment styles, it should be noted that in real life they are not entirely discrete entities; whilst some children will fall exclusively into one category, many children will show a mixed pattern of attachment behaviours, with elements of several styles present.

 

2.19 Children who are securely attached to their caregiver(s) have a relationship that is characterised by sensitive, loving, responsive, attuned, consistent, available and accepting care.51 Securely attached children have the ability to regulate their distress, either by themselves or by the knowledge that they can get help from their attachment figure should they need it.

 

2.20 These children develop internal working models in which they see other people as positively available and themselves as loved and likeable, valued and socially effective.Secure attachment styles are found in about 55% of a non-clinical population.

 

2.21 Conversely, insecurely attached children experience anxiety about the location of their caregiver at times of need, as well as uncertainty about the type and sensitivity of the response they will receive.55 There are three types of insecure attachment patterns, the avoidant, the ambivalent and the disorganised.

 

2.22 Children who develop an insecure, ambivalent pattern of  Attachment experience inconsistent caregiving. Their caregiver(s) tend to be preoccupied with their own emotional needs and uncertainties, and can be unreliable and emotionally neglectful. These children will exaggerate their attachment behaviour in an attempt to be noticed; in this they are not always successful, and their ambivalence reflects their simultaneous need for and anger with their attachment figures.56 About 8% of children in a non-clinical population display insecure ambivalent attachments.

 

2.23 About 23% of children develop insecure, avoidant attachment patterns.These children tend to experience parenting that is hostile, rejecting andcontrolling. They come to see themselves as neither loved nor loveable.They adapt to their caregivers’ rejection by over-regulating their emotions,and are anxious that any display of need, longing, vulnerability or emotionmight drive their caregiver(s) away.59

 

2.24 Some caregivers cannot regulate their child’s responses to stressful circumstances; as a result, their children experience feelings of danger and psychological abandonment.60 Children who are cared for by people who are frightening, dangerous and/or frightened develop disorganised attachments.61 These children may be fearful of approaching their caregivers because they cannot predict the response: sometimes they may be picked up and cuddled, but at other times they may be shouted at or smacked. As a result, these children are not able to ‘organise’ their own behaviour, and have difficulty regulating their emotions. Like their parents they may behave unpredictably. They develop highly negative and inconsistent internal working models in which they see other people as not to be trusted.

 

Disorganised attachment is strongly associated with later psychopathology.

 

There is consistent evidence that up to 80% of children brought up in neglectful or abusive environments develop disorganised attachments, although these are evident in only 15% of a non-clinical population.The effects of maltreatment on attachment behaviour will be discussed further in Chapters Three and Four.

 

 

 

Chapter 3 gets stuck into the neuroscience – what is happening with a child’s brain during early years and what are the effects of neglect upon child development?     I’ve felt for a while now that neglect is the poor cousin of child abuse  – it is really easy to understand and grasp the risks of sexual abuse, or a fractured skull, but neglect is so easy to minimise and belittle and so hard to get a firm grasp on  ‘what will happen to the child if this situation persists rather than improves?’

 

A lot of the neuroscience bit may be a bit fresher than the attachment theory previously discussed, and I think it is very important in the way we look at neglect. It may help Courts take neglect as seriously as it needs to be taken.

 

How the child’s relationships shape the development of the brain and the stress response system

Summary points

  • · Much of the development of the brain and central nervous system takes place after a child is born, within the first three years of life.

 

  • · The child’s environment of relationships – and in particular the relationship with the primary caregiver – plays a critical role in shaping the development of the overall brain architecture.

 

  • · Negative experiences, and in particular insufficient stimulation, adversely impact on the construction of neural connections which form the basis for cognitive and social development.

 

  • · By the time children are two, the foundations for their ability to speak and understand language, to reason and make plans have already been laid.

 

  • · Executive function skills, necessary for both learning and social interaction, begin to develop shortly after birth, with dramatic growth occurring between the ages of three and five years.

 

  • · There is a short window of opportunity for certain types of development. If the types of experience upon which they depend do not occur within a predetermined timeframe, children will not move on to the next stage of development and their long-term wellbeing will be compromised.

 

  • · Early interactions between the primary caregiver and the baby play a significant role in establishing the normal range of emotional arousal and in setting the thermostat for later control of the stress response.

 

  • · Both very high and very low levels of cortisol are indicative of abnormal development of the stress response and can cause long-term physiological and psychological damage.

 

 

[This last one is interesting, because it raises the possiblility of a biological/chemical test for neglect, that there’s a chemical which can be measured and considered whether it is in normal parameters – and I suspect Trimega and Trichotech are already contemplating the marketing for their Cortisol tests…  Are we ready for neglect to be determined by science?  There’s an entire blog post all on its own, I think]

 

3.14 The process of creating and strengthening or discarding synapses is the brain’s means of learning and the way in which a child responds to their environment. This process is often referred to as ‘plasticity’, a term that indicates the brain’s ability to change in response to repeated stimulation.

 

These repeated adaptations are made in response to a combination of genetics and experience. The brain is genetically pre-programmed to expect certain experiences and forms certain neural pathways to respond to them; the more the child is exposed to these experiences, the stronger the pathways become. For example, a baby’s brain is genetically preprogrammed to respond to voices. When a baby is spoken to the neural systems which are responsible for their speech and language receive the necessary stimulation to strengthen. If, however, they are not exposed to adequate stimulation through exposure to speech, the pathways which have been developed in anticipation of this exposure will be discarded:

 

All children need stimulation and nurturance for healthy development. If these are lacking – if a child’s caretakers are indifferent or hostile – the child’s brain development may be impaired. Because the brain adapts to its environment, it will adapt to a negative environment just as readily as it will adapt to a positive one.83

 

3.15 A child’s experiences greatly shape the quality of the architecture of the developing brain. Positive experiences, particularly in the first year of life, produce more richly networked brains. More neuronal connections produce better performance and more ability to use particular areas of the brain.

 

Conversely, as Chapter Four shows, negative experiences, and in particular insufficient stimulation, adversely affect the development of neural connections and have a negative impact on children’s cognitive and social development, their speech development and their learning and memory.

 

3.18 The sequence of brain development follows a logical pattern. Development of the higher regions does not commence before the connections in the lower regions have been completed.92 This is because the higher levels in the hierarchy depend on reliable information from the lower levels in order to accomplish their functions.93 Impaired development in the lower regions of the brain will therefore have a negative impact on the development of the functions of the higher regions, such as language, empathy, regulation of emotions and reasoning.

 

 

This, for me, is a big deal.  The research establishes that a major part of the formation of basic brain structure happens in the first few years of life, that positive experiences enhance this and negative ones hinder it, and that higher brain functions don’t get formed until the basic ones are completed.  So a baby that is being understimulated or mistreated will have serious consequences on that emotional development in later life.

 

This next bit also interested me

 

3.24 There are specific periods when the development of a child’s brain is more strongly affected by a certain type of experience than at other times. These periods are widely referred to as sensitive periods. At certain times the impact of experience on development can be irreversible: these are a special class of sensitive period known as critical periods.

 

 

This is then the pulling together of research on the impact of stress and how it affects children. It is sciency but important

 

 

3.34 Everyday life involves responding and reacting to varying degrees of stress.

 

When an individual experiences stressful events, their body responds physiologically to restore a condition of equilibrium, or homeostasis.114 The body’s stress response activates several interlocking biological systems designed to prepare an individual for events that may threaten their wellbeing.The hypothalamus, which is located in the centre of the brain, is involved in maintaining homeostasis, including responding to stressful events which upset regulatory rhythms. The amygdala reacts to social situations that generate uncertainty or fear by releasing chemical messages in various directions. The hypothalamus is activated by these messages, and in turn triggers the hypothalamus-pituitary-adrenal (HPA) axis: the core stress response system.

 

3.35 The stress response involves activation of the pituitary, which in turn triggers the adrenal glands to produce extra cortisol. This allows the body to generate extra energy to focus on the stress and to put other bodily systems ‘on hold’ while this is being dealt with.

 

3.36 Chronically high levels of cortisol have detrimental effects on health. Therefore feedback loops are present to modulate the responsiveness of the HPA axis which returns the system to homeostasis. This feedback loop is mediated by receptors located, in the main, in the hippocampus. The purpose of this regulation is to produce adaptive responses to social and psychological stressors. These prepare the body to anticipate and respond optimally to threat but return efficiently to a homeostatic balance once the body is no longer challenged.

 

3.37 The stress response system is not fully mature at birth. It requires an extended period of development whereby experience plays a crucial role.

 

An important component of this development is a baby’s attachment to their caregivers.When babies express feelings of distress or discomfort, they are dependent on their caregivers to notice these signals and to respond by providing the type of care which maintains their equilibrium, such as sensitive touch, feeding and rocking.122 A baby’s stress response system is unstable and reactive; it will produce high levels of cortisol if the baby’s needs are not being met, or if the baby is in an environment which is aggressive or hostile. Persistent and unrelieved chronic stress in infancy results in the baby’s brain being flooded by cortisol for prolonged periods.

This can have a toxic effect on the developing brain, with detrimental consequences for future health and behaviour. Please see Chapter Four paragraphs 4.38 to 4.44 for further discussion relating to the toxic consequences of chronic stress.

 

3.38 In some children, however, prolonged exposure to stress may be linked to abnormally low levels of cortisol. This is particularly evident in those who have experienced low-grade, frequent emotional (and sometimes physical) abuse and neglect in very early childhood and is associated with early indications of anti-social behaviour in boys.

 

3.39 Both very high and very low levels of cortisol are indicative of abnormal development of the stress response, and cause long-term physiological and psychological damage.

3.40 A normal adult pattern of cortisol production is highest in the morning, and then gradually declines through the day to be at its lowest in the evening.

Babies who have secure attachments to their caregiver(s) will begin to form this pattern between three to six months old; however it takes until about the age of four years before it is fully established.126 Early interactions between primary caregiver and baby therefore play a significant role in how a child develops the capacity to respond appropriately to stressful circumstances and the ability to regulate their own negative emotions if and when these occur, such as following an immunisation injection, an injury, or on the first day at school.

 

3.41 This chapter has shown how the brain and stress response systems develop in early childhood and are shaped by the relationship with the primary caregiver. There are indications that when the caregiver does not respond appropriately to the child’s needs, development can be impaired

 

 

 

Chapter Four then gets heavily stuck into the impact of child abuse on children and their development. Traditionally, this has been a difficult area, because there are obvious ethical reasons why you can’t get a bunch of children and mistreat them under scientific conditions to see what happens, and you can never be certain when looking at children you suspect have been neglected exactly what did happen to them. But there was a group of children who we knew exactly how neglected they were, and those were the babies who grew up in Romanian orphanages that were effectively given very minimal care and no stimulation.

 

So some of the research is drawn from that. I haven’t really discussed any of that, because it involves palpably worse neglect than we are used to seeing in a family court environment  – the Romanian orphanages had a staffing ratio of 1 carer to every 20 children, and it is clear that one twentieth of a carers time (or 1 hour 12 mins per child per day), even if they are very dedicated and devoted and hardworking, isn’t going to be enough for a baby, and even the worst of our neglectful parents must spend more than an hour and twelve minutes a day interacting with their baby.

 

Here is the summary for chapter four – note the last point about the correlation between childhood neglect and adult dysfunction.  [To be balanced, no doubt a parallel could be drawn about children in the care system and adult dysfunction…]

 

 

Summary points

  • · Exposure to domestic violence and/or parental substance misuse in utero can have a long-term negative impact on the unborn child.
  • · High quality care can determine the extent to which children who are genetically predisposed to mental illness or learning disability, or who are exposed to abusive or neglectful parental behaviours, are affected.
  • · Chronic exposure to trauma through aggressive, hostile or neglectful parenting can lead to stress system deregulation. Exposure to toxic stress in early childhood can cause permanent damage to the brain and have severe and long-term consequences for all aspects of future learning, behaviour and health.
  • · Neglected children may experience chronic exposure to toxic stress as their needs fail to be met. This is compounded by a lack of stimulation and social deprivation.
  • · Severe global neglect (i.e. severe neglect in more than one domain) during the first three years of life stunts the growth of the brain.
  • · Adults who have been physically abused in childhood show poorer physical and intellectual development, more difficult and aggressive behaviour, poorer social relationships and are more frequently arrested for violent crimes than their peers.
  • · Children who have been sexually abused may experience sleep problems, bedwetting or soiling, problems with school work or missing school, and risk taking behaviour in adolescence including multiple sexual relationships.
  • · Adolescents who have experienced abusive or neglectful parenting in childhood are more likely to engage in risk-taking behaviours such as substance misuse and criminal activity.

 

 

 

There’s a discussion on emotional abuse which (perhaps appositely) is the most emotive form of reasons for State intervention in family life and the one which gets people hot under the collar, and is the one which opponents of the Family Justice system consider to be a trivial and unwarranted justification for State intervention.   Note my underlining.

 

Emotional abuse and neglect

4.17 Emotional abuse is described as:

The persistent emotional maltreatment of a child such as to cause severe and persistent adverse effects on the child’s emotional development. It may involve conveying to children that they are worthless or unloved, inadequate, or valued only insofar as they meet the needs of another person. It may include not giving the child opportunities to express their views, deliberately silencing them or making fun of what they say or how they communicate. It may feature age or developmentally inappropriate expectations being imposed on children. These may include interactions that are beyond the child’s developmental capability, as well as overprotection and limitation of exploration and learning, or preventing the child participating in normal social interaction. It may involve seeing or hearing the ill-treatment of another. It may involve serious bullying (including cyber-bullying), causing children frequently to feel frightened or in danger, or the exploitation or corruption of children. Some level of emotional abuse is involved in all types of maltreatment of a child, though it may occur alone.

 

4.18 Emotional abuse is often considered to be the most damaging of all forms of maltreatment in early childhood because the perpetrator is almost always the primary caregiver, and their abusive behaviour represents a direct negation of the child’s ‘need for safety, love, belonging and self esteem’.

The chapter discusses the professional difficulties in determining when neglect or emotional abuse reaches the stage when intervention is required. There are some big strong statements in here, which I have underlined.

 

 

4.20 Findings from the studies in the Safeguarding Research Initiative154 showed that practitioners found it difficult to identify emotional abuse and neglect and to decide when a threshold for action had been reached. These difficulties arose for a number of reasons:

• Both types of maltreatment are heterogeneous classifications that cover a wide range of issues.

• Both emotional abuse and neglect are chronic conditions that can persist over months and years. Professionals can become accustomed to their manifestations and accepting of the lack of positive change.

• Both types of maltreatment can persist for many years without leading to the type of crisis that demands immediate, authoritative action.

Without such a crisis it can be difficult to argue that a threshold for a child protection plan or court action has been reached.

• Both types of maltreatment are also closer to normative parental behaviour patterns than physical or sexual abuse, in that most parents will, on occasion, neglect or emotionally maltreat their children to a greater or lesser degree. It is the persistence, the frequency, the enormity and the pervasiveness of these behaviours that make them abusive.

 

4.21 Two systematic reviews of literaturethat explored the evidence in relation to neglect and emotional abuse concluded that these types of abuse are associated with the most damaging long-term consequences, yet they are also the most difficult to identify. Furthermore, relative to physically abused children, neglected children have more severe cognitive and academic deficits, social withdrawal and limited peer interactions, and internalising (as opposed to externalising) problems.

 

4.22 Child maltreatment is a public health issue, in that its prevalence has a negative impact not only on the individuals concerned, but also on the welfare of society as a whole. The consequences of child maltreatment can last over the course of a life time and negatively affect parenting capacity, with detrimental consequences for the next generation.

 

A consideration of when changes would be made is the next discussion

 

4.30 Ward and colleaguesstudied the life pathways of 43 infants who had been identified as likely to suffer significant harm before their first birthdays; two thirds of them had been identified before birth. This study found that those parents who were able to overcome issues affecting parenting capacity, such as substance misuse and domestic violence, had begun to address these during the pregnancy. This was often as a result of a revelatory moment when they realised they needed to make substantial changes to their lifestyles in order to protect their unborn child, and indeed to prevent the local authority from removing the baby from their care immediately following the birth. Those parents who were able to address all of their difficulties before their child was six months old were able to maintain these changes in the longer term – up to at least their child’s third birthday. Parents who were interviewed as part of the evaluation of the Family Drug and Alcohol Court pilot also identified the birth of a child as a catalyst for overcoming adverse behaviour patterns.176 The findings from these studies suggest that there is a window of opportunity for social work and legal interventions during pregnancy and in the first few months following birth when parents may be more open to address adverse behaviour patterns.

The portions on “Toxic Stress” are interesting  – this is a new term to me, and I suspect I will be hearing it more in the future.   I’m starting to wonder whether paediatric neuroscience is going to be an expert discipline which has much more to tell us about neglect than the traditional psychological assessment that tells you nothing at great expense and delay.

 

 

Toxic stress

4.38 In addition, if inadequate or damaging parent-infant interactions persist, a child’s stress response system can be activated over prolonged periods, producing chronically high levels of the stress hormone cortisol. Brief periods of moderate, predictable stress are not problematic. In fact, they are protective and essential for survival. However excessively high levels of stress and prolonged exposure to raised cortisol levels are harmful and have toxic consequences for the developing child’s brain.186 A child’s stress response system can be activated over prolonged periods if they continually feel threatened by aggressive or hostile parenting, including witnessing or hearing violence between caregivers, or if, as a result of neglectful parenting, their basic needs for food, warmth, nurture, care and affection are not met.

The stress response system starts to self-regulate at around six months, and persistent maltreatment may lead to poor emotional regulation and a maladaptive response to stress. 

Toxic stress can result from strong, frequent, or prolonged activation of the body’s stress response systems in the absence of the buffering protection of a supportive adult relationship.

 

4.39 Brain development can be altered by this type of stress, resulting in negativeconsequences for children’s physical, cognitive, emotional, and socialgrowth.The ability of a child’s brain to adapt to its environment,particularly during the first three years of life (and especially during the firstyear) makes it particularly sensitive to chemical changes. Therefore,persistently high levels of stress hormones, such as cortisol, can disrupt itsdeveloping architecture.190 Because the brain develops in certain setsequences (see paragraphs 3.16 to 3.18) early development impacts uponlater brain development. Therefore stress exposure early in life has thehighest potential for long-term dysfunction in neurobehavioral systems that mediate emotional responses, abstract thinking, and social interaction.

 

4.40 As Chapter Three has shown, the amygdala, hippocampus and prefrontal cortex regions of the brain are particularly sensitive to chronic stress (see paragraphs 3.34 to 3.41). This is because they contain an abundance of stress hormone receptors.Exposure to high levels of cortisol can cause cell damage which is reversible when exposure is brief, however when exposure is prolonged it can lead to cell death. Therefore permanent damage can be caused to these areas of the brain when a child is exposed to toxic stress.

 

4.41 Damage to the hippocampus can lead to impairments in memory and mood related functions, and limit the ability of the hippocampus to promote contextual learning, ‘making it more difficult to discriminate conditions for which there may be danger versus safety, as is common in post-traumatic stress disorder’.It can also lead to problems in the development of linguistic, cognitive and social-emotional skills.

 

4.42 Chronic stress is also associated with over activity in the amygdala which then activates the stress response system. This can result in an increase in the potential for fear and anxiety. One task of the prefrontal cortex is to suppress amygdala activity, allowing for more adaptive responses to threatening or stressful experiences. However exposure to chronically elevated cortisol levels can damage the neural pathways between the prefrontal cortex and amygdala, limiting the ability of the prefrontal cortex to inhibit amygdala activity. As a result, children may appear, ‘to be both more reactive to even mildly adverse experiences and less capable of effectively coping with future stress’.

 

 

 

The brain scans comparing a neglected child with a non-neglected child are staggering. I can’t reproduce them here, but go and look at them.

 

The last sentence of this next section is also staggering. I had never contemplated childhood neglect having a correlation with the  serious adult illnesses described here

 

Impact of maltreatment in later childhood and adolescence

4.50 Child abuse and neglect typically begin early in childhood; however the damage these experiences cause to all areas of development can have a cumulative effect on subsequent behaviour and health in later childhood and adolescence. Unsurprisingly, socially, emotionally and behaviourally impeded development attributed to abuse and neglect in the early years continues into middle and later childhood. Maltreated children may experience difficulties in coping with the social and academic demands of school and neglected children in particular may fall behind in their language and reading skills.Because subsequent development builds on previous milestones, abused and neglected children can continue to be challenged by normal developmental tasks.

 

4.51 During middle to late childhood caregiver(s) need to be good role-models and actively encourage sociable behaviour alongside firm and calm limit setting to promote good adjustment.212 Parenting which is harsh, rejecting or inconsistent is associated with poorer outcomes.213

 

4.52 Adolescence is a period of preparation for adulthood, when several key developmental tasks are encountered. These include physical and sexual maturation; movement towards social and economic independence; the development of identity; the acquisition of skills needed to carry out adult relationships and roles; and the capacity for abstract reasoning.

 

Adolescence can be a time of tremendous emotional, social and physical growth and potential, however for young people who have experienced abuse and neglect either in their past or present, this is a time of particular vulnerability.

 

4.53 The neglect of adolescents is a major issue that frequently goes unnoticed.Adolescents can be neglected by services as well as by their families. It is clear that neglect is age-related, and as children grow older it is defined not only by parental behaviours but also by the way in which young people experience them. Davies and Ward216 argue that some fundamental questions have barely been considered. For instance, there is little public debate or consensus as to what constitutes an acceptable level of supervision as children grow older. Furthermore, teenagers are the second most likely group of children to be the subject of a serious case review.

 

4.54 As children grow and develop into young adults, the cumulative effects of child abuse and neglect can have detrimental consequences for their health and welfare. Growth in the frontal lobe of the brain may be under developed in young people who have experienced abusive or neglectful parenting during their childhood. This may mean that they are more likely to engage in risk taking behaviour and live a generally unhealthy life style (see paragraph 3.17). For instance, abused and neglected adolescents are more likely to start drinking alcohol at a younger age and more likely to use alcohol as a way of coping with stress than for other social reasons.Exposure to maltreatment during childhood is also associated with tobacco use, illicit drug use, obesity and promiscuity in adolescence.

 

4.55 Young people who have been maltreated in childhood are also more likely to have trouble maintaining supportive social networks and are at a higher risk of school failure, gang membership, unemployment, poverty, homelessness, violent crime, incarceration, and becoming single parents.Additionally, if they become parents themselves, they are less likely to be able to provide a stable and supportive environment for their children. This creates an intergenerational cycle of adversity.221

 

4.56 There may also be physiological disruptions in later life as a consequence of abuse and neglect during childhood. For example, the manifestations of toxic stress can cause alterations to the body’s immune system and increases in inflammatory markers which are known to be linked to poor health outcomes.These include cardiovascular disease; viral hepatitis; liver cancer; asthma; chronic obstructive pulmonary disease; autoimmune disease; poor dental health; and depression.

 

 

The fifth chapter deals with Timely decision-making.  This is the first time that the Pro 26 week evidence has been properly set out, and in this context, it becomes more compelling  (I remain troubled by what it means for justice – I think Judges should decide on what the right timeframe for decision-making is, based on the case before them)

 

Summary points

  • · One of the most important issues to confront in promoting better outcomes for abused and neglected children is a mismatch between three timeframes: those of the developing child; those of the courts and those of the local authority.
  • · The birth of a baby is often a catalyst for change. Children who remain with parents who have not made substantial progress in overcoming adverse behaviour patterns and providing a nurturing home within a few months of their birth may continue to experience maltreatment for lengthy periods.

 

  • · Social work decisions concerning permanence are made after lengthy and meticulous deliberations. There is a tendency for delays to occur once a temporary solution has been found and the pressure to resolve a crisis has been relaxed.

 

  • · The Children Act 1989 embodies the principle enshrined in human rights legislation and policy that children are best brought up by their own families. Identifying the very few children whose parents will not be able to meet their needs within an appropriate timeframe requires professionals to set aside much of the culture of their training and practice.

 

  • · On average, care proceedings take a year to complete; data collected between 2008 and 2011 indicate that courts in only eleven local authority areas meet the previous target of 40 weeks.

 

  • · Factors that contribute to delays in completing care proceedings include: resource issues; waiting for parenting assessments and the results of attempted placements with parents; resolution of disputes and changes of plan.

 

  • · Repeated assessments of birth parents are a major source of delay, as are sequential assessments of different groups of relatives. These are sometimes undertaken in spite of obvious contraindications. There is a stark contrast between the frequency of parenting assessments and the paucity of paediatric assessments to ascertain the impact of abuse and neglect on children’s development.

 

  • · The more complex the case, the greater the proliferation of expert assessments and the longer the delay.

 

  • · Professionals encounter numerous difficulties in trying to retain a focus on the best interests of the child: attempts to ensure that parents’ rights and needs are respected can conflict with those of their children.

 

  • · Most children placed for adoption are aged two or older before they reach their adoptive families. This timeframe is at odds with research evidence that indicates that babies who are placed early for adoption are most likely to form secure attachments with new carers.

 

  • · Delayed decisions mean that children experience the cumulative jeopardy of lengthy exposure to abuse and neglect; disruption of attachments with temporary carers; unstable placements at home or in care; and prolonged uncertainty about their future.

 

  • · There is a relatively short window of opportunity in which decisive actions should be taken to ensure that children at risk of future harm are adequately safeguarded. Delays close off those opportunities

 

 

 

This is interesting, gathering some research on when and how interventions work  – the importance of gripping neglect cases early and avoiding drift is really apparent from this  – the longer the neglect has gone on, the less chance there is on intervention making a difference.

 

 

In families where children are abused or neglected, social work interventions can be effective if they are decisive and proactive and if they fit in with children’s developmental timescales.230 Actions reinforced by court orders can be more effective than those that are less intrusive, particularly where parents are reluctant to engage with support services or social workers have competing priorities.231 Where parents do not have the capacity to overcome entrenched, adverse behaviour patterns that damage their children’s welfare, placement in the care of the local authority is generally more beneficial for children than remaining at home (or returning there),232 and adoption is likely to lead to the best outcomes for very young children.233 A number of intensive, evidence-based interventions have been shown to be effective in other countries and the results of some UK pilots look promising.234

  However one of the key messages from this wide body of research is that the longer that children experience abuse and neglect without sufficient action being taken, the less effective are even the most intensive and intrusive interventions in promoting their long-term wellbeing.

 

 

 

 

5.7 The prospective study of infants suffering significant harm also showed that 93% (13/14) of the parents who were able to overcome adverse behaviour patterns sufficiently to provide a nurturing home did so within the first six months of the birth. Where children remained with birth parents who had not made substantial progress within this timeframe (12 cases), concerns about maltreatment persisted and were still evident at the child’s third birthday.

 

 This finding has obvious implications for timescales for decision-making and for intensive interventions. However it is drawn from the experiences of a very small number of children in what is already a relatively small study. It needs testing out with a larger sample

 

 

 

The research is interested in a concept called Cumulative jeopardy, where the child development, already harmed by poor parenting, is compounded by the legal process aimed at protecting them

 

Conclusion: Cumulative jeopardy

5.26 There is a complex interaction between child development timeframes and delayed actions by local authorities and the courts. Firstly, research on child development and the consequences of abuse shows that the longer children are left inadequately protected from all forms of maltreatment (emotional abuse and neglect, as well as physical and sexual abuse) the greater the chance that their long-term wellbeing will be compromised. Three recent English studies that explored the consequences of professional decision making in neglectful and/or abusive families all found that a high proportion of maltreated children are left in very damaging circumstances with inadequate action being taken to safeguard them, and with adverse consequences for their health and development.

 

Intensive interventions such as the Family Drug and Alcohol Courtscan make a difference in families, prevent recurrence of abuse and neglect and enable children to remain safely at home. They are also able to show where parents are not able to change within a child’s timeframe, so that decisions concerning alternative routes to permanence can be made in a timely fashion. However such interventions are not yet widely available in this country.

 

5.27 Secondly, a number of studies have shown that, once children are removed from abusive families they often spend lengthy periods in temporary placements before long-term plans are made for their future.Young children can become closely attached to interim carers, only to experience further loss when this attachment is disrupted as they move to a permanent home. Ward, Brown and Maskell Grahamfound that infants who had experienced this double jeopardy (six months or more in an abusive environment followed by a short period of stability and then a disrupted attachment) were showing severe developmental and behavioural difficulties by the time they were three, and that these persisted as they entered formal education. Again, evidence based interventions were not available for these children, and indeed some carers had difficulty in accessing any psychotherapeutic or behavioural support for them.

 

5.28 The long-term wellbeing of abused and neglected children can be jeopardised in other ways. Frequent changes of placements are one of the most problematic aspects of the current care system in England, as each change can have a negative impact on children’s developmental progress, and particularly their capacity to form secure attachments. Studies by Masson and colleagues284 and Ward, Munro and Deardenboth identified a relationship between delayed decisions and placement instability when children are looked after away from home. Masson and colleagues found that ‘the longer the case lasted the more likely it was that the child would move’:children moved during the proceedings in over 80% of the cases in this study. Ward, Munro and Deardenfound that very young children move at least as frequently as teenagers, and that instability is closely related to the provisional nature of decisions, as children move back and forwards between temporary, short-term foster homes and placements with own parents or new carers while they wait for permanence plans to be made.

 

5.29 Finally, there is also a relatively short window of opportunity in which decisive actions can be taken to ensure that children are adequately safeguarded. Delays close off these opportunities. If children are to remain at home, proactive engagement with social workers needs to begin early, particularly in view of evidence that case management becomes less active after they reach their sixth birthdays. There is a body of research evidence to show that if abuse and neglect are not adequately addressed at an early stage, as children grow older they may benefit less both from specialist interventions to address its consequences and from separation to prevent its recurrence.Early intervention is also urgently necessary where there are concerns that a child might need to be placed for adoption, for not only do children become increasingly difficult to place as the consequences of long-term exposure to abuse and neglect become more entrenched, but also adoptive carers are harder to find for older children.

 

 

5.30 The following timeline, showing best and worst case scenarios related to child development timescales where children remain with their birth parents and where adoption is the conclusion illustrates how these issues intertwine.

 

 

[I can’t reproduce that timeline, but it is well worth seeing, and probably having a copy at Court for most hearings. It has the potential to be extremely helpful and might actually start making that god-awful phrase “The timetable for the child” have some actual meaning]

 

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it cannot be right for the Court of Appeal to be asked to case manage cases retrospectively.

Posted on November 5, 2012 by suesspiciousminds

A discussion of Re G (A child) 2012 EWCA Civ 1377

This is a recent Court of Appeal decision (and in light of my recent grumblings about the delay between summaries of decisions and the full judgments being made available, I note that the decision was made on 31st October and the judgment was available by 5th November, so kudos to those involved. 

Mild grumble,  not aimed at this case specifically we seem to be getting a raft of  RE something (a child)  2012 decisions, and a more descriptive title might not go amiss. Otherwise we will have nine Re C (a child) 2012’s and no easy way of distinguishing them save the case number, which is slightly cumbersome.)

 

I tread carefully on this, because I know many, though not all of those involved on a professional level, and have a great deal of respect for all of them. As luck would have it, I don’t really have to criticise any of the people involved.

 

The title is taken from a quotation from the Judgment, but was coined by Mr Adam Smith of counsel, and is a phrase which I am as taken with as Munby LJ clearly was. At the risk of increasing his ego, Mr Smith is a splendid fellow.

 

It goes to the heart of this case, and is the important principle that lifts it from being a very case-specific decision. 

 

The judgment can be found at

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1377.html

 

 

The appeal essentially related to an aunt, who was putting herself forward to be a carer for a child. The aunt had certain disabilities and it was decided at an interlocutory hearing that the assessment of the aunt’s direct care of the child should take place at the mother’s home (that being where the child was living) with certain modifications taking place.

 

  1. By February 2012 the position had been reached that assessments were being awaited on the mother (who at that stage, subject to assessment, was supported by the children’s guardian as a potential carer for T) and the aunt. There was an issue as to where the aunt’s home assessment with T was to take place. It was resolved by Judge Coates at a hearing on 16 March 2012. I quote from her judgment of 9 October 2012:

“In March it was argued that [the aunt] needed to be assessed in a home environment of her ability to care for T – this court determined it should take place at [the mother’s] home and required the local authority to put in handrails to accommodate [the aunt’s] difficulties. [She] argued assessment at the maternal grandmother’s home and forcibly argued the position and I determined where the assessment should take place.”

The order made by Judge Coates was in the following terms:

“provided the appropriate handrails are fitted to [the mother’s] property the assessment of [the aunt] will take place only at [the mother’s] home and not the home of the maternal grandmother.”

The assessment never took place. Judge Coates explored the reasons why at the hearing in September 2012. As she explained in her judgment:

“I have heard evidence as to what happened thereafter … the evidence of what happened when builder came to do the adaptation that [the aunt] sabotaged the attempt to put in handrails and therefore her assessment could not be progressed.”

 

 

Certain findings were made, having heard the evidence as to whether the aunt had ‘sabotaged’ the assessment being able to take place in the mother’s home, and whether she was in a position to provide care to the child.  At final hearing a Care Order was made, the appeal immediately lodged, and a stay granted whilst the appeal was dealt with.

 

The Court of Appeal dismissed the majority of the appellant’s grounds, without difficulty. They were clearly matters which the Judge had heard evidence on, and that the Judge had assessed the evidence and made perfectly proper conclusions.

 

 

  1. That takes me on to the second of Ms Phil-Ebosie’s complaints, which goes to what are said to be various errors on the part of Judge Coates in relation to the aunt’s assessment. It is said, first, that Judge Coates failed to consider whether the assessment she directed on 16 March 2012 was compliant with the 2010 Act; second, that she was wrong to find that the aunt had sabotaged that assessment; third, that she failed to appreciate that, in the absence of such an assessment, she lacked sufficient evidence to reach a decision that the aunt could not care for T; and, fourth, that she was wrong to refuse to permit a risk assessment of the aunt in the light of the outcome of the fact-finding hearing. In short, it is said, Judge Coates should not have proceeded to a final determination of the care proceedings without first directing further assessment of the aunt. The aunt, says Ms Phil-Ebosie, has not been properly assessed.
  1. In my judgment there is no even arguable merit in any of these complaints.

 

….

 

  1. The two final parts of this complaint are linked, since both assert that Judge Coates’s determination of the care proceedings was premature, given the need, so it is said, for further assessment of the aunt. There is, in my judgment, no arguable basis of challenge on either point. It was for Judge Coates, as the judge managing the litigation and conducting the final hearing, to determine what assessments were going to be needed for that hearing and then, if the point arose again during the final hearing, to satisfy herself that she had all the evidence she needed – all the assessments she needed – to determine the issues fairly, justly and in accordance with the law. That is an evaluative task that the law imposes on the case management judge. Indeed, it is an absolutely central task of the case management judge, for it may well determine the shape of the final hearing. But this court can intervene only in limited and well recognised circumstances: only if (I put the matter generally) the judge has erred in law or in principle, has denied the applicant a fair trial or has come to a decision that is “plainly wrong”. In my judgment, there is simply no arguable basis for any such complaint here. This was the decision of a very experienced judge who had available to her, moreover, a mass of expert evidence, including evidence of various assessments of the aunt. I find it unsurprising that, in the circumstances she described in her judgment, Judge Coates should have concluded that further assessment was unnecessary as well as being inconsistent with T’s need for a settled placement without further delay.
  1. It is essential that appellate courts do not too readily interfere with seemingly sensible and appropriate case management decisions of judges who, in the nature of things, are likely to have a much better ‘feel’ for the case than an appellate court can ever have. Those seeking to appeal such decisions must heed not only the well-known decision of the House of Lords in G v G (Minors: Custody Appeal) [1985] 1 WLR 1 WLR 647 but also what ought to be, but I fear is not, the equally well-known decision of the House of Lords in Piglowska v Piglowski [1999] 1 WLR 1360, and in particular the speech of Lord Hoffmann.
  1. The third, and final complaint, is that Judge Coates failed to identify clearly in her judgment what the risks were of placing T in his aunt’s care and why those risks could not be managed without his removal from her care, just as she failed, it is said, to identify which of T’s emotional and other needs the aunt could not meet. For her part, Ms Lee submitted that Judge Coates also erred in giving insufficient consideration to the impact on T of separation from the birth family at this stage in his life and provided insufficient grounds to justify approving the plan for adoption. I do not agree. The judgment more than adequately explains Judge Coates’s concerns and the basis of her decision. There is, in my judgment, no arguable basis for any complaint that Judge Coates erred in her evaluation of the relevant factors or that she failed adequately to explain her reasoning. Were this court to interfere here it would be doing the very thing that Lord Hoffmann has emphasised it must not.

 

 

It is always pleasing to this writer to see the Court of Appeal honestly and rigorously applying the principles of Piglowska and G v G, which sometimes (in my humble opinion) are given lip-service before the appellant Court replace a Judge’s conclusions with their own.

 

The Court of Appeal were with the appellant on one point :-

 

  1. The first alleges breaches of various duties arising under the Equality Act 2010. It is common ground that the aunt is disabled within the meaning of section 6 of the Act. What is said is that the local authority was in breach of its duties under sections 20, 29 and 149 of the Act. The facts relied on are common to all three alleged breaches: the aunt’s complaint as spelt out by Ms Phil-Ebosie in her skeleton argument is that “the local authority refused to assess her capacity to care for T at her own home”, despite it being adapted for her needs, and “asked [her] to undertake a capability assessment at a venue” – the mother’s house – “that had not been adapted to her needs.” The proposed installation of handrails at the mother’s house was, she says, a “token gesture”, given that the aunt’s house is fully adapted with a range of equipment to assist her everyday life.
  1. This is, in my judgment, quite unarguable as a ground of challenge to Judge Coates’s order. I am not concerned with, as it were, a challenge by way of judicial review to some decision of the local authority. The matter before me is a challenge to the order made by Judge Coates on 9 October 2012. Moreover, the factual premise which underlies this ground of complaint is simply wrong. It was Judge Coates, exercising her judicial discretion in the context of the pending care proceedings, and not the local authority, who decided both where the assessment was to take place and what adaptations to the mother’s house were required. So the challenge, if there is to be one, must be to Judge Coates’s decision.

 

 

The Court of Appeal then looked at whether that case management decision was appropriate, and whether the challenge stood up to closer scrutiny.

 

 

  1. Judge Coates was plainly justified in finding that the necessary assessment was, from T’s point of view, better conducted away from the maternal grand-mother’s somewhat dysfunctional household and on territory that was more familiar to him. Judge Coates was aware of the need to accommodate the aunt’s disability and did so, in what seemed to her, having heard argument, to be the appropriate way, by directing the fitting of handrails. Even if more was sought by way of alteration to the mother’s house (and it is far from clear it was) there is, in my judgment, no sensible basis of challenge to the order which Judge Coates made on 16 March 2012 – an order which, it is to be noted, was neither challenged at the time nor subsequently. Moreover, it is apparent that the detailed arguments under the 2010 Act which the aunt now seeks to put forward were deployed for the first time at the hearing before me on 12 October 2012. I do not criticise Ms Phil-Ebosie but this is no way in which to conduct care proceedings. As Mr Smith put it, and I entirely agree, it cannot be right for the Court of Appeal to be asked to case manage cases retrospectively.
  1. The finding that the aunt had sabotaged the assessment was a finding on a matter of fact on which Judge Coates heard evidence. Judge Coates was ideally placed to evaluate the evidence, including in particular the evidence of the aunt, and was plainly entitled to find as she did. This finding of fact is unassailable.

 

 

The Appeal was therefore refused.

 

The key issues from the case for practitioners are therefore that arguments about Equality Act issues have to be deployed when the case is being argued and before the decision is made, if they are to give winnable grounds for an appeal. Second, that if a case management decision is made that fundamentally devastates your case, you need to consider the appeal at that point and not wait for the final hearing for orders to be made on the foundations laid down at that interlocutory hearing.   And more broadly, that you can’t reserve your best arguments for the Appeal process, you have to lay them out before the Judge determining the case.

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Whatever you do, don’t blink

Posted on November 2, 2012 by suesspiciousminds

An imaginary judgment, that will make largely no sense to you if the title above doesn’t already resonate.  [In fact, it may well be utterly unintelligible, if you don’t already know what a Weeping Angel is. sorry]

 

This is a most vexed and unusual  Children Act case, involving a, well, one cannot definitively say ‘child’ as that is itself litigious, and one cannot say ‘young person’ as that too is litigious.

I shall use those terms, as I will ‘mother’ and ‘daughter’ although those matters too fall to be determined. The ‘mother’ in the case, and from this point on, I shall omit the quotation marks, does not strictly speaking have a name, although all have decided to call her Eleanor Acquitane.

 

At the risk of a terrible pun, and I am afraid it may not be the last, she has cut a statuesque figure.

That is because, to the naked eye, she is a statue, or at least she has that appearance to our eyes. She is, however, a lifeform. The Court has been advised by Mr William Compton of counsel, representing her, that she is a lifeform of a sentient species known as Weeping Angels.

As is often said, by counsel representing parents “My client is no angel” but in Mr Compton’s case, she is. The ‘child’ in question ‘C’ is also in appearance a cherubic infant statue.

The Local Authority claim the following about Weeping Angels

1. That they are sentient and capable of reasoning

2. That whilst looking at them, they appear to be statues, or possibly even that they turn to stone whilst you are looking at them

 3. That they cannot move whilst you are looking directly at them

4. That they become ambulatory, and vividly so, if you are not looking directly at them. They can move considerable distances in the blink of an eye.

5. That they do something to human beings, if allowed to close that distance, which removes them from existence.

 

It is hard to say ‘kill’ as no body is found for analysis, nor any chemical substance which could be analysed for remains. There is some speculation that what actually occurs is that the person is sent back in time, but obtaining hard evidence for this is difficult. For my part, if I am sent back in time, I hope that it is to the Sixties, where I intend to forge a career as a song-writer and professional gambler.

The Local Authority contend that these matters, taken in their totality, mean that Eleanor Acquitane is not suitable to care for C and that C will be exposed to significant harm, including witnesing some form of murder on a frequent basis.

Those representing Eleanor Acquitane accept points 1-4, but refute point 5.

They also challenge a number of matters which would ordinarily be taken for granted in an application under the Children Act.

Those are the following:-

1. That the relationship between Eleanor and C can be described in any way as that between parent and child.

2. That C is in any way a child

3. That C needs any care at all

4. That the Children Act applies to Eleanor and C in any way

5. That the habits, customs and traditions of Weeping Angels are such that to attempt to judge them and critique them by human standards and mores would be as ridiculous as trying to judge a lion by the standards of a polite Kensington dinner party.

These facts are clear.

(a) Eleanor and C had been living in a London park.

(b) They moved from that park, on or about June 6th 2012

(c) They moved to a vacant flat in the Local Authority’s area

(d) Initial professional visits to the flat, following referrals, resulted in no reports being completed after the visits, and staff never being seen again.

(e) An interim care order was made on 12th July 2012, and C taken into foster care. I have heard vivid evidence about the logistical and practical difficulties in executing that order, and the Court would wish to offer sympathy to the families of the four workers who are sadly no longer with us

(f) In the short intervening period, C has had seven foster placements.

I heard evidence from the current foster carers, who have to watch C at every moment of the day and night, never taking their eyes off her in case she moves and does whatever it is that Weeping Angels do (even their infants, offspring, ‘prima facie younger versions’ do this).

This has been understandably a strain and a difficulty on them, and the momentary loss of concentration that was a prelude to Uncle Martin’s disappearance has added to that burden. It is unique, in my view, for a Court to hear from a witness in care proceedings whose final words to the Court are “For God’s sake, free us from this living hell”

(g) A psychologist was appointed to assess C and Eleanor Acquitane. The report was never completed. It was a shame that the psychologist had conducted the interview alone, and that he had declined all sensible advice to have an additional eight persons present, all fixing their gaze firmly on C and Eleanor at all times.

 

I have been presented with a report, which was published in a science-fiction magazine named “Mind-Expanding Tales of Wonder” in 1977, which purports to be the psychological assessment of Eleanor and C.

I have been invited, by Miss Pond, for the Local Authority, to take this into account and treat it not as fiction, but as the actual report in the case, genuinely written, as it claims, by the psychologist who had been thrown backwards in time after the Weeping Angels reached him.

I find it difficult, on basic principles of evidence, to accept that a science fiction story written in 1977 can be, in fact, a factual report which the Court directed to be prepared in 2012.

Of course, the coincidences in the fictional publication are manifold and surprising. Miss Pond pointed them out to me, and they included that the author’s name was that of our psychologist, that the descriptions of Eleanor and C (and their names) was accurate, that the article names myself as the Judge, and so forth.

Those matters are on the face of it compelling, as is Miss Pond’s submission that what has happened to all of the people who have vanished after taking their eyes off C or Eleanor have actually been sent back in time.

 

Mr Compton concedes that this is a possibility, and given that the other accusation against his client is that she has been disintegrating these innocent professionals attempting to do a difficult job, one can see why he would be swayed towards that explanation.

He does firmly say that without the opportunity to cross-examine the psychologist, and the uncertainty about whether the ‘story’ can genuinely be the report itself, the Court could not realistically give weight to what purport to be expert conclusions of “Both are incredibly dangerous, and the only thing to do is ship both to Antartica and hope the world never sees either of them again” .

 

For my part, I did not need a great deal of encouragement not to adopt those recommendations or conclusions. On the balance of probabilities, the coincidences in the ‘story’ with the facts of the commissioned report are just that, coincidences, and it would be manifestly unfair to treat them otherwise.

I have, therefore, to proceed on the basis of there being no psychological evidence before the Court, there being no-one else willing to undertake it. I should recount the unusual arrangements at Court.

It would not be safe, for anyone, on the little we do know, for Eleanor Acquitane to sit behind Mr Compton in the traditional way.

That would leave my eyes as the only ones on her, and expose Miss Pond and even Mr Compton to inordinate risk, should I have had to look at a document, or wipe my glasses, or blink.

She has therefore spent the entireity of the hearing in the witness box, and those at the bar have taken it in turns to watch her, as the saying goes, like a hawk.

I come now to the central issues in the case, as delineated by Mr Compton.

He does not dispute that IF his client were human, and C were her child, and C was witnessing at best the disappearance of other humans around her on an almost daily basis, then the threshold would be satisfied and that his client would have a mountain to climb in terms of persuading the Court not to make a Care Order.

However, as he points out, she is not human. And the Local Authority have not been able to prove that C is a child at all. She is certainly not a human child.

It has not been possible to age her – there are no dental records, and those who have seen her teeth (which happens only after a short blink or removing ones gaze) have no wish to attempt to obtain any dental examination of them. Mr Compton contends that whilst C has the outward appearance of a young cherub or infant child, the Local Authority simply cannot prove this.

Nor can they prove that C and Eleanor have any biological connection, still less that of mother and daughter. His client insists that their relationship is close to that of comrades, or colleagues and not a parent and child dynamic at all. C is entirely self-sufficient and does not require parental care. He states that the experiences of the foster carers, chilling though they are, show that none of the things that a human infant would need are needed by C, and that she is more than capable of ‘feeding’ if feeding is what is being done when ungazing people around her vanish.

It is not possible to establish the relationship by DNA testing. Firstly, it is entirely possible that both C and Eleanor do not in fact have any DNA. Secondly, rather than a swabbing process, the only way a sample could be taken is by drilling into the skin of C and Eleanor, and that is not something that the Court could sanction.

I have to consider, of course, whether the Human Rights Act applies to this case at all; and that has proven to be problematic.

On the face of it, if as Mr Compton contends (and as seems clear from the evidence) his client is not a human, she would appear to not have the protections that the Human Rights Act offers. But, says Mr Compton, one must look at the wording of Article 6, for example

ARTICLE 6 RIGHT TO A FAIR TRIAL

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

And

ARTICLE 8 RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

 Mr Compton submits  that the key word there is ‘everyone’ and that there is no stipulation that such rights are limited to humans. It does not say “Everyone who is a human being”

It is true that within the Act, there is no definition of human. It was reasonable, at the time it was written, for the Parliamentary draftsmen not to anticipate that we would be sharing our planet with another sentient race. But here we are.

The Human Rights Act, Miss Pond says, clearly, even if it does not spell it out in statute must only apply to humans, and that applying the logical consequence of it applying to any living being that it does not explicitly exclude, the State would owe ants a right to private and family life. The Act, she says, applies to humans and humans only. Should Parliament wish to extend rights and protections to Weeping Angels, they would have to bring that about with fresh legislation.

Similar arguments extend to whether the Children Act 1989 gives the Court any jurisdiction at all on C.

And here, the parties reverse their positions.

Mr Compton says – his client is not human, the Act is intended only for human children, and that to widen its scope would be analogous to making Interim Care Orders for puppies and kittens.

Miss Pond says – the precise wording of the Act defines “child” as (s105) a “person under the age of 18” and that the Court may determine on the balance of probabilities that C, given her appearance is a person under the age of 18.

(This seems to get the Court into ‘age-assessment’ territory, and I have been kindly taken to the wealth of caselaw on that point, almost all of it concerning Croydon. It is fair to say that I am not particularly helped on how to age a child who has the outward appearance of a statue. As Mr Compton readily points out, if one asks how old the Statue of Eros is at Piccadilly Circus, one is more likely to answer that it is about a hundred years old than that it is about five months old)

Even if I overcome the thorny issues of whether the Human Rights Act and the Children Act apply to this case; and it seems to me that they either must BOTH apply or neither can apply – the Court cannot cherrypick on ‘the spirit of the law’ versus the ‘letter of the law’ and apply that differently on the two different Acts.

Either the Acts intend to cover only human beings though neglecting to make that transparently plain or a narrow construction of the law that it does not exclude other sentinent and conscious beings is right. I will come to that later.

But even once that is resolved, one is left with the issues of whether it is an essential part of the character of Weeping Angels to make humans disappear, and whether depriving C of that culture is to go against nature itself. Is it part of their essential make up, just as dreaming, hoping, wishing or worrying is part of our essential make up as humans? What sort of life is there for C in care, with those charged with caring for her being actually terrified of her every minute of the day and night and there constantly being the fear that the placement will break down, if she ceases to be observed for even a second or two, and vanishes her carer?

Is there, in short, as Mr Compton argues, a compelling case for striving to understand that a human trying to care for a Weeping Angel would a fruitless exercise doomed to failure. As Wittgenstein observed – if a lion could speak, we would not understand what he had to say.

Fortunately for all of these thorny issues, I have arrived at a very elegant solution and one which will please everybody.

Erm, I would ask counsel to not look at me whilst I am delivering this judgment. I appreciate that it is Court etiquette to do so, and no doubt ingrained into you all, but….

I am afraid I have been looking at my notes, and you have been looking at me. And now Miss Acquitane is no longer in the witness box and is only four inches away from me. Her teeth are very sharp. Everyone, don’t blink. Whatever you do, don’t blink

TAPE ENDS

 

[Writing this led me into the curious mental debate about what would happen if a Judge delivered a judgment but passed away before the order could be drawn up? Are the findings binding? How far into the judgment does a Judge have to survive into for it to be intact? What if she or he makes findings on seven of the ten allegations but passes away mid sentence before moving on to the eighth? Does the whole thing get re-tried, or only the last three allegations? If anyone knows, please tell me, because I have the sort of mind that worries about these things.  What if they’ve written the judgment down, but they die whilst reading it out?       On the unlikely event of there being any Judge who reads this blog, I am incredibly sorry to have expressed such macabre thoughts about you and your job, and rest assured, I wish you nothing but well, and that you get to the end of all of your judgments intact. ]

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So tired, tired of waiting, tired of waiting for you

Posted on October 29, 2012 by suesspiciousminds

 

 (A quick look at four cases that have been decided, but that I’m still waiting for transcripts of judgments on , and one that I’ve been waiting for for ages, and which turns out to be crushingly disappointing)

 

 

Not worthy of full blogs, until I see the full transcripts, because as lovely as summaries are, they do lose the subtleties of having the entire judgment to rifle through for gems.

 

But anyway, here are four up-and-coming interesting cases.  (and I am aware that the section 37 case – is it an abuse of process to make multiple ICOs pegging them on s37 directions when the LA haven’t made an application, went to the Court of Appeal last week, and there will be a judgment on that in due course. I blogged about that one previously here :-

 

https://suesspiciousminds.com/2012/08/31/ive-got-section-thirty-seven-problems-but-a-aint-one/   )       [And where else in legal blogging do you get both the Kinks and Jay-Z?  Can I get an encore/do you want more/cookin raw / with the Brooklyn Boy]

 

 

The first, and most recent is RE H (A CHILD) (2012)

 

CA (Civ Div) (Thorpe LJ, Lewison LJ, Hedley J) 26/10/2012

 

In this case, the LA were seeking final orders, and the trial judge instead made an Interim Care Order, adjourned the proceedings for three months, and directed a placement at a parent and baby foster placement. The Court of Appeal refused the LA appeal, and determined that the Judge was entitled to make those decisions, having weighed the negative and detrimental impacts on the child of delay against the potential positives to the child.  

The interest for me on this one will be  (a) how much of a bulwark it might be against the  “26 weeks is our aspiration, finish things off quicker” philosophy that is currently so “popular” and (b) whether it is actually authority for the Court having power to compel a Local Authority to place in a parent and baby foster placement. 

I assume that this, if there is such a power, derives from s38(6) and the Munby LJ decision in Cardiff, where he determined that a s38(6) placement didn’t have to be in a residential assessment centre, but could be with a family member.  

 

There are two schools currently, one is that the Court CAN compel a Local Authority to place in a mother-and-baby foster placement (or parent-and-baby foster placement) using the Munby decision, and the other is that the Court CAN’T compel, but generally achieves it by rejecting a plan of ICO and separation, and making the LA decide on the ‘lesser of two evils’ between that and having the child at home under ISOs. 

[I have to confess, that I am not at all sure which of those is right. My reading of the Cardiff case is that the Judge was stretching s38(6) very creatively to get an outcome that everyone in the case desired, but that it might reach snapping point to try to do it in a case that is actively litigious. But, there are passages in Cardiff that would support s38(6) being used to place a child whereever a Judge thinks fit]

 

I will be interested to see if the Court of Appeal grapple with that issue at all.  And of course, Cardiff was only a High Court decision, so if so, it will be Court of Appeal backing for that authority.

 

Next up

 

RE M (A CHILD) (2012)

 

CA (Civ Div) (Ward LJ, Lloyd LJ, Rafferty LJ) 22/10/2012

 

This one may fall entirely on its own facts, or it might be incredibly important, which is why I am so keen to read the full judgment and find out.  It was an appeal against a finding of fact hearing. The child was a few weeks old and had 8 separate bruises, left forearm, right arm and right thigh.  No explanations for the bruises were provided. The medical opinion was that they were non-accidental, in the absence of an accidental explanation. The Judge also found the parents evidence to not be credible and found that the injuries had been caused by them.

 

The Court of Appeal considered, on the brief note I have available, that this amounted to a reversal of the burden of proof and that it was not for the parents to explain how the injuries were caused accidentally, but for the LA to prove that they were caused non-accidentally.

 

[This quote from the summary, on a well known law reporting website, not necessarily an extract from the judgment itself – my underlining, to illustrate what seems to be a current direction of travel on medical cases]

 

“The medical evidence was that the marks were imprints or pressure marks from an object, but it was not possible to say what object or even what kind of object or how the pressure was exerted. Nor was it possible to say whether there was a momentary infliction of pain or a sustained pressure. The instant case was not one of a broken limb, or a cigarette burn or finger pressure. The court simply did not know what had happened or how. The judge had accepted the evidence of one of the doctors that in the absence of a benign explanation from the parents it could be concluded that the injuries were not accidental, but that conclusion did not follow, unless the burden of proof, which lay on the local authority on the balance of probabilities, was wrongly reversed and the parents were required to satisfy the court that the injuries were non-accidental. The judge had erred in finding that the parents had deliberately caused the injuries”

 

It may be that the case is entirely case and original judgment specific, but it would not surprise me, given the movement of the Court of Appeal in recent months away from “listen to the doctors” towards “the Court should actively contemplate the possibility that medical opinion is not always right, even if there is consensus” if it contains some important principles.

 

 

Next

 

RE C (CHILDREN) (2012)

 

CA (Civ Div) (Thorpe LJ, Munby LJ) 12/10/2012

 

Which involves private law, and a finding of fact hearing / change of residence hearing. The trial judge stopped the father midway through his evidence [after he had finished in chief] and gave judgment about the allegations the father was making, essentially dismissing them and the application for a change of residence.  The father appealed, in essence saying that had the Court heard mother’s evidence and he had the opportunity to cross-examine mother, his allegations would/might have been proved.

 

The Court of Appeal determined  (again, the quote is from the summary of the case, and not the transcript itself)

 

 

Given that the judge had heard F’s evidence in chief, it was entirely appropriate for him to direct himself as he did, namely that F had to establish on the balance of probabilities that there were compelling reasons why the children should be moved. It was the correct exercise of his discretion for the judge to say F had failed to meet that test. There was no error of law or approach either in his determining the standard by which F’s evidence was to be evaluated or to say he was satisfied that F had failed to prove any of the matters to satisfy the court that the residence order should be changed. It was a matter for the judge to determine the form of procedure to satisfy the welfare needs of the children and he was not obliged to listen to evidence if it was not appropriate and the process would be of no advantage to the children. The judge’s view was robust, but he did not exceed the ambit of his discretion. There was no error of law or misdirection in what he had said about the burden of proof or in taking the course that he did. He had taken a decision that was plainly open to him in all the circumstances and it could not be said that he was plainly wrong.

 

 This may be a gratefully received judgment for all Judges dealing with private law cases faced with clearly threadbare evidence for serious allegations, as they may be able to cut them short when it is clear they are going nowhere.  [I shall not speculate as to whether the number of such cases will increase or decrease as a result of certain political decisions about funding of family legal aid]

 

And this one

 

RE P (A CHILD) (2012)

 

CA (Civ Div) (Thorpe LJ, Lloyd LJ, Black LJ) 05/10/2012

 

 

Where essentially, very serious allegations of sexual abuse was made against the parents. The parents indicated that they did not seek the return of the child or any contact, and that on that basis, embarking on a judicial determination of the allegations was unnecessary   (as they were content for the Court to make a Care Order and did not seek any orders in relation to contact)

 

This is interesting, because it throws up what the role of the Court is – is it to get to the truth, or is it to determine the applications that are placed before it? If having a fact finding hearing doesn’t materially affect the order to be made, how can it legitimately take place on the one hand.  On the other, isn’t it important for the child’s care and future to know whether he or she was the victim of sexual abuse?

 

The Court of Appeal remitted the decision back to the trial judge who had decided not to have a finding of fact hearing, for further consideration – notably of the expert report that having resolution of this issue would be beneficial for the child and that future uncertainty would be detrimental to the child.  They also considered that the parents stance on contact might shift (and may have already shifted) and that it was appropriate for all of these issues to be taken into account.

 

 

 

And oh, I see that another one I was waiting for is now up

 

RE (1) B (2) H (CHILDREN) (2012)

 

[2012] EWCA Civ 1359

CA (Civ Div) (Thorpe LJ, Kitchin LJ, Dame Janet Smith) 01/08/2012

 

This case goes to the issue of having a finding of fact hearing where the suspected perpetrator had considerable learning difficulties. It is pertinent for me because I had similar issues come up with a potential intervenor in a case and the law wasn’t entirely clear on how the Court should decide whether to compel them to give evidence, and how the balancing exercise should be conducted.

 The trial judge in this reported case  decided not to go ahead with the finding of fact hearing, and was appealed.

 

Sadly, the appeal was unopposed, so the judgment is very short.  In effect, the Court of Appeal were persuaded that the role of a finding of fact hearing is twofold  (and this may feed into the case above)

 

The outcome of a fact finding investigation is not only to determine whether the section 31 threshold has been crossed, but also to provide an essential foundation for the trial of the welfare issues that lead to the management decision for the future of the child.

 

 

I can therefore suggest nothing further than the tack I used in my case, which was that the Court should weigh the article 6 right to a fair trial against the rights of the vulnerable person and would have to give leeway to the witness when considering confusion about dates, times, details and sequence of events where their learning difficulty impacted considerably

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One of these nights you’re gonna get caught, It’ll give you a pregnant pause for thought

Posted on October 29, 2012 by suesspiciousminds

 

 (Always nice to sneak a bit of Billy Bragg into the blog.  My favourite Billy Bragg line is, of course, from Sexuality  “I had an uncle who once played / for Red Star Belgrade”)

This is a discussion of the extraordinary case of A Local Authority v S & O [2011] EWHC 3764 (Fam)

 

http://www.familylawweek.co.uk/site.aspx?i=ed102837

 

You know that something is peculiar when a High Court Judge begins with Even by the standards of the Family Court this is a strange tale.. 

 

And he is not wrong.

 

 

Mr and Mrs S were a Nigerian couple, living in England. They wanted to have a baby, and heard of a fertility clinic in Nigeria, Port Harcourt.  They paid a lot of money to this clinic, and the mother had treatment there. She returned to the UK and had tests and scans with her GP, which confirmed that she was not pregnant. She rang the Port Harcourt Clinic, who told her that this was not unusual with the process and that she should come over.  She visited Port Harcourt and was sedated and then presented with a baby.

 

Mr and Mrs S returned to the UK with the baby.  On visiting their GP, the GP considered that the care of the baby was very good, but having determined that Mrs S had not been pregnant, was deeply troubled by the story of the delivery and contacted the Local Authority.

 

A DNA test was done, showing that the child had no biological connection to either Mr or Mrs S.

 

Care proceedings were commenced, it being apparent to the Local Authority that this child had been removed from birth parents and brought into the country and was living with people who had no parental responsibility.

 

The issue that fell to be determined by the Court was whether Mr and Mrs S had been deceived and hoodwinked by the Port Harcourt clinic, or whether (as the LA asserted) it was inconceivable (pardon the accidental pun) that they had fallen for this and that they had either fully known or simply turned a blind eye to the obvious truth that this had never been their baby.

 

 

Here are the contentious findings sought

 

“(vii)  Mr. S knew or ought to have known that Mrs. S was not pregnant as asserted.

(viii)  Mr. S knew or ought to have known that O was not their biological child.

(ix)  On a balance of probabilities, Mrs. S and Mr. S were complicit in the removal of O from her biological mother at or shortly after the time of her birth.

(x)  At the relevant date, O’s care arrangements had been based upon a fundamental deception to which Mr. and Mrs. S were knowing parties.”

 

 

 

Now, this is the bit I find significant, and appalling. As the DNA test had shown that this was not their child, Mr and Mrs S had no PR, and received no public funding. So, they were fighting to defend themselves against these highly damaging allegations and also seeking to care for a child who they had formed an emotional connection though not a biological one.   Whilst my gut instinct view of the allegations was that the LA were probably right, it seems to me manifestly wrong that Mr and Mrs S had no legal representation to fight this case, and it is one of those bureaucratic idiocies which makes me slightly ashamed to be British.

 

As luck would have it, a pro bono barrister came forward, Mr Nicholas Paul, and he clearly did an admirable job for his clients.

 

 

I think it is worth setting out the history of the matter given by the mother, as it is important in trying to establish whether this was a nod and a wink  “Oh, I’ll pay for ‘fertility treatment’ but we both know I’m actually buying a baby”  or whether the clinic was actually seeking to deceive naïve and desperate couples.

 

“I have been married to Simon S since 2002.  On 8 January 2011 I gave birth to O at God’s Gift Clinic Maternity in Port Harcourt, Nigeria.  The treatment started in December 2009 under Dr. Chineri Emica Precious who gave me a number of injections and tablets and capsules.

4.  In April 2010 I started to feel the symptoms of being pregnant such as bloated stomach and gaining of weight.  I returned to Nigeria in April upon Dr. Chineri Emica Precious’s request for a medical check-up and she confirmed that I was pregnant. 

5.  I returned to the United Kingdom and visited my GP, Dr. H, who was not convinced that I was pregnant in May 2010.  I asked her to reduce my blood pressure medication as I was now pregnant, but she declined until there was confirmation that I was in fact pregnant.  At this stage, my symptoms of pregnancy persisted.  I had another appointment with Dr. H in September 2010 where a body examination was done and she referred me to Homerton Hospital for a scan.

6.  On 16 October 2010 I attended Homerton Hospital for a scan and it showed no pulse or heartbeat from the baby.  This came as a great shock to me, bearing in mind what I was told in Nigeria, that I was pregnant.  I kept up my line of communication with Dr. Chineri Emica Precious in Nigeria, who assured me that it was not unusual for the baby not to be seen on the scan.  Also, I was reassured by the testimonies of others who had had the treatment before (my sister and a friend).

7.  I returned to Nigeria in October 2010 to see Dr. Chineri Emica Precious who informed me, conversely to what I was told in England by my general practitioner and scan results, that I was pregnant and she continued to treat me with injections and one big medication.  I assumed that this continued treatment was in order to maintain the pregnancy.  I had no reason to doubt her sincerity or expertise in this regard.

8.  In November 2010, Pastor B at my church in London, like other people around me, including my husband, asked me if I was pregnant as he saw that my stomach was bloated as if I was pregnant and I had gained a substantial amount of weight.

23  She continued at paragraph 13:

“In December 2010 I went to Nigeria for the yearly crossing over programme at the headquarters of MFM and later went to Port Harcourt.

14.  Soon afterwards whilst in Nigeria, I noted that I was bleeding from my back passage.  I recalled that when I was carrying E my previous pregnancy, that the baby and I were bleeding.  However, in that prior instance, the bleeding was internal and this tragically led to E suffering her disability, as this was not detected on the scan.

15.  In January 2011 during what I perceived to be the birth of O, I recall a doctor inducing labour through intravenous drip and I experienced what was labour, a very traumatic delivery and a baby was presented to me covered in blood as would have been normal in a delivery room.  I felt all the natural manifestations of labour and delivery and my baby, O, was presented to me in the manner described.  Subsequently, when both the Metropolitan Police and the Applicant suggested a DNA test, I fully cooperated and was not in any way concerned as to the outcome as I knew I had given birth to O.  I had named her as was customary and obtained a birth certificate for her.”

24  Paragraph 19:

“Since 21 March when we were informed of the DNA results that suggested that we were not the biological parents of O and she was removed from us, my whole life has been shattered and it was as if we had suffered E’s bereavement all over again.  In short, I have been depressed and traumatised.  We have struggled to maintain any level of sanity as I am now convinced that I have been a victim of a very serious fraud by those who have exploited my vulnerability and infertility for their own financial gain.  I had paid a total of 1.3 million naira (just under £6,000) to this medical practitioner at this stage for the fertility treatment.  I enclose for the consideration of this court an article in The Vanguard, a Nigerian newspaper, that clearly sets out in detail the type of scam that I have been a victim of.

21.  I have cooperated fully with the police and the Applicant in the course of their investigations into this matter.  As a family, we coped fully with E’s serious disability and maintained our composure and dignity throughout.  The fact that we have been exploited in this way and the consequent investigation, albeit legitimate, has dragged on and has been devastating for us as a family.  I categorically deny that we have been involved in any child trafficking, except to say that this is a tragic case in which we have been a victim.”

25  That ends the quote from her statement. They obviously had in fact filed an earlier position statement, I think without any benefit of legal advice, on 11 April.  In that they said this.  It was a joint statement produced by both Mr. and Mrs. S.  I read from it because it is of crucial significance:

“O was not deliberately removed from her parents in Nigeria.  She was brought into this country as I was made to believe that I gave birth to her as a result of the fertility treatment that I embarked on from December 2009.  During the treatment I went through gradual stages of pregnancy and was made to believe in the delivery procedure, under which intravenous drip and drugs were used to induce labour, that I gave birth to O.  My experience of the treatment and the testimony of others who had previously undertook the treatment built a very strong belief in me that O was my biological daughter, until the DNA test results concluded otherwise.  The strong belief in the pregnancy and birth experience led to O’s birth registration.  All due processes were followed to obtain travel documents for her to be brought to the UK as our legitimate daughter without any doubt.

The above beliefs were also responsible for us being so adamant that O was our biological child before we had the DNA results.  We complied throughout with the investigation in good faith with every assurance that the DNA results would vindicate us.  However, it was the DNA results that caused us to see ourselves as victims of crime or error.”

26  They carry on in similar vein, concluding in this way at paragraph six:

“Regardless of the DNA results, we genuinely love O as we would love our own child.  S, our nephew, has lived with us for over 11 years and we care for him and love him as our own child.  We would be heartbroken if the court allowed O to be abandoned into the hands of the social services to navigate her way through the care system.”

 

 

If what she says is right, and the clinic sedated her and gave her medical treatment intended to make her believe that she was in labour, and then presented her with a baby, then her ‘crime’ is really to have believed the clinic rather than her GP who was saying that she wasn’t pregnant.  You may think that she was gullible, foolish, perhaps even stupid; but that’s a distance from deceit and complicity.

 

 

The story seems utterly fanciful, however. A fertility clinic that goes to all the trouble of trying to make women believe that they have given birth as a charade for what is actually a straightforward sale of a baby? However…

 

35  Could this be a true story or is it an elaborate piece of invention?  On the face of it, the court’s first obvious and natural reaction to this very far fetched tale is to be highly sceptical, but for one crucial piece of further evidence.  It is in the form of a lengthy cutting from a newspaper, the Port Harcourt Vanguard, for 11 September 2011.  This is also available in fact on the internet.  Under the headline, “Baby Factories: how pregnancies/deliveries are framed”: “Vanguard’s investigation reveals more baby factories.”  There  appears a two full page article carried out by an investigative journalist which describes in elaborate detail the process largely described to me by the mother.  I shall read two sections from the article.  I have already read the banner headlines about baby factories and it contains a number of black and white photographs.  These passages are to be found in the article:

“Our findings reveal that the unpublicised native maternity homes use illicit means to procure babies for childless couples on the payment of huge amounts of money ranging from N750,000 to N1 million, depending on the sex of the baby.  We gather that twins go for about N1.5 million or more.  The delivery date depends on the baby seekers.  While some opt for a nine month period, some go for a fast deal of one month or two, also depending on the availability of the baby from the sources.  Investigations reveal that for those who go for a nine month period a pregnancy would be framed and a delivery date given.  The delivery date can be postponed indiscriminately based on the availability of the baby.  Their patrons are desperate women ranging from high society women, clergymen and women who most times hide the arrangements from their husbands.  Most of these centres are found in …”

36  It mentions three towns including Port Harcourt.  Then under the heading, “How Pregnancy and Deliveries are Framed” it reads:

“Investigations reveal that these clinics administer certain substances on the patients that form a sort of tumour in the womb of the expectant mothers, making them believe they were pregnant.  Occasionally, a movement is caused in the belly making it look as if a baby is kicking.  The women are warned not to go to any hospital or undergo ultrasound or any sort of scan as they would lose the pregnancy or baby in the process.”

37  It goes on in similar vein and it contains this passage further on:

“Further investigations reveal that when it is time for delivery another substance is administered on the woman which gives a false impression of labour.  Part of the growing tumour will come out through the vagina and it is cut to discharge blood and make it look as if there was an actual delivery.  A baby is then sneaked in and made to cry.  The woman is also made to believe she has been delivered of a baby.  In Precious Ogbana’s case, she told the reporter that when she had one of the babies it was recorded to a friend’s cell phone but she deleted the video a few days later.  She regretted deleting the stuff, fearing her husband would not like it, especially if the video got to a third party, adding that she went into labour and gave birth to the kids.”

38  There are a number of case studies set out in the course of that lengthy, double page article.  Having seen that article, there cannot be any doubt at all that this far fetched story is rooted most solidly in reality and that this kind of practice is common in certain parts of Nigeria.  I have described the process as a baby exchange.

39 So there can be no dispute now that the mother was indeed a participant in this elaborate scam but, as I said at the outset, the central question remains and has to be answered: was she a knowing and willing participant? 

 

 

 

The Judge then had to grapple with that central question, and reached these conclusions

 

50 How do I analyse the evidence to arrive at a conclusion in this mysterious case?  The following factors have guided my decision:

51  The mother is an intelligent woman who teaches at an adult literary college in London.  She is a God fearing practising Christian, as is her husband, to whom lying is complete anathema.  This factor has to count for something even in these cynical days in which we live.

52  The mother gave evidence to me at great length over two days and I found her to be impressive and unshakeable in relation to all important matters.  In all important respects, her versions both in writing and to the police have remained consistent.  In short, incredible though it seemed to me at the outset, by the end I was driven to believe her account.

53  By the same token, I found the husband, a responsible man in regular employment, to be a patently honest witness.  I do not think for a moment he would have gone along with knowingly assisting his wife in participating in a deception on the court. 

54  Both the mother and her husband have cooperated fully and willingly with the inquiry once they realised the circumstances of the arrival of the child and once they realised they were suspicious and they realised that these suspicions needed to be allayed.  They willingly took part in the two DNA tests. 

55  When conducting a fact finding inquiry, particularly one as strange as this, often the most important guide is to be found in the presence or absence of so-called “smoking guns”.  That is to say, factors which point to or are either consistent with or entirely inconsistent with one or other side’s version of the possible truth.  In this case, there are factors which, in my judgment, point inexorably to the conclusion that the mother is most likely to be telling the truth.  What are these factors?

56  The fact that during 2010 she went on visiting her GP, firstly to find out if she was pregnant and then to check whether she was and whether there might have been a mistake.  I find it to be unthinkable that she would have returned to the GP if she had knowingly become involved in this scam and after she had received negative tests in England.  To do so could only sensitise the GP to the possibility of something untoward happening when the child was eventually produced to the doctor later.  But that is precisely what did happen because the GP of course had the chance to examine the mother in the months preceding the so-called birth.  In my judgment, the last thing this mother would have done is to go back to the clinic to persuade the doctor to arrange a scan when she could only have known it would reveal nothing.

57  By the same token, why was the mother going backwards and forwards to Nigeria and seeing the doctor if she knew the pregnancy was an invention?  She would merely have gone out there in December, around the time of her expected delivery, and collected the child.

58  By the same token, it is unthinkable as I find that the mother would have produced the baby to the GP within three days after returning to this country if she had known the circumstances of her removal from her natural mother and Nigeria were highly suspicious or possibly criminal.  She produced the child to her GP in all innocence, expecting the GP to be delighted to be proved wrong.  Miss Watson, having to overcome this telling point, says that she took a calculated risk.  That, if I may say so, is a gross understatement.  It would have been sheer lunacy.  As Mr. Paul points out, there were other much less risky ways of proceeding which would have hugely reduced the risk of detection which, were she part of the scam, she must at all times have feared.

59  Then there is the short video clip arranged by the mother.  If there had been anything untoward going on which the mother realised, the video would have been set up and stage managed in a way which supported her having given birth.  In fact, it does nothing of the kind.  It merely shows the mother writhing in agony and a child lying in the vicinity, still attached to a placenta.  There is in fact no sign or real attempt to link the baby with the mother.  There is no sign of blood on the mother or indeed any sign that she had just given birth.  It would have been the easiest thing in the world to have linked the baby more directly with the mother to make it look as if she had just delivered.  Similarly, if this had been an elaborate deception, the camera would have had pictures of her arriving at the clinic and of the mother holding the baby etc., immediately following the supposed birth.  The video evidence is certainly excellent evidence of the scam disclosed by the newspaper article, but in my judgment it points away from the mother’s involvement.

60  I also think it is highly likely that, if the mother knew what had happened but nevertheless wanted to take her new baby to the doctor, she would not have gone armed with the camera and the clip ready to show the doctor the pictures if challenged.  In fact, the mother did not do so.  She only produced the pictures (potentially her best evidence if she was being deceptive) in response to questioning from the police and not as her first trump card and without being asked, as one would have expected.

61 All the mother’s actions, in my judgment, both in this country and Nigeria, are consistent with her evidence that she had no idea she was involved in this strange scam, designed to put together unwanted children with desperate, childless parents.  Her complete desolation when confronted with the reality, as attested to by both the police and the Guardian, further in my judgment supports her credibility.

62 What are the findings that I make based on this assessment of the evidence?  Firstly, most of the primary facts are agreed and not challenged.  Secondly, the mother was in a highly suggestible state, especially following the death of her disabled daughter at the end of 2009.  She is also, as the Guardian points out, immersed in a Christian religious environment where miracles are not regarded as impossible.  Thirdly, I am totally satisfied on an examination of all the evidence that this mother had no idea she was taking part in bogus fertility treatment, much less an elaborate and well tried system for selling unwanted babies to desperate parents in exchange for very substantial sums of money.  Fourth, both she and her husband were hoodwinked and are innocent victims so far as their involvement in these matters is concerned.  They neither knowingly participated in the wrongful removal of the child from her natural mother nor in the wrongful importation of her into this country. 

63 The highest it can be put, as I find it, is that the mother unwittingly took part in an unorthodox adoption process surrounded by an elaborate piece of play acting. 

64 Fifth, and for the avoidance of doubt, I find nothing concerning so far about the mother’s mental health any more than the general practitioner does or did.  It is perfectly plain the mother now fully appreciates what was going on and what she has been involved in.

65 Sixthly, on the face of it, the mother from what I know seems a good and experienced mother who has brought up her nephew impeccably and looked after her very disabled child over a very long period until her death. 

 

 

The Judge then invited the Local Authority to reconsider their view of the case and specifically whether Mr and Mrs S could be considered as carers. They declined to do so and an Independent Social Work assessment was therefore commissioned.

 

The mainstream media seem, to me, to have reported this case as being that Mr and Mrs S got the child back, and not that they had won the right to an independent assessment of whether they should.

 

A fascinating case, and one that I hope will be unique, although as our world gets smaller, the chances of unscrupulous practices playing a part in UK care proceedings must increase.

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I wish they all could be California girls

Posted on October 24, 2012 by suesspiciousminds

 

 Utter nonsense. How to construct your perfect wish if a genie comes along and offers you one wish.

 

Obviously, the genie will feel that he’s been locked up tight, for a century of lonely nights, but after you release him, and he grants you one wish, take care. I advise you not to lick your lips and blow kisses his way, because that don’t mean he’s going to give it away. Baby, Baby, baby.

 

Your obvious starting point will be a cheat.  Genies cannot grant wishes about wishes.  So you may think you are smart and beating the system by “I wish for ten more wishes”  or  “I wish for infinite wishes”  or  “I wish that all my wishes came true”

 

But those are all meta-wishes and cannot be granted. You will just irritate the genie, who finds this sort of thing tiresome in the extreme.

 

So, one wish, not allowed to be about wishes. 

 

Now, take care. A detailed study of genies has shown that they will attempt to construe your wish in a way  that you didn’t intend, being obtuse and/or ludicrously literal, and a way which candidly, and to put it bluntly  “f**ks you over”

 

You can see this in King Midas  (I wish for everything I touch to turn to gold. But he didn’t intend that to include food and people  – although technically, air touches his mouth on the way to his lungs, so he is lucky he didn’t asphyxiate fairly instantly. Yes, this is going to be THAT geeky, bail now if it is already too much),  the Five Children and It, or even more vividly and scarily, “The Monkey’s Paw”

 

[If you haven’t read “The Monkey’s Paw”, I really would remedy that. It’s really short, you can probably read it online for free, and it will give you the proper Fear.  In fact, here it is :-  http://gaslight.mtroyal.ca/mnkyspaw.htm.    It’s okay, I’ll wait.   Taps foot… looks at watch.. ah, you’re back]

 

We were talking about how genies are legitimately allowed, whilst granting your wish, to interpret it in a way that makes you utterly miserable.

 

Let me give you an illustration. 

 

“I wish to be incredibly attractive to women”

 

 

(The genie is immediately thinking, “I can turn him into a diamond necklace, or a cute kitten, or I can make him a walking magnet, or I can make him genuinely irresistible to women but to all women including pensioners and women he wouldn’t find desirable and that they won’t take no for an answer”  and all of those options are available to the genie, who HAS to grant your wish, but has leeway to mess with you within the ambit of what you asked for, or omissions you made in being specific)

 

 

Another one

 

“I wish I had a billion pounds” 

 

(The genie is immediately thinking  along these lines – A billion pounds of.. what, exactly?  Or that you didn’t specify when, so can get it on your deathbed. You didn’t specify that it was legitimately yours, so you can have it and immediately get arrested for stealing it. Or the monkey paw route where you get the money, but by inheriting it from the savings and life insurance policies of everyone you know and love, all on the same day.   I told you to go and read it, at the top of the page, don’t complain about spoilers now.)

 

 

Or to take the Beach Boys lyric – of course any girl could be a California girl, simply by moving to California, so the genie can fulfil that without doing anything; OR he could imbue on every female in the country, nay the world,, a desire to move to California and become a “California girl”, probably wrecking the local infrastructure and irretrievably breaking the San Andreas fault, and sending their beloved State into the ocean.    [Note, my scientific underpinning of this is based entirely on Gene Hackman’s evil plot in the film Superman, and may not withstand any proper scientific rigorous testing]

 

There are now no girls in China, India, or Brazil, or anywhere else. This leaves the population of those places to riot, cease work  and  eventually die out, and there’s no production of any of the world’s vital resources, because every female living on the planet is in California, who will now have no chocolate, or coffee, or alcohol, or rice, or meat. Life in California will be crowded, and bereft of life’s essentials.  Everywhere else will be half-empty and bereft of life’s essentials.  Let us hope that none of the Beach Boys ever come across a genie in a bottle.  

 

So, how can you construct your one and only wish in such a way that you (a) get what you want, and (b) don’t get screwed by the genie being incredibly literal, or seeking a loophole or deliberately misconstruing your intention?

 

If a genie comes along and you get your once in a lifetime chance of a wish, you don’t want to blow it by wishing for something that will backfire on you or not deliver what you want, or end up being something really wimpy just so that you know it will happen without ill-consequence  (like  “I wish I had a really cold bottle of beer in my hands right now”)

 

Well, if you want to construct a binding clause with no way to weasel out of it, a lawyer is just the sort of person you want to talk to about it.  Looking for loopholes and absurdly literal interpretation of what a sentence could mean are the sort of thing that really float my boat. I could probably go into the genie business. I wish (!) that there were genies granting wishes and that  I had invented the Safe Wish Drafting business, as it is the sort of thing I could cheerfully do all day.

 

Sadly for me, someone has already come up with the concept of Open Source Wishing, where a bunch of like-minded people polish and hone wishes and look for loopholes that an evil genie (who is duty bound to grant wishes) would misuse, with a view to producing your perfect (and safe) wish, just in case.  Really, I’m not kidding.

 

http://homeonthestrange.com/phpBB2/viewforum.php?f=4&sid=ff22bddadb9da4dfbae7649b72b59777

 

They are interesting, in a weird sort of way, to just look at how detailed you would have to construct a Wish to make it work, but also you get into some really unusual tangents.  The generic ‘nice’ wish of world peace, gets you into some pretty dark areas about freedom of choice and Ludovico Technique about what sort of world we live in if people don’t have the ability to make horrible choices.

 

 

And the ‘wish for happiness’ one prompts all sorts of debates about what makes people happy, whether happiness can ever be achieved (when it is part of our nature to dream and desire and strive for the unattainable)

 

Anyway, here is the draft wish for finding the person of your dreams:-

 

”I wish to meet the person who will give me the most fulfilling, satisfying, and happiest sexual relationship in my life in a fashion that would be conducive to us having that relationship as soon as possible – someone who is:

a) Living and will not die until at least the moment of my own death,
b) Currently available to commit to a sexual and emotional relationship with me,
c) Physically attractive to me in this state and time,
d) Someone who would find me more physically and mentally attractive than either anyone else she currently knows or anyone else she would meet in the course of a relationship with me,
e) Someone who my friends and immediate family (or, alternatively, you could list a bunch of people whose judgement you trust) would currently deem acceptable for me to date once they knew the true history and background of that person,
f) Currently not suffering from any long- or short-term diseases or handicaps that would significantly disrupt our relationship,
g) Located in a place that I could move to.”

 

 

Have fun finding the loopholes. There are still plenty.  My immediate one is that without any of the stomach lurch of whether a person will love you back or whether they will keep loving you, or how you could make them happy – without their freedom of choice to stop loving you at any moment, is what you have here love, or is it slavery? I think that would nag away at you and corrupt the whole thing.  I would much rather that the woman of my dreams had a headache, than was compelled to frolic as a result of forces beyond their control.

 

 

Mine would be, by the way :-

 

 

I wish that I, at time of my choosing and for the duration of my choosing, could have the super powers and abilities of any fictional superhero I intentionally select, those powers manifesting themselves in the real world and under my full control,  without my  ever coming to any personal harm (physical, mental or emotional), deprivation of liberty  or inconvenience as a result, and for that to begin NOW and continue for as long as I desire it to continue.

 Some annoying people are going to want to give me a wide-berth when I am Superman, Spiderman and Wolverine all rolled into one. Snikt.

[I’m sure this ends with me heat-visioning my own foot off, somehow] 

And let’s end with a lovely bit of Steve Martin, back when he was funny.

 

 

 

 Steve Martin: If I had one wish that I could wish this holiday season, it would be that all the children to join hands and sing together in the spirit of harmony and peace.

 

 If I had two wishes I could make this holiday season, the first would be for all the children of the world to join hands and sing in the spirit of harmony and peace. And the second would be for 30 million dollars a month to be given to me, tax-free in a Swiss bank account.

 

You know, if I had three wishes I could make this holiday season, the first, of course, would be for all the children of the world to get together and sing, the second would be for the 30 million dollars every month to me, and the third would be for encompassing power over every living being in the entire universe.

 

And if I had four wishes that I could make this holiday season, the first would be the crap about the kids definitely, the second would be for the 30 million, the third would be for all the power, and the fourth would be to set aside one month each year to have an extended 31-day orgasm, to be brought out slowly by Rosanna Arquette and that model Paulina-somebody, I can’t think of her name. Of course my lovely wife can come too and she’s behind me one hundred percent here, I guarantee it.

 

Wait a minute, maybe the sex thing should be the first wish, so if I made that the first wish, because it could all go boom tomorrow, then what do you got, y’know? No, no, the kids, the kids singing would be great, that would be nice. But wait a minute, who am I kidding? They’re not going to be able to get all those kids together. I mean, the logistics of the thing is impossible, more trouble than it’s worth!

 

So — we reorganize! Here we go. First, the sex thing. We go with that. Second, the money. No, we got with the power second, then the money. And then the kids. Oh wait, oh jeez, I forgot about revenge against my enemies! Okay, I need revenge against all my enemies, they should die like pigs in hell! That would be my fourth wish.

 

And, of course, my fifth wish would be for all the children of the world to join hands and sing together in the spirit of harmony and peace. Thank you everybody and Merry Christmas.

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