Category Archives: assessment of risk

You be frank, I’ll be earnest

Posted on July 3, 2013 by suesspiciousminds

 

Another judgment from Mr Justice Baker, who I’m becoming increasingly fond of (although I think his decision about termination of parental responsibility probably will get overturned by the Court of Appeal).

This is Re L and M (Children) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/1569.html

 

It is, sadly, not a terribly unusual case – unusual in society in general but not in the field I practice in. There were multiple and serious injuries to the child, and the medical opinion as to how these had been caused was at variance with how the parents said the injuries had been caused. The Judge carefully considered all of the evidence, and the judgment is a perfect analysis of the caselaw and the competing factors that the Judge has to consider, not least of course the well-known quotation from Dame Butler-Sloss   “The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research would throw a light into corners that are at present dark.” 

 

The findings against the parents, including that they had not been honest in their account, were made by the Judge. So far, so commonplace, but there are two features in the case which lift it, and make it worthy of discussion.

 

Firstly, the judicial approach towards the instruction of experts in the case.  (It will not surprise you to learn that I completely agree with the Judge here, and commend him for saying these things. I have grave doubts that a case like Al Alas Wray would reach the same outcome, were we to try it again next year, because getting to the truth required the Court to be amenable to the instruction of multiple experts and no doubt delays were incurred in getting to the truth, which was that the parents were not responsible for the dreadful injuries and that there was a medical cause, allowing them to be reunited with a child rather than that child being adopted. It is simply, but ghastly, to imagine, how that case would have developed if the Court had simply heard evidence from the (very eminent) treating medical professionals.

We don’t hear, for my mind, enough about Al Alas Wray. We have set off upon a path, in family justice, of child rescue dominating over family preservation, no doubt in part due to the rightful sense that what happened to Baby P should never happen again. But what happened to the Al Alas Wray family ought not to happen to other families, and what could have been far worse (that their child was wrongly permanently separated from them) is equally something to be avoided if at all possible.  It worries me deeply that such cases might slip by us in the future.

    1. At this point, before turning to the parents’ evidence, I mention some points of wider importance that emerged from the medical evidence in this case.

 

    1. As mentioned above, no MRI was carried out on M in August 2011. Dr. Stoodley reminded the court of the recommendation of the Royal College of Radiologists and the Royal College of Paediatrics and Child Health (“Standards for Radiological Investigations of Suspected Non-accidental Injury”, March 2008) that an MRI scan should be performed if an initial CT scan of a child is abnormal (para 15.3). He informed the court that there have been a number of recent cases in which such MRI has not been performed in these circumstances. Plainly from a forensic point of view, the absence of an MRI contemporaneous to the other imaging is a lacuna in the evidence. All the experts in this case agreed that an MRI should have been carried out at the time. I recognise, of course, that there may be clinical reasons why the treating physicians choose not to carry out imaging. I also note Mr. Richards’ observation that resources for MR imaging are scarce. I share Dr. Stoodley’s view, however, that “whilst the lack of an MRI scan at the time of M’s acute admission will not have affected her clinical care, an opportunity was potentially lost to gain useful forensic information”. It may therefore be appropriate for the professional bodies to review this issue to establish the extent to which the Royal Colleges’ recommendations are being followed

 

    1. There is, in addition, a more fundamental point of general importance. This case demonstrates yet again the invaluable role played by medical experts in cases of alleged non-accidental injury. There is rightly a renewed scrutiny on the use of experts in family proceedings, and some potent arguments have been advanced against what is perceived as the misuse and overuse of experts. In response, the Family Procedure Rules have been amended so as to impose more stringent regulation of the instruction of experts. Henceforth, under the amended rule 25.1, “expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings”.

 

    1. In difficult cases of non-accidental injury, it will continue to be the case that expert evidence from a variety of disciplines will be necessary to assist the court to resolve the proceedings. In the recent case of Devon CC v EB and others cited above, I observed at para 156

 

“Judges will be rigorous in resisting the call for unnecessary use of experts in family proceedings but equally will not hesitate to endorse the instruction of experts where, under the new rules, they are satisfied that they are necessary for the determination of the issues in proceedings.”

    1. This case provides a further example. The medical picture presented to Judge Marshall created what she thought, and Munby LJ in the CA agreed, was a conundrum. In directing a retrial, Munby LJ, whilst leaving the scope of the retrial to be decided by the judge conducting it, suggested that there should include a more exhaustive search of the literature. The instruction of Dr. Stoodley, a further search of the literature by the experts, and the process of the retrial in which the experts have each made an important contribution, have enabled this court to resolve the conundrum.

 

    1. Court-appointed experts play a vital role in difficult cases of non-accidental injury. As this case demonstrates, it will ordinarily not be sufficient to rely on the opinion of the treating physicians in this type of case. In respect of M’s rib fractures, the court-appointed experts provided insights that would not otherwise have been available to the court. The radiologists who initially reported on the X-rays, but who were not called to give evidence in the hearing, identified evidence further possible ten rib fractures. Neither Dr. Chapman nor Dr. Halliday identified any fractures at these points, and the local authority has not pursued this issue. As Mr. Kirk pointed out in closing submissions, the consequence is that this case looks somewhat different from how it appeared initially to the treating physicians. Had the case been presented purely on the basis of their interpretations, the focus of the court would have been significantly different. In respect of the skull fractures, as both Dr. Stoodley and Mr. Richards recognised, it is possible that in the past lucencies that had been routinely but wrongly diagnosed as fractures in spite of the fact that it was recognised that fissures and other abnormalities existed. Both experts had been involved in a case in which they had diagnosed a fracture but a bone pathologist had identified a traumatised suture. As Mr. Richards said in evidence, “we are beginning to get pathological evidence coming out to make us re-think our thoughts about fissures and fractures in the same way [as] a few years ago we got more evidence about birth causing subdural haemorrhages.” This is another example of how medical opinion about non-accidental head injury is continuing to evolve.

 

  1. This case provides further illustration of the important role of court-instructed experts in these difficult cases where the medical evidence is unusual and therefore outwith the experience of many hospital doctors. In the circumstances, it goes without saying that it is vital that experts of sufficient calibre and experience should continue to be available where the court considers their instruction necessary to resolve the proceedings. In the course of this trial, I have been informed that a number of doctors commonly instructed in these difficult cases are not at present accepting instructions. Any impediment to the instruction of experts in these difficult cases will make it much harder for the court to achieve a just and timely outcome for the child.

 

And secondly, as this was just a finding of fact hearing, there would then be a phase two, where assessments took place as to the future risk of harm that the parents might pose. The Judge reinforced this :

 

    1. I make these findings only after prolonged thought and with regret and reluctance. I know these parents have endured a great deal of hardship over the past few years, in particular the tragic loss of C and now these protracted proceedings leading to these findings. I accept that in many other ways the mother and father have been good parents to L and M. I accept that they are devoted to their children. I accept that they are desperate to care for them again.

 

  1. All children should wherever possible be brought up by their parents. That is as true of L and M as of any other children. I do not regard these findings as the end of the story. All the professionals in the case – the social workers, the guardian and the court – must do what we can to see if L and M can be safely returned to their parents. But the primary responsibility now lies with the parents themselves. I urge them, even at this late stage, to be more frank with the court so that we can all understand what happened to M and work together to ensure that she and her brother are safe in the future.

Nothing terribly new or controversial there, but a warning between the lines about how such cases will be dealt with in our brave new world.

The President has indicated that cases involving non-accidental injuries will only go beyond the 26 week limit in exceptional cases, and the mere fact of a finding of fact hearing being required won’t be sufficient to warrant a delay. Well, that’s all well and good, but what it will mean in practice is that where now, these parents would have something like a 10-14 week period to reflect on the judicial findings, perhaps accept them, perhaps partially move towards them, perhaps put some practical or therapeutic arrangements in place, they will from autumn of this year, probably get a 2-3 week period to do so.  The consequence of findings in a case like this, might be that a mother and father need to separate from one another, and it seems to me inhumane to expect them to make decisions of such gravity so quickly. Additionally, that assessment of future risk would probably have been undertaken by an independent expert, whereas from autumn of this year, it almost certainly will be undertaken by the social worker, who just 2-3 weeks earlier was effectively prosecuting those findings. It isn’t much time to turn around the parents views, and still less for the parents to be able to turn around the view of the social worker.

 

We shall see. The revised PLO is nearly upon us, and it will be happening, so all that we in the system can do is to try our best to make it work fairly for all involved. I’ll try to stop carping from the sidelines and try to come up with positive solutions as to how we make this system work fairly, but my fundamental thought is that it WILL require WORK to make it fair and that approaching the new regime as “like the old one but faster” won’t be sufficient, people in the system will have to be more alive to the need for us to get decisions that are not only swift but RIGHT.

 

 

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Emotional wrecks

Posted on June 13, 2013 by suesspiciousminds

Following the Supreme Court decision in Re B yesterday, which we hoped would tackle the four issues on which leave to appeal was granted :-

(i) the meaning of significant harm;

(ii) the relationship between the nature and gravity of the harm which is feared and the degree of likelihood of that harm being suffered in the future;

 (iii) the proportionality of a care order with a care plan for adoption in a case such as this; and

(iv) the proper approach of the Court of Appeal to a finding that the threshold has been crossed, and (although this was not expressly referred to) to the issue of proportionality.

 

And I shall leave it to others to debate whether or not they successfully clarified those points (save for (iv) which they undoubtedly did tackle, some might say at the expense of the 3 more important issues)

 

But it made me think about emotional harm post Re B, and some hypothetical examples to debate.  In each of these hypothetical examples :-

 

(i)                 The child is well fed, well cared for, their basic needs are met

(ii)               They are not hit, or sexually abused or neglected

(iii)             The parents are not drug addicts or alcohol abusers

(iv)              The parental behaviour complained of is just simply as is set out baldy and nothing else

(v)                All efforts to divert them from this behaviour has been unsuccessful to date

 

I make those caveats so that it is clear what we are debating is ‘pure emotional harm’, not the emotional harm that accompanies neglect, or physical or sexual abuse.

 

Have a look at the examples, if you would and consider whether you think (a) that it is appropriate for the State to intervene in this family’s life by issuing proceedings (b) whether the section 31 threshold is crossed and (c) whether the Court might consider it proportionate to make an order, if – as in Re B, all prospect of the parent being able to address that behaviour were not successful.

 

 

Example 1

 

 

The parent routinely tells the child that they are worthless, that they will never amount to anything, that the parent is ashamed of them, that they are fat and ugly and unloveable,  that even their parents don’t love them, that they will be a failure in life.

 

Example 2

The child wants more than anything to grow up to be a professional footballer, and the parent routinely tells the child that they are no good at football, that they aren’t getting any better at it, that they have no chance of becoming a footballer and that they are not going to be able to do it for a living.

 Example 3

The parent routinely tells the child that once you are an adult, “you shouldn’t knock it till you’ve tried it” and that they should try cocaine, heroin, amphetamines for themselves once they become an adult. The parent also makes it plain that once the child is an adult, if they want to try drugs, they do so with parental blessing and the parent will provide them with funds if they wish to do so.

 

Example 4

The parent has strong Marxist beliefs/no conscience about personal property, and regularly tells the child that “all property is theft” and that once the child reaches adulthood, it is perfectly legitimate, if they so wish, to steal things if they want them or need them. They make it clear that their view is that only a fool would work and save up for something when it is so easy to just take it from someone else.

 They themselves steal to supplement their lifestyle, and the home is full of luxury goods that they could not afford and they make no secret of how they obtained them. They do, however, not involve the child in any theft (either as witness or accomplice) and stress to the child that until they reach the age of 18, they should not steal anything.

 

Example 5

The parent routinely tells the child that the Holocaust never happened. They make it plain that Jewish people have lied about it, and that any small number of Jews who did die deserved it. They communicate to the child that books and television programmes or films that claim otherwise are lies and that the creators of such material cannot be trusted.

 

 

Example 6

 

The parents believe in reincarnation and karma, and routinely tell the child that people who die of terminal illnesses or have disabilities have these problems because they did bad things in a former life and are paying for them.

 

 

[I will stress that none of these are actual cases or even small features of actual cases, they are purely hypothetical examples of ways that a parent could behave which may lead the State to question whether the behaviour amounts to significant harm. I also stress that I am not attempting to claim that post Re B, all of these examples WOULD meet threshold or that a Local Authority would issue on them even if they did, rather to simply debate whether they are CAPABLE of meeting threshold and whether there is consensus about which that do or not, or whether there is uncertainty. ]

 

 

Do any of them, on their own, cross threshold?

 

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Supreme Court and emotional harm

Posted on June 12, 2013 by suesspiciousminds

The Supreme Court judgment in Re B is out, and can be read in full here:-

 

http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2013_0022_Judgment.pdf

For the too-long didn’t read version, the parents lost. The case was hoped to clarify emotional harm, and whether it justifies State intervention, and whether the risk of future emotional harm (when it becomes somewhat tenuous and predictive) justifies the most draconian of orders, a plan for adoption.

There was an excellent preview of the case by Celtic Knot over on Pink Tape, here

http://pinktape.co.uk/cases/rescuing-children-from-significant-harm-looking-forward-with-trepidation-and-hope/

and it sets out the backdrop to this case very clearly and why it was that he and I were both hoping that the parents would succeed. In all of this debate, I am mindful that  (a) I haven’t had the chance to read or hear all of the evidence and (b) that the case sadly involves real people and a real child.  Sadly, as it has important principles, it is something that needs to be discussed in broader terms than just the tragedy for the immediate family.

Frankly, my reading of the Re B Court of Appeal decision was that there was a lot that professionals were worried about or anxious about, but none of it actually amounted to proof that the child was at risk of significant harm. [I stress, this may very well be a fault of the Court of Appeal judgment in not properly framing how they found threshold to be crossed, rather than on professionals involved in the case]

 

I think the closest it came to threshold was in this passage here

It was the diagnosis of Dr Bass, which Judge Cryan accepted, that, beyond  abnormal personality traits and in additi on to, and more significantly than, her  somatisation disorder, M suffers a factitious  disorder of mild to moderate intensity.

This is a related psychiatric disorder in  which the sufferer is driven repeatedly to exaggerate symptoms or altogether to fabricate them and to offer false histories.

There is therefore a deceptive dimension to  the disorder which was replicated in a  mass of other evidence before the judg e, unrelated to M’s medical condition,  which raised questions about  her ability, and for that matter  also the ability of F, to behave honestly with professionals. Dr Bass  stressed that M’s psychiatric disorders required psychotherapy which might last for a year and which could be undertaken  only if she were to acknowledge the problems and to engage honestly with the therapist.

 

 

Undoubtedly within the case, and the Supreme Court gave multiple examples, there had been incidents where claims had been made by M which the Court found to be untrue, and they were florid claims. That much, I don’t disagree with.  The decision of the Court of Appeal that this crossed the threshold seemed, to me, to fall short on the critical area of actual evidence that it HAD harmed the child or was a risk of harming the child, and not merely in nebulous “Jedi-hand-wave” terms – what was it that was said the parents might do that would harm this child, and how likely was it that they would do it?

 

The original trial judge said this:-

The judge concluded: “Ultimately, I find that I am persuaded… that what the evidence  clearly demonstrates is that these parents do not have the capacity to  engage with professionals in such  a way that their behaviour will be  either controlled or amended to  bring about an environment where  [Amelia] would be safe… In short I cannot see that there is any  sufficiently reliable way that I can fulfil my duty  to [Amelia] to  protect her from harm and still place her with her parents. I  appreciate that in so saying I am depriving her of a relationship  which, young though she  is, is important to  her and depriving her  and her parents of that family life which this court strives to promote.”

 

Again, that seems to me to be a legitimate decision for the Judge who heard the evidence to take ONCE it was established that the threshold was crossed. If there WAS a risk of harm, then whether the parents could manage that harm, take advice, work with professionals and change their behaviour is massively relevant.

But did we ever cross the threshold on the facts as reported?

My fundamental issue is this – if one cannot put into a paragraph, or a page, what harm it was that the State was protecting this child from, I am not sure that the harm is actually properly made out. [Not a criticism of the LA involved – I  haven’t read the papers, I don’t know the whole case, but from the twin judgments I have seen, I don’t see anything that comes close to telling the parents, or the public, what it was that this child was being protected FROM – other than very peculiar behaviour short of abuse]

 

One focus of the appeal was the wording of the threshold criteria (the test that the State has to cross before a Care Order can be made) which is “significant harm”  and whether the law has wrongly developed to an extent where it is now hard to see the distinction, in law, between harm and significant harm.

 

If one were to get a family lawyer to draw up two columns, one headed Harm, and one headed Significant Harm, and then gave them a series of allegations, would all of the family lawyers put each allegation in the same column ? would there be broad consistency about which is which, perhaps with a few grey areas? Or in fact, would nearly everything go into the “significant harm” column.

 

Here is what the Supreme Court have to say

26.  In my view this court should avoid attempting to explain the word “significant”. It would be a gloss; attention might then turn to the meaning of the  gloss and, albeit with the best of intentions, the courts might find in due course that they had travelled far from  the word itself. Nevertheless it might be worthwhile to  note that in the White Paper which preceded the 1989 Act, namely The Law on  Child Care and Family Services, Cm 62, January 1987, the government stated, at para 60:

“It is intended that “likely ha rm” should cover all cases of unacceptable risk in which it may be necessary to balance the chance of the harm occurring against the magnitude of that harm if it does”

The Supreme Court also rejected the applicant’s submission that when a Court determines whether or not the threshold is crossed, article 8 is engaged, and determined that article 8 only arises when the Court are deciding whether or not to make an order.   [I can’t say that i am happy about THAT either]

 

The second matter relates to Mr Feehan’s submission that the threshold set  by section 31(2) is not crossed if the deficits relate only to the character of the parents rather than to the quality of their parenting. His alternative submission is  that harm suffered or likely to be suffered by a child as a result of parental action or inaction may cross the threshold only if,  in so acting or failing to act, the parent or parents were deliberately or intentionally to have caused or to be likely to cause such harm. M is, of course, not responsible for her personality traits nor for her psychiatric disorders; and in effect the submission is that the dishonesty,animosities and obstructionism of the parents represent deficits only of character

and that, if and insofar as they might cause harm to Amelia,whom they love, the harm is neither deliberate nor intentional

 

This is an interesting one, taking us into issues of free will and determinism. I would agree partly with Mr Feehan QC  – I think that the threshold ought to get into quality of parenting or how the parenting impacts on the child, but I don’t go as far as saying that a parent is not responsible for elements of their personality which are beyond their control. (The latter, seems to me, to invite later ligitation on the basis of paedophilia being intrinsic to a person, rather than a conscious or deliberate choice on their part)

The Supreme Court rejected this anyway.  

 

One interesting addition from the Supreme Court was their debate about whether, when deciding whether a lower Court had mistakenly found threshold to be crossed (or vice versa) the test for the appellant Court should be the usual one (derived from Piglowska) that the Court had been “plainly wrong”  or whether in the context of the threshold, which is a binary value judgment – the evidence is there to satisfy it, or it is not, the test should simply be whether they were “wrong”

it is generally better to allow adjectives to speak for themselves without adverbial  support. What does “plainly” add to “wrong”? Either the word adds nothing or it serves to treat the determination under challenge with some slight extra level of generosity apt to one which is discretionary but not to one which is evaluative.

Like all other members of the court, I  consider that appellate review of a  determination whether the threshold is crossed should be conducted by reference  simply to whether it was wrong.

 

 

I think they may come to regret that formulation.

 

Going to the issue of threshold this passage in the judgment outlines why the majority of the Judges found that it was met and the decision was not wrong

The nature of the harm which concerned Judge Cryan was (i) “the emotional harm to [Amelia] likely to be caused by” (a) “the Mother’s somatisation disorder and factitious illness disorder”,

(b) “concerns … about the parents’ personality traits”,

(c) “her mother’s lying”,

(d) her father’s “active, but less chronic, tendency to dishonest

y and vulnerability to the misuse of drugs”, and

(ii) “physical harm to [Amelia]” which “can not be discounted, for example, by over treatment or inappropriate treatment by doctors”.

As to the possibility of such harm being prevented or acceptably mitigated, the Judge concluded that Amelia’s parents did not have “the capacity to engage with professionals in such a way that their behaviour will either be controlled or amended to bring about an environment where [Amelia] would be safe”. He explained that the result of this was that he could think of no “sufficiently reliable way” in which he could “fulfil [his] duty”

to Amelia “to protect her from harm and still place her with her parents”.

 

66. Those conclusions are concerned with what may be characterised as risks, prospects or possible outcomes, and they

are not, therefore, findings of primary fact, let alone conclusions of law. As explained above, they are evaluations based

on the findings of primary fact, and on assessments of character and likely behaviour and attitudes, made by the Judge

as a result of many days of considering oral and written evidence and also as a result of hearing argument. They are

evaluations which are also plainly dependant on the Judge’s overall assessment of  the witnesses, and in particular on his opinion as to the character and dependability of Amelia’s mother and father, and as tothe reliability of the assessments of the expert witnesses. His conclusions appear to me to be ones to which, to put it at its lowest, he was fully entitled to come on the evidence he had heard and assessed. In other words, they were justified in terms of logic and common sense in the light of his findings of primary fact and his assessment of the witnesses, and they were coherently formulated. There is no basis in my view, for saying that they were wrong.

 

Sadly, to me, it seems that the Supreme Court have tackled this case in that very narrow way, rather than comparing the threshold said to be met in this case with the doctrines of Lord Templeman and Justice Hedley, about the difference between abusive parenting which harms a child or is likely to harm a child, and eccentric odd or even poor parenting which falls short of that mark.  I slightly have to wonder why they agreed to hear the appeal at all if they were not going to roll up their sleeves and tackle the issue of emotional harm. They just really said that it was a matter for the trial judge which side of the line the case fell on, unless it was apparent that he had got that wrong.

 

Lady Hale in her judgment, which in my mind actually tackled the issues and concluded in the dissenting judgment that the original judge was wrong to have made a Care Order,  sets out what practitioners felt was the key issue in the case in her opening paragraphs

 

143. This case raises some profound questions about the scope of courts’ powers to take away children from their birth families when what is feared is, not physical abuse or neglect, but emotional or psychological harm. We are all frail human beings, with our fair share of unattractive character traits, which sometimes manifest themselves in bad behaviours which may be copied by our children. But the State does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, who suffer from physical or mental illnesses or disabilities, or who espouse anti-social political or religious beliefs. Indeed, in Dickson v United Kingdom (2007) 46 EHRR 937, the Strasbourg court held that the refusal of artificial insemination facilities to a convicted murderer and the wife whom he had met while they were both in prison was a breach of their rights under article 8 of the European Convention.

 

How is the law to distinguish between emotional or psychological harm, which warrants the compulsory intervention of the State, and the normal and natural tendency of children to grow up to be and behave like their parents?

 

144.Added to this is the problem that the harm which is feared may take many years to materialise, if indeed it ever does. Every child is an individual, with her own character and personality. Many children are remarkably resilient. They do not all inherit their parents’ less attractive characters or copy their less attractive behaviours. Indeed some will consciously reject them. They have many other positive influences in their lives which can help them to resist the negative, whether it is their schools, their friends, or other people around them. How confident do we have to be that a child will indeed suffer harm because of her parents’ character and behaviour before we separate them for good?

 

Hear hear

 

 

Sadly all of this next bit is by the by, since it is from the dissenting judgment, but I think it is all correct, and I wish it were an accurate reflection of what the law was, post Re B

The reason for adopting a comparatively low threshold of likelihood is clear: some harm is so catastrophic that even a relatively small degree of likelihood should be sufficient to justify the state in intervening to protect the child before it happens, for example from death or serious injury or sexual abuse. But it is clear that Lord Nichollsdid not contemplate that a relatively small degree of likelihood would be sufficient in all cases.

 

The corollary of “the more serious the harm, the less likely it has to be” is that “the less serious the harm, the more likely it has to be”.

 

 

Of course, another reason for adopting a test of “real possibility”, rather than “more likely than not”, is that it is extremely difficult to predict the future and to do so with the sort of accuracy which would enable a court to say that it was more likely than not that a parent would harm a child in the future. Once again, this is a particular problem with emotional or psychological harm, which may take many years to manifest itself. The Act does not set limits upon when the harm may be likely to occur and clearly the court is entitled to look to the medium and longer term as well as to the child’s immediate future.

 

190 However, the longer term the prospect of harm, the greater the degree of uncertainty about whether it will actually happen. The child’s resilience or resistance, and the many protective influences at work in the community, whether from the wider family, their friends, their neighbourhoods, the health and social services and, perhaps above all, their schools, mean that it may never happen. The degree of likelihood must be such as justify compulsory intervention now, for there is always the possibility of compulsory intervention later, should the “real possibility” solidify

191. The second element in the threshold sheds some light upon these questions. The harm, or the likelihood of harm, must be “attributable to the care given to the child, or likely to be given to him if an order were not made, not being what it would be reasonable to expect a parent to give to him”(s 31(2)(b)). This reinforces the view that it is a deficiency in parental care, rather than in parental character, which must cause the harm. It also means that the court should be able to identify what that deficiency in care might be and how likely it is to happen.

 

For my part, I am unsure why the other Judges did not share those views, they seem to me eminently sensible and fair. In reality, it is merely a sieve to remove the sort of cases that Lord Templeman and Hedley LJ were referring to as being short of the level of parenting that requires State intervention.

I also feel somewhat for Lady Hale, who has given excellent judgments in many of the Supreme Court cases but seems to be being characterised as the dissenter who does not sway the majority.

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Supreme Court to give judgment on emotional harm case on 12th June

Posted on June 7, 2013 by suesspiciousminds

An interesting report from Family Law Week, confirming that the Re B case will be determined by the Supreme Court on 12th June, and I will write about it as soon as I get the judgment

 http://www.familylawweek.co.uk/site.aspx?i=ed114264

 The Court of Appeal decision is one that I blogged about here :-

 https://suesspiciousminds.com/2012/11/16/lies-and-the-lying-liars-who-tell-them/

 The reason that the case is important is that the threshold in the case was based entirely on emotional harm. I disagree with some of my readers about how prevalent that is  (my own experience of many, many Local Authorities over many, many years is that whilst emotional harm is a facet of lots of cases, I have NEVER picked up a case where the threshold contained nothing other than emotional harm. Ian Josephs says fairly that the people who come to him are invariably emotional harm cases). 

At the very least, it is plain that emotional harm is a controversial basis for separation of families, and it is probably the greyest area that we currently have, so it is good to see it being tackled.

 On the facts reported in Re B, I thought that the Court of Appeal were wrong in finding that the threshold was made out, and wrong further in moving to the conclusion that this meant that permanent separation was justified.  My heart is with the parents on this one, I have to say.

 There were certainly issues with the parents and there was certainly a suggestion that there would have been unusual features of the way the child would be brought up, but I did not see in the judgment I read evidence that the child was being harmed or likely to be harmed by it.

 

A classic bit of Hedley J, as far as I was concerned

 

Re L (Care threshold criteria) 2006  ”Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done. … It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.”

 

As some people remarked to me at the time, there must have been more to it than came out in the Court of Appeal judgment. That might be the case, but in which case, I consider there to be a fault in the judgment  – if a parent is to be separated from their child by the State, the least we can offer them is a fair judgment that sets out plainly why that has to be the case.

 I think it is important that if the State is removing children for emotional harm, which is such a slippery concept to pin down (as opposed to fractures, sexual abuse or even neglect), it is important to have some parameters as to what that might mean, and where the bright line is between unusual and eccentric parenting and harmful parenting.

I will be interested to see what the Supreme Court makes of this, and as an incidental, I think Lord Clarke of Stone-cum-Ebony has a great, great title.  I have vowed, and will hold to it, that in the vanishingly unlikely event that the Government go bananas and make me a peer of the realm, I shall go by the name of Lord Vader, but that title does tempt me. Perhaps I could be Lord Ebony-cum-Ivory…

 

 

 

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What made Tracy Barlow evil?

Posted on May 27, 2013 by suesspiciousminds

Some musings on the biological and neurological causes of crime, with references to Wetherfield’s nasty bit of work.

Firstly, by way of context, this all arises from my reading of this book, “The Anatomy of Violence” by Adrian Raine. It is an absorbing and fascinating book, with a lot of interest to anyone working in the field of violence, abuse and neglect. I’d be very interested to know what the few neuroscientists who dip into this blog make of it.  I will be coming back to some more of the issues raised in the book in later pieces.

You can find the book here, and it really is worth reading – even if you end up disagreeing with some or a lot of it, the thought processes involved in formulating your counter opinion are worthwhile – and as Raine points out, the very action of reading the book and thinking about the ideas is altering your brain’s structure.

So, Tracy Barlowe. For the benefit of the one reader I know (hi Neville) doesn’t own a television, Tracy Barlow is a television character on Britain’s longest running soap, Coronation Street. When I began watching it, she was a little girl much attached to doing colouring in and wearing a parka coat. She grew up to be a nasty bit of work. Here’s some of what she has done :-

Spiking the drink of a harmless oddball, Roy Cropper, so that she could convince him that he had slept with her, breaking his marriage vows, to win a one penny bet.

Murdered her boyfriend Charlie (who admittedly was a beast) spending months beforehand setting up a fake defence that he had been domestically violent

Blackmailing a teenage boy into lying for her at this trial with promises of sex

Lied that a neighbour (Gail Platt) had confessed to murder which sent Gail to prison

Lying to Steve McDonald that the love of his life Becky, had assaulted her causing her to miscarry his twins

Running through the Hare psychopathy checklist, she doesn’t half tick a lot of those boxes. She has no empathy, no remorse, doesn’t take responsibility, is a glib and charming individual, a pathlogical liar, is cunning and manipulative

http://en.wikipedia.org/wiki/Hare_Psychopathy_Checklist

Now – why is she evil?  (I am of course, aware, that the reason her character is evil is that it makes for good drama to have wicked people and once you start doing wicked stuff in a soap, you become the go-to character for driving such storylines – but I am interested in, assuming for a moment that she were real, why that would be?)

She is bright, wasn’t abused as a child, her parents don’t have violent or psychopathic tendencies, she has had no major life traumas that we know of. She didn’t have a troubled adolescence, had a good education. The first time she got into any trouble was taking ecstasy (this inadvertently led to her needing a kidney transplant, which she got from her mother’s toyboy holiday romance fling, who then dies).

When you look at her life, her mother Deidre has had a lot of romantic entanglements, on and off love affairs, which may have led to feelings of confusion, uncertainty, even rejection. The male figure most constant was Ken Barlow, intellectual but distant – a firm moralist  and a black and white “right and wrong” sort of man (but simultaneously a hypocrite) who never shied away from letting her know that she was a disapointment. And the family unit was constantly shifting, as one or other of the primary carers found a new passion, a new relationship, before reconciling.

Of course there are bigger issues then – which the book explores a lot. Can we ever understand evil, can we predict violence, can we do anything about the factors that lead to violence and anti-social behaviour? Can we repair someone who has taken that path?

One of the interesting studies in the book shows that children who had a violent crime, a murder, in their neighbourhood went on to perform markedly worse in school tests than other children who had not. And that living in an area where a single murder took place nearby lost the equivalent of what a year and a half of education would provide (in terms of alteration to IQ).  Coronation Street may seem far from Baltimore or Washington DC, but it is rife with violence and crime – why even those two old dears in the pub with their sherry (Rita and Emily) both lost husbands to violent incidents AND were the victims of murder attempts.

Another, unexpected one, relates to Tracy’s mother Deidre – she is famous for being one of the few characters on modern tv that is still allowed to do something. In soaps, she is probably the only one left who you see doing this activity and it turns out to be something that studies have shown if you do during pregnacy, you are three times more likely to have a violent or anti-social child or child who turns out to be that in adulthood.

Smoking.

If, as we suspect, Deidre smoked during pregnancy, and judging from her demeanour when she smokes, she’s been a forty a day woman for getting on for forty years now, and her pregnancy was in the early seventies, she almost certainly did, that might actually turn out to be a factor. The hypothesis, supported by these studies, is that smoking in pregnancy affects the formation and structure of the infants brain, and that damage and alteration to the structure increases the relative risk of a violent or antisocial life for your child.  [Of course, the concept of relative risk here is important – if for example there is a 1 in a million chance of hving a violent child, then a threefold increase is, whilst not good, still a pretty low chance, and the book doesn’t really get stuck into the relative risk]

But it was something that surprised me – and once in a while we have a mild moral outrage in the press when we see a pregnant celebrity smoking, but I had no idea that smoking during pregnancy could have any impact on behaviour in later life. (not as much as alcohol, head injuries, malnutrition and lack of care in first year of life, those are the big big factors)

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Devon knows how they make it so… necessary

Posted on April 25, 2013 by suesspiciousminds

 

I was going to blog about the new High Court decision in  Devon County Council v EB and Others 2013, but John Bolch of Family Lore not only beat me to it (which is usual) but he said everything that I wanted to say.

So, I commend his feature on it to you.  If you don’t already follow the Family Lore blog, then you should.

I suspect we are about to get a Court of Appeal decision (I hear these whispers) that clarifies that “necessary” in the context of “is this expert necessary” means something rather akin to “If I am to continue living, it is necessary that you stop strangling me”    [what we lawyers might call the Dudley v Stephens interpretation of the word ‘necessary’] and moving away from this namby-pamby idea of necessary in that context being anything to do with uncovering the truth, or delivering justice, or providing a fresh pair of eyes on a pivotal and life changing decision, or article 6.

Anyway, in the meantime, read this authority whilst you can still potentially rely on it.

http://www.familylore.co.uk/2013/04/devon-county-council-v-eb-ors-minors.html

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“How safe are our children?”

Posted on April 19, 2013 by suesspiciousminds

The NSPCC report on child abuse and neglect.

 The report can be found here

http://www.nspcc.org.uk/Inform/research/findings/howsafe/how-safe-2013-report_wdf95435.pdf

 and is interesting and well worth a read. It is quite stat heavy, but there are decent graphs which make the points well, and they set out how the stats were arrived at. (One of their core ones, I have an issue with, but will deal with that a bit later on)

The latter bits of the report set out the risk indicators for children, nearly all of which are not likely to come to a shock to anyone working within the family justice system.

You are more likely, as a child, to be physically abused or neglected if these factors are present in your family :-

Domestic violence, substance misuse, parents with mental health problems, parents with learning difficulties, children with physical or mental impairments, children from certain ethnic or minority backgrounds,  parents who suffered abuse themselves as a child, and poverty.

 The poverty one is interesting, because it is the elephant in the room at the moment. Is part of our child protection system, as might be argued by John Hemming and perhaps Dr Dale, a punitive way of dealing with the poorest members of our society (and perhaps even a redistribution of children from those who have them, to those with greater means and income who would adopt them?)

 Also of course, from everything we know about the political climate of the country at present, poverty is only going to get worse over the next few years (unless you were on the Board of HBOS or are a stockholder in Vodafone, Starbucks, Google et al)

 Here’s what the report says about poverty as a risk factor [underlining is mine, as I think this is a VITAL point]

 Children living with poverty, debt and financial pressures

Why is this a risk factor?

Although there is no evidence to show that poverty causes child maltreatment, poverty and child maltreatment share many similar risk factors. Numerous explanations try to explain the relationship between poverty and child abuse and neglect. The impact of the stress associated with poverty and social deprivation on parenting is the most common explanation.

Researchers have found that parents with a low income are four times more likely to feel chronically stressed than parents with higher incomes. Stress levels of parents living in poorer neighbourhoods have been shown to be high. One study identified a “strong relationship between parents’ levels of stress and greater use of physical discipline”. Another associated being in a lower socio-economic group with a more significant level of physical discipline and abuse.

An analysis of women’s childhood experiences of abuse and neglect found evidence that women from poorer childhood homes were twice as likely to have suffered from abuse or neglect and three times as likely to have suffered from more than one form of abuse than those from more well-off childhood homes. Emerging findings from research in England highlight the impact of poor and inadequate housing on families and poor housing is a common characteristic of families in poverty. The unsafe environment and the impact of parental stress have been found to be factors in some SCRs and where children are subject to child protection plans.

 

This does not mean that parents who are poor will abuse or neglect their children. The relationship has been described as “circular and interdependent as opposed to linear and causal”.

 

What we know about prevalence

The Institute for Fiscal Studies estimates that the number of children living in relative poverty in the UK85 was around 2.5 million in 2012, rising to about 2.9 million in 2015.86

 

 Being poor doesn’t mean that you will neglect your children, but being poor of course means that you are much more likely to have to make difficult choices about budgeting and poor choices have a much more detrimental effect.  (If you are choosing between whether to spend £80 or £110 one week on food shopping for the next week, choosing the latter one week doesn’t massively affect your family, but if you are choosing between whether to spend £15 or £25 on shopping that week, and perhaps to spend the extra £10 means not having the heating on, those choices do make a proportionately greater difference to the wellbeing of the family.

 There is an interesting tack in the main body of the report. The NSPCC calculate that for every child known to the authorities to be suffering from abuse or neglect, there are another 8 who are not known.   [This is the statistic I am most cautious about, since it is drawn from an extrapolation of their 2011 study that showed children self-reported abuse or neglect  (6% of over 11s, and 2.5% of under 11s) and applied that to the population at large. For me, I would need the 2011 study to be much larger and more robust before you could start extrapolating it to the population at large – for example, if you are asking a 14 year old whether they have been seriously mistreated by their parents in the last year, that 14 year old’s idea of serious mistreatment might be very different to society’s idea of it. There might well be days when almost any 14 year old would say that his parents were mistreating him]

 But, setting aside my quibble about the number of children who are the bottom part of that iceberg, under the surface and unknown to professionals, the NSPCC say this

 The gap is unlikely to close

Could services ever reach all maltreated children? Even if this were desirable (and few would consider this level of state intrusion into family life appropriate) it is very unlikely in the current context. If children’s social services were to become aware of just one quarter of those children who were maltreated (but not currently known to them), we estimate the number of children subject to child protection plans or on registers in the UK would triple. The resources required for this would be significant: an estimated additional £360 million to £490 million in public spending. In today’s fiscal climate this kind of investment is unlikely; to close the gap altogether is highly improbable. Nor is this the most effective approach. While it is vital to support children and adults in speaking up about abuse, in order to stop abuse in its tracks, this will never be enough to prevent children from being harmed in the first place.

 

 

This seems to be a bold, if pragmatic, thing to say about child abuse. Particularly for an organisation has been campaigning for the last few years on the basis of ending child abuse.  Cruelty to children must end, FULL STOP (remember?)

They are now accepting that society simply can’t end it or stop it. There will always be child abuse and neglect.  And as they point out, even if you raised detection levels to a much higher point, that would have a huge and detrimental impact on freedom and privacy and family life, and the resourcing of the services would be utterly unmanageable for our society to fund.

 So, are the NSPCC throwing in the towel?  Unsurprisingly, not. What they instead posit is moving towards the very early period of child abuse and neglect and nipping that in the bud before it escalates into more serious problems.

 We need a different approach to child protection

 

Which is why a different approach to child protection is needed, one that does more to prevent abuse “upstream” rather than intervening to stop it once it has already happened. Most public spending goes towards picking up the pieces rather than into “upstream” prevention. The National Audit Office estimates that only 6 per cent of public expenditure is focused on stopping problems from emerging in the first place.

 

While intervening to address abuse once it is known will always be a moral and legal imperative, child abuse and neglect will never be substantially reduced unless we become smarter at preventing it from happening at all.

 

Understanding the circumstances in which children are at increased risk is essential for prevention. Research points to the personal characteristics, family circumstances and environments that place children at greater risk of abuse and neglect. In Part 3, we set out the available evidence on this, highlighting nine key risk factors. There is no direct causality between these factors and abuse; they are not predictive of maltreatment. But by recognising that children living in such circumstances are at heightened risk, greater support could be directed towards families to reduce the chances of abuse and neglect from occurring at all. While this support comes at a price, it is ultimately more cost-effective to prevent abuse from occurring than to meet the many costs that fall across society because of the damage caused to children who were abused or neglected in their childhood.

 

Wider society also has an important role to play. Abusive behaviour cannot be stamped out by the state alone; individuals, families and communities must also be responsible for the change. Most adults think parents, families, friends and neighbours have a responsibility to prevent child abuse – and that greater responsibility lies with these groups than with government.

 

So while government can do much to influence the conditions in which children live and while professionals play an important role in intervening to protect children and helping those who are at risk of abuse, wider society has a responsibility too. However, all too often people frame this responsibility in terms of being willing to act if worried about a child, rather than being willing to address faults in their own or others’ behaviour. Perhaps it is time to reassert our responsibilities to children as citizens.

 

 

I can’t say I’m sure how the NSPCC vision here gets translated into action, but I think it is a legitimate and interesting debate to have as a society.  I thought the report as a whole (although I don’t agree with every aspect) was a challenging and thought-provoking document.

 There are some very mind-boggling figures in it

 There were a total of 21,493 sexual offences against children recorded by police in the UK in 2011/12.*

 There were 4,991 rapes of children recorded by police in England and Wales in 2011/12.

 There were 7,812 cruelty and neglect offences recorded by police in the UK in 2011/12.

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What to do in the interim?

Posted on March 28, 2013 by suesspiciousminds

Interlocutory orders when the Court is faced with disputed allegations of non-accidental injury

Long term readers of this blog will know of the number of cases that have come before the senior Courts in the last year where what seemed compelling evidence for non-accidental injury perpetrated by the parents turned out to have a medical explanation (the rickets/vitamin D cases)   https://suesspiciousminds.com/2012/04/24/subdural-haematomas-fractures-and-rickets/ 

 , a cyst   https://suesspiciousminds.com/2012/10/12/a-tapestry-of-justice/ 

 or where the Judge didn’t like either of the competing theories and fell back on the burden of proof,   https://suesspiciousminds.com/2012/05/04/a-county-council-v-m-and-f-2011/  

or where the Court just felt that the injuries just lay outside current medical knowledge and could not be explained   https://suesspiciousminds.com/2012/12/20/what-does-donald-rumsfeld-have-to-do-with-paediatric-head-injuries/ 

and I have speculated about when we might get a case that says what a Court are supposed to do with interlocutory applications for removal, when faced with serious allegations of non-accidental injury and the parents say “well, there’s a whole other possibility, which is that we have done nothing wrong and the child should remain with us”

Well, now we have such an authority, the Court of Appeal considering this very issue in Re B (Children) 2013  

http://www.familylawweek.co.uk/site.aspx?i=ed112720

The Judge at first instance had heard the application for an Interim Care Order and removal, and refused it, and the Local Authority appealed.

There were two fractures, and the radiological evidence was that there was not an organic cause and that they were likely to be non-accidental in nature.

The parents were arguing that the fracture had occurred in hospital during an examination, and marshalled other arguments as well.

The Judge at first instance accepted that there were matters on both sides of the equation and that a finding of fact hearing would be necessary to come to a determination of the causation of the injury, but that [as the Court of Appeal say] a significant body of evidence pointing to the distinct possibility (I deliberately use a relatively neutral description) that L had sustained non-accidental injuries.  

The Judge’s exact wording was

“I make it plain that there are plainly on the evidence matters which might be going in the opposite direction.  But it appears to me that both of these fractures and the circumstances surrounding them suggest that there are grounds for believing that one or the other of the parents may have caused those injuries.”

The issue really was, having crossed the interim threshold, for the purposes of section 38 (which with the above formulation was plainly crossed and was not in dispute) ; but mindful that the ultimate issue of causation was not yet resolved and was in considerable dispute,  should the Court go on to make Interim Care Orders, or should he, as he in fact did, make Interim Supervision Orders allowing the two children to be at home pending the finding of fact hearing.

The Court of Appeal were pretty clear that they did not want to strike a new formulation of the test for removal [nonetheless, I like the way that they put it, which is a reset to Re B’s much clearer test than the murkier waters the authorities later dipped a toe into]

23. So, with that caveat that this is not intended to be in any way a reformulation of the test with regard to interim care orders, one might say that it is the welfare of the child that dictates the result, that dictates the order that the judge should impose at the welfare stage of an interim hearing.  The welfare is, as HHJ Murdoch says, the court’s paramount consideration and what the court is looking for is whether the child’s welfare demands that he or she should be removed immediately from his or her parents’ care for his or her safety or whether, putting it another way, removal from their care is a proportionate response to the circumstances as they appear to be to the court.  In carrying out that evaluation the court must, as HHJ Murdoch said, bear in mind the welfare checklist set out in section 1(3) of the Children Act.

The Court of Appeal then look at what the Judge laid on the other side of the scales  [underlining is my own, as that is the key passage]

. When the judge went on to consider the welfare issue, he said this at paragraph 33:

“When, however, I come to look at the second stage of the decision making process at this hearing, I must look at the matter in the round.  I must look at the existence of arguments which go in the other direction in respect of the femoral fracture and the possibility that there is that the findings at the fact finding hearing in February may not be to the effect that non accidental injury has been caused.”

40. One might have expected that that passage in the judgment would then have been followed by an enumeration by the judge of the various features which gave the judge reassurance in placing the children with the parents in the interim period or at least a closer examination of the risk that there was to the children in the parents’ care, including the features that gave rise to concern, not just in the shape of the medical evidence available so far but also the other matters such as the existence of the 31 January incident and the absence of injury whilst under the supervision of the grandparent or, subject to a hand swelling which is noted in the clinical records, in the care of the foster parents.

41. In short one would have expected the judge, faced with the seriousness of the injuries which L had suffered so far and which he had found there were grounds for believing had been caused by one or the other of the parents, to go on at that point to explain why nevertheless he felt the risk was one that he could take.  One would have expected him at that stage, I think, to have explained what he thought the risk was and what, if any, he thought was the chance of such harm as the children risked actually happening, whether it was predictable as to whether it would happen and what protective features there were in the case that would guard against it.  The judge does not go on to deal with matters in that way. He sees the matter in terms of a balance between the risk of physical harm and the risk of harm to the children’s bond with their parents.  He clearly arrived at the view that the risk of the harm to the bond was greater than the risk of the physical harm, but he does not explain in his judgment how it was that he arrived at that evaluation.  Given the gravity of the circumstances here I see that as a fundamental flaw in his evaluation of the matter or at least in his articulation of how he saw the respective risks.

42. We were asked to say that no judge could have arrived at the decision that was arrived at in this case.  I am reluctant ever to say never in a family case, because each case depends upon a sophisticated mixture of the particular facts in the particular case.  I may have taken a lot of persuasion to have countenanced a return of children in circumstances such as these, but I would not translate that into saying that no judge could take that course.  But what a judge would need to do in those circumstances is to spell out very clearly why it was that he felt that the risk could be taken.  That is missing from this judgment and I would therefore overturn the decision made by the judge and would hear further submissions, insofar as those are necessary, with regard to what needs to happen next.

 

That is very different, of course, from suggesting that there is a burden on the parent to satisfy the Court that the risks are low or manageable, but of course in reality, given that the Local Authority (and often the Guardian) are putting the case that the risks are not manageable, it will be for the parents advocate to make sure that the Judge is given evidence and reasons for taking that course of action.  The risk of separation and the harm that might cause is not, in and of itself sufficient.

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Haranguing Haringey

Posted on March 19, 2013 by suesspiciousminds

The case of  AB and Another v London Borough of Haringey 2013 and the valuable lessons that can be learned from it.

  The case itself can be found here:-

 http://www.bailii.org/ew/cases/EWHC/Admin/2013/416.html

And there’s an exceptionally good piece on it here, written by Celtic Knot, [@Celticknottweet]  a fellow blogger, who was involved in the case and thus has both first hand knowledge and a very good perspective on it.

 

http://notsobigsociety.wordpress.com/2013/03/15/data-gathering-damned-if-we-do-damned-if-we-dont/

 

 

The issue was broadly this. Haringey social workers became concerned about the children of a family and sought information from other professionals about those children. They did not seek the consent of the parents to obtain that information. The parents, who were professionals working in the child protection sphere (one a social worker, one not) considered that, with their knowledge of procedures, that the procedures had not been properly followed and that their confidentiality had been breached and sought to challenge matters.

The nub of the case was this – was Haringey’s decision to conduct a section 47 investigation a fair and reasonable one, following proper processes?  There are two distinct categories of social work involvement at this early stage – one is the initial assessment, and one is a section 47 investigation. The Court were looking at what needs to be in place before one crosses from initial assessment and investigation and information gathering to a formal child protection investigation under section 47.

 The Court sum up the law on section 47 investigations very neatly

 

  1. Section 47 of the Children Act 1989, in Part 5 of the Act entitled Child Protection, provides as follows:

“47 Local authority’s duty to investigate.

(1) Where a local authority— …

(a) are informed that a child who lives, or is found, in their area—

(b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,

the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare … .”

  1. Section 47 enquiries are one of the principal measures available to a local authority to enable it to exercise its child protection functions to protect children who are at risk of suffering or are suffering significant harm whether it be physical, emotional or psychological harm. Such harm and such risks are often very difficult to ascertain and root out and the purpose of section 47 is to provide a readily available means whereby a local authority can ascertain the facts and risks that a child is running and then to identify and implement necessary protective, supportive and developmental measures to safeguard and to promote that child’s welfare. The objective of a section 47 enquiry is to protect children who are suffering from or are threatened with significant harm and the threshold for its operation in any given case is the need for the local authority concerned to have reasonable cause to suspect that that child is suffering or is likely to suffer significant harm.
  1. The use of section 47 and the measures that may be taken by a local authority following its use are predominantly aimed at securing the best interests of children. Its use is intended to be child-focused and to take account of the child’s views and wishes without unduly and unfairly disrupting her family life. The use of section 47 should also take account of the personal and family rights of a child’s parents or carers so long as that does not interfere with the overriding duty of child protection and development.
  1. Section 47 enquiries are multi-agency in their scope and they will usually include such agencies as the child’s school, medical practitioner, social workers and the police. The police have an important role to play given the likelihood that in most cases where a child is suffering or is at risk of suffering significant harm, the perpetrator or perpetrators of that risk or that harm will have committed or will still be committing serious criminal offences whose victim is a child.
  1. A section 47 enquiry involves an in-depth child-centred assessment of a child’s developmental needs, of the harm she is suffering or may suffer, of the capacity of the child’s parents or carers to respond to the child’s needs and of the family and environmental factors that are playing a role in the harm she is suffering or may suffer. This intrusive assessment should take account of the views of the different agencies involved with and the external influences on the child and it must also directly involve both the parents and the child unless this will endanger the child. The necessary fact-gathering should include sessions with the child without her parents or carers present and it should ascertain that child’s wishes and aspirations wherever possible. The assessment, known as a core assessment, must be concluded so that a holistic view may be taken of the child’s needs, of the significant harm that the child is being or is at risk of being subjected to and the steps that can be implemented for the eradication of negative influences on the child and the promotion of favourable ones on her.
  1. A section 47 enquiry has in recent years become very damaging for the life, career and family relationships of many who are parenting or caring for the child being assessed. There are now extensive statutory checks that must be made about adults who are caring for or working with children or who are coming into contact with them in an educational, health, pastoral or care context. Thus, involvement in a section 47 enquiry may often result in the ending of a career involving contact with children. This will usually be for good reason but this is not always so and there will rarely be a means for those unfairly marked out by involvement in a section 47 enquiry to eradicate that stain on their professional and personal reputation.
  1. A section 47 enquiry can of course prove to be very damaging for a child, for her parents and for their mutual relationships. In particular, the lives of parents can be badly affected if and when adverse conclusions are made about the harm that they have inflicted on their child. These can include criminal prosecution, the loss or their child, intrusive involvement in their family and private lives, loss of employment or being barred from working with children and an adverse entry on their records held by reporting authorities such as the police and various regulatory bodies. A particular trigger for any of these adverse effects is the fact that a section 47 enquiry was undertaken in relation to their child at all since its threshold is that significant harm has occurred or that there is a risk of it occurring. Thus, a section 47 enquiry, which will often be reportable by the parents concerned, can blight their lives irrespective of the nature and extent of the significant harm or of their involvement in it or of the reasonableness of the suspicion that generated the enquiry in the first place.
  1. For all these reasons, the simple and apparently straightforward terms of section 47 mask a myriad of problems and to help deal with these, a plethora of rules, procedures and guidance have been produced. These are largely found in the statutory guidance issued by the Department for Children, Schools and Families and by statutory authorities such as the London Safeguarding Board. Statutory guidance is issued with statutory authority and it must therefore be complied with unless local circumstances indicate exceptional reasons to justify a departure from it in a specific case. This body of guidance is intended, if followed, to enable the very difficult decisions and exercises of professional judgment to be made satisfactorily on a case by case basis. These judgments are taken so that the substantial harm affecting the child may be investigated, her best interests may be protected and the rights of parents and carers are taken into account.

 

If you want it even shorter than that, it is that section 47 investigations are an important tool to protect children, but using them has consequences for the parents and the State must be careful that they are used in accordance with the guidance given, to avoid abuses.

 

The threshold for deciding whether a set of circumstances triggers section 47 is as below  (underlining mine)

 

18. The relevant service has a statutory duty to initiate a section 47 enquiry but only if it has decided that it has reasonable cause to suspect that the child is suffering significant harm or is at risk of suffering such harm. That reasonable suspicion must arise in and be tested by the initial assessment process which may only be short-circuited in exceptional circumstances. The objectives of the resulting core section 47 enquiry are essentially to determine what is likely to happen if nothing changes in the child’s present situation and what the likely consequences for the child are.

 

 

Of course, the section 47 investigation process might well either develop those concerns about the risk that the child is exposed to, or reveal that the concerns held are either baseless or that the risk is comfortably managed or has dissipated; but the crux is that in order to embark upon a section 47 investigation, the LA MUST have reasonable cause to suspect that the child is suffering significant harm.

 

That’s the reason why social workers can’t just knock on a persons door and ask to come in and snoop for some evidence of harm – they have to have reasonable cause to suspect (or what, if you want to borrow from American cop shows, you might call “Probable cause”)  that the child is at risk of harm in order to commence an investigation.

 

This is what prompted the Haringey s47 investigation

 

 

  1. An unsigned letter dated 11 March 2011 addressed to LBH’s “Social Services Child abuse Department” was received by SFR on 15 April 2011. There is no record of when it was sent by the anonymous author or first received by LBH. The letter read:

“Dear Social Workers

Worried about the family living at [full postal address given].

I am a neighbour of the family living at the above address and I have some very big worries about how they are looking after the young girl in the house. I think the little girl is about 7 years old and there (sic) girl. The mother is always screaming at the little girl shouting and screaming. I have seen the mother pulling the little girl along by her arm and slapping her. The little girl looks so unhappy she is not allowed to speak to anyone and when you see her in the street the little girl looks very sad and never raises her head to look at you. There is often shouting late at night from the house. The man in the house is much older and could be granddad or a lodger.

I am worried to talk to the family because they don’t speak but I know they have been rude to other people in the street. Please could you make sure that the little girl is alright.”

 

 As a result, Haringey social workers made what are called ‘background checks’, contacting the police, GP and school to see if there was anything known about the family.

 It was only after these checks were conducted, that Haringey contacted the parents to notify them of the concerns, and to begin their investigation/assessment.  [AB and CD are the parents in this case, LBH refers to the London Borough of Haringey, EF is the child]

 

 

  1. AB reacted strongly to this call for a number of related reasons. These were:

(1) It seemed to AB, with her knowledge of child protection procedures, that LBH had made several serious errors in the way it had dealt with her daughter’s case.

(2) LBH should have obtained her or CD’s permission before making any contact EF’s GP and school but had in fact approached those agencies without even attempting to obtain it.

(3) LBH appeared to have embarked on an initial assessment of her daughter without first evaluating her risk to satisfy itself that one was needed. In her view, a risk assessment was particularly necessary since the referral had been made by an anonymous member of the public so that it could not be tested or evaluated.

(4) Before deciding on an initial assessment, a social worker should have seen EF on her own to assess whether it was possible that she had been subjected to a significant risk of being seriously harmed.

(5) The threshold for the decision to start an initial assessment had not objectively been reached in this case.

(6) Even if it turned out that it was wholly unjustified to carry out an initial assessment, the fact that it had taken place could ruin the careers of both her and CD as professionals involved in child protection work.

(7) None of the appropriate steps had been taken that would have enabled an objective and fair decision to be taken that it was necessary to embark on an initial assessment of her and her family.

AB had grounds for legitimate complaint about each of these features of the decision-making process leading to the initiation of an initial assessment process.

 

 

At the end of the s47 process, the conclusion was that EF was not at any risk and the referral had been malicious

 

 

  1. 54. On 10 May, Ms Mawdsley noted the following about the investigations and assessments that he had carried out:

“Following the home visit to [EF] and her parents and having considered information shared from other agencies, it is my opinion that it is highly likely that the referral received was malicious. It is my assessment that [EF] is not at risk of significant harm in the care of her parents.”

 

The key issue in dispute therefore was whether Haringey were able to legitimately commence a s47 investigation on the family BASED on the referral, and thus seek the background checks without parent consent, or whether a s47 investigation could not legitimately begin until the workers had actually talked to the parents  (this not being a case where there would be a difficulty in finding them).

 

The Court broke this down into four questions

 

 

  1. These grounds require these issues to be addressed:

(1) Was a section 47 enquiry decided upon?

(2) If so, was it unlawful?

(3) Was the data-gathering exercise before and during the initial assessment process unlawful?

(4) What remedies are the claimants entitled to?

 

The Court concluded that at the time, there had not been a formal decision to move this consideration of the anonymous referral from an initial assessment to a section 47 investigation (looking specifically at the failure to have any record of such a decision, there being no approval by a manager of that decision and

(5) Particularly significantly, the family were visited and AB and CD were interviewed separately from EF. These interviews were not in structure or content part of a core assessment but were part of, indeed the principal component part of, an initial assessment.

(6) Whereas it is perfectly possible to terminate and abort an initial assessment, the guidance provides that a core assessment should be completed even if it emerges that the criteria for a section 47 assessment are not in fact present. In such a case, the outcome resulting from the completed core assessment will be that the child is not subject to significant harm and any recommendations for future interventions or that no future interventions are needed will be recorded.

(7) The guidance also makes it clear that the section 47 decision must be taken at a strategy meeting, held if necessary, if the situation is one of extreme emergency, over the telephone. Such meetings were held and both decided upon there being no further action and that decision was recorded by Mr Baker, albeit long after the fact in the core assessment document.

(8) Ms Chew appears to have taken the section 47 decision after Mr Baker had left her and, it now seems from an analysis of the evidence, only after she had sight of AB’s email to the Head of Service dated 4 May 2011. She then appears to have reacted hastily and as a direct response to seeing that email and only communicated her decision to AB and CD in her letter dated 5 May 2011 which was delivered on 7 May 2011. That cannot be regarded as a final and conclusive section 47 decision given all the shortcomings that I have described.

 

 

They went further, to say that IF a section 47 investigation had been decided upon before meeting with the parents and seeing the child, that would have been unlawful.  The only circumstance in which a s47 investigation can be triggered without seeing the parents and the child, would be where there was extreme urgency or an assessment  (based on evidence) that a home visit would put the child at risk of harm, neither of which were present.

The Court’s decision that Haringey had not been in fact conducting a section 47 investigation was critical, because it would be the fact of a s47 investigation that would allow the obtaining of information from third parties without the direct express consent of the parents

 

 

  1. The initial data-gathering exercise was unlawful in two respects:

(1) The initial request for data was sent to EF’s GP accompanied by the erroneous information that LBH was currently working with the family, that LBH was already undertaking a CYPS assessment and that confidential details including the possible presence of risk indicators of physical abuse, should be provided. In addition to these statements or implications being erroneous, no consent had been obtained from EF’s parents and it was not a justification to seek the information without consent that their identity was not at that time known since this statement was also untrue.

(2) The consent of the parents had not been obtained before the school was approached. Moreover, it was impermissible to post details of the referral on RIO to enable the school nurse to read them prior to obtaining the parents’ consent.

  1. These were serious departures from permissible practice and these actions were unlawful.

 

 

The Court then moved on to remedies

 

 

77.   Issue 4: What remedies are the claimants entitled to?

  1. The claimants are entitled to a quashing order quashing the purported section 47 enquiry decision and to declarations that there never was a section 47 enquiry decision, that the initial assessment was terminated because EF was not at risk of significant harm and because it was highly likely that the anonymous referral was malicious. In consequence, the Manager and the Practice Manager decided to close the case. They are also entitled to declarations that LBH acted unlawfully in not seeking AB and CD’s consent before approaching EF’s GP and school and seeking information from them.
  1. That leaves over for further argument what steps should be ordered to be taken to ensure that all references to AB and CD having been subject to a section 47 enquiry are removed from all data bases and that all appropriate persons who should be notified of this are notified and what the terms of that notification should be. Furthermore, it leaves over a claim for damages on which I need further argument as to both entitlement and amount.

 

 

The relevance of this decision is therefore this :-

 

    1. That unless there is urgency, or an assessment based on evidence that a home visit would endanger the child, it is unlawful to commence a section 47 investigation without visiting the child and speaking with the parents  (that process would instead be an initial assessment)
    2. Seeking background checks without parental consent would be unlawful UNLESS a legitimate s47 investigation had been formally convened and was taking place (and frankly, even then, one ought to try to get parental consent)
    3. A breach of (1) or (2) above, can result in financial compensation.

 

 

There’s big discussion over at the blog I referenced initially as to whether the parents in this case got a better outcome because they were social workers. It is certainly the case that knowing the procedures and guidance led them to know that the procedures and guidance hadn’t been followed, and of course, the consequences for them of a malicious referral had professional consequences for them as well as for their family. But the principles here apply to all families and all investigations.

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“A pair of star-cross’d lovers…”

Posted on February 5, 2013 by suesspiciousminds

 

Written agreements, love and difficult choices in care proceedings.

 

 This written agreement is prepared and entered into by the parents of Rose Smellsweet Capulet

 

 

It is accepted that the father of Rose,  Romeo Montague, will live apart from Rose and the mother, Juliet Capulet, whilst assessments are undertaken of him.

 

It is accepted that there is a need to undertake such assessments based on these three factors :-

 

(i)                 The age of Juliet when the relationship began, she being thirteen(nearly fourteen) at the time

(ii)                The conflict and tension between the paternal and maternal family

(iii)             The incident where Romeo is alleged to have stabbed Juliet’s cousin Tybalt

(iv)             The incident where it is alleged that both parents planned to commit suicide

 

 

The parents agree :-

 

 

  1. That Romeo will not visit the home of Juliet.
  2. That he will not visit the immediate boundaries of Juliet’s home (this having been added due to incidents where he was singing up at her balcony)
  3. That all contact between Romeo and Rose will be supervised by the Local Authority
  4. That Romeo and Juliet will not have communication face to face, or by letter, text message, email, instant messaging, , Lutebook or through intermediaries such as Nurse or Benvolio.
  5. That this written agreement will be reviewed once Dr Falstaff’s risk assessment has been received.

 

 

 

 

Ridiculous, of course, but some serious points emerge.

 

 

Within care proceedings, it is often the case that one parent is asked to separate, either temporarily or permanently , from another parent who they love, as a result of a risk posed by that parent to the safety of a child.

 

It is hoped that once assessments are in, or factual allegations determined, that the parents will be able to resume that relationship, with either there being no risk or the risk being determined as one which can be safely managed or reduced with specialist help.  But that doesn’t always happen.

 

Sometimes the care proceedings and decisions about the future turn on whether a parent can stick to their word and stay away from the risky partner. 

[I am trying hard within this piece not to fall into the stereotypical pitfall of implying that it is always safe mums and risky dads, although that is the more common category we see, I have had significant numbers of safe dads and risky mums too, and of course risky dads and risky mums in the same case]

 

 

There are really only three options where one parent is found to be a risk (and where the risk is determined to be substantial):-

 

  1. Let mum and dad look after the child together and take that risk that the child will be harmed
  2. Remove the child from harm and the mum and dad can live together but without the baby
  3. Ask the parents to live apart and for the child to live with the safe parent and manage the contact with the risky parent

 

 

Frankly, none of these are ideal, and the third one is the compromise position that is often reached, not as the best, but the least worst of the three.

 

 

Now, onto the points the fake written agreement is trying to touch on by using Romeo and Juliet as the particular example.

 

 

I think most people in the Western world would agree that Romeo and Juliet is one of our touchstones of romantic love and what it means to be in love. It means intensity, it means passion, it means one person in the entire world who is the one for you.   It means not being kept apart, no matter how much external forces try to split you up. It means being bound together being unable to live if not with the person you love.  It may even mean that if the world says you can’t be together you must keep your love a secret.

 The way the world sees and sells love, it is that consuming passion, the fire that burns within us.

 

All of which are really bad for option 3 above.

 

How realistic is it, really, to ask two people who are genuinely in love to be apart for the sake of a child when neither of them really wants to end the relationship? No matter what someone external might see as inherent crappiness of their relationship or how one partner “could do so much better” the truth of the matter is that for THOSE people, that love is real and vivid and powerful and emotional and painful as it is for any one of us who has ever been in love.

 

 

The point of using Romeo and Juliet is to remind ourselves that these parents in any particular case that we are looking at,  are in love, bound up with another person, with all that this means. It is easy enough to look at it purely from  the outside and say “of course he should leave this woman, she is awful to him and so dangerous to the child, it’s a no-brainer”   but you have to remind yourself that love and logic are strange bedfellows, and that for these people, their feelings and emotions and pain are just the same as yours would be, if you found yourself in that awful dilemma.

 

It is very hard to countenance, if you try to put yourself in these parents shoes for a moment, ending that relationship because someone else tells you that you should.  It is hard to end a relationship when you really want to, harder still when the other person ends it and you weren’t at that same place.  It is almost inconceivable to think of ending a relationship when the flames in both your hearts haven’t gone out.

 

That’s not to say that it is the wrong thing to do – looking at the three options above, the third is the least damaging for the child, who gets to live safely with one parent.

 

Just that really, what we ask of parents in this situation, whether we be social workers, experts, lawyers, family members or even the Courts, is HARD.  It might actually be the hardest thing that the parent will ever have to do in their life, and for that reason, it is not surprising that often these imposed separations don’t work out.

 

They crumble, or sometimes the risky parent (who after all has lost their lover but not gained a child) applies pressure for the relationship to continue, or attempts are made to keep the relationship going in secret. 

 

The temptation to introduce an option 4 to that unappealing list

 

4. The child lives with the safe parent, and so far as social services and the court are concerned, the relationship is over, but we keep it going and don’t get caught

 

Must be a massive one.

 

 

[Actually, I think the word “clandestine” is probably used more in care proceedings than any other walk of life, for exactly that reason.  ]

 

The other, slightly cheap shot, reason for using Romeo and Juliet to illustrate this piece, is that our greatest imagery of love and passion, our Platonic ideal of it if you like,  is involving a young man pursuing a 13 year old girl….

 

 

[There’s probably a whole other piece on looking at the examples people would give of “famous or inspiring lovers”    – Romeo and Juliet,  Anthony and Cleopatra, Richard Burton and Elizabeth Taylor, Heathcliffe and Cathy, Scarlett O’Hara and Rhett Butler, whoever the heck the couple are in Les Miserables,  Peter Venkman and Dana Barratt, Jane Eyre and Mr Rochester,  Lancelot and Guinevere, Juliet Roberts and Richard Gere in Pretty Woman, Elizabeth Bennett and Mr Darcy….  They are all pretty dysfunctional couples and a heck of a lot of hearts get broken or even stopped along the way]

 

 

i bet this ends well 

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