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“Finding” out the hard way

A discussion of the High Court decision of A London Borough v A and Others 2013, and what it tells us about coming to terms with difficult findings.

 The case does not contain much that is precedent or important for cases other than for these specific facts, but on a human level, it throws up some really interesting issues, which I felt were worthy of a closer look.

http://www.bailii.org/ew/cases/EWHC/Fam/2013/96.html

In this case, the family had had four children and one of them died. A finding of fact hearing was conducted, and the Court concluded that the father had been responsible for the death of that child, having rejected the proposition that one of the other siblings, C, had caused the injuries and hence the death.

At the final hearing, the mother had not come to terms with this finding or accepted it, and the Court were faced with the stark choice of adoption or returning the three surviving children to her care with that risk in place.

The Judge decided, having heard the evidence, that if mother could be assisted, through provision of therapy to move to  a substantial and genuine acknowledgement that the father may be dangerous, combined with a genuine emotional distancing from him, would be sufficiently protective.”   

And made as a finding that if, at final hearing, she could be demonstrated to have reached that point, this would be sufficient for the children to be placed with her. The Judge therefore adjourned the final hearing for five months, to give mother the chance to get to that point, with help. This was a real second chance, and it was of course imperative for her to grab it with both hands.

Therapy was provided for her, and she was seen again by the psychologist following that therapy, to see if there was any movement

Sadly for her, there was not.

  1. On 19 November 2012, the mother’s therapist reported to a professionals meeting within the limits of proper confidentiality. She said that the mother had been open about her reluctance to engage in therapeutic work but had shown commitment and was open to attending more sessions. The mother “is clear about what the judgment said and understands she will have to talk to the children about this later. [She] however feels she cannot say for sure what happened as she wasn’t there and feels this is true for anything that she has not been present for in life. [She] believes that ‘seeing is believing’ and this is where she is at and cannot go beyond this perception.” The therapist said that she had been working with the mother on her beliefs but that the possibility of change would take perhaps a year or more and without any certainty of a shift in her belief system.
  1. On 21 November, the mother met Dr Asen, who discussed her understanding and acceptance of the risk posed by the father with her. In his report at paragraph 3.1, he records what she said:

“I can’t know what happens if I wasn’t physically there … but I believe that he did not do it … there is nothing else apart from the Judgment that shows me what happened … Judges have the power to make a Judgment … but the coroner found something different … I wasn’t physically there, so I don’t know what happened.” She added, “it is not fair that I have to say what one person (i.e. the judge) has said”. She repeatedly stated that, as she had “not been there”, “I do not know” what had happened. When I put to her that none of the professionals involved in the case had been ‘there’ either, but had nevertheless arrived at different conclusions from her, she replied, with a smile on her face: “but you don’t know K… – they don’t know K…” She said she knew K… very well and therefore I know he could not have done it.”

  1. The mother accepted that this note is accurate with the exception of the two passages I have underlined, which she denies saying. Dr Asen explained that he keeps a contemporaneous note during interviews such as this and he confirmed that the mother spoke in the way he records. I accept his evidence about this.
  1. In his report, Dr Asen concludes that nothing has changed with regard to the mother’s internal understanding and acceptance of the risks posed by the father to the children and herself. “Essentially her current position is no different from how she presented earlier this year when I first assessed her …”

 

This is something which professionals come across quite often with findings of fact hearing, that the findings are made, that there needs to be some movement towards accepting them, but that people remain of the position that the judgment is ‘one person’s opinion’,  ‘they weren’t there, so how can the judge know what really happened’ and ‘they don’t know him/her like I do’

 Those are all pretty natural, understandable, and human reactions; but against the background of a ticking clock (as decisions needs to be made for the children and they can’t wait for the parent who has been found to be not culpable to come to terms with the awful reality).  It is harsh, it is difficult, but from a legal perspective (if not a human one), once the Judge has given that finding of fact judgment, that is now the truth of what happened.  As hard as that must be, once the Judge has made the decision, the time for doubts or uncertainties about what has happened has gone, the truth is now what the Judge said happened.  

In this case, and adding a particular dimension, there was of course the issue that if the mother was not accepting that father caused the injuries, the only other candidate was the child, C.  And how would C growing up in her care, with that in mind, impact on C?

 

  1. He [Dr Asen] advises that the mother is able overall to provide a psychologically nurturing environment for children, but that in relation to C there is one major limitation in that, when he had the ability to understand, she would “tell him what the judge said …” When Dr A pointed out that C would in all likelihood pick up her own underlying views, namely that she does not believe that the father could have killed B, and that he will ask questions, leading to C and his siblings coming to the conclusion that his mother believes that he actually killed his brother (even though he was not legally or morally responsible), the mother replied that she would not be able to tell C that his father had caused B’s death, repeating: “I don’t know what happened — I wasn’t there.”
  1. Dr Asen concludes that this position is also unchanged and it is his opinion that the consequences for C and his welfare remain a major concern for the reasons set out in paragraph 5.5 of his first report. I will not repeat that passage, which lays out the implications for all the children of there being two conflicting stories about such an important part of the family history, and for C, who would pay a very heavy penalty for something the court had found he did not do.
  1. Dr Asen also discussed the mother’s support network with her. He gained the strong impression that she had not discussed the risks the father poses with her friends and that they could not at this stage contribute to the protective network that needs to be in place.
  1. Dr Asen’s opinion is that the changes made by the mother, if any, are not sufficient to reduce the risks posed to the children’s future welfare if returned to the mother’s full time care now or in the medium term future. Plans should be made for the children and the mother should continue to be offered therapy.

 On a human level it is deeply sad and tragic that mother wasn’t able to reach the stage that the Judge had wanted, even with the help, and although he had lowered the stage from one of total acceptance of the findings.  It is not terribly surprising with a lawyer hat on, that the case was going to conclude with decisions that were adverse to her.

 She wasn’t helped by a decision to file a letter of support from a leading light of her local community / religion, this being more of a nail in a coffin than a letter of support  

The mother was then asked about a letter circulated on 17 December 2012 by Dr O, who holds an honorary title and is the local co-ordinator of the Traditional Rulers Union of the parents’ community. This letter, entitled “Community Support” and running to three pages, was sent to the mother’s solicitor and copied to the therapist, to Ms Stephens, to the Guardian and to Dr Asen. In it, Dr O is highly critical of the judgment that the father was responsible for B’s death, and of many aspects of the proceedings. He refers to C as having been up and about “mischievously” on the night and he draws attention to the Coroner’s verdict. He states that “the couple have been made to separate” and that the process, including therapy, is “psychological warfare… professional blackmail” in that it attempts to persuade the mother that her husband killed the baby. He variously describes the process as prejudicial, racist and insulting, and says that the social workers are seeking to destroy the parents. Dr O then sets out a practical programme which he would coordinate for visits to be made by members of the community to the mother and children

The Judge’s consideration of the mother’s position was measured and careful, and was mindful of the difficult situation she found herself in

 

  1. Having listened carefully to the mother and being conscious of the intense difficulty of her position, I find that her views have not moved on in any meaningful way since she undertook therapy. I assess her as being deeply sceptical about the father’s responsibility for B’s death, and in my view it is this, and not only cultural or religious considerations, that explains her decision to remain married to him.
  1. The mother’s witnesses, most of whom do not form part of her immediate cultural and ethnic community, are clearly excellent people. They have an appreciation of the court’s findings and of the risks posed by the father, and I am sure they could be relied upon to do their best to support the mother and children. However, it is striking that even this body of opinion has not enabled the mother to move on in her own thinking. She did not involve them over the past months in planning the future with social services. I do not accept that this is because she did not want to trouble them: it is more likely that she did not involve them because their views do not coincide with her own.
  1. Instead, it is to her family and her community, including her church, and to Dr O, that the mother has turned. The view of the family and significant community members is that C was probably responsible for B’s death. The views contained in Dr O’s letter reflect this and it is to be noted that the mother has not chosen to call evidence from the people upon whom she most depends.
  1. Making all allowances, I cannot accept the mother’s evidence about her present beliefs. I do not believe that she has even reached the point where she has an open mind about what happened to B. Her nature is not militant, but I find that she has a quiet belief that the father is probably innocent. She was not frank about Dr O when first asked about him in evidence, and I was not persuaded by her attempt to dissociate herself from the views he expresses.
  1. Setting these conclusions against the many other factors in this case, and weighing up the children’s individual interests, I have concluded with real sadness that they cannot be returned to the care of their mother. The nature of the risk in this case is of the utmost gravity and there are no effective measures that could guarantee the children’s physical safety over time. Like Dr Asen, Ms Stephens and Ms Shepherd, I find that despite any current good intentions, the mother would not be reliably able to exclude the father from her life or the life of the children over the long period of years that would be necessary for their safety and wellbeing. She does not have the inner belief to enforce separation, and she would come under increasing pressure from her own thinking, from the father, from the community, and no doubt in time from the children themselves, to let him back into their lives once the intensity of the current professional interest was in the past. Moreover, even if the father was kept at a distance, I accept the evidence of Dr Asen about the likelihood of emotional harm to the children that would arise from being brought up in an environment in which the prevailing belief was that the father was innocent. The consequence is that C would learn that he was thought to have harmed B, and yet none of the children could see the father or be given a good reason why they could not.
  1. I accept the unanimous professional evidence and therefore approve the local authority’s plans for the three children’s future placements. I shall make care orders and, having considered the terms of the Adoption and Children Act 2002, make placement orders in relation to M and J. In M’s case, adoption is clearly in her interests, and in J’s case, a time-limited search for adopters is in my view right, while at the same time seeking a long term foster home. I dispense with the parents’ consent to making placement orders because the children’s welfare requires it. If an adoptive placement is not found, the placement order will have to be discharged in a timely fashion – the application can be made to me.

 

As we wind our clock ever more tightly and make the hands turn faster, how compressed will the time period for a parent to come to terms with an awful finding against their loved one be?  You can’t hurry love, as they say, but you can’t necessarily hurry dismantling that love in the light of an awful finding  either…

There’s a small boat made of china, going nowhere on my mantelpiece

 

Laplace, prediction, and why we might, everywhere we go, always take the weather with us in care proceedings

 

By the start of the nineteenth century, scientists had discovered a great many of the principles of physics and particularly how various forces acted on objects in predictable and mathematical ways.  This led some scientists to hubristically predict that there was nothing new to be found in the world of physics   (obviously not aware that radioactivity, splitting the atom and quantum physics were completely unknown to them at that point).

 

Anyway, once you discover the various mathematical principles about forces and objects and how forces act upon objects, one starts thinking about whether you could predict something with absolute certainty if you had enough information.

 

Being a previously sad geeky sciency Suesspiciousminds Junior, I had certainly wondered in my adolescence whether you could, if you had really fast computers and knew everything, no longer be guessing a toin coss, but knowing how it would end up.  

 

That’s something which has also exercised the minds of a great many gamblers, since Roulette is essentially just an exercise in predictable physics (speed of spin of the table, angle and speed at which the ball is dropped) – predictable, but extremely complex, and if you could actually predict which slot the ball would drop into, with certainty, you would be an extraordinarily rich person.

 

Well, someone else,  Pierre-Simon Laplace took that a stage further, and suggested that with a great enough intellect (computers weren’t really around at that stage, other than Babbage’s mechanical one which was more of a theoretical concept than something you could actually boot up and play Farmville on), you could calculate the entire future of the universe and the movement of every particle.

 

“We may regard the present state of the universe as the effect of its past and the cause of its future. An intellect which at a certain moment would know all forces that set nature in motion, and all positions of all items of which nature is composed, if this intellect were also vast enough to submit these data to analysis, it would embrace in a single formula the movements of the greatest bodies of the universe and those of the tiniest atom; for such an intellect nothing would be uncertain and the future just like the past would be present before its eyes.”

 

This is really the birth of determinism, the idea that you can, given enough information, accurately predict future outcomes, or more broadly, that given a set of conditions, the outcome which emerges from those conditions is the only one which COULD have emerged.  

 

[Sadly, I learned when doing a bit of quick research, that Laplace’s other claim, that Pope Callixtus had once excommunicated a comet, was fallacious. I have a later essay planned on how the law has treated animals and inanimate objects, and that would have fitted perfectly with the excommunication of beetles and the pig who was put on trial for murder]

 

I won’t get any further into whether Laplace’s grand conjecture is true or not (if only in a deeply theoretical sense), and it is still debated – Einstein firmly lined up with Laplace on believing that there were firm mathematical laws and principles underpinning all matter and physics and that it would therefore be possible to predict things with certainly, but that there were just things that were yet unknown to us that prevented such predictions being made. Many others think otherwise, and that there’s an element of randomness, particularly at the quantum level that makes that impossible.

 

Let’s move away from correctly predicting the motion, position and velocity of every particle in the universe and onto a smaller scale, and some predictions which are common to every one of us, and which enter our homes on a daily basis.

 

And that allows me to  yank it back to care proceedings – in one of the dominant cases of the 1990’s, Re H and R 1996, the House of Lords grappled with the issue of what ‘likely’ meant, when considering whether a child was ‘likely to suffer significant harm’  and this is one of the more memorable passages from Lord Nicholls of Birkenhead :-

 

 

In everyday usage one meaning of the word likely, perhaps its primary meaning, is probable, in the sense of more likely than not. This is not its only meaning. If I am going walking on Kinder Scout and ask whether it is likely to rain, I am using likely in a different sense. I am enquiring whether there is a real risk of rain, a risk that ought not to be ignored. In which sense is likely being used in this subsection?

 

 

And if you know the law, you will grasp that the latter is where we ended up at in terms of likelihood  – it does not mean something that is more likely than not to happen, but a risk that cannot sensibly be ignored.

 

But in a real sense now, I am going to talk about the science of predicting the weather – will it rain on Kinder Scout today or not?

 

As you will know, the field of predicting the weather has moved beyond hanging up pine-cones or (my standby) looking at whether cows are lying down in a field   (a belief I can’t shed, despite knowing how stupid it is, and one which gets me regularly mocked by Ms SuesspiciousMinds)

Meteorology instead uses a combination of :-

 

  1. Gathering lots of information about the current situation
  2. Applying mathematical principles and formula to predict how features in one part of the system will interact with another
  3. Calculating therefore what a particular part of the system is likely to do at a future point

 

 

And thus, is a system that would make Laplace very proud.

 

 

The principles that govern whether we get rain, or snow, or a nice bright sunny day, are pretty uncontroversial. There isn’t a band of quarrelling meteorologists bickering about whether isobars are of any significance at all or whether the warm fronts we see so much of on the television are merely illusory.  So, the principles are all there. The mathematical models for what these set of conditions will do over the next few hours are there (based largely on thermodynamics and fluid dynamics), and have been refined and improved, the collection of information about those conditions has vastly improved over the last thirty years, as has the quality of computers doing the calculations.

 

But what is your first answer, quickly, when I ask

 

“Do you think we can reliably forecast the weather?”

 

 

Making my own little forecast, your instant reaction was no, or that we are hopeless. You may, if you are a fair-minded person, have had a momentary recalibration and decided that we are better at it than we used to be, or even that we are not bad at it now.

 

But let’s go back to Lord Nicholls – it is March, you are about to go up Kinder Scout  and the weather forecast says that it is probably not going to rain. Do you take a coat, or not?

 

Is the risk that the weather forecast will be wrong when it says there won’t be rain, a risk that cannot be sensibly be ignored, if you find yourself up on a mountain without a coat?

 

You may have had nagging at the back of your mind, or the front of your mind if you are a science geek or liked Jeff Goldlum’s character in JurassicPark, the notion of chaos theory at this point. You may even have recalled the image of a butterfly flapping its wings and causing a hurricane on the other side of the world   [incidentally, probably the most misunderstood image in the history of science  – it doesn’t CAUSE the hurricane, it is about how small factors can amplify and make things harder to predict]

 

Essentially, small factors amplify with time, and the way they amplify is hard to predict, so even the very best computer forecasts become more and more unreliable with the passage of time. Forecasts are far more reliable about the next few hours than they are about next week, and break down almost entirely after sixteen days.  In numerical models, extremely small errors in initial values double roughly every five days for variables such as temperature and wind velocity

 

[So every time the newspapers tell you that there are predictions that this is going to be a “barbecue summer”  remember that the accuracy beyond 16 days is all to cock]

 

 

Okay, so predicting the weather, which is based on inanimate objects, which act under the influence of known forces, in known ways, and which the science of meteorology has been refining and checking against known outcomes to improve the prediction models, isn’t all that accurate and is not very accurate at all after 16 days.

 

Now, I will pull us back to law.

 

At the conclusion of a criminal trial, things are simple  – did this person do what they were accused of, and has that been proven. It’s similar with any other sort of legal dispute  – did one person prove that x happened, and what punishment / compensation should the Court give.   The Court doesn’t really have to predict the future – a burglar isn’t convicted of an offence of burglary only if the Court think he will do another burglary next week.

 

 

Care proceedings aren’t like that – whilst we may well spend some time arguing about precisely what happened in the past and the Court may have to decide that if we can’t hit on a form of words which everyone can agree, mostly what we are doing is predicting the future.

 

  • Have the improvements seen in the mother’s parenting at a mother and baby placement, or in contact, mean that she can now safely care for the child, or is she going to slip back into her old ways once she stops being watched all the time?
  • Is this father, who has been using heroin for 6 years but has been clean for 4 months, going to remain clean, or will he slip back? (What if he was clean for 6 months, but had one lapse?)
  • Will the mother, now that she has seen how risky an individual her new boyfriend is, stay away from him when the proceedings are over, or will he be back in her life and have the chance to hurt the child?
  • Will the parents who broke their four year old’s leg by handling him far too roughly, ever do anything like that again?

 

 

I have probably sledge-hammered this point, rather than making it in a subtle way, but if top scientists with huge computers can’t predict whether it will rain on Kinder Scout tomorrow, how can we possibly predict with certainty whether the mother will succumb to text messages from the dodgy boyfriend and keep seeing him in secret?

 

Professor Monroe touched on this in her first report –  there was for a long time a body of thought in social work, or social work management, that we could avoid the twin pitfalls of social work    – being too soft and letting children get hurt, or being too hard and breaking up families who could have stayed together (Baby P at one end, Cleveland and Orkney at the other) by having more information, more accurate models, and getting the decisions just right.

 

1.43

Professionals can make two types of error: they can over-estimate or underestimate the dangers facing a child or young person. Error cannot be eradicated and this review is conscious of how trying to reduce one type of error increases the other.

1.44

The public tend to learn of cases of abuse after a child or young person has died or suffered serious harm and then, with the benefit of hindsight, make judgments on how it was easy to see that the child or young person was in danger and would have been safer if removed. This is of course not the way the issue looks for the professionals who only have foresight. Removing a child or young person can protect them from immediate risk of significant harm, but is understandably traumatic for them. Maltreated children or young people who come into care often benefit in the long term,  but although the outcomes achieved by looked after children have improved, in too many cases, the potential of the care system to compensate for early harm is unrealised for reasons which are well documented.

 

Our society rightly values the birth family as the primary source of care for children and young people and disrupting that bond is seen as a serious step to take, requiring close scrutiny before the courts will grant the legal authority to do so.

The birth family equally presents a mixture of benefits and dangers. A good assessment involves weighing up these relative risks and benefits and deciding which option, on balance, carries the highest probability of the best outcomes for the child. Neither option carries zero risk of harm.

1.45

In assessing the value of leaving the child in the same situation, professionals have to consider a balance of possibilities: to estimate how harmful it will be, to consider whether it might escalate and cause very serious harm or death. They also need to consider whether resources are locally available so that families can be helped to provide safer care and estimate how effective such interventions are likely to be.

1.46

All of these areas of uncertainty make decisions about children and young people’s safety and well-being very challenging. A well thought out decision may conclude that the probability of significant harm in the birth family is low. However, low probability events happen and sometimes the child left in the birth family is a victim of extreme violence and dies or is seriously injured is therefore very important. Public understanding that the death of a child may follow even when the quality of professional practice is high is therefore very important.

 

 

She says, and as you can see, I agree, that you just can’t hope to get every case right, when you predict the future, your predictions have limitations to their accuracy.  If you try to move down the safety first side of the scale, you will take children away unnecessarily. If you try to move down the keeping families together side of the scale, some children will be badly harmed at home.  The aim to just make the right decisions at the right time, in all case is simply never going to happen.

If the weather forecasters can’t get it right, neither can we.

You are dealing with people, with all their uncertainties, capriciousness and emotions, and you can’t predict exactly what they will do. The cases where you get it ‘just right’ may well end up being few and far between, and may well be more by luck than judgment.

 

A mother who is utterly resolute about remaining separate from her dangerous  ex-boyfriend, who understands what is at stake and how bad he is from her, may on any given day fluctuate about just how resolute she is. Maybe someone handsome smiled at her at a bus stop and she feels good about herself when he sends the text message and she deletes it without reading it. Maybe just before the text message came in, she caught sight of herself in a mirror and felt fat and unloveable. It is utterly impossible to predict that.  It seems easier to predict that a mother that tried to separate from ex boyfriend six times and always went back to him, and was caught out two weeks ago, probably won’t stick to her claims that it is all over and she will never see him again. But we can’t be SURE, we can only predict whether the risk is one that cannot be sensibly ignored.

 

 

None of that means that we simply give up, and either leave all children at home with their parents, or take away every child where there is a sniff of danger, but we do have to be honest with ourselves, and honest with society as a whole.

 

 

And we have to constantly test where we find ourselves on the scale of child rescue and family preservation – are we lurching too far down one end or another?  Are we risk averse, fearful of a Baby P headline and ignoring that those actions break up a family which could have stayed together, or running with a rule of optimism that small changes mean a good future prognosis and not seeing the full picture?

 

We are attempting to predict what human beings, with human emotions, will do in the future – not just in the next few days, or 16 days, but over the course of their children’s childhood.  And the very sort of parents that we attempt to do that with tend,  not always, but more often than not, to be emotionally fragile, damaged people who are chaotic and unpredictable in their actions.

 

 

 

Family preservation versus child rescue

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

 

I blogged about those consultations here :-

 

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

 

 

Anyway, here is Dr Dale’s response.

 

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

 

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Anyway, enough about me, on with Dr Dale.

 

He opens with this :-

 

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

 

 

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

 

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

 

 

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

 

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

 

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

Government of South Australia: Forced Adoption Practices.

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

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

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

 

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

 

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

 

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

 

 

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

 

 

Some more on compulsory adoption here :-

 

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

 

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

 

 

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

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

 

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

 

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

 

 

 

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

 

 

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

You never know when it might just… Buckaroo!

 

A discussion of whether too much weight is being put on the back of North Yorkshire County Council v B 2007, and whether there is such a thing as a ‘ruling out’ hearing at interlocutory stage

 

 

 

This is a scenario that’s not that uncommon in care proceedings – all of the evidence on the parents has been collected and the professionals have taken a view on it, that view not necessarily being shared by the parents. But the case isn’t ready for final hearing and is being adjourned for 3-4 months, usually in order to test a placement with a relative.

 

[Incidentally, could we all stop using the phrase ‘a relative has come out the woodwork’ in such situations? It’s icky, and perjorative. And is a pet hate of mine. They are grandparents, or aunts, or friends, not woodlice]

 

Can the Court in those circumstances have a hearing which disposes of the parents case at interlocutory stage?

 

There’s a school of thought that you can, arising from the High Court decision in North Yorkshire County Council v B 2007   [2008 1 FLR 1645]

That case certainly provides some authority for the suggestion that the Court can deal with the parents case before the case is ready for final hearing. And let’s be fair, the cases I do are all in Courts which are bound by High Court authorities.

 

But, to borrow medical sceptic Ben Goldacre’s phrase  “I think you’ll find it’s a little bit more complicated than that”

 

What follows, like everything on my blog is my personal opinion, and not representative of anything more. But perhaps even more so than usual, because I’m never going to be in a position where my personal opinion on say Re X  (it’s a very high threshold to cross to get an EPO these days) is in conflict with the law, since that’s exactly what Re X says.

 

But my interpretation of how far you can push North Yorkshire is not decided law, and thus I might one day have to present a case where my personal views on it are set aside. Hence the lawerly caveats. Sorry.

Let’s look at the facts of North Yorkshire. 

The case was listed for an eleven day final hearing, and just before the hearing, it became apparent that the final assessment on the family carers who had slithered under the doorframe  [see how icky it is when you take the usual metaphor and slightly reword it? Stop saying ‘come out of the woodwork]  would not be ready.

 

The Judge was faced with the prospect of abandoning a hearing where eleven days had been set aside, witnesses warned etc and finding all of that time again in the future, or trying to see if something useful could be done with that hearing time. The Local Authority suggested that the Court could use the eleven days to hear mother’s case (that the children should be returned) and then have a shorter disposal hearing on appropriate order and contact at a later stage.

 

North Yorkshire sets out the Honourable Mrs Justice Black’s(as she then was) decision on the preliminary issue of whether a Court could actually conduct a hearing determining a parents case before the final hearing.

 

We do not know, as the full case was not reported, what the decision at the end of the eleven days was, but the preliminary issue was decided, and Black J concluded that it was open to the Court to conduct such a hearing.

 

 

Now, here are some important things from that judgment :-

 

  1. Mother was making a positive case (not just disputing the LA case)
  2. Mother was asserting that she was making progress and could evidence that. She was on a methadone reduction programme. She accepted she was not in an immediate position to have the child returned, but felt that was achievable in the foreseeable future
  3. The family members, who were being put forward, were not certain to have a positive full assessment – the prospects were there, but the initial viability had been negative and the placement revisited because the father received a custodial sentence removing his risk from the scene.
  4. The judgment is only permissive  – it says that the Court, could embark upon a hearing to determine the merits of mother’s case. It does not say that a Court HAS to do this in similar circumstances, nor does it set out any criteria for when it would be appropriate to do so, or when it would be wrong.

 

 

But this is the paragraph that causes me disquiet if this authority is being used as authority for a principle that parents can be ‘Ruled Out’ at interlocutory stage.

 

17. It cannot be argued, in my judgment, that decisions in care proceedings only crystallise when the Court is about to make a final order. I am not saying that decisions are not open to a later attempt to persuade the subsequent judge to change earlier conclusions and findings in the right circumstances. In the right circumstances they can be open to later challenge, and res judicata or issue estoppel, in its traditional form has a limited place in family proceedings.

 

 

It is the underlined passage that causes me to believe, on a personal level, that using North Yorkshire as authority for a principle that the Court can finally dispose of a parents case at interlocutory stage simply puts more weight on its back than the case can bear.  Buckaroo!   (also Yeeee-haaa)

 

If one thinks for a moment about what one would mean by “Ruling Out”, it must surely include this :-

 

  1. That the children, if they are old enough to understand, can be told that the Court has decided that they will not go home to mummy or daddy.

 

  1. And inevitably, if they are to be told that, that mummy and daddy can’t come back to the final hearing in 3 months time and argue for the return of the children.

 

  1. And to an extent, that they are PREVENTED from doing so, as a result of the earlier decision and judgment of the Court.

 

 

[and by extension, that if the parent issued a Residence Order application shortly before the final hearing  – for which, of course, they don’t need leave as a result of s10(4), the Court would dismiss this without hearing any submissions or evidence. And I suggest that as soon as you put it in those terms, you can see that there’s no possibility of a Court doing that, no matter what judgments have gone beforehand]

 

If you don’t have those 3 things, then you have not had a Ruling Out of the parents.  What you may have had, which is legitimate, is a judicial determination of the case against the parents and the counter case, at a particular snapshot in time and a judgment as to whether, all things being equal the parents are likely to be able to overcome any deficiencies found in that judgment within the children’s timescales. 

 

But saying that the parents can produce no evidence at the later final hearing to counter that judgment – if they make sweeping changes or accelerated progress the Court will not hear them on the issue, is not only NOT expressly sanctioned by North Yorkshire, the case says quite the reverse. [IMHO]

 

I am also troubled by the concept of Ruling Out, and how it fits with the House of Lords decision in Kent County Council v G 2006

 

Thus the court’s role is plain. It is not, as Jonathan Cohen QC put it in his eloquent submissions on behalf of Ellie and her parents, to decide whether or not a child is to live with her family. It is, as Charles Howard QC put it on behalf of the local authority, to decide whether or not to make a care order.   (paragraph 48)

 

If it is not the Court’s role to decide whether the child should return to parents, but rather, whether to grant the application made by the State  (and that must be right, because that’s where the burden of proof lies) then the Court cannot finally determine that application until final hearing/agreed final IRH.

 

 

Of course, where there is a dispute over threshold, or an interim care plan (the parent opposing the move, or level of contact) or dispute as to the expert evidence, or what the timescales for change would be, then there is some value in incorporating within that, the North Yorkshire position,  of the Court weighing up the merits of returning the child to the parent at that particular time and perhaps indicating what sort of changes would be required for the door to be opened for parents at the final hearing.   I think any and all of that is legitimate and permissable, so long as the Court is not tempted to take that additional step of ruling that the parents case is finally disposed of.

 

But a stand-alone Ruling Out hearing, is a concept that worries me. If one looks at an analogous situation of whether a separate finding of fact hearing is required,

 

RE A County Council v DP, RS, BS by the children’s guardian [2005] where MacFarlane LJ said:

“The authorities make it plain that, amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:

a) The interests of the child (which are relevant but not paramount)
b) The time that the investigation will take;
c) The likely cost to public funds;
d) The evidential result;
e) The necessity or otherwise of the investigation;
f) The relevance of the potential result of the investigation to the future care plans for the child;
g) The impact of any fact finding process upon the other parties;
h) The prospects of a fair trial on the issue;
i) The justice of the case.”

 

 

I am not sure that the merits of what can be achieved at what I would call a North Yorkshire hearing rather than the shorthand (which I suggest is misleading) of a Ruling Out hearing, can justify it as a stand-alone hearing where no other important issues are being resolved.

 

Rant over.

 

Now, your worships, I invite you to list this matter for a “ruling out” hearing, in line with the High Court authority of North Yorkshire…

Madame Le Guillotine and the law of unintended consequences

I was reading Pink Tape today  http://pinktape.co.uk/family-justice-review/i-suppose-i-should-blog-sommat/  and had a horrible moment of self-recognition. I try to avoid introspection wherever possible, because it allows me to maintain my massive inner belief that with a bit of airbrushing I could look like Brad Pitt, and with a bit of extra prep time, I could use honeyed words to charm the very birds out of the trees just like the silks I most admire, but reality crashed through that today, spoiling my internal sense that all must be right with the world whilst I am still a presence in it.

The thrust of Pink Tape was, there’s no point merely grumbling about the FJR and the 26 weeks that is coming at us like the meeting of minds between the prow of the Titanic and the sharp bit of that iceberg (I don’t know, in this analogy which is the iceberg and which the boat – part of me suspects that the huge power of the system for inertia and ignoring the things we don’t like mean that we may well see off the FJR just as we saw off the Protocol and the PLO and those horrid Practice Directions by just agreeing to pretend they don’t exist), but to speak up, lest we find ourselves pinning up that “First they came for the Jews” quotation on our cubicle walls. (Mine, by the way, are in a delicate shade somewhere between mushroom, and fawn)

So, here is my fourpennorth.

The 26 week period to resolve care proceedings, particularly if it is a cap, or guillotine, rather than an aspiration or target, won’t work. (It wouldn’t work if it was an aspiration or target, EITHER, but for different reasons).

I can’t see it surviving contact with the Court of Appeal, and if it does, I certainly can’t see if surviving contact with the ECHR.

Even if you put a new section in the Children Act 1989, that says “Section 1(2) shall now read “In any proceedings in which any question with respect to the upbringing of a child arises, the Court shall ensure that the case is dealt with within 26 weeks of the proceedings being issued save for exceptional cases” , every single case will just be exceptional.

And if you snip out ‘save for exceptional cases’, then what you have is s1(2) of the Act being potentially in conflict with s1(1). And as s1(1) not only comes first, but says expressly that the child’s welfare is the paramount consideration, that will trump the revised s1(2) .

The Court would HAVE to retain the power to decide that in an individual case, the welfare of the child requires that the proceedings continue a little longer.

And if they have that power, they will use it.

And if they use it on Case A, how is it right to fail to use it on Case B, which is the same factual issue? And what about Case C, which is analogous, or Case D, which is quite a bit like Case C (though nothing at all like Case A)

So, I think insisting on having the sharp-cut off Guillotine regardless of welfare is unlawful even if the law is changed (and there’s a huge difference between a general principle that delay is harmful and should be avoided, and removing the discretion to decide whether the harm of delay is outweighed by the children’s best interests and saying “one size fits all”)

And if it isn’t a sharp-cut off Guillotine, it will just be ignored. Just as the major impact of implementing the 40 week target in the Protocol and the PLO was to move the average duration of cases from BELOW 40 weeks to 25% OVER 40 weeks.

 Now, the law of unintended consequences. I’m fairly sure that the Government don’t intend the revised Family Justice system to result in more children being in care, or more children being subject to Care Orders or there being far more applications to Court to be dealt with, but that’s what the law of unintended consequences is all about. Stuff you didn’t mean to bring about when you did something new and clever, but that happens anyway.

Let’s look at a little example.

“Charlie” is the son of a single mother, father off the scene, no suitable family members. “Charlie” is a newborn baby at the time of issue, and his mother has been a heroin user for ten years. The mother gets legal advice at a Letter Before Action meeting pre-birth, and decides to use her best endeavours to quit heroin. The drug tests are ordered at the first hearing. They arrive (let’s be optimistic) by Week 5. They are clean. Obviously, that only shows that she has been abstinent of heroin for a few weeks, and we need more. So let’s have some more drug tests.

Now, we might get a psychiatric report, or we might have the benefit of the ACCEPTED RESEARCH that Justice Ryder has been mooting. 

 I suspect that  you and I have both read enough psychiatric reports to hazard a guess that either of these things will say :-

(a) Mum has a long-standing problem of heroin use

(b) She says she is committed to being abstinent

(c) She would need to be abstinent in order to care for the child

(d) In judging whether the abstinence will last, a year is a good start, and two years is where you would feel really confident.

 So, mum gets the further drug test, at week 18, that’s clean. She has been abstinent for nearly four months and has evidenced that.

 The Local Authority are about to file their evidence. Everything mum has been asked to do within the proceedings, she has done. She achieved abstinence and maintained it. But the timescales for having confidence about abstinence are still eight months away, and six months beyond the point at which our Family Justice Guillotine says “No, stop now and make a final decision”.

The LA (and the Court) have three possible decisions here, none of them palatable :-

(a) Supervision Order with the child at home, and if the progress doesn’t last, bring the case back to Court, with a brand new application (presumably a brand new 26 weeks) and paying the full Court fee [because the Government rejected that recommendation, made by Laming, Plowden and the FJR that Court fees that mean it costs around £5,000 to seek a Care Order be abolished]

(b) Decide that the mother can’t demonstrate that she can maintain abstinence within the child’s timescales (of course she can’t – because she needs a year, and she’s only allowed six months) and that therefore it has to be adoption. [I can already predict that this option is provoking howls of outrage, and I don’t terribly disagree, but it is an unintended consequence for drugs cases that if you don’t give the Court long enough to conclude that the parent CAN do it, they may have to decide that the parent CAN’T]

(c) Care Order with the child at home, with a care plan that provides for the child to remain at home with mother UNLESS she lapses, in which case the child would be removed and a Placement Order application sought.

 [You may remember, that I said none of them were palatable at the outset]

 Let’s make this a little bit more tricky.

 This time, mother has one lapse, and it comes in the second drug test. So at Week 20, the Court has evidence that she has used heroin once, and once only, during the course of the proceedings.

 Which of those three options do they go for now? What happens if mum needs some medical intervention to achieve abstinence in the first place, so she doesn’t actually become abstinent till Week 12? Which of those three options is the Court supposed to go for?

 In short, in reducing the time for drug or alcohol cases to be determined, has the Government decided to give the benefit of the doubt to the parent, or to take a cautious approach and assume that the parent is more likely than not to relapse during the child’s minority, or to have a fudged position resulting in more children being subject to Care Orders?

That looks to me, whichever way you slice it, to be a political decision, but one that hasn’t been actually made or debated because nobody has realised that this has arisen as a byproduct of deciding that taking less time over care proceedings must be a good thing.

 In deciding that children have to have their future determined by week 26, you inadvertently create a huge problem in those cases which CAN ONLY BE TESTED OVER TIME.    If you don’t test over the time it needs, you are going to either guess wrong or end up with a fudged compromise that massively expands the number of LAC children.

And heaven forbid that if this happens to Charlie in Manchester, it has a different outcome than if it happens to Charlie in Dorset.

Let’s assume it isn’t drugs or alcohol. It is an unsuitable partner. It takes till Week 7 to categorically establish (through a super-quick process of gathering all the information about what an unsuitable person X is, and maybe having a fact-finding hearing about what X did to Charlie. ). Charlie’s parent decides at Week 7 to separate from X. By the time the LA are filing their evidence, Charlie’s parent and X have been separated for three months. By the time of the final hearing, four months.

Is the Court supposed to give the parent the benefit of the doubt there, or assume that the separation won’t last (since they aren’t allowed to extend the hearing to test it) or to have a fudged position whereby the LA have the child at home under a Care Order and a plan that has the child removed if the parent reconciles with X?

Now, what if Charlie’s parent is seen with X at Week 20, and says it was a one-off, a blip? What happens then?

My guess would be, that in a perfect case, where the parent is faultless for the full 26 weeks, the case ends with a Supervision Order. And a significant proportion of those will come back to Court having not worked (as we know now, when parents are tested over a much longer period, a significant proportion of rehabilitations sanctioned by LAs and the Courts break down, and the child suffers further significant harm).

 Thus, the number of proceedings will go up. [Law of unintended consequences]

And in a case where the parent has a blip, and the blip is not really, really early on, Care Order with the fudged (some might say inchoate) care plan of ‘remain at home unless you screw up again, then removal’. So, the number of children who are subject to Care Orders will go up. [Law of unintended consequences]

And in a case where there a couple of blips, which might be ironed out by extending the assessment period (but that’s no longer an option) Care Order and Adoption. So the number of children who are subject to Care Orders and need adoptive placements will go up [Law of unintended consequences]

The cases that won’t have their outcomes affected, of course, are the ones where the parent DOESN’T even TRY to quit heroin, or drugs, or the relationship with X.

But I don’t see any analysis in the FJR or Government’s approach as to what proportion of cases fall into the “Concerns then full engagement” “Concerns with good engagement but blips”  “Concerns, attempts to change but quite a few blips” or  “Concerns that the parent doesn’t engage with at all” categories.

In that case, lacking the key data, how can we really plan?

Anecdotally, I have seen a LOT of cases that looked cast-iron as to the outcomes by week 26 (or even earlier). Some of them go exactly the way you call ‘em. Some don’t. And what’s worse, if you exclude the utterly hopeless cases where there’s no effort to change, you can’t even predict which ones will go the way you called them, and which won’t.

I don’t think the 26 week Guillotine will work. From everything I’ve seen, it will be an attempt to put those electric shock paddles onto the PLO, and have people follow it.  Just moving the majority of work that is done in proceedings onto the shoulders of the LA pre-proceedings. That doesn’t reduce delay, just takes it off the Court’s books, and lets everyone wag a finger at the naughty Local Authority.  As a side-benefit, we can compare Local Authorities and hopefully single out some particularly naughty ones.

Also, as we all found out in the really early days of the PLO, there’s no point the LA spending hours and hours doing assessments if when the case gets to Court the parents immediately ask for a second opinion and the Court grants the request.

Here’s a question about whether there should be a shift in focus which is a political decision, and ought genuinely to be made as a political decision rather than an administrative one.

Where the Court finds that a child has suffered significant harm, ought the focus of the rest of the proceedings be on the parents CURRENT capacity to provide non-harmful parenting for the child, or on the FUTURE capacity?

Because that’s ultimately where the 26 week approach is taking us. And I’m not going to argue here about whether a CURRENT or FUTURE capacity is a better system – that, it seems to me is a broader question for society. I think we currently (despite what the House of Lords/Supreme Court keep saying) have a system that is built around the hope/expectation that the court process can effect a CHANGE in people. And we try to do that without any actual resources that would effect that change. I suspect that those resources won’t be forthcoming.

 If you want a family justice system that helps parents to make the changes they need to be able to care for their children, then you need the TIME and the SUPPORT for those changes to work.

(We currently have a system that spends a fortune arguing about diagnosis and nothing whatsoever on treatment. It’s like sending someone off to a top Harley Street dermatologist for paid-for advice on how best to remove their unsightly tattoo, and after we get that advice and have paid for it and seen what should be done, instead handing the person a sheet of sandpaper – and maybe an aspirin – and telling them to get on with it)

 Do we want to try to keep as many children as possible with parents, or do we want to try to ensure that as few children as possible drift whilst we wait for decisions?  Either is a legitimate aim of a Family Justice system, but it would be nice to decide, before working out the nuts and bolts, what the actual aim is. (Because the fake aim of ‘both’ is just as feeble as those people and politicians who agree that we need to make significant cuts in spending, but not on any areas that would be unpopular. In the words of Billy the Kid  “Speed’s good, son, but accuracy’s final”)

You might need to throw an awful lot of money to have a system that not only aspires to bring about CHANGE in parents, but actually has the ability to realistically do it, but it might equally save an awful lot of money in the long-term. How many neglect cases do we see where one of the root causes of the neglect is the neglectful parenting that the parent themselves received as a child? So, if you fix the parent, you solve problems in the next generation. Problem being, for politicians, solving problems for two or three Parliaments down the line isn’t a vote-winner.

 Rant over.

The problem of the hanged man

 

Bear with me, this is going somewhere.

So,  a man is sentenced to be hanged to death for a crime. He hears the verdict and the sentence, and then addresses the Court. He explains that he knows he has done wrong and that he must pay for it, but that what he wants is to sleep in peace on his last night on earth, and asks if the Judge would agree that he should not know, for certain, when he goes to sleep that he will be hanged the next day. The Judge agrees. He will be hanged sometime in the next week, the Judge tells him, and this is all put down carefully into an official order. He cannot be hanged if he knows for certain the night before that the next day is the day he will be hanged.

 

And at the end of the week, he is not hanged, and goes free.

 

Answer at the end.

 

Now, as some of you may know, the 26 week time cap for new proceedings has been brought in, without fanfare, hullaballoo, announcement or even legislation. None of the new arrangements which will make it possible for the proceedings to conclude in 26 weeks (best interest adoption decision being removed, no more argument about care plans, greater respect for social work evidence, less experts) have come in, but there’s a new computer system that says all new proceedings will end in 26 weeks and the Courts have to give reasons why.

 

So, let’s look at 26 weeks, which might sound initially like quite a long time (it’s more than twice what the original inventors of the Children Act envisaged would be needed to crack all but the most difficult cases)

 

By week 26, we need to have a final hearing. So, let’s work on the basis of a 5 day hearing, at which the Guardian, social worker, allocated judge (since we’re going to get judicial continuity now) and any experts can attend. Let’s be optimistic and say that the Court listing will be able to magic that availability for us with no more than 2 weeks notice.

 

So, by week 24, we need to have our IRH and tell the Court that we need a final hearing and 5 days of Court time. Let’s also, for the sake of argument, have the Guardian file on the same week as the IRH.

 

So, by week 23, giving the Guardian only a week to see the parents evidence, which won’t be late, because it never, ever is, we need the parents to file.

 

By week 21, we need the LA evidence (I squeezed the Guardian down from the usual 10-14 days to seven, but really, the parents do need two weeks to see the LA evidence). If it is an adoption case, the Agency Decision Maker will need to have authorised the Placement Order application the same week. Let’s pretend that can be issued and not lost or misplaced by the Court and served on everyone in a week, just for giggles.

 

So, by week 20, Panel need to have considered the case and made a recommendation to the Agency Decision Maker – there has to be a seven day period for that, until the law gets changed.

 

Let’s be more ruthless and say that the time that Panel members get to see the expert report is cut from the current 3 weeks, to 2  (because the Social worker has to submit a Child Permanence Report to Panel and needs to know what the expert says before that can be finalised. And the law that says Panel have to read the expert report is still law (I hesitate to say ‘good law’)

Thus, by week 18, the expert report needs to be completed.

Now, let’s work from the other end, and see how long the expert gets to do their report, because 18 weeks looks like AGES.Four and a half months.

The proceedings are issued and the clock starts. The first hearing is at the end of week 1.

 

Assuming everyone moves quickly, let’s have a CMC in week 2. Unlikely, but let’s assume we do. And let’s assume that in that week, the parties have considered all of the papers and agreed not only what sort of experts they need, but who they should be, and found out timescales.

 

Lets go further crazy, and assume that the Letter of Instruction is agreed and finalised in Week 3, and that the LOI and papers go off to the expert in Week 4. There’s no hold-up in getting any additional disclosure, or medical records, or documents from past proceedings or other local authorities, or private law proceedings, or police disclosure. Hooray for simplicity.

The expert then has from week 4 to week 18 to do a report. Fourteen weeks. Three and a half months.

But don’t forget, that the expert can’t see anyone until the parties all have their Prior Authority for public funding in place. Let’s be wildly optimistic and say that that takes a fortnight.

 

So, by week 6, the  expert is ready to go, and has 12 weeks to do the report. Don’t forget, that the expert has to be available in weeks 25 or 26 for any contested final hearing.

 

I just don’t think that this is feasible. Worse than that, it means that when the parent sees the expert to demonstrate that they have changed sufficiently to justify a positive care plan, they have not had 26 weeks to make that change, but probably 14-15 weeks, just over half the time. If they are someone with substance misuse problems, or anger issues, they’ve probably just started with any intervention – if they need therapy, they might have got a GP to make the referral but won’t have had any counselling.

 

My point is – you can’t roll out the timescales independently of the new way of working which is going to make cases achieveable in those timescales. Even with a case where nothing goes wrong, you can’t do it on the PLO model and just say “do it in half the time it currently takes”.   The new 26 week cap is going to head slap-bang into “we need this expert, and he can’t report till week 22, so the timetable won’t work, expert instruction refused,Court of Appeal”

 

You can’t have a 26 week system where parents need to be able to demonstrate change by week 18 unless there’s something in place for them to help them make those changes. You could try a model where we divert all the money that’s currently spent on diagnosis onto treatment – task-centred and swift interventions and supports that are ready to roll out and begin once the referral is made, but they don’t currently exist and the funds aren’t there for them. So, if you roll out a 26 week cap without any sea change as to the way proceedings are done, you’re going to end up with a shed-load more cases in the Court of Appeal and a shed-load more cases that end with children in Care, since you haven’t given any ability for the parents to change from the low-point that generally exists when proceedings are issued.

 

And back to the hanged man – he knows he can’t be hanged on Sunday, the seventh day, because if he goes to bed on Saturday, he knows for certain that he’ll be hanged the next day, and that’s prohibited by the order. So, they can’t hang him on Sunday. Which means the latest they can hang him is Saturday. But now he knows that, and so if he goes to bed on FRIDAY, he knows for certain that he’ll be hanged the next day, because there’s only Saturday and Sunday left, and they can’t hang him on Sunday. And so on.

 

 

 

“Gone till November, I’ll be gone till November” *

 

 

 

Has the 26 week target been snuck in by the back door?

 

 

 

There’s a new computer system for care proceedings in the Courts which tracks a variety of useful pieces of information, and is worth reading, because it has come in for all new cases issued after 2nd April.

 

The Courts have been given some guidance, which I set out below, and can also be found here :-

 

http://www.familylaw.co.uk/system/uploads/attachments/0004/3875/Care_monitoring_system_guidance_for_practitioners_April_2012.pdf

 

 

Look specifically at the  passages about Timetable for the Child, which is all calculated on the basis that the timetable for the child (in which the proceedings should be resolved) is 26 weeks from issue.  This is in readiness for the change to the law to make that a hard cap. (but of course we don’t yet have such a cap)

 

Obviously, this is just guidance to the Court staff on the new system and not legal authority for 26 weeks, but I do suspect that some resistance will be encountered when listing IRHs on new cases that go outside the 26 week period that the computer is setting as a maximum, and it appears that where the Court decide that the case will go over 26 weeks they have to make a formal decision about this and record it on the face of the order.

 

It’s always nice, when introducing new principles about timing of care proceedings, to bury them in some guidance to court staff as to how to use their new computer system…

 

 

THE NEW CARE MONITORING SYSTEM:

GUIDANCE FOR PRACTITIONERS

The new care monitoring system (CMS) is a judicially led management information programme intended to provide accurate ongoing information about case volumes, case progress and allocation. The system will provide the case management information necessary to enable leadership judges and the administration to oversee and manage public law caseloads and the allocation of individual cases in their Care Centres. The programme will also assist judges, legal advisers and magistrates to focus on avoiding delay for children and will help identify the real causes of delay. CMS has been jointly developed by the judiciary and HMCTS and has been written to a judicial specification which looks at both the real progress of a case through the court and the DFJ’s and JC’s responsibilities for all cases within their courts.

The system is being piloted nationwide from the 2nd April 2012 from when all new care and supervision cases will be entered on to the system.

The CMS case summary will provide judges/legal advisers/benches with ongoing information updated for every hearing about the ages of the child or children they are dealing with, the length of time a case has been running (measured in weeks), the number of hearings which there have been, any adjournments of hearings and applications for experts.

TRACKING THE AGE OF THE CASE BY REFERENCE TO THE TIMETABLE FOR THE CHILD

In preparation for the reforms which are contemplated in the family modernisation programme, and for the purpose of this trial, all cases will be given a standard 26 week timetable on issue. The system will keep track of where the case is in the process and whether it is on time to be completed within the 26 week period.

If, at any point, the court decides that the timetable for the child is such that the proceedings will not be completed within 26 weeks of issue then it will make a decision about this. The determination of the timetable for the child must be done at the CMC. This must be done in court in the presence of the parties based on the evidence and information available and what it is necessary to do to conclude the proceedings. The timetable should then be expressed as the expected number of weeks which are necessary to conclude the proceedings. This must then be recorded on the face of the order (usually in the form of a recital). Staff will use that order to input the data onto the CMS.

The timetable for two or more children involved in the same proceedings may be different. Once the expected conclusion date has been set as being outside 26 weeks, it cannot be reset; however this does not preclude the case being completed earlier than the expected conclusion date.

 

 

 

* Re November – it doesn’t quite work out, because 26 weeks is mid-October, but I didn’t think “October, the trees are all bare’ works as well, and also, it reminded me of the brilliant Vic and Bob sketch, where Vic is Craig David, working in a garage shop, and Bob is his manager, rollicking him for not turning up on Monday, Tuesday, Wednesday, etc and then Chilling on Sunday.  Craig David quits, and is replaced by Wyclef, who cheerfully tells poor Bob that he’ll be “gone till November”