Category Archives: adoption

Neglecting neglect

Posted on January 21, 2013 by suesspiciousminds

The Parliamentary report on child protection, and a discussion of it.

One of the nice things about doing this blog is that some of my visitors will from time to time send me something that I might otherwise have missed. I knew that this Parliamentary enquiry had been going on, but not that the report had yet been published.

You can find it here:-

http://www.publications.parliament.uk/pa/cm201213/cmselect/cmeduc/137/137.pdf

They seem, on the whole, to be broadly supportive of the system, which is no doubt a disappointment to many of my readers. They do recognise that there are serious problems within it, and make some recommendations. They particularly felt, as the mainstream media picked up, that the child protection system isn’t a great fit for adolescents and that they get marginalised by the process.

One of the topics they looked at was neglect (see also all of the blog posts I’ve done recently on the neglect and neuroscience issue)

Neglect

Neglect is the most common form of child abuse in England. Having looked at both the criminal and civil definitions of neglect, we recommend that the Government investigate thoroughly whether the narrow scope of the criminal definition contained in the Children and Young Persons Act 1933 is causing problems in bringing criminal cases of neglect, but we have seen no convincing evidence that the civil definition is insufficient.

To get a better picture of the scale of neglect, we recommend that the Government commission research to investigate whether similar situations and behaviours are being classified as neglect in different local authorities.

There is evidence that children have been left too long in neglectful situations. To tackle this, child protection guidance for all front-line professionals should include an understanding of the long-term developmental consequences of neglect and the urgency of early intervention. Securing positive outcomes and meeting the needs of the child should come before all other considerations, and there needs to be a continued shift in culture so that there is earlier protection and safeguarding of the long-term needs of children. The Government must be prepared to act if there are signs that improvement in the responsiveness of local authorities to neglect is not being sustained.

In cases of domestic violence, the focus should be on supporting the abused parent and helping them to protect their children, but the interests of the children must come first.

It did seem to me (subject to rigour in how the research is done) that a piece of research on how neglect is managed throughout the country, and whether there are fluctuations in what is considered to be neglect in different regions, is a valid and worthwhile exercise. Child protection is a massively expensive and resource-intensive undertaking in this country, and if there are lessons that could be taken from the way certain local authorities tackle and overcome neglect, that would be useful information to share around.

They also looked at the issue of adoption, and in particular the competing current desires of the Government to speed up adoption and the campaigners against ‘forced adoption’

216. We endorse the Government’s current policy emphasis on increasing the number of children adopted, speeding up the process and facilitating foster-to-adopt arrangements. Adoption is clearly the preferred route to permanence and stability for some children. However, the same goal can be achieved by other means and it is vital that the Government and those in local authorities continue to concentrate effort and resources on prioritising stability in placements for all children, whether through longterm fostering, Special Guardianship or residential care. We would welcome greater debate on policies which might bring this about and greater encouragement from Government for these alternative solutions. In particular, while we recognise that an artificial limit on the number of times a child can be moved within the system would be unworkable, there should be increased emphasis in central guidance aimed at limiting the disruption and damage caused to vulnerable children by frequent changes.

217. We have listened with sympathy to concerns about widespread ‘forced adoption’, and to the very personal and moving stories that often lay behind them. It is evident that there are rogue misjudged cases with terrible consequences for those involved. This should not happen and those affected are right to fight against such injustice. Nevertheless, the weight of research evidence, matched by evidence to our inquiry, concluded that that the balance tended to lie with authorities not taking children into care or adoption early enough, rather than removing children from their parents without due cause.

We note that the Minister spoke of “work in progress” to look at “what further safeguards we might be able to institute whereby there is a sort of appeals mechanism”. This would have to be balanced against the further delay to a permanent solution for the child which would inevitably occur as a result. An appeals mechanism against “forced” adoption is an interesting idea and we look forward to examining the Minister’s proposals when they are published.

As do I.

I’m rather surprised that the Minister spoke to them about introducing a ‘sort of appeals mechanism’ given that there is already an actual appeal mechanism.

So either :-

(a) He doesn’t know that there is already an appeal mechanism

(b) He is planning to lower the test for appeals in Placement Order or adoption cases, from mistake in law or the Judge being plainly wrong to something lower

(c) He is planning to introduce a mechanism whereby the Placement Order or adoption order can be appealed at a different stage in the process (which would have to be later than at present)

OR even

(d) That there is a plan for an appeal mechanism for Placement Orders which will sit outside of the legal appeal process, i.e that the appeal would be considered by a body outside the judiciary, and contemplating different principles than at present.

I’m not sure which of those possibilities I find most problematic, but any of them without a lot of proper thought first is worrying.

I noted in the passage above that that the Committee touched upon the evidence of Martin Narey

215. The importance of permanence and stability is underlined by the shocking evidence we received of the number of times some children move in the course of their time in care.

It is clearly damaging to children to move from one form of care to another frequently; and yet we spoke to children who had moved multiple times—in one case up to 16. Martin Narey told us that he had “met countless children who have had 24 or 25 foster placements and 21 or 22 different schools”.396 He added: “We would never dream of doing this to our children and for some children the very best option for them is […] high quality residential care”.397

Well, I agree with all of the principles set out there, and I am sure that the Committee really did speak to children who had moved up to 16 times, which is an awful and horrific tragedy. I am also sure, sadly, that there have been children in the care system who have had 24 or 25 foster placements.

I am somewhat sceptical, to put it mildly, that Mr Narey has met “countless” such children. I think this is rather on a par with his comments about having asked to see a child’s social work files which were then literally brought into the room in a wheelbarrow.

I don’t think this sort of hyperbolae helps, when it comes from someone helping the Government form really important policy.

Every child who has multiple placements is a bloody tragedy. Those children who have had dozens or more are a huge tragedy. Every child who has had 24 foster placements is a disgrace (there might well be really strong underpinning reasons, usually connected with the child’s damaged behaviour but that doesn’t stop the outcome being disgraceful) and we really should learn as much as possible from it and stop this happening to any child in the future. But to suggest that it is happening to so many children that Martin Narey has met “countless” is I think rather disingenuous.

Or perhaps my concept of countless is more than Mr Narey’s – it depends on how good you are at counting, I suppose.

[All just my personal opinion, perhaps Mr Narey really has met over a thousand children, which would be around where I’d consider a number to be countless, who have had 25 placements. I guess if he is disputing my suggestion that he hasn’t met ‘countless children’, he would need to show that he had met a significant number, which would mean him counting them, so they couldn’t then be countless…]

Let me be plain, I consider that a single child who has 24 foster placements is a child too many. I just don’t care much for hyperbolae when giving evidence.

The Committee also talked about newer and more specialised forms of abuse and risk, they considered the technological side of things with paedophilia over the internet, child trafficking, child prostitution, forced marriage, and suggested that there was a need to build up specialist expertise in this area, and for those authorities who were encountering it to share their expertise with others

We recommend that the College of Social Work take a leading role in co-ordinating and promoting awareness of CPD training in specialised forms of abuse and in encouraging other disciplines to participate in relevant courses. For more general use, if the guidance on specialised forms of abuse is to be deleted from Working Together, the Government needs to make clear where such guidance will be found in future and how it will be updated and signposted to social workers and other professionals. (Paragraph 133)

17. We are also concerned that professionals faced with a specific type of abuse with which they are not familiar should have an identifiable source of expertise to consult in person. Local authorities should nominate a specialised child abuse practitioner to lead on such matters. Where an authority has a low incidence of a particular form of child abuse, they should be able to draw on the expertise of nominated practitioners in other authorities. (Paragraph 134)

I think the most controversial paragraph, and certainly the one which will provoke ire in some quarters, will be this one:-

We welcome the research by Cafcass into applications for care orders and recommend that this work be repeated on a regular basis. An assessment of the reasons behind the local variability in care applications is needed. We also believe that it is essential to promote a more positive picture of care to young people and to the public in general. The young people to whom we spoke were generally very positive about their experiences, including those who had spent time in children’s homes. This is backed by academic research on outcomes. Ministers should encourage public awareness of the fact that being taken into care can be of great benefit to children.

In the words of Bill Hicks – “it’s not a popular opinion, you don’t hear it very often”

Perhaps in that vein, the next Commons Committee will be on “Assessing the Costs and Benefits of using terminal ill people as stunt doubles.”

[And I know that makes no sense to you whatsoever if you’re not familiar with the work of Mr Hicks “I know to a lot of you this might sound a little cruel… ‘Aw Bill, terminally ill stunt people? That’s cruel’…. Well hear me out..”]

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Posted in adoption, family justice modernisation and tagged adolescent children in care, adoption, appeal from adoption, child protection, forced adoption, neglect, or do you want her to meet Chuck Norris?, parliament, parliamentary enquiry on child protection. Bookmark the permalink.

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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Posted in adoption, consultation and tagged adoption, amending Adoption and Children Act, ethnicity, perhaps more of a Scooby Doo vibe than I intended, religious preference, section 1(5) Adoption and Children Act, section 33 Children Act. Bookmark the permalink.

Are you trying to tempt me, because I come from the land of plenty?

Posted on October 19, 2012 by suesspiciousminds

A discussion of the South Australian Parliamentary apology for forced adoptions.

[I have edited this, due to stupidity on my part on not realising that the Australian definition of ‘forced adoption’ is different from that used by critics of our UK system. It nagged away at me, so I looked at it more carefully and cleaned this up. Apologies to anyone who has had to read it twice, and potentially been given a misdirection by the first version, which was rubbish. My apology is heartfelt, but not as moving as the Australian apology that I’m blogging about]

The Australian term ‘forced adoption’ refers to the policy in the 60s and 70s of compulsory and wholesale removal of babies and infants from Aboriginal mothers (*and I am corrected by a helpful commenter, also from white mothers, both in massive numbers) and placement with more middle class families. It is vital to realise that this policy was not only lawful, but came about because professionals who believed this was in the best interests of the children had persuaded legislators that it was right. The value of the apology is therefore chiefly about recognising that what can be accepted good practice on the State’s role in the lives of children can in later years seem not only catastrophically wrong, but actually abusive.

The Australian ‘forced adoption’ , although much more pernicious and racially dubious, is more akin I think to our UK Victorian values whereby unmarried mothers either gave up their babies or were committed to madhouses.

I know that this is a different country, and I don’t like the term ‘forced adoptions’ (just as, I suspect, Ian Josephs of the Forced Adoption website doesn’t like an awful lot of the terms that are used in Court proceedings, like ‘family justice’, so fair play)

I’m aware that Australia’s level of adoption is about half that of the UK, and much much lower than the US. I suspect that adoption remains an emotive topic in Australia, and some of the language used in the apology can really be embraced by the critics of our current system.

But Australia doesn’t seem all that different to us (apart from the being tanned and good at sports thing). We have a common language, and a fairly similar country. So when they condemn the practice of adopting children against the wishes of the parents, it bears a bit more listening to than when you hear that some country that we share no cultural overlaps with have done it.

I’m not in a position to argue whether the UK approach is right, or the Australian approach is right, but if two countries with fairly similar outlooks on life and one presumes broadly similar social problems, can reach such markedly different conclusions, then there’s a genuine debate to be had.

In any event, it highlights the point that what is culturally acceptable and considered good practice may appear abhorrent to a later generation, and we should have an eye on the fact that dogma can be wrong. No doubt our critics will say that such an apology may come in the future, and is long overdue. Who am I to say that they are wrong? If you had asked the Australian legislators and professionals whether history would judge them harshly, I’m sure they would have robustly denied this as a possibility.

This bit is from the Premier, John Wetherill

“These adoption practices were the product of multiple failures. They failed to meet a basic standard, whether or not they were in accordance with the law at the time. They reflected a failure to apply a simple test of human conduct – a test which we should all try to apply to ourselves every day. They reflected a failure to ask what has become a famous question: how would I feel if this were done to me? For those failures, and for everything they led to, we are sorry…”

“We apologise for the lies, the fear, the silence, the deceptions. We apologise for the lack of respect, the disbelief, the grief, the trauma and loss. We offer this unreserved apology not just as an act of atonement but as an expression of open-hearted admiration and support for those to whom it is owed. I commend the motion to the house.”

And this bit is the speech given by their equivalent of Ed Milliband, but don’t hold that against him, he seems like a nice chap. You can read that HERE

http://www.johngardnermp.com.au/parliament/speeches/951-18-july-2012-forced-adoption-apology.html

but I’m going to publish the whole thing, because it is (A) interesting and (B) it took me forever to find it, so at least publishing it makes it slightly easier to find for someone else.

Mr GARDNER (Morialta) (11:36):Today our galleries are full to overflowing. It is sadly ironic, perhaps, that on a day when we gather here as a special sitting of this house to acknowledge the past adoption practices that have caused such distress, it is because of another overhang of the 19th and 20th centuries—the asbestos in the House of Assembly chamber—that we are denied the opportunity to have that chamber available, where so many more people might have had the opportunity to see this directly.I welcome all those mothers, sons, daughters, family members and other people who have been affected to our galleries today. I acknowledge also those in other rooms of the parliament who are watching this live and those people who are watching the web stream. We are grateful that that has been made available on this occasion. Many more people, of course, are watching through that online.I recognise the contributions made by the Premier, the minister, and the Leader of the Opposition on behalf of the Liberal Party in particular, but also in seconding the motion to the parliament. This afternoon, members of the Legislative Council will have an opportunity to comment on the apology, and other members of the house in due course.It is an important day for the South Australian community. It is an important day for this parliament and the institutions that this parliament is responsible for. Most importantly, of course, it is an important day for those affected by past adoption practices: the mothers, the sons and the daughters, and their families, so many of whom are here bearing witness today. Madam Speaker, with your leave, I seek leave to directly address my opening remarks to them.

To the mothers who had their babies taken away from them, we know that an apology cannot return a child who was taken for so many years. The loss of a son or daughter taken cannot be restored by a simply apology. Words alone cannot heal the hurt that you have suffered over decades. We hope, though, that they may provide some comfort. You may at least walk from this building feeling vindicated that your community understands that you did not freely give up your child and that your children and your community understand that you never gave up on your child either.

The coercion that led to your child’s adoption, whether it was overt or whether it was subtle, was brutal and wrong. It was inappropriate, it was unethical, it may have been illegal, and today this parliament makes a statement that it is condemned. It is condemned by this parliament on behalf of the institution itself and on behalf of the South Australian community.

On behalf of the parliament, which shares in the responsibility for these actions, we are sorry. In this day and age, children are put up for adoption in South Australia only when there is genuinely no opportunity for family to stay together and we work very hard to ensure that the very few adoptive parents who have this opportunity are everything that they might be; but in our history we have not always been so virtuous.

To the adoptees, to the sons and daughters who were taken at birth, I imagine that your experiences in life have been varied and diverse. Many of you may have been adopted into loving families who did their best for you at every turn. Some of you were not so fortunate, and your negative experiences make this apology all the more important.

Whatever the nature of your experience growing up, you share an understanding, a shared experience, a common bond; only you can truly understand what it is like to go through life for years—decades even—knowing that there is a missing piece. What was done to you, what was taken from you, the denial of a mother’s love and the kinship of your blood brothers and sisters, was wrong, and, on behalf of this parliament, which shares in the responsibility for these actions, we are sorry.

While the centrepiece of this apology is an acceptance and an expression of sorrow for the denial of informed consent when children were taken from mothers at birth, its terms are broad, and with good reason. I commend the government for the framing of this motion. We are apologising for a wide range of practices that have caused hurt and distress. We are apologising for a range of practices that have led to a varied set of experiences.

My own experience was to grow up knowing a beautiful, loving big sister. She was adopted with love by our father and her mother. She has done well in life. She has been successful in her career. She has the most beautiful, charming and caring daughter that any of you here are ever likely to meet. However, what I could not have understood growing up was her sense that there was a missing piece in her life. Nearly 30 years later, she discovered that she had been separated at birth from her twin brother who now lived across the country. Last night she wrote to me on Facebook, in a sign of the times, with her thoughts on what we are doing today. She said:

It is such an important day for all adoptees, their adopted families and their mothers that gave up their babies so many years ago. Tomorrow—

this was written last night—

is a day to reflect on the past. I have been one of the lucky ones who have found both my twin brother…and also been able to tell our birth mother that we do not blame her for what has happened in the past and that we look forward to the future as brother and sister. Thank you for your support in this.

Despite not knowing each other for nearly the first 30 years of their lives, they have a bond of iron that stretches from Perth to Brisbane.

Twins were separated at birth all over the world, just as they were in South Australia, but that does not make it right. That does not make it acceptable. For that, and for so many other practices undertaken in our community by our government and non-government institutions with the endorsement of the parliaments of the day, either tacitly or overtly, we are sorry.

Members of parliament on both sides over the last several months in particular, but for a number of years before, have heard so many stories from mothers and adoptees about things that have happened to their families: stories of mothers prevented from seeing their child during and after childbirth; stories of mums hearing their babies’ cries and wanting to hold them but being denied; stories of mums who could not hear their babies’ cries and wanting to find out why but who were held down and denied the opportunity; stories of mothers drugged to reduce their resistance to the coercion and drugged to dry up their milk.

In originally moving this motion encouraging the government to undertake this apology on 29 March, I said that in addition to the lack of financial support provided to unwed mothers there were also cases where they were subjected to grooming by those around them and pressure, including from state institutions. Moved from their community into the confines of a home, women were told that adoption was the right thing to do and the best thing for the child. Women had the details of their pregnancy and the future of their child concealed, while alternatives to adoption and information on potential financial assistance was often withheld. Relinquishing a child for adoption was often a traumatic process, and mothers have detailed their accounts to us and to the Senate inquiry, and the minister, the Premier and the Leader of the Opposition have detailed some of those accounts today.

In many cases consent was surrendered under duress, others were denied the right to revoke consent and some had the right to consent withheld altogether. There is no excuse that it is based on the understanding, the morality, of the time. There were people at the time who were saying that these practices were wrong. There is record of that. There was no Christian morality in what was going on there. I have had calls recently to be reminded of the Ten Commandments in relation to another matter, and I can tell you that commandment 4 is, ‘Honour thy father and thy mother.’ These children, these adoptees, were denied the opportunity to do that. Commandment 7 is, ‘Thou shall not steal.’ These children were stolen. There was no morality in this.

The value of an apology is important. It is a moment of healing, reconciliation and opportunity for the parliament to demonstrate to those who are hurt that we have respect for you and that you are vindicated—those who have felt hurt all these years. When we as individuals going about our business commit a wrong we apologise, and when an institution commits a wrong its representatives must apologise, and we do so today.

We follow in the steps of the first apology of this nature in Australia undertaken on 9 June 2009 by the Royal Brisbane and Women’s Hospital, the Western Australian parliament on 19 October 2010, a number of other non-government institutions and churches that have done so since then, the Senate inquiry reporting in February (and I look forward to further activity at a federal level), the support of the Liberal party room, the Greens, the Labor party room, the government and bipartisan support in this house.

It is a time for healing and reconciliation, and we applaud those who have had the courage to come forward and to contribute to this apology. I conclude by reflecting the words of the Premier earlier:

This South Australian parliament recognises that the lives of many members of the South Australian community have been adversely affected by adoption practices which have caused deep distress and hurt, especially for mothers and their sons and daughters, who are now adults.

We recognise that past adoption practices have profoundly affected the lives of not only these people but also fathers, grandparents, siblings, partners and other family members.

We accept with profound sorrow that many mothers did not give informed consent to the adoption of their children.

To those mothers who were denied the opportunity to love and care for their children, we are deeply sorry.

We recognise that practices of our past mean that there are some members of our community who remain disconnected from their families of origin.

To [the adoptees] who were denied the opportunity to be loved and cared for by their families of origin, we are deeply sorry.

To those people who were disbelieved for so long, we hear you now; we acknowledge your pain, and we offer you our unreserved and sincere regret and sorrow for those injustices.

To all those hurt, we say sorry.

Honourable members: Hear, hear!

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Posted in adoption and tagged adoption, australian apology for forced adoption, australian forced adoption, forced adoption. Bookmark the permalink.

Family preservation versus child rescue

Posted on September 11, 2012 by suesspiciousminds

I was kindly sent Dr Peter Dale’s response to the Government consultation on contact with children in care, and sibling placement in adoption.

I blogged about those consultations here :-

https://suesspiciousminds.com/2012/07/23/we-are-family-ive-got-all-my-sisters-with-me-or-beware-of-the-leopard/

Anyway, here is Dr Dale’s response.

http://www.peterdale.co.uk/wp-content/uploads/2011/08/ContactPaperResponseAug2012.pdf

Whilst I don’t agree with absolutely everything Dr Dale says, I like to read things that I don’t agree with, and I particularly like reading things that make me change my view about things. This document did that, and for that reason, I commend it to you.

It also chimed with some things that were in my mind about where we are currently headed with family justice, and my overriding uneasy impression that there’s nothing in the Family Justice Review or the legislation and practice that’s going to flow from it which is about the fundamentals of whether Society wants what we’re currently doing, and whether we ought to step back from the 1989 Act and see how it is working.

Not in terms of processes, and costs and times – it’s awful on all of those things, and that’s what the Family Justice Review has focussed on, but on the bigger issues of whether the whole interaction between State and parents is what the general public would want, or whether, as is alleged by critics of the system it has created a horrible sense of injustice and unfairness where professionals are powerful and parents are powerless.

Are the people working within the Family Justice System out of step with what society as a whole would think about when the State ought to intervene and care for your children, and what is child abuse, and what is what Hedley J described in Re L as Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent.

It’s always a good thing, I suspect, to question that. It’s very easy to assess any case against the backdrop of your own experience, but even when that experience seems quite large, it is really just tiny and trivial compared to the overall numbers of care proceedings.

And whilst I can look at the risks of harm in a case and have a good feel for whether the Courts I appear in will consider it manageable or not manageable, that gives me no proper sense of what UK society as a whole would think.

I think that most people in the UK would agree that children should not be sexually abused (although even on that, one person’s view as whether a man who five years ago groped a fifteen year old daughter of a previous partner is now a risk of sexual abuse to his own baby boy is probably going to differ from anothers), but I suspect that there’s a multitude of views on physical abuse and where the line is drawn between parental chastisement and abuse (I think most people would say no to broken arms and legs, but there would be a difference of opinion about bruising) and neglect would be very hard to get a consensus on, and emotional harm even more so.

Is there a value in care proceedings calibrating themselves against what the general population or society at large would consider to meet Significant Harm? Where do we want, as a society, to draw the line of ‘this is unusual or not very good parenting but let them get on with it’ against ‘this child can’t stay at home’

I think it’s something that’s not really been attempted, and I’d be interested in the results. Should a parent not have a clear idea, long before they ever meet a social worker, of what sort of parenting falls so below society’s standards that the State would intervene?

I would like to hope that if you pulled out a random judgment from any care case decided by any Court in the country since the Children Act came into being, and gave it to a journalist, they might think at worst “well, that could have gone the other way, and it was finely balanced. I might disagree, but I can see why it happened” but would never think “god, that’s just outrageous, how could they have possibly not got those kids back? This is a scandal”

I’d like to hope that, but I can’t say for certain. Maybe of 1000 random cases, there’d be one that produces the ‘outrageous’ reaction, maybe 60, maybe 300. We have no way of knowing. I suspect, hand on heart, that there are more ‘outrageous’ cases than I’d like to believe, but less than the Hemming/Brooker camp would believe. But either of us could be wrong. We might both be (and probably are)

I’d like to see, for example, the collation of anonymised threshold documents from every case, so that research could be done on whether this fluctuates over time and between areas, and to have a proper sense of what it is, in a family justice system that results in Care Orders being made.

Anyway, enough about me, on with Dr Dale.

He opens with this :-

“there are major philosophical, theoretical, political and cultural differences as to what constitutes a child’s “best interests”. Such differences are apparent throughout the history of childcare literature, and dominant viewpoints rise and fall. The field of child protection in general, and specifically permanent separation/adoption, is permeated by variations and polarities of apparently reasonable opinion. Over time the social policy pendulum has swung back and forth across the continuum that has “familypreservation’’ principles at one pole; and “child rescue” principles at the other. Each position is internally logically consistent and can call on research to support its belief systems (as to what is “best” for children). Notably each paradigm/mindset when implemented gives rise to unintended negative consequences (which may only become apparent over time).”

And I think he is completely right. I suspect, as he believe, that we are in a period of “child rescue” being the dominant thinking, and that this is colouring Government thinking on the Family Justice Review, on adoption scorecards and on these consultations.

[Cynically, if you’re in the Government, and you’re imagining the headlines for ‘another Cleveland’ or ‘another Baby P’ and had to choose one of those two to encounter, I suspect most ministers would choose another Cleveland. I’m sure it has never been as overt as that]

Dr Dale talks at some length about the risks of ‘child rescue’ and I think it is worth setting them out in full, because they are well constructed and interesting.

“In essence, what the DoE/Narey report recommends is a reinforcement of “childrescue” principles and practices that in the 1940s–1960s saw thousands of children in state care being forcibly emigrated to places such as Australia, Canada and South Africa without the knowledge of their parents (and without any continuing contact). Of course, at the time, the agencies involved (including Children’s charities such as Barnardos) considered that this was “in the best interests” of these children. History informs us otherwise (Humphrey 1996).

It is of note that compulsory adoption, and adoption without contact, is anathema in Australia and New Zealand because of the history of mass forced adoption of Aboriginal and Maori children known as the “Stolen Generation” (http://reconciliaction.org.au/nsw/education-kit/stolen-generations/). The South Australian government formally apologised on 18 July 2012 for this history of forced adoption. The following notice appeared in the South Australian press on 14/7/2012:

Government of South Australia: Forced Adoption Practices.

“On behalf of the South Australian Government the Premier, the Hon Jay Weatherill MP, will deliver a formal Apology to mothers and fathers whose children were removed because of forced adoption practices from the past, and to people who were separated from their parents as infants as a result of those practices. The Apology will be delivered at the South Australian Parliament from 11am on Wednesday 18 July 2012.”

1.4 I predict a UK government apology for recent and current practices of forced adoption in about 30 years time.

1.5 In this context, the proposals in the DoE/Narey paper are technical measures to further implement “child rescue” principles, policies and practices. In my view, a broader theoretical perspective is required to ensure that the proposed changes do not have adverse outcomes and unintended negative consequences.

It is always worth a reality check, and this whole section is one. Maybe we will recoil in horror in 30 years time at the idea of forced adoptions.

It may well be that in years to come, the concept of the State adopting children against the will of the parent may be something that boggles the mind, just as reading that in the 1940s-1960s the State took children in care and forcibly emigrated them to the other side of the world boggles the mind now. I’m sure that nobody involved in that practice at the time thought that they were doing anything other than something that was good for the children, even if with the passage of time it now seems unfathomable, and we can’t disregard the possibility that in time, things that seem ‘good practice’ now will become anathema.

For that reason, I would support a family justice review that didn’t look just at processes and system but the whole overarching philosophy of how the interaction between State and parents who are considered to be not meeting their children’s needs should take place. What does Society want from a family justice system? How much help does Society want to give struggling parents? More than is delivered at present, I suspect.

There’s some very detailed deconstruction of the Kenrick research that colours so much of the Government consultation on contact. I’m not going to get in the ring between Dr Dale and Kenrick, but I would suggest that at the very least, and as with any research, accepting it uncritically is not wise to do. If you’re involved in any way with contact between children and parents, I think Dr Dale’s analysis of this is worth reading, even if you eventually settle more on the Kenrick side of the debate, because it is a properly constructed assessment of the other side of the coin.

Some more on compulsory adoption here :-

1.45 Compulsory adoption is often referred to as being the most draconian outcome in UK law since the abolition of the death penalty. In cases of murder, the death penalty was imposed following a finding of guilt by a jury at the criminal standard of proof (beyond reasonable doubt). The outcome of compulsory adoption occurs on the basis of findings by a single judge at the lower civil level of proof (balance of probabilities). In both scenarios, miscarriages of justice are known to occur.

1.46 In the same way as a hanged man cannot be revived and reprieved, children who have been wrongly subject to compulsory adoption cannot be returned to their innocent parents. [e.g. Norfolk County Council v Webster [2007] 2 FLR 415]. In the sad case of four-month-old baby Jayden Wray in 2012, two parents were accused of his murder; and had a new baby removed from their care with a plan for adoption, until it was confirmed that Jayden had in fact died from undiagnosed rickets. (LB of Islington v Al Alas and Wray [2012] EWHC 865 (Fam).) Faster compulsory adoption raises risks of inadequate investigation in complex medical cases; proper exploration of alternative (less draconian) placements (e.g. kinship care); and scrutiny of the judicial process.

[As someone within the system – and I am trying here to be honest in accepting that that doesn’t necessarily put me in the best position, I think cases should be determined on the civil standard of proof and by a Judge, rather than to the criminal standard and before a jury – but I do think that a proper debate about this to reach a consensus as to what Society thinks is legitimate. And if Society had a different view to me, the law ought to be looked at. I can see an argument that can’t be dismissed out of hand that if a person is accused of stealing from a shop, they can insist on a trial by jury and the criminal standard of proof, but can’t get that for a determination of whether they’ve abused their child]

I share Dr Dale’s fears that we are rushing into a faster resolution of the most drastic step that the law can take in a persons life, without having first done the most basic exercise of “Is the system actually getting the right answers now?”

As Billy the Kid once said “Speed’s fine, partner, but accuracy’s final”

I know the stats about the high proportion of cases where the order sought by the Local Authority is the one made by the Court, and also the NSPCC research on the children who were rehabilitated home having too high a proportion going on to suffer further significant harm, or to go on to come back into care.

But I am troubled by the fact that we don’t have a clear sense of whether we currently are on the ‘family preservation versus child rescue’ scale is a place where society and the general public would be content with, if they knew.

I would like to think that if there were some huge detailed investigation whereby proper impartial researchers with access to proper information and data would conclude that in the vast majority of cases, Courts make Care Orders for proper reasons and that whilst mistakes are made and every one is a human tragedy, they are rare and the appeal process rectifies them.

But I have to accept that I am within the system, and maybe I believe that because the alternative is too hard to contemplate. Those outside the system, certainly a significant body of them, believe the opposite, that a proper root and branch investigation would show that the State is letting families down, removing them for insufficient reason and not doing enough to support them, and that social workers are mistreating parents.

Dr Dale’s consideration of the case of Re K (A Child: Post Adoption Placement Breakdown) [Neutral Citation Number: [2012] EWHC B9 (Fam)]. Which I have blogged about here

https://suesspiciousminds.com/2012/07/30/forensic-ferrets-or-standing-in-the-way-of-beyond-parental-control/

is very interesting. That’s clearly a case where judicial scrutiny of a case has led to the Judge determining that the Local Authority’s treatment of the parents was ‘not only inappropriate and wrong but cruel’ and it’s easy to see, when you read cases like this, why the people who rail against Local Authorities have a point. Sometimes Local Authorities behave extremely badly. What we don’t know, is how often.

This is not the sort of thing that should happen, but it still does, and we have no way of knowing, without a proper independent look at the body of care cases as a whole whether this is an awful aberration (as I would claim) or an illustration of how social workers behave and usually get away with (as the forced adoption camp would claim).

3.23 If the UK practice of compulsory adoption continues with no direct contact for the child with natural family members during childhood, I predict in the not-too distant future, an increase in the phenomenon of adoptive parents being rejected and abandoned by their alienated adoptive children who ‘vote with their feet’ and return to their natural families. This is a tragic outcome for all three parties in the ‘adoption triangle’. It is one, in my experience, that adoptive parents are not warned to expect by social/adoption workers.

I suspect that the consultation, as I hinted darkly, is already a done deal, that the new thinking is all about ‘child rescue’ – I note that there’s nothing being launched by the Government to measure the statistics of children successfully rehabilitated to the care of parents, or of interventions with troubled families that avoid the need for care proceedings, or a league table congratulating Local Authorities for being able to keep children within the family.

It would be nice to have an emphasis on the importance of ‘family preservation’ and balancing it properly against ‘child rescue’ on the basis that it is the right and proper thing to do, rather than as a knee-jerk reaction to another Cleveland, Orkney or Rochdale.

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Posted in adoption, consultation, contact, family justice modernisation, public inquiry, timescales and tagged adoption, child rescue, contact, family preservation, forced adoption, kenrick, peter dale, research on contact. Bookmark the permalink.

I wish I was Special, you’re so very Special (Guardians)

Posted on August 24, 2012 by suesspiciousminds

Some musings on Special Guardianship, and particularly what the ‘character’ of such placements are when it comes to working out level of contact

I did an SGO hearing this week, and two things struck me on it.

The first, is quite simple, but struck me for really the first time. We did the hearing, which involved broad agreement and ample praise about the placement itself and the making of an SGO, but then quite a bit of to-and-fro and drawing up preambles about contact. We then had a very short hearing, the orders made as drafted, and as I left, and thanked the Special Guardians, they remarked “is that it? What happens now?” and I told them about the order, and keeping it safe and whatnot.

But it really did strike me, that we are making an order for a child to live permanently with a family member, and there’s nothing like the ‘celebration’ hearing that there is for an adoption hearing, when the system has a hearing that isn’t about detail, or wrangling, or dispute, and is just a simple hearing which the child and the carers attend to just formally recognise that this is important and should be a sense of occasion. Should SGOs end, as they do now, with a whimper, rather than a bang?

The second, is more complex, and potentially more interesting (if you are a geek), and I would thank counsel for the mother for raising it. [I won’t name her, but it was a fascinating issue – well, to me at least]

The question, in simple terms, is this :-

When determining the level of ongoing contact, do SGO placements have a particular character, or is the contact just determined on a case by case basis?

To illustrate – here are three possible outcomes for children who are subject to care proceedings if they don’t go home, and three possible levels of contact. From the relatively narrow cross-section I have done, I can readily match them up, but is that just a result of a narrow cross-section, or local practice, or is it reflective of the placements having a particular character which produces a particular contact regime

Adoption with a stranger

SGO with a relative / foster carer

Long-term fostering with a foster carer

and three possible contact quantums

Six times per year

Two or three times per year

No direct contact or once per year

Maybe you haven’t matched them the same way I did, based on my narrow experience; but it does seem to me that there’s something of a spectrum of character (and frequency of contact) which starts with Adoption (and low contact at one end) and Long-term fostering (and six or so sessions of contact at the other).

SGOs come somewhere on that spectrum, but are they (as I was arguing), closer to Adoption, being a form of permanence, or as the parents were legitimately arguing, closer to long-term fostering?

On the one hand, one can see the parents perspective that it feels peculiar to have a higher level of contact if your child is placed with a stranger than if the child were placed with a member of your family; on the other that managing contact where the child is in the care of the State is different than when the child is permanently cared for by an individual who has legal responsibility for them.

So, does an SGO placement have a particular form of character, which makes it Permanence, and this has an impact on the right sort of contact for that child?

Or, is the character of the type of placement completely irrelevant in SGOs and the right level of contact falls completely on an analysis of the particular case?

The original White Paper is interesting here – look at this bit (my underlining):-

“5.10 The Government will legislate to create this new option,

which could be called “special guardianship”. It will only be

used to provide permanence for those children for whom

adoption is not appropriate, and where the court decides it is in

the best interests of the child or young person. It will:−

give the carer clear responsibility for all aspects of caring for

the child or young person, and for making the decisions to

do with their upbringing. The child or young person will no

longer be looked after by the Council; provide a firm foundation on

which to build a life−long permanent relationship between the

carer and the child or young person; preserve the legal link

between the child or young person

and their birth family; be accompanied by a proper access to a full

range of support services including, where appropriate, financial

support.”

Now, I’m not at all sure that SGOs are ‘only used to provide permanence for those children for whom adoption is not appropriate’ but that does suggest that “Permanence” was in the mind of those who constructed the Act and concept.

What we do know, in terms of character, is that SGOs are not just a family member version of Adoption. The Court of Appeal made that plain in RE AJ (A CHILD) (2007) [2007] EWCA Civ 55 and also RE S (A CHILD) (2007) [2007] EWCA Civ 54

Special guardianship orders did not effectively replace adoption orders in cases where children were to be placed permanently within their wider families. No doubt there were many cases in which a special guardianship order would be the appropriate order, but each case had to be decided on what was in the best interests of the particular child on the particular facts of the case

And in terms of contact, certainly the Court treat the views of adopters and SGOs differently.

Compare RE L (A CHILD) (2007) [2007] EWCA Civ 196 which dealt with Special Guardians who were appealing a contact order being made that they had opposed and the Court of Appeal upheld the original contact order

With RE R (A CHILD) (2005) [2005] EWCA Civ 1128 where the Court of Appeal held that making contact orders in the teeth of opposition from adopters was highly unusual, and effectively wouldn’t be done unless the Court considered the adopters were objectively and subjectively unreasonable.

In Re L – the contact order and various conditions, had been at the behest of the Local Authority, and the grandparents were deeply unhappy about it. They sought to argue that, in terms, if the Court were making an SGO they ought really to let the Special Guardians get on with it, and not fetter their exercise of parental responsibility.

This is what the Court of Appeal said about that (underlining mine)

33. There is in my mind no doubt that GP are correct in their understanding that the SGO confers parental responsibility upon them to a greater extent than they enjoyed under the residence order. It is apparent to me that the special guardian can trump the exercise of parental responsibility by a parent. The Local Authority have no parental authority and never have had in this case. Often a SGO will replace an existing care order and then by virtue of s. 91(5A) of the Children Act 1989 the SGO discharges the care order. All of this sits comfortably with the philosophy which lies behind the introduction of this new form of order. It is intended to promote and secure stability for the child cemented into this new family relationship. Links with the natural family are not severed as in adoption but the purpose undoubtedly is to give freedom to the special guardians to exercise parental responsibility in the best interests of the child. That, however, does not mean that the special guardians are free from the exercise of judicial oversight.

34. S. 14B(1) requires the court when making the SGO to consider whether a contact order should also be made. The obvious beneficiaries of that contact order are the natural parents who have been sidelined but not totally displaced by the making of this order. If a contact order is made then it can be hedged about with conditions see s. 11(7) and s 14E(5) of the Act. S. 14B(2) also permits the court to give leave (and by implication, therefore, to refuse to give leave) for the child to be known by a new surname. It follows as night follows day that the court has the jurisdiction to make the orders set out in paragraphs 2, 3, 4 and 5 of the judge’s order and GP’s attack has, therefore, to be one directed at the manner in which the judge exercised the discretion she so clearly had.

What the Court effectively decided here was that the views of the SGO about contact were not binding or final, and where it was appropriate to make a contact order in the teeth of opposition from the SGOs (or prospective SGOs), the Court could do so.

Wilson L.J did express a measure of disquiet about contact being imposed in the face of such opposition, before concluding that it had been a matter for the trial judge, not the appellate Court :-

67. I have however felt some, if transient, hesitation about the proper approach to the only other substantial part of the grandparents’ appeal, namely their objection to the order for supervised contact, outside the home and in their absence, between E and the mother. For example I have asked myself whether the judge sufficiently factored into her reasoning either the profundity of the grandparents’ opposition to such contact; or their sense of outrage in the event that their conviction as to where E’s interests lie were to be overruled; or their apparent state of emotional exhaustion; or the importance for E that the pressures upon them should not become insupportable.

Would I (so I have wondered) have made an order, in the teeth of opposition of that character, that, in accordance with the detailed provisions of the “Package of FamilySupport” annexed to the order, a child then less than four years old should, on 5November 2006, i.e. only two months after the date of the order, be collected by a”contact supervisor”, whom the child will be likely to have met only twice, and takenaway for four hours to meet the mother for the first of the six occasions of contact?

68. But, almost as quickly as they have crept into my mind, I have had to remind myself that such questions are not aptly posed to himself by an appellate judge. The essence of our system for such determinations of issues as depend upon the exercise of a discretion is that it is for the trial judge to conduct the exercise by evaluation of the rival arguments following full exposure to the evidence by sight and sound. The role of the appellate court is limited to an enquiry into whether the judge’s reasoning betrays error in the manner of her or his conduct of the exercise or whether the determination must be the product of such error in that it is plainly wrong.

What is left unsaid, is how much weight, if any, ought to be given to the views of the prospective carer.

The views of the prospective SGOs (and equally, the views of the parents) don’t expressly come within the Welfare Checklist that the Court must consider, but it would be hard to imagine that a Judge would not take into account, say, that the SGO was willing to countenance contact three times per year and the parent wanted twelve. Both of those views must form some part of the decision-making process.

It is interesting*, of course, that in Re L, the Court of Appeal decided that the legal powers to make a contact order alongside SGO existed, ergo it was a judicial discretion to make them in the teeth of opposition, whereas in Re R, the Court of Appeal acknowledged that the legal tools were there to make a contact order alongside adoption but imported a rule of thumb that to do so in the face of genuine opposition from the adopters would be highly unusual (not quite a rebuttable presumption against contact orders in adoption cases, but not a great distance from that)

[*to me, not necessarily universally]

So, it is plain that there is some distance on the spectrum between Adoption and SGO, and in the way the Court will treat such placements when considering contact. But how much distance remains uncertain.

[I know that there are some Family Placement folk who read this blog, and I would really welcome some views on it. I’m mindful that SGOs have been legal for about eight years now – I think the Adoption and Children Act 2002 that introduced them got phased in, in 2004; and that probably the majority of children who have been made subject to SGOs remain so, being still children. I wonder how much, if any, research has been done to examine children’s experiences of SGOs, and where that research might take us. Is there some part of the contact process which differs in a case of Permanence (where the child’s needs are being met, legally and on the ground, by individuals, rather than by the State?) ]

Post-script

I was wrong, in a discussion with my wonderful significant other this week, about how hard it is for a parent to over-turn an SGO once made. I said it was relatively easy, and she thought it would be very hard.

I’d thought that the application would just be a straightforward section 10(9) leave application (i.e that if you had a good enough case to argue about the Court discharging the SGO, you’d be able to argue it) but I see now from RE G (A CHILD) (2010) [2010] EWCA Civ 300 that the Court of Appeal have ruled that it is appropriate to use the Warwickshire test from WARWICKSHIRE COUNTY COUNCIL (Appellant) v M (Respondent) & (1) M (2) L (BY THEIR CHILDREN’S GUARDIAN) (Interveners) (2007) [2007] EWCA Civ 1084 that test being (I’m paraphrasing, but not by much) “the law says you have to have a mechanism that lets you challenge this order at a later point and there’s a hurdle to get over, but the Courts are blowed if they are going to set you a hurdle that any actual human being could ever get over, in order to use that mechanism”

Using the Warwickshire test makes it very hard, without question.

So, my wonderful significant other was right, and I was wrong. Not for the first, nor I fear the last time.

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Posted in adoption, case law, contact and tagged contact, girls are generally right you know, levels of contact, permanence, special guardians compared to adopters, special guardianship, warwickshire, what the hell am I doing here? I don't belong here. Bookmark the permalink.

Forensic ferrets (or “Standing in the way of (beyond parental) control”)

Posted on July 30, 2012 by suesspiciousminds

Standing in the way of (beyond parental) control

A discussion of the little-used limb of the threshold criteria, and the interesting and deeply sad case of Re K (A Child :Post Adoption Breakdown) 2012. Plus, a judicial determination that Judges are not ferrets. (I see how, with the ermine, folk might get confused)

The case can be found here (how I love Baiili) :-

http://www.bailii.org/ew/cases/EWHC/Fam/2012/B9.html

I have to say, in what’s coming up to eighteen years of care law (my God, some of the babies I dealt with at the start of my career may now, hopefully, be going to university, and almost certainly will be legitimately buying alcohol) I have only used the ‘beyond parental control’ limb twice; both times in relation to cases involving adoption breakdowns.

The attractiveness of it is that one does not necessarily need to apportion blame or find that it is poor or unreasonable parenting that has led to the significant harm; and it is for that reason that when it crops up, it tends to be in cases where a deeply damaged child is losing their second family.

In this case, the Local Authority and the adoptive parents were at loggerheads about who was to blame for “Katie’s” parlous state. Without a doubt, the adoptive placement had broken down, and the relationship between “Katie” and her parents was very fraught.

This was an exchange of messages after Katie had been out of the home for a year

‘Katie this is the first time we have heard from you in almost a year. We are glad that you liked your Christmas presents, and are enjoying your new mobile phone.

You will always hold a special place in our hearts and family. You may think that we don’t care but actually we all care more than you can ever imagine and everyone hopes that your future will be good. You will not know what we think and feel, unless you talk to us. Your medals were thrown away at Christmas when we were so upset that we were not allowed to give you anything or see you. We are sorry because it could easily have been prevented…

You are a very intelligent young girl and have always got good results, which we are certain will continue. You are also a talented dancer and a caring person.

We continue to do our best for you and are delighted to hear from you, although we know that it is difficult for you, Mum & Dad’

Katie’s response was robust. She replied,

‘you are NOT my mum and dad for starters!…you have wrecked my childhood and you still are by contacting me, checking up on me on [Facebook]. I don’t want anything to do with you. Im extremely happy here at Greendale and I don’t need you interfering in my life anymore. You have caused enough damage in my life…’

[I pause here to say, that in the light of this sort of stuff, it is astonishing that the LA had such hostility towards the adoptive parents, and one wonders how much of the reasoning for that just didn’t come through in the judgment. The tone might not be perfect, but it’s far from awful or provocative]

Katie was diagnosed as having a reactive attachment disorder, and the Judge was deeply sympathetic to the suggestion that the efforts the parents made, which would have been kind parenting for another child simply did not work with Katie. At the same time, the Judge recognised that this was not in any sense Katie’s fault, but a symptom of her reactive attachment disorder.

[I know, you’re saying “get to the ferrets, I want to know about the ferrets” – be patient. Your ferret-wishes will be granted]

Dr Richer notes that the parents’ have strong moral values and focus on high achievement, ‘both usually applauded in our society’. However, this does not equip them easily to accept Katie unconditionally – ‘weaknesses, oddities, fears and all’. Dr Richer said that,

‘the parents need to examine to what extent their well intentioned efforts to help Katie, (which would have succeeded well with attached children) were actually perceived as emotionally distant, cold, critical and controlling. And which have lead others unfairly to characterise them as controlling, seeing them through Katie’s eyes. But the acid test here is not whether the parents have done the “right thing” from the standpoint of usual rules and values, they clearly have, but whether they have done the right things from the standpoint of achieving success with Katie. Here they have encountered the same difficulties which have defeated so many families of late adopted children.’

Parents faced with the kind of difficulties these parents were faced with

’31. …get caught in a vicious circle where their normal behaviour, which works with most children, often only serves further to alienate a child like Katie. To call these not uncommon parental reactions emotionally abusive is not only inappropriate and wrong, but cruel. The vicious circles that the parents and Katie got into are seen in many families with insecure adopted children, where well intentioned efforts to help the children and structure their behaviour and protect them, only lead to the child becoming more resentful and alienated and angry…

48. Families who adopt children like Katie are often caught in what seems like a double bind. If they ease off close structuring of the child’s behaviour, the child may behave recklessly and/or antisocially, if they try to guide and structure they run the high risk of being seen by the child as restrictive and untrusting and be seen by others as controlling.’

And that was really the crux of the problem. Everyone was agreed that a Care Order had to be made, but in order to make a Care Order, there had to be threshold.

One would think, as an outsider, that the ‘beyond parental control’ was made for that sort of situation, and one might think that the entireity of this ligitation could have been avoided had a really bland threshold (channelling those really bland ‘unreasonable behaviour’ petitions that are written by those rare divorce lawyers who are kindly and get the job done without fuss) been prepared.

Perhaps “Katie has suffered significant harm as a result of absconding from her placement and being unhappy there, this harm has arisen from her being beyond parental control, which is caused by her reactive attachment disorder and not due to any conscious desire to cause harm on the part of the carers, or to cause trouble on the part of Katie. It is just very sad and unfortunate that this placement, which was intended to make everyone happy, has instead made them miserable”

Anyway, that’s not what happened. The LA threshold document contained 39 allegations, some of which were deeply contentious, and the Court ended up trapped in a battle that ran thus :-

The LA say that Katie is beyond parental control and that’s the fault of the adopters.

The adopters say Katie is beyond parental control and that’s not their fault.

Katie says she has been significantly harmed, but it’s not her fault.

(I again, go back to the honourable and worthy practice of being bland and inoffensive if it gets the job done)

The Court was not terribly helped by the expert on this particular issue (not because he was being unhelpful, but because he was speaking the truth. The legal niceties here were contributing to screwing this poor child up) :-

Dr Richer had some difficulties with the expression ‘beyond parental control’. As he put it, it is not a ‘blanket’ term; ‘it is a matter of how much and when’. There were times when Katie conformed to the family’s routine and other times when she became distressed. That distress manifested itself in behaviour such as destruction of property, running away and taking things that weren’t hers.

Dr Richer acknowledged that some people will perceive a finding that a child is beyond parental control to amount to labelling and therefore likely to have a negative impact on the child. As for Katie, Dr Richer’s opinion is that if the court makes a finding that Katie is beyond parental control then, in the short term, it is likely that she will brush it aside as being ‘all their fault’. However, in his answers to written questions he makes the point that,

’34. The trouble with the legal process surrounding Orders etc. is that they are predicated on events being someone’s fault: either the parents’ failed or Katie was too bad. This is unhelpful to the therapeutic process. Since the legal process exists, the challenge would be to explain it to Katie in a way which is helpful to her. I have tried to do that in my report, emphasising, in paragraph 50, the absence of blame. So the impact on Katie is determined by how well the decisions, whatever they are, are explained to her. It would be an uphill task since it risks leaving her with a sense that it was her fault that she left her home, and so by implication she is no good, or that it is all her parents’ fault, a conclusion which will be equally damaging in the longer term.

In Dr Richer’s opinion, Katie does not behave the way she does because she is beyond parental control. From his perspective as a clinical psychologist, if Katie is likely to suffer significant harm (and he did not disagree with the proposition that she is) then that is because she is suffering from a Reactive Attachment Disorder and not because she is beyond parental control.

So, broadly, the Court had to grapple with, and find a resolution to, the question “Can a child suffer significant harm as a result of being beyond parental control without it being anyone’s fault?”

The answer, is “Yes” and the Court sets out some excellent reasoning as to how it reached that answer.

‘the child’s being beyond parental control’

That leads on to consideration of the expression ‘the child’s being beyond parental control’. There is little authority on the meaning of this expression. It is an expression that appeared in earlier child protection legislation. Section 1(2)(d) of the Children and Young Persons Act 1969 provided that proof that a child ‘is beyond the control of his parent or guardian’ was sufficient of itself to empower the court to make a care order. The Children Act 1989 makes two important changes to that wording. First, the expression ‘he is beyond parental control’ is replaced by ‘the child’s being beyond parental control’. Second, proof of ‘the child’s being beyond parental control’ is not of itself sufficient to empower the court to make a care order. The court must be satisfied that the child ‘is suffering or is likely to suffer significant harm…attributable…to the child’s being beyond parental control’.

The first reported authority is M v Birmingham City Council [1994] 2 FLR 141. Stuart-White J there said.

‘…Subsection (2)(a) contains a verb, in what is unquestionably the present tense…whereas subs (2)(b)(ii) contains no verb in the present or any other tense. It must be read together with the opening words of subs (2)(b) as follows: “…that the harm, or likelihood of harm, is attributable to – (ii) the child’s being beyond parental control.” The expression contained in subs (2)(b)(ii) is, it seems to me, plainly a substantival expression capable of describing a state of affairs in the past, in the present or in the future according to the context in which it falls to be applied. No doubt this is why the concept of likelihood finds no place at this point in the subsection.

Two other matters in relation to subs (2)(b)(ii) have been canvassed in argument. In relation to those I am prepared to assume for the purpose of this appeal, without deciding the point. That ‘parental control’ refers to the parent of the child in question and not to parents, or reasonable parents, in general…’

The only Court of Appeal authority addressing the concept of ‘being beyond parental control’ is L (A Minor) 18 March 1997 (unreported). Butler-Sloss LJ says,

‘It is suggested most attractively by Mr Jubb in a long, careful, comprehensive skeleton argument and short, succinct oral argument to us that in order to show that a child is beyond parental control you must show some misfeasance by the parents. There is almost no authority on the phrase “beyond parental control” and certainly no authority to support the proposition, bold proposition as Mr Jubb is prepared to accept it as, that he makes to us today. We are asked to look at the useful guidance to the Children Act, Volume 1, under Court Orders, which says at paragraph 3.25:

“…the second limb is that the child is beyond parental control…It provides for cases where, whatever the standard of care available to the child, he is not benefiting from it because of lack of parental control. It is immaterial whether this is the fault of the parents or the child. Such behaviour frequently stems from distorted or stressed relationships between parent and child.”

That seems to me to be a useful summary of how those who put the Act together saw the use of what is a long-standing part of the previous child legislation of “beyond parental control”. I consider that we should be very careful not to look at the words of the Children Act other than broadly, sensibly and realistically…Quite simply this child is beyond the control of his parents. It is extremely sad. It is not a case of apportioning blame. It is a case of recognising a very worrying situation and one would have hoped, trying to work together, to make something of this child.’

The Children Act 1989 Guidance and Regulations, to which Butler-Sloss LJ referred, was updated in 2008. The text and tone of the latest guidance is noticeably different from the earlier version. The guidance now states:

‘3.41 If the child is determined by the court as being beyond parental control, this means that, whatever the standard of care provided by the parents, the child is suffering or is likely to suffer significant harm because of lack of parental control. This requires the court to determine whether as a matter of fact, the child is beyond control: it is immaterial who, if anyone, is to blame. In such cases, the local authority will need to demonstrate how the child’s situation will improve if the court makes an order – how his behaviour can be brought under control, and why an order is necessary to achieve this.’

And this was how the judge dealt with threshold (note the coruscation of the way the LA had chosen to put the case. I can actually feel in my shoulder blades how counsel for the LA must have felt whilst the Judge read all this out)

These proceedings began just over a year ago. During that time the parents have attended every hearing. It has at all times been plain that they resist the making of a care order. It was with some surprise, therefore, that on the first day of this final hearing, after allowing time for discussions, I was informed that they were willing to concede both threshold and the making of a final care order. In light of my knowledge of this case I was concerned about the appropriateness of making an agreed order without hearing some evidence. I heard Dr Richer. That reinforced my view that it was not appropriate simply to nod through a final care order. I continued with the hearing as a contested hearing.

I am in no doubt that that was the right decision. Hearing the evidence in this case has been highly informative. It has illuminated issues that raise significant concerns about the local authority’s future management of this case.

The parents concede that at the relevant date Katie was likely to suffer significant harm. On the evidence, they were right to make that concession. It is equally plain from the evidence that Katie is beyond parental control. The question of substance has been whether the likelihood of harm is attributable to Katie being beyond parental control or to the reactive attachment disorder from which she suffers.

It is plain from the guidance given by Lord Nicholls in Lancashire County Council v B that the likelihood of harm may be attributable to more than one cause. A contributory causal connection suffices. In this case it could, of course, be said that the fact that Katie is beyond parental control is itself attributable to the fact that she is suffering from reactive attachment disorder. That may be so. However, that argument cannot be allowed to subvert the primary purpose of s.31(2) which is one of child protection.

This final hearing has been dominated by the issue of culpability. Notwithstanding its belated decision to seek to satisfy the court that threshold is proved on the basis of s.31(2)(b)(ii) rather than s.31(2)(b)(i) the local authority has continued to put before the court a case which, at its heart, is one based upon culpability.

I noted earlier Dr Richer’s criticisms of the local authority for the tone and content of the written questions put to him in response to his report. On behalf of the local authority Miss McGrath sought to reassure me that the local authority’s questions to Dr Richer do not reflect the attitude of Children’s Social Care towards these parents. In light of my review of the history of this case since Katie’s arrival at Greendale, I am not reassured.

If there was any remaining doubt about the local authority’s attitude towards these parents that doubt was removed by Miss McGrath in her closing submissions. Referring to the events that have taken placed in the period since Katie has been at Greendale, Miss McGrath submitted that the parents had utterly failed to understand the impact of their behaviour on Katie. She said ‘I don’t know how any local authority could be expected to work with parents who show those attitudes’. She described the mother’s evidence as ‘chilling for its lack of sensitivity and understanding’. She urged me not to reinforce the parents’ views that the problems are all other people’s fault and not theirs. She submitted that the parents are concerned about their reputation in the community and the impact that a care order may have upon the way they earn their living. Having urged me to avoid rhetoric and proceed only on fact, she asked me, rhetorically, why it is that stones have been thrown at a local authority that has put Katie’s interests at the forefront of its mind. Why is it, she asked, again rhetorically, that the parents are not able to agree that Katie is beyond parental control? The answer, she submits, is that these parents are entirely adult focussed. How any reasonable person could fail to accept that Katie is beyond parental control is, she said, ‘something the local authority struggles to grasp’. Where, she asked, again rhetorically, is the love that goes with the understanding of attachment disorder?

The parents have had to contend with some profoundly difficult problems which they had not anticipated when they agreed to Katie being placed with them. Coping with those problems has at times (and particularly over the last two years) been rendered more challenging as a result of their difficult relationship with the local authority. I have had the opportunity to observe the parents in court several times over the last twelve months. They have attended every court hearing. During the course of this final hearing they gave evidence over the course of more than three hours. I have formed a favourable impression of them. In their evidence I found them to be open and straight-forward.

Sympathy for the parents’ predicament must not blind the court to the undoubted fact that they have not always responded as appropriately as they might have done to the problems that have arisen in parenting Katie. They accept that. Having successfully parented Chloe and Rachel they have struggled to adapt their parenting style to address the challenges that Katie has presented. They have struggled to accept and follow advice. They have behaved inappropriately in some of the things they have said, done and written. Some of the things they have said, done and written have undoubtedly caused Katie distress. Miss McGrath challenged the mother that some of her responses to Katie had been motivated by spite. Looked at in isolation, I accept that that is how it may appear. But the parents’ responses to Katie should not be looked at in isolation. They have to be looked at in the context of the fact that Katie suffers from reactive attachment disorder of childhood.

Although these parents are not above criticism, their parenting, insensitive and inappropriate as it has sometimes been, has not been the cause of Katie’s reactive attachment disorder. The cause of her attachment disorder was the appalling parenting she received in her first four years of life. The fact that Katie is beyond parental control is a manifestation of the attachment disorder. I am not persuaded that the shortcomings in the parenting provided by Katie’s adoptive parents has either caused or exacerbated the problem. Dr Richer was clear that in his professional opinion these parents are not responsible for Katie’s difficulties. As I noted earlier, he said that parents faced with the kind of difficulties these parents were faced with

I accept Dr Richer’s evidence.

Though I do not accept the local authority’s position on parental culpability, I am satisfied that the facts set out in the threshold document justify a finding that Katie is beyond parental control. They also justify a finding that Katie was likely to suffer significant harm and that that likelihood was attributable to her being beyond parental control. I am satisfied that the threshold is met.

Forensic ferrets

I adore how the polite exasperation pours through these sentences. One can almost feel the Judge reaching for a bottle of Milk of Magnesia and being able to attribute this particular ulcer to this particular issue…

Before I consider the history of the placement it is necessary to say something about the presentation of the local authority’s records. In charting the history of a local authority’s engagement in the life of any family, its records are a key source of information. When a family becomes involved in court proceedings, those records are likely to be an important part of the forensic enquiry. In this case, the standard of the local authority’s presentation of that material to the court has fallen far below that which the court is entitled to expect.

The required content and format of court bundles is set out in simple, clear, easy-to-follow terms in Practice Direction 27A to the Family Procedure Rules 2010. The Practice Direction’s repeated use of the word ‘shall’ makes it clear that compliance with the Practice Direction is mandatory. The Practice Direction requires that bundles ‘shall contain copies of all documents relevant to the hearing, in chronological order…paginated and indexed’. It goes on to provide that the bundle ‘shall be contained in one or more A4 size ringbinders or lever arch files (each lever arch file being limited to 350 pages)’.

In the index to the hearing bundle in this case, section K is described as ‘Social Care documents’. This section runs to 1,350 pages. It is contained within three lever arch files. The documents in this section are not in chronological or, indeed, in any other discernable order. There is no indexing of these documents. Several documents appear more than once at different points throughout this section. Even accepting that some degree of redacting may have been necessary, it is difficult to understand the purpose of including more than 150 pages in which the entirety of the text has been completely blacked out.

This key section of the hearing bundle is disorganised and chaotic. In the words of Bracewell J, it is ‘a jumbled mass of documentation’ (Re E (Care Proceedings: Social Work Practice) [2000] 2 FLR 254 at p. 257). It has hindered rather than assisted the forensic process. Twenty years ago Ward J (as he then was) memorably made the point that ‘judges are not forensic ferrets’ (B-T v B-T [1990] 2 FLR 1 at p.17). The pressure under which modern family judges are required to work is such that they simply do not have the time to be ‘forensic ferrets’ searching through inadequately prepared and disorganised hearing bundles in order to identify key information.

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Posted in adoption, case law, experts, threshold criteria and tagged beyond parental control, exasperation on the bench, forensic ferrets, judges aren't ferrets, milk of magnesia, murder on the dancefloor, reactive attachment disorder, threshold criteria. Bookmark the permalink.

We are family, I’ve got all my sisters with me… (or “Beware of the leopard” )

Posted on July 23, 2012 by suesspiciousminds

An analysis of the Government’s consultation on placement of siblings and contact post placement

The Government, as is their usual way, published consultation documents on a Saturday, and gave everyone just over a month to respond. [This is becoming closer and closer to Douglas Adam’s jaded viewpoint on planning consultations]

” But Mr Dent, the plans have been available in the local planning office for the last nine months.”

“Oh yes, well as soon as I heard I went straight round to see them, yesterday afternoon. You hadn’t exactly gone out of your way to call attention to them, had you? I mean, like actually telling anybody or anything.”

“But the plans were on display …”

“On display? I eventually had to go down to the cellar to find them.”

“That’s the display department.”

“With a flashlight.”

“Ah, well the lights had probably gone.”

“So had the stairs.”

“But look, you found the notice didn’t you?”

“Yes,” said Arthur, “yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard‘

But I digress…

The consultation on sibling placements can be found here:-

Click to access placing%20children%20in%20sibling%20groups%20for%20adoption%20a%20call%20for%20views.pdf

and the one on contact arrangements for children can be found here:-

Click to access contact%20arrangements%20for%20children%20a%20call%20for%20views.pdf

and Martin Narey’s interview about these consultations is here:-

http://media.education.gov.uk/assets/files/doc/m/martin%20narey%20transcript%20on%20adoption.doc

Now, if you were in two minds about whether you wanted to be involved in yet another consultation document, particularly where minds have probably already been made up, as is traditional with government consultations, let me take you to Martin Narey’s interview and his views about the benefits of contact :-

The evidence shows, actually, that contact does not necessarily encourage reconciliation with the birth family. More broadly, the evidence is mixed. I think the most famous piece of research is from Mackaskill, which showed that contact was of benefit to children in 12%, and had positive and negative aspects in more than 50% of cases, but had a very negative effect on the child in 25% of cases. In short, contact is more likely to be damaging than beneficial to a child. The key is to make a decision on each individual case. My view, and this is a view on which Ministers have yet to make a decision, is that we’ve got to look carefully at the presumption in the 1989 Children’s Act, which says that local authorities must endeavour to promote contact between a child in care and their birth family.

Now before people are alarmed, I am not suggesting that in the overwhelming number of cases when a child first comes into care that there won’t be contact. It would be ridiculous to suggest so. But we just need to make sure that on every occasion, we grant contact because it is in the interests of the child. That’s the absolute, exclusive priority we have and sometimes, practitioners have told me frequently, we make decisions on contact which aren’t in the interests of the child. Sometimes that’s about the amount of contact. I have met so many practitioners who are, the word I would use carefully, is ‘horrified’, they are horrified at the amount of contact that infants have to undergo. Sometimes having contact every day of the week, two or more hours, preceded and followed by a long journey across town, it’s traumatic for them.

If you disagree with that, and I suspect there may be people on every single side of the family justice system who DO disagree, you’re going to need to say so, otherwise some important things are going to flow from this.

[I have little doubt that for some children, contact is bloody awful, but I think it is incumbent on the LA and the Court to determine that with evidence contact is not in a particular child’s interests, rather than any shift about the general presumption that contact is a good thing]

I actually think, to let you know that I’m not just knee-jerk against any idea of change, that the consultation document on sibling placements talks a lot of sense.

Whilst in an ideal world, we might want to keep siblings together if they can’t go home (and I have blogged about this before), that simply isn’t the world we are living in. We are walking into a McDonalds with a shiny pound coin in hand and expecting to have a Michelin starred experience.

Julie Selwyn (2010)7 found that sibling groups of three or more children were placed, on average, a year later than most children who are placed for adoption in England.8 Analysis of prospective adopters and children on the national Adoption Register shows few adopters willing to consider adopting more than one child at a time. This means that children in sibling groups are less likely to find a secure future home quickly, and may suffer harm as a result.

And This is only part of the picture. It is also genuinely difficult to find adopters who will take sibling groups of three children or more. The British Association for Adoption and Fostering (BAAF) has indicated that as demand for potential adopters increases, some are pulling back from the more challenging children, including sibling groups. Data from the Adoption Register in 2011/12 shows that of the 2536 children referred to the Register from England, 1318 (52%) were single children placements; there were 349 groups of two siblings, 71 groups of three siblings, four groups of four siblings, and there was one group of five siblings. There were 270 people on the register able to adopt groups of 2 children and 21 able to consider groups of 3 children. Some adopters do go on to adopt a sibling born later thus achieving placement of siblings.

Yes, you read that right. There are 21 carers on the national register who have expressed an interest in adopting a sibling group of 3 or more. I think I could genuinely take half of those with just my current batch of cases; and I’m just a small portion of one Local Authority.

The consultation document wants to tackle it from both sides, what might be deemed ‘supply’ and ‘demand’ – how can we attract more potential carers who are amenable to sibling groups, how can we convert more people who want to adopt 1 child into adopting a larger group, and is it sensible to cut down the amount of cases that are coming into the system hoping for an adoptive placement of 3 siblings together when that is just unfeasible? And part of that is tackling the general assumption that sibling groups should always be placed together and getting into the nuts and bolts of whether that is right for this family.

Narey talks about the distance between the numbers of children looking for sibling placements and the number of placements available as ‘a gulf’ and I absolutely agree.

The document identifies the problems and throws the doors open to sensible solutions and practical proposals – it seems to me to be a genuine attempt at consultation and to ventilate this very difficult issue with a view to coming up with some ideas. It doesn’t seem to start with a fixed plan with which people are invited to enthusiastically agree or else shut the hell up.

The contact consultation document, I respectfully suggest, is a little further down the route of “we have already got a good idea what we want to do, but we’re obliged to consult with the great unwashed about it”

This is up front and centre at paragraph 3 of the consultation:-

The Government thinks that it is time to review practice and the law relating to contact to make sure that arrangements are always driven by a thorough assessment of what is in the child’s best interests. There is growing concern that contact arrangements are being made that are inappropriate for the child, badly planned and badly monitored. These are being driven by view that contact should take place, rather than on the basis of the individual needs, circumstances, views and wishes of the child. As the number of children in care rises, so the burden and negative impact of poor contact becomes more pressing.

Which even I, as a hard-bitten Local Authority hack, driven to distraction about fights over contact taking place five days a week when the parent then only turns up for two; think is somewhat less than neutral in a consultation document and smacks of an opinion already being formed.

Contact for infants can be particularly problematic. There is pressing evidence that high intensity contact for this group can be stressful and disruptive. Of particular concern is the exposure to multiple carers and the constant disruption to a daily routine. Contact for infants may be arranged for several hours a day for three to five (or more) days a week. Kenrick (2009)14 studied the effect of contact on infants involved in Coram’s concurrent planning project. The study showed that the babies displayed distress before, during and following contact sessions, and that the requirement for frequent contact was experienced as disruptive by the child and carers. The concurrent carers who reported distress and anxiety, described the need for a resting or recovery time of 24 hours to “settle” the child, something which is impossible with such frequent contact arrangements. For infants who have been abused or neglected, the distress from frequent and unsatisfactory contact can make it more difficult for them to recover.

I don’t necessarily disagree with this; it’s been a schism between what the family justice system thinks is right level of contact for infants and what the research thinks is right for some time, and it is worth trying to thrash this out, to come to a sensible balance between preserving/building a relationship between child and parent and stability for the child. I think we have probably drifted too far one way on that, and I welcome an attempt to actually pull together the evidence and come to a proper conclusion about where the welfare paramountcy principle should stand on contact for infants (on the Justice Munby end of the scales – five times per week of four-five hours, or on the Kenrick end of the scales, or somewhere between). I just wish it had been couched as a debate, rather than a declaration of war.

Statutory guidance can be strengthened to ensure more consideration is particularly given to the purpose of contact for infants. Ensuring that arrangements are appropriate to their age and stage of development and they are not, for example, subject to long journeys. Each case will need to be decided on an individual basis, however we should like to propose that a good starting point might be that children under two are rarely exposed to contact more than 2 or 3 times a week and for sessions of no more than 2 hours

I wonder if the Government have thought through the inevitable consequence of this that there will be a far greater clamour from parents, Guardians and Courts for less separations (since the impact of separation appears far greater with 4-6 hours contact a week than it is with 20-25 hours contact per week) and thus a huge increase in risks being managed at home, parent and baby placements and residential assessments. I’ve spoken before about the law of unintended consequences and I think this is a massive one.

22. We also plan to look again at the duties on local authorities in primary legislation to allow children in care reasonable contact with their birth parents and to promote contact for looked after children. We think that these duties may encourage a focus on the existence and frequency of contact arrangements, rather than on whether they safeguard and promote the welfare of the child. This could remove the perceived presumption of contact in all cases and help local authorities to take a case-by-case decision about the best contact arrangements for the individual child. We recognise that these duties were introduced because some local authorities did not previously make adequate arrangements for contact, and we do not want to see a return to contact being exceptional rather than the norm.

23. Alternatively we could look at replacing the duties with a new requirement that local authorities consider contact arrangements that have a clear purpose documented in the child’s care plan and are in the child’s best interests. The intention would be to ensure that arrangements are made in the child’s best interests, taking account of views and wishes of all concerned, and aligned with the longer term plans for the child.

And on post-Placement contact

36. We need to ensure that contact arrangements change as a child’s circumstances change and that they are consistent with plans for the child’s future. We also want to discourage the practice of making informal arrangements or ‘deals’ outside of the court process. In order that contact arrangements are, and remain, fit for purpose, we could look at existing provisions for reviewing contact and ensure a formal review and decision making process takes place at each of the points set out above. We could look at existing guidance and regulations and consider where and how these can be strengthened.

37. There could be particular scope for this at the point of placement order. At present, there is no presumption for or against contact with the birth family at this stage. We could introduce a presumption of ‘no contact’ unless the local authority is satisfied that contact would be in the best interests of the child. For example, this might be the case where an older child, with the backing of his or her adoptive parents, expresses a wish to meet his or her birth parents.

And specifically on post-adoption contact

49. One option may be to provide that the court can on application for an adoption order make an order for no contact. This would give adoptive parents recourse where informal contact arrangements were causing difficulties, but this would only take effect once an adoption order has been made. Post-adoption contact should be exceptional but in a minority of cases it may be appropriate, for example in the case of an older child. What should govern such contact arrangements is what is in the best interests of the child.

50. In addition to introducing a “no contact” order, we could amend legislation to create a new more demanding ‘permission filter’. This would raise the bar for any birth parent to make an application for a contact order. Criteria for granting permission already exists therefore we could explore how this might be strengthened.

If you don’t speak up, you can’t complain and whinge when this agenda gets pushed through into legislation and binding guidance. You have until the 31st August. Good job nobody who will want to reply would be on holiday during any of that time…

Comments Off on We are family, I’ve got all my sisters with me… (or “Beware of the leopard” )

Posted in adoption, consultation, family justice modernisation and tagged adoption, ah this is obbiously some new usage of the word 'consultation' that I was previously unfamiliar with, consultation, contact, martin narey, proposed changes to legislation. Bookmark the permalink.

Con-current bun-fight?

Posted on July 6, 2012 by suesspiciousminds

Apologies for dreadful punning title, bad even by the low standards I set myself.

A quick summary of the new Fostering for Adoption proposals.

As usual, with any government initiative, you can find dozens of links to the Minister announcing these brave new measures, and people commenting on whether they are any cop or not, but actually finding the damn thing takes an age.

So, here they are : – http://media.education.gov.uk/assets/files/pdf/p/proposals%20for%20earlier%20placement%20of%20children%20with%20their%20potential%20adopters.pdf

I must say, the first thing that struck me was that 50% of the babies taken into care ended up being adopted. (I thought that figure was rather low, given the very very high test for removal of children, particularly babies, is these days; and I’d be interested to know whether of the remaining 50% how many went home to mum or dad and how many were placed with relatives) . I think the thing I was supposed to gasp at with this headline stat was that it took those who went on to be adopted 15 months to find a placement, but that wasn’t shocking at all. If the average care case is taking 12-13 months to conclude at present, then it makes a degree of sense to me that those involving first time parents (where the information needs to be covered thoroughly, rather than just revisited) are almost certainly going to take longer.

So, concurrent planning – I couldn’t disagree with the principle that it is a good idea. The carer who takes on a baby in care proceedings does so with an open mind as to adopting the child if that ends up being the care plan for the child. It lets the bond develop, cuts down the drift, reduces the harm of moving placements. All jolly marvellous.

(Provided that the people putting themselves forward have no emotional feelings whatsoever and can release a child that they were hoping to adopt for over a year back to birth parents, and then move on to try to adopt the next one, oh and that they don’t work, so it is not a problem getting adoption leave to spend time with said baby, only to need to do it again with another one in a year. And who can cope with that first, second, or third attempt to adopt a child that doesn’t work out and keep coming back for another)

I think concurrent planning can certainly work, but if it is to work on a meaningful scale, then the barriers between fostering and adopting need to be broken down and I think that takes a lot of time. There are undoubtedly some foster carers who are willing to adopt the right child (though that leaves you with the problem of bleeding out foster carers numbers) but I think there are very, very few adopters who are interested in fostering. The two things at present, tick very different boxes for people. One group are looking to help children for reasonably short periods of time and are emotionally and mentally prepared to let them go and take on another, and one are looking for someone to complete their family and to care for as a parent.

I don’t think concurrency doesn’t happen much at present because social workers are against it, or because parents feel it prejudges the outcome, but because there aren’t carers queuing up to do it. Maybe there will be in the future, as it becomes a genuine third option, rather than a genuine stark divide between those who foster and those who adopt.

Anyway, enough of my opinions, what are the conclusions of the report as to HOW we make concurrency work (taking it as read that because they are doing it, the thrust of the report is that more concurrency is a good thing)

We announced that we will change legislation to make it easier for prospective adopters to be approved as foster carers in appropriate cases, and these new draft regulations will be published for consultation in September.

We therefore propose to introduce a new legal duty on local authorities to consider placing a child with carers who are likely to become their permanent carers, where the evidence available to the local authority clearly indicates that it is unlikely that he or she will be returning home

[I don’t want to ‘prejudge the outcome’ here, but that is EXACTLY the sort of criteria for going down the concurrency route that would ensure that parents solicitors fight against a concurrency placement in any case, because it involves a prejudgment that the case is likely to end in adoption. When are the LA supposed to make that decision? At the end of proceedings when the Court has determined it? Clearly not, as that’s what they try to do now. After the expert reports, but before the Court has heard the evidence? Or when the first ICO is made? I suspect the idea is the latter, but I can already hear the howls of outrage – how can you place this child in a concurrency placement, when the law states that you should do this when the LA have decided the child is unlikely to go home. How can the social worker keep an open mind, when they’ve already decided the child is unlikely to go home? This is exactly the sort of test (poor prognosis) that destroyed concurrency in one Local Authority area that I know moderately well. Once you decide concurrency is for ‘hopeless cases’ no proper advocate for a parent can ever do anything but fight against their client being labelled as a hopeless case. [So, far from encouraging and promoting concurrency, my initial view is that this strangles it at birth]

We will also fund Coram – the leading centre of practice in concurrent planning – to broaden their reach as a National Centre of Excellence in Adoption and Early Permanence. This will allow all local authorities and voluntary adoption agencies in England to access expertise in concurrent planning, and in the sorts of management practice that make for effective early permanence practice, including fostering by potential adopters.

Just so I’m not being purely curmudgeonly, I think that’s a good idea. Coram do bloody good work and are very experienced about this, and if anyone has valuable ideas and guidance to give, it will be them. (I note that there isn’t any figure on the funding)

The National Centre will give social workers and managers access to training and a set of tools to help them introduce concurrent planning and other early placement practice, working with the judiciary in their area. It will draw on the elements of effective practice already developed in a number of different local authorities and will give access to learning sets and collaboration to improve understanding of good practice. Working with local authorities and a range of national experts, the Centre will define and promote national standards approved by experts and will offer accreditation to local authorities and voluntary adoption agencies who sign up to its programme.

(A bit waffly, but still probably a good idea)

But wait, where is the stick? You can’t have a policy launch without a stick

Finally, we are proposing a small adjustment to the adoption scorecard to ensure it gives due credit to effective practice in early permanence by local authorities. Specifically, we will change the first scorecard indicator so that it measures the average time between a child becoming looked after and moving in with his or her eventual adopter, including in cases where he or she initially moves in on a foster care basis. This change will serve the additional purpose of removing some anomalies in the scorecard data that local authorities have raised with us.

Yes, we will achieve this through Adoption Scorecards. Because after all, scorecards and performance indicators have always solved every problem they’ve ever come into contact with. They’ve worked so well in education, and the NHS. Cynicism aside, I think it is sensible to have the scorecards measure when the child WAS PLACED with prospective adopters, rather than when the adoption order was made, because that’s really what’s important for children who the Court have determined should be adopted, that they be placed.

I didn’t see much in this by way of encouraging and incentivising concurrency carers. It makes it easier for adopters to become foster carers, rather than the other way around. There isn’t anything that deals with the crippling financial gulf between being a foster carer (possibly even an agency one) on good, non-taxable reumneration, and moving to adoption where you’re broadly on your own in terms of financially supporting the child. Nor is there any suggestion of ‘concurrency leave’ to allow concurrent parents to get the masses of additional time off they would need.

As a concept, I like concurrency a great deal, but I think it would take a concerted four or five years to move to an entirely fresh and well resourced third strand of ‘non-family’ carers for children, to sit as a genuine option beside fostering and adoption. But in the real world, I don’t know how this model encourages foster carers to give up their standard of living to adopt, or encourages adopters to put themselves through the emotional wringer / financial hardship of caring for a child that they have to hand back at the end of proceedings.

Having represented a lot of prospective adopters, the insecurity and fear of adoption proceedings that the child will be taken away from them and sent home is already overwhelming and massively stressful; and those are in cases where the Court has already ruled that adoption is the plan – that must multiply exponentially where the case is still all in the balance.

I suspect in most cases where concurrency has worked, it has done so on the tacit assumption that ‘if you want to adopt a baby in our area, you’ll have to be a concurrency adopter’ and that people have played ball because they want a baby.

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Posted in adoption and tagged concurrency, fostering for adoption, placement, predetermining the outcome, unlikely to go home, what's the dosage on these cynicism pills I think I may be overdoing it.. Bookmark the permalink.

Definition of chutzpah

Posted on July 2, 2012 by suesspiciousminds

An analysis of the High Court decision in A, S and Others v Lancashire County Council 2012, and the human rights breaches identified therein.

I remember that Chutzpah was explained to me many years ago as being the quality that enables a person on trial for murdering both of his parents to plead in mitigation that he is an orphan. And this High Court decision is very much about orphans, or at least “statutory orphans”

http://www.bailii.org/ew/cases/EWHC/Fam/2012/1689.html

This is a category of children, who the Court initially decided should be adopted, but didn’t get adopted and end up being long term fostered, but with that significant change in care plan never having been ventilated in the Court.

There have been grumblings about this group of ‘statutory orphans’ for some time, but this is the first time that a Court has ruled that it is incumbent on both LAs and Independent Reviewing Officers to take these children out of ‘statutory orphanage’ and have the case back before the Court.

It emerges from litigation involving multiple children against Lancashire County Council. I do not pick on Lancashire in this analysis, save that they were unlucky enough to be the authority who ended up with this issue before the High Court.

It deals with the not entirely unusual, though sad, situation where a child having been made the subject of a Freeing Order (or now, a Placement Order) does not go on to have the adoptive placement that the Court felt was right for them, being found. This is not necessarily as a result of a lack of effort or desire or commitment.

It is the sad reality that all of the adoption scorecards and media rhetoric ignores – there are some children who need to have adoptive families found for them who simply won’t get that family. They are the wrong age, the wrong gender, the wrong ethnicity, or the damage that they have endured has simply been too much for any adoptive carer to countenance. Sometimes children with all of these ‘anchors’ weighing them down still manage to get an adoptive family – it is impossible to say what might strike a chord on a particular day with a particular set of adopters willing to take on a child when they see a range of details of possible children. Sometimes those children you thought impossible to place just find a set of carers who just fit. Sometimes, they don’t.

This case deals with the ones who don’t. Where the care plan of adoption can’t be delivered, and the child remains subject to a Freeing Order or Placement Order, they are in a peculiar sort of limbo, which this Judge describes as being a ‘statutory orphan’. The parents PR is circumscribed far more than it would be if the child were merely subject to a Care Order, and the primary body who exercise PR is the Adoption Agency, rather than the Local Authority. Now, for all practical purposes, the Adoption Agency and the LA are the same thing, but the demands on them where a child is subject to a Placement Order and where the child is merely subject to a Care Order are different, subtly so, but significantly so.

In this case, the Judge made the following declarations that the LA and the Independent Reviewing Officer had behaved in a way that breached the children and parents human rights.

[Some of these may be purely case-specific, but there are more important general principles, which I have put in italics]

1. Lancashire County Council has acted incompatibly with the rights of A and S, as guaranteed by Articles 8, 6 and 3 of the European Convention of Human Rights and Fundamental Freedoms 1950, in that it:

(1) Failed to provide A and S with a proper opportunity of securing a permanent adoptive placement and a settled and secure home life. (Art. 8)

(2) Failed to seek revocation of the orders freeing A and S for adoption, made on the 19 March 2001 pursuant to Section 18(1) Adoption Act 1976, which effectively deprived them of: (a) The protection afforded to children under the Children Act 1989; (b) Contact with their mother and/or other members of their family; (c) Access to the Court and the procedural protection of a Guardian. (Arts. 6 & 8)

(3) Permitted A and S to be subjected to degrading treatment and physical assault and failed adequately to protect their physical and sexual safety and their psychological health (Arts. 3 and 8).

(4) Failed to provide accurate information concerning A and S’s legal status to the Independent Reviewing Officers. (Art. 8)

(5) Failed to ensure that there were sufficient procedures in place to give effect to the recommendations of the Looked After Child Reviews. (Art 8.)

(6) Failed to promote the rights of A and S to independent legal advice. (Art. 6)

(7) Specifically, failed to act as the ‘responsible body’ to enable A and S to pursue any potential claims for criminal injuries compensation, tortious liability and/or breach of Human Rights arising from their treatment by their mother, or by the Hs or by Mrs B. (Art. 6)

2. Mr H, the Independent Reviewing Officer for A and S, has acted incompatibly with the rights of A and S, as guaranteed by Articles 8 and 6 of the European Convention of Human Rights and Fundamental Freedoms 1950, in that he:

(1) Failed to identify that A and S’s Human Rights had been and were being infringed. (Arts. 6 & 8) (2) Failed to take effective action to ensure that LCC acted upon the recommendations of Looked After Child Reviews. (Art. 8) (3) Failed to refer the circumstances of A and S to CAFCASS Legal. (Art. 8)

It must, as a result of this case, be at the very least arguable, that any child who is the subject of a Placement Order, but for whom the adoption agency have now ceased searching for an adoptive placement, has a potential claim for breach of human rights against the LA (if they don’t act to change their legal status and revoke the Placement Order, or at the very least, ensure that the practical differences that exist between a child subject to a Placement Order and Care Order in terms of LA obligations towards them disappear in this situation) and the IRO (if the IRO does not push the LA towards remedying the situation, or failing that, notify CAFCASS of the problem)

Now, it is important to note that whilst this Judge made it plain that children remaining on Freeing Orders should have that remedied, he did draw a distinction between Freeing Orders and Placement Orders and it is at least arguable that this judgment does not go so far as to say that a Local Authority or IRO is in breach of human rights by not applying to revoke Placement Orders where it is clear that the plan is no longer adoption. But the door is at the very least, ajar on that point for a future claim.

There are relatively few Freeing Order cases now (since they stopped being made in 2002, and most of the children who were made subject to them will have been placed, or reached adulthood by now), but there are substantially more cases of children subject to Placement Orders who will never be placed. I would not be surprised if the national total was somewhere between 1,000 and 2,000 such children. Are revocation applications to be made on each?

And are each of those going to be swiftly resolved – with the parents and Guardian simply accepting that the Placement Order be revoked and the Care Order (made at the time, but simply ‘frozen’ whilst the Placement Order is in effect) revived? Or are some of them / most of them going to result in a root and branch review of placement, contact, the possibility of rehabilitation, fresh assessments etc?

Without saying too much, I suspect that most authorities will slavishly follow this judgment in exactly the same way as they slavishly follow the Supreme Court’s judgment about the provision of section 20 accommodation to teenagers. Or, as always, Shakespeare puts it best “A custom more honoured in the breach, than the observance”

*Cautious note – I in no way speak for my own or any LA here, this is just my own personal cynicism.

The IRO point is an interesting one, and I would be interested to know where (if orders for damages/costs orders are made) any costs arising from such a claim would be funded.

The Court have not yet dealt with that aspect at all, but I suspect some financial penalties will ensue. Is the IRO at any personal risk from this, or are any damages ordered against them falling on them as part of their profession and met by the LA? (This would be quite straightforward in relation to the social workers on the case, as the LA would have to fund the costs, but IROs occupy a peculiar position both being simultaneously inside and outside of the LA)

The Judge in this case helpfully recounts exactly why the IRO role was beefed up following the House of Lords (as it then was) politely thanking the Court of Appeal for their creativity in inventing ‘starred care plans’ but saying the legal equivalent of ‘it’s not you, it’s me’ and ending that ‘ill-starred’ relationship at an early stage.

I have spoken before on this blog about how rarely the IRO provision to legally whistle-blow to CAFCASS about failure of a Local Authority to implement a care plan is used, and how the power for CAFCASS to actually make an application to Court in that event has never been used. (If you want to know the numbers – 8 total referrals to CAFCASS, 0 total applications arising from them)

CAFCASS weren’t dragged into this one, but I can’t see why, in a theoretical situation where the LA hadn’t revoked, the IRO had made the referral and CAFCASS had not made an application, that CAFCASS would not be added to the list of breaches.

(Of course, Parliament could have addressed this all very simply by ensuring that a Placement Order had a “Mission Impossible” clause, where it would self-destruct after two years – unless an adoption application had been placed before a Court and not yet resolved.)

I don’t think that the Judge was asked to address whether the law itself was incompatible with Human Rights, and I think it would not be, because there is provision for the LA to make an application to revoke; but the law could easily have placed on the LA a duty to make such an application to revoke where the plan is no longer adoption and the order no longer appropriate – which is effectively the position now following this case)

I suspect the attitude of LA’s and the volume of revocation of Placement Order applications will be informed once the level of costs and damages Lancashire endured are known and more to the point, whether the principles in this case are confined to Freeing Orders or have that broader construction.

(And if I were a journalist, an FOIA request to HMCS for the numbers of revocation applications over say the last 3 years and the next 18 months would be interesting – if it isn’t spiking considerably, then statutory orphans are still in the position that the High Court felt was wholly unacceptable and causing them irreparable harm)

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Posted in adoption, case law, costs and tagged aye so can I or so can any man, breach of human rights, but do they come when you do call them?, edited for additional clarity, freeing order, human rights, I can call on creatures from the vasty deeps, Independent Reviewing Officer, placement order, statutory orphans, Whistle-blowing. Bookmark the permalink.

Oh Ofsted, you’re such a, you’re such a hot temptation…

Posted on April 2, 2012 by suesspiciousminds

(A summary of the Right on Time Ofsted report into delays in adoptions)

Ofsted have prepared a report about the adoption process, which is an interesting read, particularly in conjunction with the Government’s own independent look at this, and the groundswell of political and media opinion that something has to be done.

I would not describe myself as an uncritical admirer of Ofsted, but this does actually read like a good solid piece of work, and they have examined the process and inspected those well-known saws about adoption panels causing delay, politically correct social workers delaying things to look for ethnic matches, and considered whether there is in reality any truth to it.

The report is available here http://www.ofsted.gov.uk/resources/right-time-exploring-delays-adoption

They visited nine Local Authorities, with a good geographical spread. I have the advantage of having worked at one of those authorities, which is always nice to see.

The report outlines some helpful local initiatives – I particularly liked Norfolk’s “Family Law Summit” and a few of the authorities had appointed professionals to perform a liaison job between the social work and family finding tasks and the Court process (what you might call the “Claude Makele role of social work” – okay, you might not, but I just did)

Adoption Panels

I think often Adoption Panels are an unwitting scapegoat in delays, with under pressure and beleaguered social workers, questioned about why their final evidence is late find themselves throwing out the “I couldn’t get a Panel date” excuse, which is too often accepted uncritically. (And when did you first ASK for a Panel date, and when were you told you couldn’t get one, being the supplementary questions that never get asked)

And so we have a culture nationally that the judiciary and family lawyers generally think that Adoption Panels are nothing but a blight on the process, delaying matters whilst they drink tea and eat warm curled-up potted meat sandwiches in an airless room.

Ofsted haven’t actually bought into that myth…. (bolding here is mine)

71. Inspectors found no evidence of adoption panels contributing to delay, either in their responses to cases or in their capacity to meet the fluctuating but generally increasing number of cases presented to the panel.

72. All adoption panels made efforts to meet these demands by convening additional meetings when necessary. One panel had held four extraordinary meetings in the last 12 months to ensure that recommendations were made on time. Another had increased the number of regular panel meetings; yet another had already met three times in the month that inspectors visited. Elsewhere, a panel had used the opportunity to hear a case during their recent panel training day. Three additional panel dates were arranged as a contingency by one local authority, although they had not been required.

73. Effective arrangements were made to ensure that panels were quorate. One agency had recruited additional panel members to increase flexibility. Another had two panels but members could sit on either panel as required. Vice chairs stood in for panel chairs as necessary.

74. Inspectors saw several examples of the flexibility of panels in reducing delay in cases they were tracking. In two cases, the approval of adopters and the matching of those adopters with children were recommended on the same day. This was done to ensure that introductions and placement could commence more promptly. In one of the cases, this avoided the further delay of having to wait for the placement to commence until after the sensitive period of Christmas.

75. In one local authority, the variable quality of reports and the perceived lack of management oversight of these reports prior to panel meetings were identified as significant problems which caused delays in the progression of some cases. Nearly all panel chairs, however, reported that the quality of paperwork was uniformly high.

76. The Family Justice Review made a recommendation, accepted by the government that the requirement that local authority adoption panels must consider the suitability of an adoption plan for a child should be removed. There were mixed views about this. Some, mainly court or Cafcass representatives, felt that as adoption was a legal process, this was an unnecessary duplication of the court’s task. Panel chairs in particular felt that the panel discussions brought a range of perspectives and areas of expertise that added rigour to the decision-making process. Inspectors did not, however, find that the panel’s scrutiny of the case added delay for children. There was no evidence in the tracked cases that panel decision-making about the suitability of adoption delayed final hearings.

Politically correct yoghurt-knitting social workers insisting on ethnic matches

Ofsted did not consider that this crude stereotype, much beloved of the popular press was accurate. (I recall vividly having had to search through Hansard on the debates on the Adoption and Children Bill, to see if they had addressed a particularly quirky lacunae, and the debate was 98% about same-sex adopters and unmarried adopters, and 2% sheer drivel, much of that drivel being hackneyed clichéd garbage about whether all social workers wear corduroy trousers. It was incredibly demoralising to see that MPs charged with delivering a legal framework for some of the most vulnerable in our society were so utterly out of touch with the real world)

11. Careful consideration was seen to be given to how the ethnic and cultural needs of children could be met. As in the wish to keep siblings together, the objective of seeking to meet these needs had to be balanced against other demands, such as the need to avoid delay. There was no evidence that local authorities were only looking for the ‘perfect’ or exact ethnic match, reflecting stated policies regarding adopter recruitment and permanence.

12. While local authorities paid due attention to ethnic or cultural needs, decisions to look for a ‘best fit’ were generally made promptly. In nearly all the cases seen by inspectors, ethnic and cultural issues did not cause delays. There were several examples where minority ethnic children had been placed with adopters from a similar background, with no delay. In those cases where it proved hard to find suitable adopters who could meet children’s needs in those areas, but were not necessarily from the same background, delays typically ranged between one and six months.

Court proceedings and assessments

The finger does get well and truly pointed at the plethora of assessments and the often sequential nature of such assessments, being the main factor in delay, however.

[I am reminded here of my all-time hero, Gilbert Keith Chesterton, who stung by a series of letters to The Times about what varying things were making our great country go to the dogs, wrote his own pithy letter. Dear Sirs, I know exactly what is wrong with this country. It is me. Yours faithfully, G K Chesterton]

26. The most significant cause of delay in tracked cases was the length of time taken for care proceedings to be concluded before an adoption plan could be confirmed. The average duration of completed care proceedings in tracked cases was slightly under 14 months. The individual local authority area average for these cases ranged from 11 months to 20 months.

29. Additional and repeat assessments during care proceedings, generally occurring sequentially, were found by inspectors to contribute to the delay in achieving permanence for children in 20 (38%) of the cases tracked. This figure does not include those cases where the ability of parents and extended family members to care for children was quite properly assessed as part of proceedings in a timely manner. The 20 cases were cases where repeat or late assessments had a measurable and adverse impact on the timely granting of a placement order. Delay for these children was measured in months, or in some cases, years.

Now, one has to be careful here, because the Inspectors were looking back at cases which ultimately had unsuccessful outcomes (in that the child/children were adopted, rather than could be placed within the family), so there is a danger in drawing inferences about cases generally; since obviously all cases that end in adoption did not have assessments which made the positive difference and ended up with rehabilitation.

I happen to think that it is probably right that in 75% of cases, those second opinion assessments, when you’ve already done one thorough assessment, tell you nothing at all and make no difference. The trick is, in determining whether the instant case before you is one of the 75% or the 25%.

32. There was a common perception that the courts’ anxieties about upholding the Human Rights Act[1] often overrode the ‘no delay’ principle of the Children Act 1989. There was a general consensus that the court process was adult-centred. One social worker said that children get ‘sucked into court’, without sufficient consideration of the impact on the children’s emotional well-being.

33. In eight cases, the commissioning of independent social work assessments essentially duplicated the task of the allocated local authority social worker and prolonged care proceedings. These assessments generally arose due to a disagreement about the proposed plan between the guardian for the child and the local authority or as a result of effective advocacy on behalf of the parents. In a number of the cases examined, repeat assessments, often ordered late in the process, ended up confirming the outcome of the original assessments but added months to the delay before the child’s future could be determined. In one case, a potential adoptive match was lost, leading to further delay.

It is hard to say if this is right; it certainly appears that there’s a correlation between the duration of care proceedings going up and the introduction of the Human Rights Act (and I noted from a recent analysis that prior to introducing a 40 week time limit, the average duration of proceedings was below that, and after the 40 week limit the average just went up and up and up – why? Because once you set a time limit, it is assumed that the run of the mill case will take that limit, and then you add all of the longer ones on top, skewing the average, whereas before there was a time limit, the shorter cases would end earlier)

But correlation is not causation. It could well be that the decisions of the Court of Appeal, quashing Judge’s decisions when they had tried to resist independent assessments had more to do with the proliferation of second opinion expert reports than the HRA – or it could of course be that it was thinking about the HRA that led to those assessments.

I would suggest that in a considerable number of cases, assessments are commissioned not because there is the gap in the evidence envisaged by the Court of Appeal in TL v (1) LONDON BOROUGH OF HAMMERSMITH AND FULHAM (2) ED (3) S (BY A CHILDREN’S GUARDIAN (2011) [2011] EWCA Civ 812 but through fear that if you get to final hearing without a psychological, or an independent social work assessment, or a culturally appropriate expert, that the whole of the final hearing will be spent bemoaning that fact and trying to persuade a Court that it would be unfair to make final decisions without one; so acqueisance to the instruction of an expert is often with a view to it being worse to reach a final hearing in four months time and then have the Court decide to adjourn for a further four-five months to get a psychological assessment rather than get one now, and have the final hearing in six months time.

That’s not going to change until the Courts who determine that a further assessment isn’t needed and apply the principles in TL V London Borough of Hammersmith and Fulham get the backing for that decision by the Court of Appeal. It may come on its own, it may require the FJR to be put into statute, it may still not come, but one can’t be surprised that professionals and the Court play cautiously when there’s such a risk of being overturned when robust case management decisions are implemented.

This also feeds into the next issue that Ofsted considered, which was the relative weight that social workers evidence gets, compared to that of other professionals.

37. In nearly all local authorities, social workers reported that they lacked credibility and status in the court arena. They believed that the lack of confidence in the quality of local social work assessment resulted in a reliance on independent ‘expert’ assessments, and therefore an increase in the duration of care proceedings. Several representatives from Cafcass and the courts, including senior judges, shared this view.

38. Social workers in several local authority areas were frustrated by a sense that they were not perceived as ‘experts’ in their own right and they felt that independent assessments were not often of superior quality to their own. Managers and social workers in some of these local authorities felt that the implied criticism was unfair, and based on an historical reputation that was no longer warranted.

39. In some areas, Cafcass and the court representatives accepted that the general view of social workers may in part be based on an out-of-date stereotype, but nearly all stressed that the uneven quality of local authority social work assessment remained a problem and was the main factor in the high number of repeat and independent assessments.

40. Senior managers in four local authorities openly expressed their concern that too many social workers responsible for cases in care proceedings did not yet have the necessary expertise and experience to undertake the work well. In particular, they believed that some social workers struggled to consider permanence issues adequately among all the immediate demands of court work including undertaking family assessments, managing contact arrangements and carrying out the myriad responsibilities associated with looked after children.

It is a particular bugbear of mine that Courts continue to give Guardian’s evidence the same weight as they did in the early days of the Children Act 1989, when Guardians really were the independent eyes and ears and a check and balance that the Act envisaged, rather than the Diet-Diet-Diet Guardian we currently have, as a result of CAFCASS trying to manage the service within budget by diluting the service. The next dilution of the service will result, I think, in homeopathic Guardians, where they are so dilute that there is no longer any actual connection with the child in question at all. No doubt they will still have a placebo effect… Ofsted acknowledge that this gap between a social worker’s opinion and that of the Guardian exists.

43. There was a general perception within local authorities that children’s guardians were likely to be more experienced than the local authority social workers and that their views, as a result, carried more weight. Several Cafcass and court representatives acknowledged that this perception may, however generalised or mistaken, have sometimes affected courts’ decision-making.

44. In one case, the local authority had a firm plan for adoption but at a directions hearing as part of the ongoing care proceedings, it was agreed that the plan should be changed to reunification with the child’s mother. Both the social worker and the senior manager reflected that the local authority had been ‘railroaded’ into this change of plan; in their view the social worker’s low status in court compared with that of the guardian, who supported the change in plan, was a key contributing factor. The social worker did not feel equipped to challenge the court’s position and the local authority acknowledged that its own legal advice was insufficiently robust. The plan for a return home was not successfully implemented and there was now likely to be a delay of over a year for the child to be adopted.

Local Authority legal representation

It would be wrong of me, as a local authority lawyer, to gloss over the complaints and issues identified in the Ofsted report about people like me across the country.

45. Views varied on the quality of local authority legal advice. Social workers and managers did not always feel that legal representatives robustly challenged parents’ solicitors or guardians. One authority had recently altered its commissioning arrangements for obtaining legal advice, and each consultation now incurred a fee. This was designed to discourage a previous over-reliance on legal advice, but there was a general consensus that access to legal advice was now actively discouraged by managers and, consequently, was sometimes delayed.

Working relationships between Local Authorities, CAFCASS and the Courts

50. Inspectors found that the relationship between the main participants in the court process was often marked by mistrust – ‘There is an inherent tension here between social workers and guardians,’ said one senior Cafcass manager – and it appeared at times to be adversarial, with each often blaming the other for faults in the system. This tension, however, was less evident in areas where more regular meetings between key agencies were held to address shared concerns and had promoted the development of more constructive and mutually understanding relationships.

51. In all local authority areas, inspectors heard that key court stakeholders met on a regular basis, but often those meetings concentrated on business issues of the court and were acknowledged to lack focus on outcomes for children. Other examples of joint working included regional away days, training, and development work as part of a local performance improvement group. Too often, however, these meetings were erratically attended or had ceased to be convened and most of the professionals spoken to by inspectors felt that they had not had a measurable impact. There was often a lack of consistency in reports about joint activity across local areas, reflecting a low awareness among professionals of how the different partners worked together.

These are much the same concerns as highlighted in the Family Justice Review, that there is mutual suspicion, distrust and blame, between the different organisations who are trying to deliver family justice. This clearly is a problem, and the bit I have put in bold above is something telling, but the first time that I’ve seen someone brave enough to put it into writing.

Maybe Norfolk’s idea of (peace) Summits is a good one. I for one look forward to being involved in such talks, and perhaps we should introduce the UN Model of simultaneous translation too, since Local Authorities, Cafcass and the Courts all seem to be speaking slightly different languages.

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Posted in adoption and tagged adoption, delay, even a stopped clock gives the right time twice a day, expert assessments, ofsted, when I spike you you'll know you've been spoken to. Bookmark the permalink.

suesspiciousminds

Category Archives: adoption

Neglecting neglect

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

Are you trying to tempt me, because I come from the land of plenty?

Family preservation versus child rescue

I wish I was Special, you’re so very Special (Guardians)

Forensic ferrets (or “Standing in the way of (beyond parental) control”)

We are family, I’ve got all my sisters with me… (or “Beware of the leopard” )

Con-current bun-fight?

Definition of chutzpah

Oh Ofsted, you’re such a, you’re such a hot temptation…

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