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Poppi Worthington

Posted on April 27, 2015 by suesspiciousminds

 

There has been a lot of media interest and frustration about the death of Poppi Worthington.  She died in December 2012 and was just thirteen months old. A finding of fact hearing took place in care proceedings and judgment was given on that in March 2014.  Despite media interest and applications, the contents of that judgment are still not known other than to those directly involved in the case.

A reporting restriction order remains in place, that prevents the contents of that hearing being shared in the media or published. [As ever with reporting restriction orders, they apply to me and to my commentators, so if the information is leaked elsewhere on the net, please do not link to it]

We do know that an inquest took place, with an open verdict and the Coroner releasing Poppi’s name into the real world and was recorded as describing her death as ‘unusual and strange’

The Press were interested in the suggestions that either the finding of fact hearing in the care proceedings might be a miscarriage of justice (based on the Coroner’s verdict being open, rather than concluding that Poppi was unlawfully killed)  OR that the finding of fact hearing was critical of the Local Authority and social workers and that this was being hushed up.

[See for example, the Daily Mail piece here http://www.dailymail.co.uk/news/article-2810262/How-council-tried-baby-s-death-secret-protect-social-workers.html   ]

Either of those things are possible, it is really hard to prove or disprove them until we see the judgment itself.

For a long time, the decision to hold back the contents of the judgment despite media interest, was on the basis that there might be a pending criminal trial.

The police decided on 16th March 2015 not to charge the father with any criminal offences. The Press obviously thought that this would mean that the judgment would be released and they could tell Poppi’s story.

However, as a result of enquiries that had been made in the police investigation, including fresh medical experts, the father considered that there was scope to challenge the decision of the fact finding hearing and the decision to make Care Orders on Poppi’s siblings.  [I don’t think it is rocket science to infer that the final outcome of the finding of fact hearing was that father had done something to Poppi that led to her death, which he disputes]

 

The issues then for Mr Justice Peter Jackson to resolve were :

1. Should this be an application to the Court of Appeal on fresh evidence OR an application for re-hearing made to the High Court who had originally heard the case?

2. If the latter, should the application for re-hearing be granted?

3. Should the original judgment be published prior to the conclusion of that appeal/re-hearing?

And that is what he dealt with in the case of Cumbria County Council v M and F (Application for rehearing) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/35.html

 

 

  1. At the original hearing, the main medical evidence came from three pathologists. Dr Alison Armour, Dr Stephanie Bitetti and Dr Stephen Leadbeatter and from Dr Victoria Evans, a paediatrician. Their opinions coincided in some respects and diverged in others. I substantially accepted the evidence of Dr Armour.
  2. As a result of the fact-finding judgment, the police commissioned further medical enquiries. Opinions have now been given by Dr Nathaniel Cary (pathologist) and Dr Liina Kiho (histopathologist). Their views diverge in a number of respects from those of Dr Armour. An opinion has also been obtained from Dr Victoria Aziz, who is described as a forensic examiner.
  3. In their submissions, the parties have analysed the extent to which the more recent pathology evidence differs from that which was given that the original hearing, with reference to five particular post-mortem appearances.
  4. On behalf of the father and the Guardian, it is argued that the additional medical evidence raises issues of sufficient importance to warrant a rehearing. On behalf of the local authority and the mother, it is said that the issues are ones of nuance and interpretation that do not amount to a reason for reopening the matter. It is also said that the process by which the new evidence was gathered may have had shortcomings.
  5. In my view, the further evidence contains matters of mixed fact and opinion that deserve further consideration. In particular, it contains an alternative unifying hypothesis for the post-mortem appearances. That hypothesis was not overlooked at the earlier hearing, but it did not receive the degree of attention that is now being paid to it. Arguments about any consequences arising from the process by which the further opinions were obtained cannot be resolved without significant further inquiry, and a decision on the father’s application should not in my view be postponed for that to occur.
  6. The circumstances in which the court will reopen established findings of fact are rare. There is a public and private interest in litigation being final. The impact of a renewal of the litigation on the family members can be significant, as is undoubtedly the case here. Further proceedings are also expensive, in this case to the public, and consume court time that is needed for other cases.
  7. There are two ways in which an application for a further hearing can be made. The first is by way of an application to appeal out of time on the basis of fresh evidence. The second is by way of an application to the trial court for a rehearing. In this case, the latter course has been selected. It is argued on behalf of the mother that the former course would have been better. However, it is acknowledged that the appeal route would be likely to lengthen the overall process in circumstances where the earliest resolution is in the interests of the children. In the overall circumstances, and bearing in mind that this court has had an ongoing involvement since the conclusion of the care proceedings because of issues of publicity, I find that the father’s application is appropriately made here.

 

So, in these circumstances, an application for re-hearing was better than an application to appeal. What about the merits of the application itself?

  1. His choice of venue will have been influenced by the way in which the tests that apply in each court have been articulated. An application to appeal out of time engages the well-known test in Ladd v Marshall 1954 1 WLR 1489. The new evidence must be such that it would probably have an important influence on the result of the case, though it need not be decisive, and it must be apparently credible, though it need not be incontrovertible. An application to the first instance court for a rehearing engages the guidance contained in paragraph 33 of the decision of the President in Re ZZ (Children) 2014 EWFC 9 where he endorsed the words of Mrs Justice Hale in an earlier decision: “Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasions reach different conclusions on the same evidence … The court will want to know … whether there is any new evidence or information casting doubt on the accuracy of the original findings.” To this, the President added that “one does not get beyond the first stage unless there is some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge. But for my own part I would be disinclined to set the test any higher.”
  2. There may be cases in which the formulations of the tests on appeal and at first instance might make a difference to the outcome, but I do not consider that this is one of them. The court’s overriding objective is to deal with cases justly, having regard to welfare issues involved, and that is my goal.
  3. The considerations that persuade me that justice requires that a further hearing should take place are these:

    (i) The finding of fact addressed in the more recent evidence is of central importance for the family. It is of a kind that determines the children’s future and is of great significance to the parents.(ii) It will be important for the children to have an accurate understanding of what happened to their sister. The more recent evidence has the effect of raising doubt about the existing conclusion. The children’s welfare requires that the matter is resolved.

    (iii) The more recent evidence, like the previous medical evidence, comes from a reputable source; further, it was commissioned in response to concerns expressed by this court about the earlier police enquiry.

    (iv) While the outcome of a further hearing cannot be foreseen, it is possible that a review of the overall medical evidence may lead to a different conclusion. It may, or it may not. What can be said is that there is a serious issue to determine in the light of the further opinions.

  4. As to the scope of the further hearing, oral evidence is likely to be limited to medical testimony. I am unlikely to admit other oral evidence, unless a particular matter needs clarification. Transcripts and notes of evidence from the earlier proceedings will be gathered. A meeting of the doctors should be held in order to establish points of agreement and disagreement. The parties will present a draft directions order, having made further enquiries.
  5. At an earlier stage, the father submitted that any rehearing should take place before a different judge. That submission was not in the end pursued, in my view correctly. There are considerable advantages in judicial continuity in a case of this complexity.
  6. The outcome is that the further hearing will take place in the autumn.

 

So there will be a re-hearing in the autumn. But we are not yet into May – what happens between now and then?

 

As to the publication of the original judgment, I remain on view that this is not appropriate at this point in time, for the reasons given on 30 March. However, I have expressed a provisional view that it should be published at or around the time that the rehearing begins, rather than it being withheld until that hearing ends. There is a proper public interest in the course that these proceedings, and the other procedures surrounding Poppi’s death, have taken. The media will be able to describe matters more effectively if the original findings can be described at the point when they come under review. I have also raised the possibility of the further hearing taking place in public. I will hear from the parties and the media about these issues at the next directions hearing.

 

So the judgment will not be published until the autumn. It MIGHT be published before the re-hearing finishes, and even possibly at around the time that it begins.

The reference to the judgment on 30th March is this one – which was considering the position given that the police had dropped their case against father, but father was wanting to challenge the findings in the family Court.

From that judgment

http://www.bailii.org/ew/cases/EWHC/Fam/2015/918.html

 

  1. On the question of publication of the judgment, there is division between the parties:

    (i) The media, on whose behalf Ms Caoilfhionn Gallagher has presented written submissions, supplemented today by Mr Murphy, argues for publication. It says that the matter is of the highest public interest, both as to the circumstances of the death and as to any agency failures. There is a risk that an information vacuum will be filled with inaccurate speculation. Moreover, continued non-publication would be likely to reignite concerns about “secret courts” and lack of transparency in the family justice system.(ii) The local authority argues that the judgment should be published now that a charging decision has been taken. Even if the findings are reopened, there is a public interest in being informed about the process as it occurs.

    (iii) The mother supports publication, particularly as non-publication heightens speculation in an unhelpful way.

    (iv) The father opposes publication at this point. On his behalf, Mr Rowley QC argues that the evidence gathered during the father’s criminal investigation forms a credible basis for querying the court’s findings. He submits that it would be wrong, taking into account the father’s rights, to publish the judgment ahead of a decision about whether the findings will or will not be reviewed.

    (v) On behalf of the children, the Children’s Guardian opposes publication of the judgment at this time. The children, whose future plans remain at a sensitive stage, would have to face a heavy bout of publicity now with the possibility of further, conflicting publicity at a later stage.

  2. The Practice Guidance issued by the President of the Family Division on 16 January 2014 and entitled “Transparency in the Family Courts: Publication of Judgments” [2014] 1 FLR 733 advises that fact-finding judgments in serious cases should be published unless there are compelling reasons to the contrary. Quite apart from that guidance, this should in my view be the starting point in a case of this kind. The public interest that the media contends for is very significant indeed. As I have said elsewhere, I am aware of the value of the media being able to describe events in real time as they unfold. The risk of speculation replacing information is also a relevant consideration.
  3. I have nevertheless concluded that it would not be right for the fact-finding judgment to be published now. The court retains control over the question of publication and must give due weight to the public interest, the interests of justice and the interests of the individual parties, not least those of the children concerned. It would be wrong in my view to place in the public domain a judgment that would be likely to receive considerable publicity immediately before taking a decision on the question of whether that judgment should be reviewed. To do so would be unfair to the father and contrary to the welfare of the children.
  4. I well understand the desire of the media to carry out its role as fully as possible, and the frustration that is felt at the course of events in this case, in particular where one obstacle to publication is removed only to be replaced by another. However, I am clear that a proper balancing of the rights of all concerned leads to the conclusion that the judgment cannot be published yet. In saying this, I repeat my intention that it shall be published when it can be.

 

Given the Daily Mail story linked to earlier, it is worth noting that at the hearing on 30th March, the Local Authority (i.e Social Services) were of the same view as the Press, that the original judgment should be released and published.  I can also see however, that if you were the father, hoping to get that decision overturned that you wouldn’t want the Press reporting all the details of how a Court found that you did something dreadful to your child BEFORE you get a chance to persuade the Court that they had got this wrong. I can also see that for the Guardian, representing the children, it would not be ideal to see in the papers terrible headlines about your father and your sibling, and then possibly to have a different version of events and fresh stories AFTER the re-hearing.  But also, I can see that this all feels very unsatisfactory – the Press have a story here which is a genuine public interest. Maybe there were failings from professionals from which others could learn, maybe not. Maybe a family has been broken up as a result of a mistake in the family courts, maybe not.  The Press legitimately want to report the story and they aren’t able to do so.

Not an easy situation.

I also note that there is to be a Serious Case Review (which is the internal investigation where a child dies and there might be lessons to be learned). Those generally have to be published, so I wonder if the report might be timed to come in after the autumn re-hearing; as otherwise the Press could legitimately report on the conclusions and substance of that report.

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Serious case review – can a failure to call one be judicially reviewed?

Posted on December 1, 2014 by suesspiciousminds

 

In this case, Deeqa Mohammed v Local Safeguarding Children’s Board of Islington 2014   , the mother of a child, Nawaal Mohammed sought to judicially review the decision of Islington’s Local Safeguarding Children’s Board NOT to hold a Serious Case Review, following Nawaal’s tragic death at the age of 7 years and 4 months.

 

http://www.bailii.org/ew/cases/EWHC/Admin/2014/3966.html

 

[In this post, contrary to my usual practice – the underlining here is all to show the Court’s emphasis rather than my own]

 

Nawaal had fallen from the window of her home on the 11th storey of a block of flats.

 

The mother was claiming that this death had been as a result of neglect and mistakes by professionals and that the Regulation governing Serious Case Reviews when talking of ‘abuse or neglect’ should cover neglect and abuse by professionals as well as the child’s carers.

 

Reg 5 1(e) of the LSCB Regs 2006, setting out the functions of the LSCB

 

1(e) undertaking reviews of serious cases and advising the authority and their Board partners on lessons to be learned. .

 

And

 

Reg 5(2) For the purposes of paragraph (1)(e) a serious case is one where—

(a)abuse or neglect of a child is known or suspected; and .

(b)either— .

(i)the child has died; or .

(ii)the child has been seriously harmed and there is cause for concern as to the way in which the authority, their Board partners or other relevant persons have worked together to safeguard the child.

 

 

 

 

The importance of this is that if either of those criteria is met, the LSCB MUST hold a Serious Case Review – they have discretion about other cases, but in that type of case they HAVE to hold the Serious Case Review.

 

 

 

At the outset of the hearing, leading counsel for the Claimant, Mr Ian Wise QC, indicated that the Claimant wished to amend/refine her claim to substitute for the mandatory order (see [2] above) a declaratory order in these terms:

 

“a declaration that known or suspected abuse or neglect of a child in Regulation 5(2)(a) of the Local Safeguarding Children Board’s Regulations 2006 includes known or suspected abuse or neglect on the part of a public body”.

This re-formulation of the claim had been presaged in the original grounds of the claim (per §2(ii) of the Claimant’s Grounds) viz:

 

“Clarification of the law is necessary to ensure that failings including neglect of children on the part of public bodies give rise to a duty to instigate serious case reviews where the child dies or is seriously harmed and there is concern at the way the relevant agencies have worked to safeguard the child.” (my emphasis)

In essence, the Claimant wished to contend that the London Borough of Islington – either through its children’s services, its disabilities’ services and/or housing department – had been responsible for actual or suspected ‘neglect’ of Nawaal. In the circumstances, it was to be argued, the LSCB was required to commission an SCR.

 

 

The family had been known to Social Services and other professionals, who had been visiting – in part due to Nawaal’s challenging behaviour on the autistic spectrum, and the ‘smoking gun’ is probably this line from a social worker’s recording of a visit.

 

 

On numerous occasions in the period between 2010 and 2013, it appears that LB Islington was advised of Nawaal’s lack of safety awareness, her unpredictability, her craving for being outside and for climbing and exploring, and her challenging behaviour. In February 2013, the Claimant’s solicitors threatened LB Islington with judicial review proceedings for its failure to carry out a proper needs assessment for the purposes of her housing application. The various communications from the interested agencies (or at least some of them) are detailed in the Grounds of Claim; I have read those, together with the Claimant’s statement, with care although it is unnecessary for me to rehearse the contents more fully here. It suffices for me to reproduce a communication written by LB Islington on 25 March 2013, in which it was said that:

 

“Nawaal has no awareness of danger and enjoys climbing and jumping… if the window is open just a crack she will try and get out through it regardless of where it is … the longer Nawaal is inside the more frustrated she gets … she has no awareness of danger and enjoys climbing… This is a situation that is far too dangerous to continue this way. It is not a case of if Nawaal will fall but a case of when.” (emphasis added)

 

 

 

As the Judge said, this appalling prophecy sadly came true three months later.

 

The agencies looked at this, and considered whether to hold a Serious Case Review, but in effect decided that the death had not occurred as a result of violence, abuse or neglect. [Note here what the Coroner is reported to have said at the inquest]

 

Following Nawaal’s death, the Defendant arranged and held ‘Rapid Response’ meetings (28 June 2013 and 28 July 2013) to evaluate the circumstances of this tragic event, and in order to establish if there were (and if so what) lessons to be learned. A Multi Agency Management Review was convened, which ultimately reported on 22 February 2014.

 

On 4 September 2013, Dr. Tony Wheeler, a community paediatrician and Chair of the ‘Rapid Response’ meetings (as designated doctor for child death and safeguarding, with responsibility for reviewing services provided for all children in the area of the Defendant who have died), wrote to the Claimant attaching his report for the Coroner; in that report it was said that:

 

“The issues identified were focused on housing, and abuse and neglect were not identified as factors in Nawaal’s care or death. The consensus at both Rapid Response Meetings was that the requirements for a serious case review were not met.” (emphasis added)

 

In this regard, the reference in the report to the absence of ‘abuse and neglect’ plainly, it seems to me, referred to the provision and quality of parental care. Dr. Wheeler’s report concludes by indicating that ongoing consideration of the case would pass to the Islington Child Death Overview Panel (CDOP). Later (December 2013) Dr. Wheeler indicated that the CDOP would not review the case further until the post mortem results were obtained.

 

An inquest into Nawaal’s death had been opened; this process concluded in February 2014, with the Coroner finding (so I am advised) that “the fall was foreseen by various organisations working with the family who had been communicating concerns to the council since May 2010”. The verdict was one of accidental death.

 

 

The mother invited the LSCB to reconsider and to hold a Serious Case Review and when those discussions did not bear fruit *, issued her claim for judicial review.

 

 

(*actually, it’s a bit more complicated than that – after the claim was issued, the LSCB did agree to hold the Serious Case Review, but Ms Mohammed and those advising her felt that there was a broader issue of principle here and that it would benefit other families to have the Court give a declaration that in a case where it is alleged or suspected that neglect by professionals was a contributory factor, a Serious Case Review ought to be convened. NPIE in the paragraphs below is the National Panel of Independent Experts, a body from whom the LSCB sought advice)

 

The NPIE was duly instructed on 29 July 2014 by Alan Caton, the Defendant’s independent chair. The Defendant invited the Claimant to withdraw the claim, but she declined to do so. The hearing of the Claimant’s renewed oral application for permission to apply for Judicial Review was scheduled for 12 August 2014; this hearing was vacated by Nicola Davies J. when it transpired that the NPIE was to meet on the preceding day. In acceding to the application to adjourn, Nicola Davies J directed that:

 

“Within 14 days of being notified of the view of the Independent Panel of Experts … the Claimant shall notify the Court whether she wishes to proceed with the claim; if so the permission application to be listed as soon as possible thereafter”.

On 18 August 2014 the NPIE wrote to the Defendant in these terms:

 

“Following very careful consideration of the information provided at their meeting on 11 August, the Panel are strongly of the view that there is clear evidence of Islington LBC’s failure to protect the safety and wellbeing of child Nawaal. However, on the specific issue of whether an SCR is required, they concluded that in the apparent absence of relevant case law, or an explicit policy direction from the Department for Education as to whether a body such as a local authority can be guilty of neglect within the remit of Regulation 5(2)(a) of the LSCB’s Regulations (2006) as set out in Working Together 2013, it is not possible for the Panel to be definitive as to whether the criteria for an SCR are met. The Panel take the view that the particular issues raised by this case are more appropriately addressed either with a determination in the courts or by a clear policy directive from the Department for Education.” (emphasis added).

 

That advice was provided to the Claimant on 26 August 2014 by e-mail. On the following day, 27 August 2014, the Defendant’s solicitor wrote further to the Claimant’s solicitors in these terms:

 

“Further to my email … I have received the Defendant’s instructions. Yesterday morning the Board met to consider the Panel’s views. The Board has considered those views as sought by its referral to the Panel. With those views in mind, the Board will exercise its power to commission a Serious Case Review in this case, notwithstanding there is no duty to do so.”

 

On 29 August 2014 the Claimant’s solicitors, in acknowledging this significant development, wrote to the Defendant’s solicitors:

 

“The position generally remains unsatisfactory as in the light of the advice of the Expert Panel there is plainly a need for clarification about the circumstances in which an SCR should take place, we therefore consider that there is a real public interest in this case continuing and intend to seek a declaration as to the circumstances when a Serious Case Review should be instigated. … We write to enquire whether your client will be prepared to agree that the litigation should continue … We consider that the Secretary of State should be joined and it would be for him/her to respond substantively to the claim for a declaration. … This is obviously an unusual case. We invite you to consider our proposal carefully.”

 

On 8 September 2014, the Defendant’s solicitor sent a detailed reply rejecting the proposal that the litigation continue, and invited the Claimant to abandon the application “without more ado”. Not insignificantly, it further indicated that “the Board will entertain any contentions of institutional neglect pursued before it”; the Defendant argued that the claim was now “academic”, and without merit. Notwithstanding these representations, on the same day the Claimant notified the court the she intended to prosecute her claim.

 

 

 

The judicial review here was refused, for the following reasons [underlining in this bit is mine, for emphasis]:-

 

 

I refuse this application for permission to apply for judicial review. This decision, inevitably starkly expressed, does not reflect my considerable sympathy for the Claimant in suffering such an appalling family tragedy in the circumstances described earlier in this judgment. The refusal of this application should not be treated or understood as any indication of my views about the action or inaction of the LB Islington, or the associated relevant agencies, in the discharge (or otherwise) of their responsibilities towards the Claimant and her children.

 

However, I have reached this decision clearly for the following reasons:

 

  1. The claim as pleaded in its revised form does not enjoy a reasonable prospect of success; ‘neglect’ in regulation 5(2) does not, in my judgment, cover ‘neglect’ by a public body in failing to discharge its safeguarding duties to a child;
  2. The claim is academic, the Defendant having now agreed to conduct an SCR, which will include consideration of “institutional neglect”; there is insufficient justification in permitting the claim to proceed when there is now no lis between the parties;

iii. I am of the view that if consideration is to be given to a potentially wider remit of regulation 5(2)(a), this should be considered by the Secretary of State in the Department for Education in the first instance, not the court;

  1. The claim is premature; until the SCR has taken place, and/or the Secretary of State has considered the issue, there is no proper framework or decision, within which to consider this point of principle.

 

 

 

[As an academic exercise, the Court’s analysis of when it is proper for a Court to resolve an ‘academic’ argument between the parties is interesting – in effect it turns on this, from Secretary of State for the Home Department ex parte Salem 1997 :-

 

“The discretion to hear disputes, even in the area of public law, must be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so as for example (but only by way of example) where a discrete point of statutory construction which does not involve detailed consideration of the facts, and where large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future”

 

And thus, having established that the Islington LSCB were going to conduct a Serious Case Review, the case itself was an ‘academic’ exercise and one which should only be carried out if it was going to have a bearing on a large number of similar cases, which it wasn’t]

 

 

In relation to the third limb – that any such change to the Regs should be for the Secretary of State, the Court noted that coincidentally the Secretary of State had given that same day of the hearing a speech on the issue of Serious Case Reviews and reform

 

My conclusion on this aspect was fortified by my discovery that, on the day of the oral hearing of this application before me on 12 November, Edward Timpson MP, Parliamentary Under Secretary of State for Children and Families, was coincidentally addressing the LSCB Chair’s annual conference in these terms:

 

“I’m still concerned about cases where SCRs are not even being commissioned. About times when debates over semantics get in the way of finding out what went wrong. This may not happen that often, but it happens often enough for me and the panel to be concerned. So, following the panel’s recommendation, we’re planning further clarification of ‘Working together to safeguard children‘, so it will now include guidance about what ‘serious harm’ actually means in the context of making decisions on whether or not to commission an SCR. And to help you with information sharing, we’re planning to clarify in Working Together the need for local authorities to notify serious incidents.” (emphasis added) (source: MoJ).

 

This announcement followed, and specifically drew upon, the first annual report of the NPIE on Serious Case Reviews (July 2014) (DFE-00531-2014) (a report which was published shortly before the NPIE sent out its advice letter in this case, the contents of which are set out at [26] above). In that report, the panel had made the following significant observations as follows:

 

“The panel’s view is that opportunities to learn from mistakes are being overlooked in the argument over where the SCR initiation line is drawn. It is essential that everyone sees lessons for children’s protection (looking backwards and forwards) as the central issue, not the need to abide only by the letter of the law.” [19]

“The panel would encourage more LSCBs to consider carrying out a proportionate SCR, even in cases where the statutory criteria are not met, rather than another type of less formal review, so lessons may be understood and shared more widely. Indeed, it is their view that use of a range of investigative tools and techniques to carry out a review in a way which is flexible and relevant to the individual case circumstances may be more appropriate than a more fixed methodology” [20].

 

 

And that thus, the judicial review claim could now be considered premature given that the changes sought might be addressed in the Secretary of State’s forthcoming guidance. It is noteworthy that both the Secretary of State and NPIE have urged LSCBs not to shelter behind the technicalities and semantics of the Regs and to hold Serious Case Reviews or something similar where there are lessons to be learned.

 

 

[It may be occurring to lawyers with a civil background that an alternative route to judicial review might have been a claim for negligence, given that ‘smoking gun’ recording and the failure to take action in the three months before that appalling prophecy came true (coupled with the Coroner’s remarks). Not necessarily easy to run a negligence claim and I couldn’t possibly make any predictions about whether it has legs or not. I’m pretty sure that as the mother was represented by a Silk in these proceedings, it is an issue which has been given some considerable thought]

 

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What it feels like

Posted on November 28, 2013 by suesspiciousminds

I thought that this was a really excellent piece in Community Care and wanted to share it with my readers  (there’s probably some overlap between people who read this and read Community Care, but not total overlap)

http://www.communitycare.co.uk/2013/11/27/feels-like-child-social-work-teams-caseload-dies/

It is something that we try not to think about, but the potential is there with every phone call, every email, every decision you make, the question you ask or forget to ask.

I know that some of my readers think that all social workers are heartless nazi-fascists  –  too certain, coy and hard to please, who need to be lined up and shot come the Revolution *, and I don’t expect to ever change their mind. We will continue to Agree to Disagree.

Nor do I happen to think that social workers are all harp-playing bewinged ministering angels who descend when fear and anguish wring the brow. 

Like any profession, there are good ones and bad ones  (teachers, doctors, lawyers, pop stars). Everyone will have and is entitled to have their own view on what proportion of good and bad makes up the profession.  

 It happens to be a profession where a bad one can cause a lot of misery, but it is also a profession where those within it have to carry a lot of fear and disquiet about making wrong decisions  (either way – the Always/Never myth is, as I and others have discussed, a myth.  https://suesspiciousminds.com/2013/09/29/alwaysnever/ 

Nobody can get every decision right, every time).  

If we as a society constantly ramp up the pressure and consequences of getting a decision wrong in only one direction (always) we do run the risk of getting too many wrong the other, less criticised way (never) 

 

 

*I’m reminded of the phone call I used to get at 9.15am every Monday without fail in an early job, from a man who would tell me that “come the Revolution, you and people like you will be first up against the wall and shot… no offence to you mate”

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Yet more Serious Case Reviews

Posted on October 11, 2013 by suesspiciousminds

 

Whatever the collective noun for Serious Case Reviews is  (a flurry, a murmuring, an avalanche, a papering, an omphaloskepsis*, a whitewashing?) that’s what we’ve had over the last few weeks.

 

The first I read about this week was from Glasgow, and involved a foster carer who was murdered by a young person placed in her care.  The main lesson was to have been cautious about the very good progress this vulnerable and damaged young person was making in the early days of the placement and to have had proper access and regard to the full chronology of his troubled life.

 

http://www.glasgowchildprotection.org.uk/CHttpHandler.ashx?id=17069&p=0

 

 

The second was Child T, a four year old in Haringey. 

 

http://www.haringeylscb.org/child_t__full_serious_case_review_overview_report-2.pdf

 

Now, if there’s anywhere in the country that is nervous about Serious Case Reviews, it would be Haringey. They were the authority in Victoria Climbie and Baby P, and they really don’t want to have a third tragedy.  They were brave to hold this one, since it didn’t automatically meet the criteria and they could have ducked conducting one.

 

In my opinion, they did the right thing in conducting one – I may as well say up front here, that there are real problems with the way they managed the case prior to that decision. (Whilst I think professionals are often harshly blamed after the event for failing to see into the future, this isn’t one of those. Sometimes a cock-up is just a cock-up, and I won’t defend those.  I have to call this one as I see it, and children were harmed here over many months as a result of professional error)

 

The child did not die, fortunately, though on removal in 2011 was found to have fifty bruises on his body. On my count, there were four episodes of bruising. Alarmingly, the last happened AFTER he was seen with 50 bruises, a few days later, whilst the case was being prepared for Court with a plan of him continuing to live at home.

 

 

(A) On Wednesday 30/6/10, at 10:30 pm, Child T was taken to the Accident & Emergency Department (A&E) at North Middlesex Hospital (NMHUT) by his mother and Mr C. He had bruising around the eyes, forehead and nose. Bruising and swelling was said to have become worse during the day. Mr C said that Child T often ran around the house and ‘bangs and hits himself on the wall’ 

 

Child T was three years old at the time. You may, if you are familiar with Baby P, be having shuddering sensations at the suggestion that the child’s bruises were self-inflicted. We have heard that before.

 

It gets worse than that though, because what follows is something that the professionals never had in Baby P – a direct disclosure

 

(B)On 4/7/10 a Polish speaking doctor, PR1, spoke to various family members who were visiting the hospital. He was told, by Child W, that Mr C had hit her so as to cause bruising to her bottom. PR1 spoke to CP2 who subsequently spoke to the Enfield Emergency Duty Team2 (EDT) as it was now the evening. It was agreed that there were no grounds to keep Child W in hospital that night but that the concerns raised should be followed up the next day. The following day, 5/7/10, before any follow-up action was taken, Child T was removed from hospital by his mother and Mr C, without the agreement of medical staff. Over the previous days Mr C had increasingly expressed his annoyance about the child’s prolonged stay in hospital, because, he said,of the disruptive consequences for family life

 

[Note the involvement of Enfield, rather than Haringey – it seems that the hospital were slightly confused about which local authority were responsible, but after that referral the case got properly passed on to Haringey]

 

 

I have to say, as a child protection lawyer advising local authorities, having missed (A) would be quite bad but not dreadful, but having missed (B) would be dreadful.  Having missed (B) against the backdrop of Baby P is, on the face of it, hard to fathom.

 

There were bruises to a young child, unexplained, the sibling was saying that the mother’s boyfriend hit the children, the boyfriend was being annoyed in hospital and the child was removed without the consent of the doctors. That is pure alarm bell territory.

 

(It doesn’t HAVE to equate to removal, but it is certainly something that ought to have made everyone involved very very concerned and vigilant)

 

A strategy meeting took place – the medical opinion was reported to be inconclusive  and the police who attended weren’t aware of a domestic violence callout between mum and Mr C that same day.

 

[This is what was actually said, and anyone who thinks that this is ‘inconclusive’ is on another bloody planet

 

The medical report considered at the Strategy Meeting had stated that “I am very uncomfortable with the injury on his forehead. I do not accept that a 3 year old child would bang his head with such severity and not cry out. In addition, bruising on the leftside is in a very unusual place and this cannot be incurred either from fallingor from play. I cannot exclude the possibility that some of these may have arisen from pressure from fingers”  ]

 

 

Despite the strat meeting having concluded and the case progressing to relatively low action on the basis of the social worker and police deciding that the medical opinion was “inconclusive”, the Consultant Paediatrician who first saw the child (CP1) wrote a letter containing this

 

(C) “I would like to highlight that this child had an injury to his forehead resulting in a haematoma… that could only have occurred if there were a large amount of force on impact … the second fact that concerns me greatly is the presence of bruising on the left side of the rib cage. This is an unusual place for bruising to be found in a child and implies a second mechanism of injury taking place, once again for which the parents claim to have no knowledge. My concerns here are that this is a 3 year old boy who has had two separate injuries for which there have been no explanations and each injury individually is concerning and in an area which is quite uncommon in a child of this age”

 

 

I’ve defended social workers before, and I will again, and I defended particularly the social workers in Haringey who worked Baby P because I think that they were fundamentally let down by a paediatrician who didn’t give them the medical evidence they would have needed to act and get the case before a Court.  The paediatricians here did their job properly and they simply weren’t listened to.

 

But I am afraid that this is a smoking gun. If that came across my desk, we would be having an amazingly urgent legal planning meeting (i.e, “I’m on my way to you, RIGHT NOW”)  to discuss this child and work out what we would be doing to keep the child and siblings safe.  If the conclusion was to work with the family to keep the child at home, I’m fairly sure we would have been getting the case before the Court to endorse that plan. I don’t think I’ve ever worked with any local authority lawyer whose advice would not have been “this is going before a Court, as soon as possible”

 

 

(D) On 9th August 2010, Mr C presented at his GP with self-inflicted cuts to his arms. The GP did not make any referral to social services.

 

(E) On 30th August 2010, the mother was seen at an obstetrics appointment with bruising on her arms – the notes showed up the suspicions of domestic violence, the obstetrician invited mother to be admitted overnight, mother declined. She was very nervous and keen to leave, and Mr C was very keen to get out of the hospital. No referral was made.

 

 

(F) On 31/8/10 Mr C took Child T to the GP, saying that he was concerned that he child bruised easily. He had bruises to his back and legs. The GP (GP1) arranged blood tests which indicated no medical explanation for the bruising. On 17/9/10 Child T was seen by a nurse (PN1) for immunisations. She noticed bruises on his arms, legs and back and asked a GP (GP2) to see

him. GP2 examined the child and arranged for him to be seen for follow-up on 22/9/10.

 

 

Now, I already thought that (B) and (C) were bad things to miss, but to add (F) into the equation just reinforces this.  Very often with Serious Case Reviews there’s a prediction bias and hindsight bias that means that working back from a known outcome, we tend to see all the footprints leading up to that event as being obvious and inexorable and that ‘of course that’s where this is all going, how could nobody see it’

 

But regardless of that, which is something to always be very cautious about; if you have suspicious bruises to a child, a strong paediatric opinion about those bruises and then another episode of bruising two months later; something needs to be happening.

 

A worker could, potentially, have gripped the case and made a decision that this risk could be safely managed at home; but that needs to be a conscious and deliberate and deliberated decision, not just inactivity resulting in that happening.  It is STAGGERING that the social worker on the ground didn’t ever share the paediatrician’s letter at (C) with his/her manager.

 

(G) On 14th September 2010, Mr C told his GP that he was injecting heroin every day. Three weeks later, he said he was drug-free and needed no further help.

 

(H) When the sibling child Y was born in December 2010, hospital staff noted tension and arguments between the mother and Mr C

(I) On 15th  February 2011, the case was closed by the social worker

 

(J)  Three days later, on 18/2/11 (a Friday) police were called to the family homeby Ms B who made allegations of violent conduct by Mr C to her and to Child T. Police could see that the child was extensively bruised and they arrested Mr C. Child T was left overnight with his mother. There was no recorded consultation with the EDT at that point

 

(K)The following day Child T was taken by police for medical examination and was seen by a paediatric registrar (PR2). The EDT had been made aware of the situation in the morning and both police officers and an EDT officer, EDT1, attended the medical. Child T was found to have more than 50 bruises of varying ages and sizes. He told the doctor of having been hit with a belt and a

stick by Mr C. The doctor judged that many of the injuries were caused by physical abuse and that others were ‘highly suspicious’

 

(L) The doctor spoke to Ms B who described how she had been the subject of repeated physical assaults by Mr C. She also said that she had suspected that Child T was being abused by Mr C and that Child T had told her this. She further said that Child W had now also spoken of being physically assaulted by Mr C and that he had tried to drown her whilst bathing her a few weeks previously. She said she had not told Ms B at the time as Mr C had made her promise not to do so.

 

And this is obviously where proceedings finally began, right?

 

Wrong. Professionals agreed with mum that Mr C would move out, and that the children would stay with her.

 

(M) On 22nd February 2011, the children were all medically examined. The medical opinion was that the three older children had all been physically abused by Mr C, and that mother had failed to protect them and that the children should be removed to a place of safety.

 

As a result of that conclusion, the LA decided that proceedings were inevitable.

 

(N) The next day, (23.02.11) the social workers met with mum and told her that care proceedings were to be initiated. In a police interview at around the same time, Ms B said that she knew that Child T was hit more frequently when Mr C was taking drugs

 

 

(O) A Strategy Meeting was held on 25/2/11. Information had been gathered from the various health services involved and, for the first time, the facts of repeated bruising to Child T were drawn together with the knowledge of the current and previous injuries. Agencies were concerned that Ms B and MGM were aware of the abuse and had not acted to prevent it. It also appeared that there may have been discrepancies in the accounts they had given to various agencies. However there had been no evidence that either of them was responsible for any previous physical abuse and there was no indication that the children might be directly harmed by them, or did not wish to be with them. It was confirmed that care proceedings were to be initiated but that there should be no immediate attempt to remove the children.

 

(P) On 28/2/11 Ms B told SW2 that Child T had new bruising. Ms B claimed that she had asked Child T about this and he had said that the injuries had been inflicted by that social worker, SW2. Later that day Child T was taken to Accident & Emergency, NMUHT, in the company of his mother, a different Social worker and an interpreter. Child T said that the “lady” hit him. When asked what the lady looked like and how she did it, he was unsure. Following a medical examination, where new bruising was confirmed, and some new bruising was seen on Child W, all four children were brought into the care of the local authority.

 

 

 

 

On this one, I’m afraid that there is blame – it isn’t just a failure to predict something unpredictable, it isn’t taking an informed decision that the risk was manageable and the outcome turned out bad. This is a basic failure not to recognise what risk looks like and what to do with it.

 

I feel bad for the people involved, and who knows what the workloads and pressures were at the time; but I’m afraid that this is systemic failure, not just making a judgment call that proved wrong after the event.  It is REALLY, really hard to see why that vital letter from the paediatrician at (C) never got escalated into a child protection issue. The social worker never discussed it with her manager, and it did not get escalated into a Legal Planning Meeting.

 

If this is happening at Haringey, which must be alive like no other authority to the perils of getting child protection decisions wrong, something has gone very badly awry – perhaps locally, perhaps nationally.

 

Again, as with Keanu Williams, the case was effectively ring-fenced into a ‘child in need’ case at an early stage, and thoughts about child protection disappeared once the decision was made that this was a “child in need” case.  Even then, things aren’t great – he wasn’t properly treated as a “child in need” with a formal plan and review system. He just got lost.

 

 

I agreed with Eileen Munro that when one looks at Daniel Pelka’s case through the eyes of any individual professional it is hard to say that they got it wrong and that another worker in their shoes would not have acted similarly, but that’s not the case here.

 

In many ways, this Serious Case Review raises more worrying issues than the Baby P one – in that case, the local authority never had in their hands the medical evidence that would have allowed them to save Baby P. Here, the evidence was handed over and simply stuck in a filing cabinet without its significance being absorbed or considered until this child and his siblings sustained many more months of physical abuse.

 

I’m not sure that it gives us ‘lessons to be learned’ in general practice – the individual failings here were so pronounced and obvious that the real lesson is ‘if people don’t do their jobs properly, bad things can happen’.

 

Haringey’s Local Safeguarding board response, in the interests of fairness, is here  – and the incidents were two years ago, so they have had time to make some changes.

 

http://www.haringeylscb.org/haringey_lscb_s_response_to_the_scr_of_child_t-3.pdf

 

(I didn’t think it was great, to be honest, and it was very light on how they would prevent social workers wrongly going down the ‘child in need’ path when child protection is the real issue. Or that a strat meeting could so utterly misunderstand what the medics were saying. But at least there’s now a powerpoint strategy.  )

 

 

 

 

*For those who have made it thus far, Omphaloskepsis is ‘navel-gazing’ – it came into prominence during the Renaissance, when there was much debate about what a painter should do when painting the midriffs of Adam and Eve. Did they have belly buttons, or having never been in the womb, were they smooth?  If God made Man in his own image, does God have a belly button, or not? Because this was such a controversial issue, many such paintings just have hands or branches covering the vital area.

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Are we learning anything?

Posted on October 7, 2013 by suesspiciousminds

 

A discussion on Serious Case Reviews, Keanu Williams and Professor Ray Jones.

 

Tragically, Serious Case Reviews seem to be piling up at the moment. We have just had Daniel Pelka’s, Keanu Williams’ came out last week. No doubt we will have one soon on Hamza Khan and I have already read today of another mother charged with the death of one child and neglect of another three. As we know from recent articles, most social workers don’t manage to find time to read them, and anyone who does read them finds the same themes continuining to crop up.

                   

The Keanu Williams one is here   http://www.lscbbirmingham.org.uk/images/stories/downloads/executive-summaries/Case_25__Final_Overview_Report_02.10.13.pdf

 

 

{This one actually identifies really early on that Keanu’s death could not have been PREDICTED, but that he ought to have been identified as a child who was at risk of significant harm. We actually know from reading the Serious Case Review that his social worker took the case to Child Protection Conference, with a report identifying why Keanu was at risk of significant harm and why he should be placed on the register and have a child protection plan – the Conference took a different view and decided Keanu was a child in need, instead

 

“A well-argued social work report, stating the risks and concerns that had been assessed for Keanu, formed the basis for the Child Protection Conference. However, the Conference concluded that Keanu did not require a Child Protection Plan but was a Child in Need requiring a family support service such as the nursery place as the focus of the meeting changed.

 

 

The outcome of the Child Protection Conference led to a loss of focus on Keanu, because the Child in need services moved the attention towards practical matters such as the lack of settled accommodation and provision of the nursery place.

 

Paradoxically the services failed to consider precisely what the impact was on Keanu’s development and welfare of being moved around and cared for by many different people.” }

 

But what also interested me was Professor Jones take on Serious Case Reviews, as reported in the Daily Telegraph

 

http://www.telegraph.co.uk/news/uknews/law-and-order/10355475/Theres-no-more-learning-left-to-be-done-says-child-protection-expert-in-wake-of-Hamzah-Khan-death.html

 

 

(A brave thing to say, since the gut instinct when reading “we have no more learning left to be done” is  to retort – then why are these cock-ups continuing to happen?)

 

I can sort of see where Professor Jones is coming from. With every child death of this kind there is a clamour for ‘lessons to be learned’ and ‘we must ensure that no other child has to go through this again’  and of course the media clamour that someone in authority must have bungled and they should be identified and sacked. That’s backed very often by central government (at least some element in David Cameron’s rise to power was on his tough handling of Baby P) and their demand that all Serious Case Reviews should be made available to the media and public.

 

The media of course, take a long and dense document, and strip out the bits that show that “Professionals had X chances to save baby Morris” , because that’s what makes the good story. Never mind that any of those chances would only have been a real chance if (a) the professionals could see into the future or (b) were so risk averse that they were removing children with similar histories left,right and centre, most of whom would have been okay at home. 

I will defend professionals from unfair criticisms that they didn’t accurately predict the unpredictable, but mistakes do get made in child protection and where those mistakes are due to sloppy practice or laziness then those responsible ought to be dealt with. If a child died because professionals didn’t make referrals, or the referrals got ignored or visits weren’t made (or you were a paediatrician that can’t spot a broken back), then yes, those involved ought to be rethinking their career – I just don’t believe that having failed to identify that of your thirty kids with bruises and low-level neglect THIS was the one where it was going to go awfully wrong is that sort of mistake.

 

{On the same basis, given how many times serial killers are described as ‘quiet blokes who wouldn’t harm a fly and was nice to his mum’ we could be cutting down serial killing by imprisoning in advance every person like that… Or blaming the police for every such bloke who goes on to commit murder, on the basis that it was obvious that he would turn into a serial killer one day}

 

 

And of course all of those Serious Case Reviews start with the known fact that the child died, and works backwards from that foundation, which allows them to in part discount the very thing that makes social work hard – the tension between family preservation and child rescue.

 

If the child has died, then we KNOW that the child ought to have been removed from home before then and that the family ought not to have been preserved. So the Serious Case Review can just look for any opportunities professionals had to break up that family unit and rescue the child.

 

Here are the things that a Serious Case Review CAN potentially do

 

(a)  Handwringing  (lessons have to be learned)

(b)  Finger-pointing/witch-hunting

(c)  Identifying whether there were flaws in local procedures, or in following those procedures

(d)  If there have been serious and genuine bad practice or negligence, taking action as a result

(e)  Extracting lessons of general principle to be learned in other cases

 

I think that our current system is pretty good at (a), not bad but not great at (b),  pretty poor at (d), okay at (c)  and it THINKS that it is very good at (e) but actually isn’t.

 

So I agree with Professor Jones that most of the ‘lessons to be learned’ are already well-established and well known. We know in advance that common themes from an investigation into a child death will include

 

(i)            That information held by different agencies was never really shared properly and that had one person known all of it, different decisions could have been made

(ii)          That a rule of optimism was applied

(iii)         That a history of low level neglect or bruising continued over time and nobody took it seriously enough

(iv)         That the voice of the child was overlooked or the child simply wasn’t seen enough

(v)          That too much of professional attention was focussed on the adult

 

 

And that having report after report say that, really doesn’t help.

 

I don’t think that the Keanu Williams one is particularly bad, it is fairly typical of these reports (and is to my mind, a better one than Daniel Pelka’s, for example)

 

So do Serious Case Reviews tell us anything at all? Or are they just handwringing and witch-hunting?

 

[I would disagree with Professor Jones on two categories of inquiries  – I think that the Victoria Climbie inquiry did genuinely tell us new and important things about the dangers of walking on eggshells around respecting differences in culture and losing sight of child protection, and I think that all of the inquiries relating to situations where ‘child rescue’ went too far – Rochdale, Cleveland, Orkney Islands, tell us a great deal of significance about what happens not in an individual case where a judgment call went wrong but when there is a systematic failure to properly balance evidence, risk and the desire to keep families together]

 

 

I would myself like to see Serious Case Reviews focussing on whether what had happened in the case throws up issues of poor practice amongst the professionals involved (not that they failed to predict the future correctly, but whether they weren’t alive to the possibility that their prediction might be wrong) or where local procedures need to be improved, and shy away from the ‘broad lessons to be learned’ unless it is a case like Victoria Climbie which genuinely has something new and important to say.

 

Frankly, the only real way to tell whether it was bad luck or bad social work in a Serious Case Review is to run them blind – the board are given information on two cases with children of similar ages and length of professional involvement. One is the child death in question and one is a child who remains at home unharmed.  If child deaths are caused by bungling professionals missing the obvious, then the Serious Case Review ought to have no problem at all in identifying the bad social work that led up to the child death, without knowing which case is which.

 

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The Daniel Pelka serious case review

Posted on September 19, 2013 by suesspiciousminds

In case you are not aware, a Serious Case Review is an inquiry conducted after the death of a child known to professionals, headed by an independent chair, with the aim being to look at what happened, whether anything went wrong and whether anything can be learned from the process.

 The Serious Case Review is here http://www.coventrylscb.org.uk/files/SCR/FINAL%20Overview%20Report%20%20DP%20130913%20Publication%20version.pdf

 Most of you will have heard of Daniel Pelka. The Serious Case Review summarises the tragic story like this:-

 2.1 Daniel was murdered by his mother and stepfather in March 2012. For a period of at least six months prior to this, he had been starved, assaulted, neglected and abused. His older sister Anna was expected to explain away his injuries as accidental. His mother and stepfather acted together to inflict pain and suffering on him and were convicted of murder in August 2013, both sentenced to 30 years’ imprisonment.

2.2 Daniel’s mother had relationships with 3 different partners whilst living in the UK. All of these relationships involved high consumption of alcohol and domestic abuse. The Police were called to the address on many occasions and in total there were 27 reported incidents of domestic abuse.

2.3 Daniel’s arm was broken at the beginning of 2011 and abuse was suspected but the medical evidence was inconclusive. A social worker carried out an assessment but no continuing need for intervention was identified.

2.4 In September 2011, Daniel commenced school. He spoke very little English and was generally seen as isolated though he was well behaved and joined in activities. As his time in school progressed, he began to present as always being hungry and took food at every opportunity, sometimes scavenging in bins. His mother was spoken to but told staff that he had health problems. As Daniel grew thinner his teachers became increasingly worried and along with the school nurse, help was sought from the GP and the community paediatrician.

2.5 Daniel also came to school with bruises and unexplained marks on him. Whilst these injuries were seen by different school staff members, these were not recorded nor were they linked to Daniel’s concerning behaviours regarding food. No onward referrals were made in respect of these injuries. At times, Daniel’s school attendance was poor and an education welfare officer was involved.

2.6 Daniel was seen in February 2012 by a community paediatrician, but his behaviours regarding food and low weight were linked to a likely medical condition. The potential for emotional abuse or neglect as possible causes was not considered when the circumstances required it. The paediatrician was unaware of the physical injuries that the school had witnessed.

2.7 Three weeks after the paediatric assessment Daniel died following a head injury. He was thin and gaunt. Overall, there had been a rapid deterioration in his circumstances and physical state during the last 6 months of his life.

Whilst one is tempted to cry that this is unique and will never happen again, and that the idea of a child being deliberately starved and this being allowed to happen is a once-in-a-lifetime case, we sadly know that it is not. We all know that it happened in Birmingham just a few years ago, and there’s a criminal trial ongoing on yet another infant that this happened to, right now.

The findings

Daniel’s mother and stepfather set out to deliberately harm him and to mislead and deceive professionals about what they were doing. They also involved Daniel’s sister Anna in their web of lies and primed her to explain his injuries as accidental.

 

 A pattern of domestic abuse and violence, alongside excessive alcohol use by Ms Luczak and her male partners, continued for much of the period of time from November 2006 onwards, and despite interventions by the Police and Children’s Social Care, this pattern of behaviour changed little, with the child protection risks to the children in this volatile household not fully perceived or identified.

 

 Missed opportunities to protect Daniel and potentially uncover the abuse he was suffering occurred:- 

 at the time of his broken arm in January 2011, which was too readily accepted by professionals as accidentally caused,

 when the school began to see a pattern of injuries and marks on Daniel during the four months prior to his death, and these were not acted upon, and

 at the paediatric appointment in February 2012 when Daniel’s weight loss was not recognised, and child abuse was not considered as a likely differential diagnosis for Daniel’s presenting problems.

 

At times, Daniel appeared to have been “invisible” as a needy child against the backdrop of his mother’s controlling behaviour. His poor language skills and isolated situation meant that there was often a lack of a child focus to interventions by professionals.

 

In this case, professionals needed to “think the unthinkable” and to believe and act upon what they saw in front of them, rather than accept parental versions of what was happening at home without robust challenge. Much of the detail which emerged from later witness statements and the criminal trial about the level of abuse which Daniel suffered was completely unknown to the professionals who were in contact with the family at the time.

 

 A number of critical, significant lessons have been identified by this SCR, which are detailed later, and it is now of utmost importance that they are translated into action by front line professionals and adopted for inclusion within relevant child protection processes and systems and as part of the support and supervision that these professionals require in their day to day work with vulnerable children.

(Eileen Munro has made some interesting comments in the media over the last few days about the tendency of Serious Case Reviews and the media to work backwards from the known tragic and awful outcome to then look at things that in the light of that seem obvious indicators that a tragedy was imminent, without necessarily recognising that similar things do happen in families without such awful consequences.  I think her interview is both timely and brave http://communitycare.rbiblogs.co.uk/childrens-services-blog/2013/09/eileen-munro-admits-i-cant-say-i-would-have-done-better-in-protecting-daniel-pelka/ .   The natural human reaction when hearing a story like Daniel’s is that we MUST be able to prevent this sort of thing happening to a child and that if we didn’t then it MUST be due to a professional having screwed up.  Sadly, it’s a bit more complicated than that. What Munro says about bruises here is very important – you can’t reverse-engineer back that each of those bruises ought to have prompted a reaction without considering what the prevalence of bruising is in children generally)

The information from the body of the report about Daniel’s experiences in that home are heart-rending

It is difficult to speculate what sort of feelings and physical effects Daniel experienced in terms of his issues about food – often referred to as his “obsession”. Certainly the eventual post mortem identified that he was very malnourished and had been subject to serious neglectful care. The school were clearly concerned about his weight and how thin he was, his deterioration since starting school, and of his habit of seeking out food at every opportunity, so much so that it was difficult to control. Daniel however never said he was hungry or spoke about his home life. In reality however no professional tried sufficiently hard enough to engage him to enable him to talk about his experiences at home. Additionally at the paediatric appointment three weeks before his death, he did not communicate in any way with the paediatrician. The injuries at the time of his death were evidence of the high level of trauma that Daniel must have suffered in the later stages of his life, and yet he still attended school on occasions and disclosed nothing of concern. Despite arriving at school with facial injuries on at least two, or more likely, three occasions in late 2011/early 2012, no arrangements were made to speak with him directly or formally about these in relation to any child protection concerns. Without proactive or consistent action by any professional to engage with him via an interpreter, then his lack of language and low confidence would likely have made it almost impossible for him to reveal the abuse he was suffering at home, potentially for fear of retribution if he did disclose anything.

 

5.11 Additional information gleaned from the range of evidence which became known to the SCR Panel and was then presented at the criminal proceedings, demonstrated that the children’s experience, especially for the period from autumn 2011 until Daniel’s death in early March 2012, was considerably more traumatic than was known to professionals at the time. From early October 2011 there was evidence that Daniel was on occasions locked in an upstairs “box room” in the house which had no furniture and smelt of urine, but had a damp carpet and floorboards. There was a mattress which was soiled and there was no heater or toys in the room. This was apparently used as a form of punishment which was referred to in text messages between Ms Luczak and Mr Krezolek. Although Daniel was also said to have usually slept with Anna in her room, which was appropriately clean and furnished, it was unclear how often Daniel was made to sleep or stay in the box room. It was later acknowledged by Ms Luczak that it was in this room that Daniel died.

 

5.12 It was evident that Daniel experienced a harsh degree of scapegoating and emotional abuse by Ms Luczak and Mr Krezolek and he was often the sole subject of physical abuse and neglect, which included deliberately depriving him of food, serious physical abuse, feeding him salt and putting him in a cold bath, on one occasion according to Ms Luczak at the time in early February 2012, leaving him temporarily unconscious because he had nearly drowned. There were further disclosures in the court that Mr Krezolek gave out punishments to Daniel which included making him do sit-ups for an hour, or stand in the corner, as well as do squats or running on the spot. What was most concerning was the apparent deliberate way that such punishments were planned in advance. In her statements and in her evidence at the criminal trial, Ms Luczak apportioned responsibility to Mr Krezolek for the abuse and neglect of Daniel saying that if it was found that Daniel had taken other food whilst at school, that Mr Krezolek would not allow him to be fed that evening or that he would be fed salt so as Daniel would vomit up the food that he had taken while at school. This must have been a most terrifying and dreadful ordeal for Daniel to face at the hands of those who should have been caring for him.

 

5.13 It is challenging to describe Daniel as being neglected physically or emotionally, in that this implies some passivity on the part of his abusers. It is apparent that everything done to Daniel was calculated and deliberate, even his non-school attendance. He did not suffer physical neglect in the ordinary use of the term as he went to school clean and well dressed with a packed lunch, albeit a very frugal one. He likely existed in a constant state of stress and anguish as a result of his terrible treatment at the hands of his mother and Mr Krezolek.

The pattern in the case seems to be one of each incident of concern having been treated in isolation, and of no professional collating and gathering the constellation of concerns and recognising that what was going on here was appalling abuse on a systematic level; despite Strategy Meetings and Core Assessments.

Overall, the “rule of optimism” appeared to have prevailed in the professional response to Daniel’s fracture and to his other bruises. This appeared to reflect a “tendency by social workers and health care workers towards rationalisation and under responsiveness in certain situations. In these conditions workers focus on adult’s strengths, rationalise evidence to the contrary and interpret data in the light of this optimistic view”23 . The explanation of the cause of this injury was too readily accepted as accidental and the initial concerns about the injury quickly downgraded – it remained the case that there was delayed presentation of the injury by a day, and that the medical view was that Daniel would have been in considerable pain, and additionally, that based on medical knowledge and research, the most likely cause of an oblique fracture was physical abuse.

 

It appeared that the medical diagnosis or evidence was deferred to as being the most significant to any assessment of whether abuse was a cause or not of the fracture. It was understandable that the medical opinion could not be certain of the causation, and once there was the comment from the doctor that the mother’s explanation could be plausible, this appeared to quickly reduce concerns and actions by the Police and CLYP. In fact there were some inconsistencies in the explanations given. What was missing from the Strategy Meeting was recognition that the medical view was not necessarily the most significant contribution to whether physical abuse had taken place. There were the social factors of family life to take into account, the parent/child relationships, the role of the male in the home etc. which all would have added to the overall understanding of whether there was the likelihood of physical abuse within the home.

 

On the majority of occasions in these sorts of situation, the medical evidence is inconclusive, as it was on this occasion, but to then have accepted this to mean that the injury was accidentally caused, without further robust enquiries, represented that the “rule of optimism”24 was at play in this situation. It might help to prevent this occurring in future similar situations, if the medical view was presented as saying that on the balance of probabilities, the injury was likely to be the result of abuse, (according to research), rather than to report that an accidental cause was plausible.

 

 

(This is perhaps the Eileen Munro point – whilst one can adopt a safety first, child preservation approach and that might have saved Daniel Pelka, there is fallout in adopting such an approach across the board, that one ends up intervening at too high a level in other families where things would not have played out as they did here. Whilst the press would have social workers save all children such as Daniel, they are also quick to criticise where action is taken – see the recent headlines as a result of Re J)

I think the SCR do try to take into account the difficult balancing act that has to be undertaken, particularly in this section

14.7 This was a complex case for a number of reasons and it would be too simplistic to identify failings by individual practitioners as the reasons why Daniel was not protected. No individual practitioner works in a vacuum and that was true for this case in that the actions or inactions by individuals was at least partly informed by the management support and advice they received, the efficiency of the systems and processes within which they were working, the training they received, and their workload and organisational context. Nevertheless for future learning, it is important to try to identify some of the reasons why Daniel’s abuse was not recognised and acted upon earlier by practitioners who came into contact with him. These were likely to have included:

– Ms Luczak presented as plausible in her concerns, presented on many occasions as a capable and caring parent (when not in the midst of domestic abuse incidents) and took an assertive stance with professionals. Her manipulation, avoidance of contact with practitioners, deceit and actions (as well as that of Mr Krezolek) were not recognised for what they were and her presenting image was too readily accepted.

– Ms Luczak’s male partners did not regularly present themselves to practitioners and were hardly ever the focus of proactive intervention or enquiry.

– There were no specific concerns about the care of either Anna or Adam; in fact at times they were viewed as well cared for. This did not fit with the pattern that neglect usually impacts upon all children in a family.

 

– It is relatively rare in cases of child abuse that one child is singled out and scapegoated in the way that Daniel was. The apparent good care of the other children appeared to give a false reassurance that Daniel’s problems were not related to abuse.

– Daniel’s presentation of scavenging for food and his excessive eating when he found any sort of food, as well as being linked to weight loss, was rare to see in a child, and assumptions were then too readily made that his problems were medically based.

– Compared to other forms of abuse, emotional abuse is the most difficult to detect.

– In these circumstances, the practitioners involved were not prepared to “think the unthinkable” and tried to rationalise the evidence in front of them that it did not relate to abuse. The words of a philosopher were particularly relevant in this case in which he says “we see things not as they are, but as we are”42. If practitioners were not prepared to accept that abuse existed for Daniel, then they would not see it.

– No concerns were expressed about the care of Daniel to CLYP or to the school by neighbours or the community. If there were, then these might have added weight to the mounting concerns.

– Neither Anna nor Daniel ever expressed any concern about their care at home.

– Multi agency child protection systems such as Joint Screening for domestic abuse, Strategy Meetings, recording requirements and assessment practice, sometimes failed to support effective coordinated interventions between organisations and practitioners.

14.8 The above list is not meant to explain away the lack of protection that Daniel was afforded by professional interventions, or to give excuses for such practice. It aims to give some possible insight into the way that a particular set of circumstances and dynamics can lead to referrals for child protection not being made and ineffective interventions undertaken which are not sufficiently child focussed, by practitioners who were otherwise committed in their wish to address Daniel’s needs and protect him. Unlike the UK, some countries have a process for mandatory reporting of child care concerns to government departments43, which raises the question that if it existed here, whether injuries seen upon Daniel would have been independently reported by individuals to the authorities

The Lessons Learned are interesting, but one can’t help but read them with a heavy heart, thinking how many times other such Serious Case Reviews or public inquiries have said that we have to learn these lessons.

Is it that workers on the ground aren’t implementing these lessons and taking them on board, or is it that in order to balance a system where the actions of unpredictable people have to be predicted and anticipated and where the State is urged simultaneously both to leave children at home and to remove them, sometimes things will go horrendously wrong?

15. Lessons Learned

 

15.1 When concerning childcare incidents take place or a crisis arises for a family, these provide key opportunities to intervene at a time when parents may be responsive to change, or children are able to speak of their experiences. To not take proactive interventions at such times will create missed opportunities to protect the children, which may not recur again in such circumstances. Each opportunity which presents itself to protect a child must be taken.

15.2 Reassurances by parents about domestic abuse ceasing and that the children are not affected, need to be robustly challenged and responded to with respectful uncertainty by professionals.

15.3 Sole reliance on a parent’s explanation of events and views about family relationships and associated risks to the children, must be balanced with the presenting objective information available or evidence sought to support or challenge parental assertions. To not do so will potentially leave children at continuing or un-assessed risk.

15.4 Domestic abuse/violence is always a child protection issue and must always be approached with this as the mind-set of professionals.

15.5 No assessment of risks within a family or to a particular child can ever be effective without direct engagement of that child as an integral part of the professional interventions, and in working hard to gain an understanding of their experiences, wishes and feelings. There must be a child focus to all interventions.

15.6 To focus on concerning incidents in isolation and only deal with the “here and now” will not make it possible to take a holistic approach and therefore consider other similar incidents or other concerns at the same time. To be too incident-focussed will mean that the ability to develop an understanding of patterns of behaviour and family lifestyle will be seriously compromised.

15.7 Professional accountability for record keeping, timely reports and recording of key actions from multi agency meetings, is central to professional childcare practice, and to fail to complete appropriate records will significantly compromise inter agency working and reduce the collective ability of agencies to protect children.

15.8 Any facial injuries to a child must be viewed with concern, with physical abuse needing to be actively considered as a possible cause, and clear records, interventions or referrals made accordingly. To have no efficient system to collect and collate details of such injuries and actions will compromise later attempts to protect a child.

15.9 Even small units of service delivery to children and families, such as small schools, require a robust system to ensure collation of child protection concerns and appropriate actions, rather than rely on informal forms of communication within a small staff group.

15.10 Whilst a prominent injury to a child will inevitably attract the greatest professional attention (as occurred with Daniel’s fractured arm), the injury must be seen in the context of any other injuries or bruises, however minor they may be, and for their causation to be separately and then collectively considered.

15.11 For professionals from Children’s Social Care or the Police to defer to medical staff for the provision of the primary evidence to confirm or otherwise whether an injury to a child was the result of abuse or not, could be unhelpful, particularly when no definitive view one way or the other can be given. To do so could lead to any following investigation being inappropriately downgraded and implies that other aspects of the child life are less significant for the purposes of assessing the existence of child abuse.

15.12 When faced with significant and complex concerns about a child‘s welfare, it is essential that professionals “think the unthinkable” and always give some consideration to child abuse as a potential cause of the presenting problems. To not do so would be a disservice to the child involved and potentially leave him/her at increasing levels of risk.

15.13 Professional optimism about a family and of their potential to change or improve their parenting must be supported by objective evidence and that any contra indicators have been fully considered prior to any optimistic stance being taken.

15.14 For any professional to make a decision about their own interventions based on assumptions about the actions or views of other professionals without checking these out, is professionally dangerous practice.

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Serious Case Review in relation to Kaiya Blake

Posted on March 1, 2013 by suesspiciousminds

Manchester have just published the Serious Case Review in relation to Kaiya Blake. Kaiya was four years old when she was suffocated by her mother, Chantelle, who was convicted of manslaughter in November 2012.  The mother was diagnosed as having suffered from Paranoid Schizophrenia at the time of Kaiya’s death.

The Serious Case Review can be found here :-

http://www.manchesterscb.org.uk/docs/Child%20U%20SCR%20Published%20Overview%20Report%2028-2-13.pdf 

The purpose of a Serious Case Review is to look hard at the involvement of all professionals and consider what lessons can and should be learned over and above the particular circumstances of this case.

The facts involved here are tragic, as is the case with the death of any child, but moreover because the mother was clearly unwell and in need of help and there were multiple agencies involved with her and that help did not reach her and Kaiya.

I don’t want to bash professionals – I’m sure that nobody involved feels anything other than utterly devastated about what has happened, and the last thing they need is a kicking from anyone else. Especially some smart alec with the benefit of hindsight.  But yes, there are lessons to be learned.

Three years before Kaiya’s death, concerns came to light about her mother, with reports that she was hearing voices and expressing that Kaiya (who was a toddler) wanted to have a sexual relationship with her. At that stage the issue of ‘cultural issues’ was raised, with professionals being asked to handle matters sensitively.  On investigation, the mother was disclosing that her light bulbs were giving her messages.  Over the course of the next few months further issues of the mother claiming that her neighbours were following her, stalking her, digging holes in her garden came to light.

In January 2009, mother acknowledged that she was a user of cannabis. In February 2009 the mother was saying peculiar things to other users of the Sure Start children’s centre, particularly to Muslim parents.  In July 2009, she visited the police station with Kaiya and told them that her television was laughing at her and making sexual innuendos to her.  Kaiya was placed into foster care, following Police Protection and was returned the next day. At the return, the mother became agitated that Kaiya may have been sexually abused in foster care and stripped her to check for any signs of abuse.

In April and May of 2010 further peculiar remarks were made by the mother, including “all children are drawn to me because I’m a Pisces and in the bible”  before going on to talk about children being stabbed at school and that she would be home educating Kaiya.

On 23rd July 2010 the GP was asked for an opinion on the mother and expressed that there were no mental health problems, although in 2005 she had been diagnosed as having a schizoid personality.

There were real difficulties in getting mother’s case dealt with by mental health services, and on 16th August they closed the case.

On 13th October 2010, three members of the public rang the police, after having seen the mother hit Kaiya hard about five times outside a supermarket. The police took Kaiya into police protection, and she went into foster care.

 At contact, the mother stripped Kaiya down to check whether she had been sexually abused. Kaiya told the social worker on the drive to the foster carers that her mother slaps her when she doesn’t listen.

 The social workers had planned to return Kaiya to mother’s care on 14th October, but were persuaded by the police to hold a strategy meeting. This took place on 18th October and the outcome was that mother was cautioned and Kaiya returned to her care. The mother had admitted slapping Kaiya.

 On 9th November 2010, at the children’s centre, Kaiya called her mother a derogatory name, when workers asked her to apologise to her mother, Kaiya said “my mum hits me”

 On 15th December, during a visit by Housing officers mother presented aggressively and displaying paranoid thoughts about her neighbours. There were ongoing incidents of worrying behaviour at children’s centre. Further attempts were made to get mental health services to assist mother and get a diagnosis of her, but in August 2011 the mental health assessment was that mother had no mental illness and closed the case.

 On the evening of 22nd September 2011, the mother presented at the accident and emergency department of her local hospital with self-inflicted injuries to her wrist and neck. She was assessed at risk of further self harm, and was seen by an Emergency Medicine Registrar (EMR) for assessment. She  informed medical staff that she had cut her wrists and ankle with a knife as she wanted to end her life; also that she had taken approximately ten paracetamol the previous night and drunk half a bottle of rum that day.

She  went on to say that she ‘did what she did because it needed to be done’, and that ‘the system was corrupt; Social Workers were treating her badly and had taken her daughter’. When asked where her daughter was, she informed medical staff that she was dead at home because she had suffocated her on Tuesday evening. The EMR noted that when disclosing her actions, the mother  showed no signs of regret and was very calm in her demeanour.

The conclusions of the Serious Case Review were, broadly:-

 That there became a preoccupation with obtaining a diagnosis of mother’s mental health and a paralysis once the mental health services were saying that there was no mental illness, rather than focussing on the impact of her behaviour on the child and the risk to the child.  

Whilst on occasions tenacious efforts were made by the Social Worker to achieve mental health assessments, there are two very significant issues for this review. Firstly, two months prior to the death of Child U, MU was assessed by an experienced psychiatrist as having no symptoms indicative of a serious mental illness following a comprehensive assessment. Secondly, each time medical opinion was sought, the outcome was similar, and MU was not considered to have any enduring mental health problems. This left professionals with a dilemma, if MU’s behaviour was not influenced by compromised mental health, why did she act and communicate in an abnormal manner? This question does not appear to have been faced, as ultimately the conclusions could lead only to one of two outcomes, either the medical diagnoses was incorrect or MU had a personality profile that was damaging to those around her, in particular Child U. Either conclusion needed a challenging approach to either health professionals or MU herself. Instead what appeared to happen is that the absence of a formal mental health diagnosis became the arbitrar of the response to the concerns 

That the preoccupations of the mother with sexual abuse in relation to Kaiya were not properly addressed or explored.

That the  physical abuse that had led to Kaiya coming into care in October 2011 was almost completely overlooked or sidelined at subsequent meetings or planning for the child protection plans

The description of the incident by three members of the public was one of a calculated and ferocious nature, and clearly indicated MU’s ability to cause deliberate harm to Child U. In would appear that the focus of the work became on engaging MU, and because MU was considered to have a difficult and volatile personality, achieving any degree of engagement with her was seen a measure of success in itself. This is evidenced by the summary of the Review Conference in February 2011 which stated that MU was now taking advice on board, when in reality no progress had been made.

[This is the rule of optimism that so often dogs Serious Case Reviews, where small improvements or changes are seized upon as evidence that support has made the necessary changes] 

That mental health services had not been sufficiently alert about the history and presentation

The subsequent letter from this assessment sent to the general practitioner was wholly inadequate in terms of identifying fully the reasons for the assessment, the mental state examination at the time of the assessment and documenting much more clearly as to how they had reached their decision not to offer any services.

The mental health services should have been significantly concerned about the evidence of psychosis they found, and this in combination with her apparent lack of insight, and the involvement of her vulnerable child in her delusional system should have rang alarm bells.

 That the opportunity to take action after the episode of physical abuse in October 2011 had not been grasped

No medical took place of Child U during this investigation, the rationale being that MU had admitted causing the injury; however, Child U could have had other undetected injuries. Given three people describing a sustained and severe assault, the decision not to have a medical was flawed and does not accord with good judgment.

 

10.6.5 This second use of police emergency powers led to an Initial Child Protection Conference being convened, as stated, outside of agreed timescales. It is worthy of note that Child U was not seen by a Social Worker until after the Child Protection Conference, and no home visit was made in the intervening period when MU had just been cautioned for assault

That the child was not seen alone sufficiently (another recurring theme of Serious Case Reviews)

Given what was witnessed, and what Child U said, the decision to return Child U to MU seems to have been made with undue haste. A further period of foster care would have allowed time for a deeper assessment of risk, and to work with both Child U and MU from a safe position. In the event, the comments of Child U were never discussed with MU and Child U was seen only twice alone during the period of the Child Protection Plan. The Children’s Social Care IMR reflects that this represents poor judgement and a lack of robustness in managerial oversight.

 

10.7.3 There are a number of occasions where Child U should have been given the opportunity to speak with a Social Worker alone and this did not appear to happen. It is a requirement when undertaking Initial and Core Assessments that a child is seen as part of that assessment and good practice that where it is age appropriate that a child should be seen and spoken to without the parent present. The Initial Assessments in July 2009 and July 2010 record that Child U was seen but do not indicate that she was seen alone or spoken with. The Initial Assessment conducted in June 2010 refers to Child U being asleep at the time of the Social Worker’s visit and therefore there were no observations or specific communications

 

 

The Case Conference system did not work as well as it should have done to pull together professionals and identify risks and a child protection plan

From the point of the Initial Conference, multi agency working together arrangements were compromised for a number of reasons:

• Not all relevant agencies were invited to attend the Child Protection Conference;

• The Child Protection Plan was misguided by a lack of focus on the specific issues of concern;

• The Core Group arrangements did not work well both from an attendance perspective and a lack of common understanding of what needed to be the focus of change;

• The Review Child Protection Conferences did not systematically reevaluate the causes for concern and what had or had not been achieved through the Child Protection Plan;

• The route into mental health assessment and services are not commonly understood or applied by professionals.

 

And most importantly, that the decision to return Kaiya to her mother’s care in October 2011 was not a safe one

 The evidence does not support the decision for Child U to return home so quickly following a significant assault without any depth of understanding as to whether Child U would be safe. IMRs from both GMP and Children’s Social Care acknowledge this to be a decision that cannot be easily understood, and the absence of any contemporaneous minutes from the strategy meeting further exacerbates the lack of explainable rationale. This is a critical error of judgement and the most important missed opportunity to better protect and robustly assess any ongoing risk to Child U.

 

The Review concludes that whilst Kaiya’s death was not predictable given what was known at the time, there were clearly risks present to Kaiya and more should have been done to act upon those risks.  A little like with Baby P, social workers were relying on a medical expert to give them a diagnosis (a paediatrician missing a broken back, a psychiatric service not spotting paranoid schizophrenia) but there were other opportunites to take action and take better stock of the risks.

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