Nobody expects the English (and Welsh) Inquisition

Posted on April 13, 2012 by suesspiciousminds

 

 

(their chief weapons are delay, their devasting deployment of working parties and committees, and more delay)

 

 

This post arises from Mr Justice Ryder’s fourth tranche of Modernisation updates.

 

You can see an excellent analysis of this update over at Family Lore here:-

 

http://www.familylore.co.uk/2012/04/family-justice-modernisation-programme.html

 

 

and the actual source document is here :-

 

http://www.judiciary.gov.uk/Resources/JCO/Documents/family_newsletter4.pdf

 

 

The bit that has really struck a chord with me is the recognition that what we have at present is not the “inquisitorial” system that it is often labelled, but at best “quasi-inquisitorial” and in reality “adversarial”

 

This is not a quasi-inquisitorial approach. It is a full inquisitorial approach with the

court in the driving seat in relation to the issues to be tried and the evidence which is necessary for that hearing to be conducted fairly.

 

Recently, every time anyone has said to me that we have an inquisitorial system and not an adversarial one, my response has been “Imagine for a second that you wanted to make our current family justice system MORE adversarial, how would you do it?”

 

Short of ducking-stools for witnesses, I’m struggling with a suggestion to make our process more adversarial.

 

[Not that this is necessarily de facto wrong – you might well argue that when the State and Courts are deciding what should happen inside a family, that this is just as worthy of an adversarial system as crime, or personal injury; but rather that the illusion of it being an inquisitorial system is a nonsense. If it is a good thing to have an adversarial system in family law, then let’s say so and be transparent about it, but if we think an inquisitorial system is the right way to do it, then let’s genuinely have one]

 

 

So, how could we make the system an inquisitorial one?

 

The Family Drug and Alcohol Court is a reasonable model – though it takes longer and no doubt costs more, the outcomes – in terms of keeping families together and having rehabilitations that work, are far superior to other Courts.

 

My imaginary version of an inquisitorial system would work like this (and I don’t claim it is without flaws) :-

 

 

  1. The Local Authority file their threshold document, outlining what has gone wrong in the past, and also outline the areas that they would want to change in the future. Where there are practical steps that the parent could take to address the concerns, they should be set out.
  2. The parents with the assistance of their representatives produce a response to threshold, outlining what is accepted and what is not, and outlining where they accept a need to change, and whether they will take the practical steps put forward.
  3. If there is agreement, the heads of that agreement will be approved by a Judge, who will make it plain that progress in relation to the areas of concern will be necessary by the time the 26 week period is up, and that the parents will be measured against what they do  (moving away from the psychological bent of what a parent is theoretically capable of with the right support and towards what they actually do]
  4. If there is a dispute, the Court will consider matters and give a judgment that sets out clearly where the LA concerns are justified, and where they are not, and what has to be done between now and the final hearing, by all concerned.

 

[In essence, this would be similar to the written agreement that is attempted at Letter Before Action stage, but this time, it would have the force of the Court behind it.  If the Court rule that the level of drinking these parents do isn’t problematic, then we knock that issue on the head and waste no further time on it unless matters deteriorate. If the Court feels that these parents would need to stop using heroin in order to parent to a good enough standard, then the parents can hear that from the Court, rather than from the social worker they’ve no time for…]

 

  1. It would be the Judge, at that stage, who would decide what expert evidence they require to allow a fair outcome in the case and what information needs to be gathered. Of course, representations can be made, to ensure that the Judge has considered matters from a variety of perspectives, but rather than the Court being asked to approve the instruction of experts, the Court drive the process and decide what expert evidence THEY need to make the right decision. And they set the questions  (again, with some input to ensure that if there’s a critical issue that might be overlooked it is drawn to their attention, but getting away from the Letter of Instruction being a document produced by committee with the questions being pulled this way and that so that they end up being sprawling, voluminous and anodyne, and instead, focus on the questions that the Judge needs the expert to give guidance on)
  2. The Issue Resolution Hearing becomes the sort of hearing we were promised when the PLO launched, conducted by a Judge who has (a) judicial continuity (b) time to consider the papers and embrace the issues, and with advocates who are prepared to set out what issues are agreed and which are controversial, and what the proportionate way of dealing with the controversial issues are.
  3. At the final hearing, if less than fifty per cent of the questions asked of the professional witnesses don’t come from the Judge, something has gone wrong.

 

 

Now, of course, you can’t do any of that whilst Judges have the time pressures that they currently have. Anyone who comes to family courts will have noticed how the lists have swollen over the years, and tackling a directions day must now be something akin to trench warfare for a family judge – just getting through the day is a triumph, never mind the overarching strategic objectives.

 

It might well be that this sort of inquisitorial approach would free up space at the other end of the spectrum – having Judges spend far less time on cases where no stone is left unturned, no bad point left untaken, and no contact record unthumbed.  But I suspect that those savings would take time to come through, and that poor Judges would find themselves in an unenviable interlocutory position of having to be continuing trench warfare in the old style cases and having to be Field-Marshal Montgomery in the new style.

 

As a sidebar, here’s a little theory – I would wager that an astronomically greater proportion of collective brainpower and prep (in terms of Judges, solicitors, counsel and professionals) goes into each minute of a final hearing compared to a Case Management Conference, but if you put that same degree of focus and thought into a CMC, you’d reap substantial rewards at the end of the case, by getting things right at the beginning.

 

And of course, the listings stick the CMCs right in the middle of that trench warfare directions day, when a Judge is listening to the fourteenth set of people who have ‘helpfully agreed some directions for your approval’  and with a portion of their mind turning to the next nine cases that are waiting outside…

 

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“Whatever happened to the likely harm?”

Posted on April 6, 2012 by suesspiciousminds

 

The Court of Appeal gave judgment this week in an interesting case where they attempted to cut through the thicket of authorities on whether having identified a parent as one of a pool of possible perpetrators in an earlier case, the Court should approach a future case involving the parent as either a sole parent or in a new relationship.  Is there a likelihood of future harm made out as a result of the first finding, or is the likelihood only applicable where the Court found that the parent HAD caused the injuries and  the previous finding be completely ignored if it is a ‘pool of perpetrators’ finding, or does each case turn on its individual facts?

 

 

It has been settled law for some time that a Court faced with a non-accidental injury (or indeed sexual allegation) can find that the threshold is met even if it is not possible to identify which of the parents is the perpetrator of the abuse, and this was extended still further with the parents AND a third party being the potential perpetrators and the Court being unable to exclude the parents from being the perpetrator of the harm/abuse  ( which is commonly called a “Lancashire” finding  – I wonder if they call it that in Lancashire, or if like French kissing and Brussel sprouts, they have an entirely different term for it in the eponymous locale)

 

Indeed, there are authorities to indicate that where it is not possible for a Judge to exclude on the balance of probabilities one of the parents, the Court should not ‘dance on the head of a pin’ to try to decide, for example that the injury was 60% likely to have been committed by mum, and 40% by dad, so that dad is not ‘more likely than not’ to have caused the injury.  (Re SB)

 

But there is a conflict between various authorities as to whether, when a parent is the subject of a “Lancashire” finding and goes on to separate from the other subject of that finding and go on to found a new family, that finding has any evidential weight in establishing the threshold with the new child, or whether it should be ignored completely.

 

 

RE J (CHILDREN) (2012)

 

[2012] EWCA Civ 380

 

 

All of my quotations here are taken from the lead judgment of Lord Justice McFarlane, who has again done most of the heavy lifting, in a case which has required a great deal of it.

 

 

 

The Court identify, with the succinctness that is their hallmark, the issues of judicial importance in the appeal here :-

 

16. Put shortly the point raised by this appeal is as follows:

a) Where a previous court has found that there is a ‘real possibility’ that one or other or both of two or more carers have perpetrated significant harm on a child in his/her care;

b) Is that ‘finding’ a ‘finding of fact’ that may be relied upon in subsequent proceedings relating only to one of the potential perpetrators in support of a conclusion that there is a ‘real possibility’ or likelihood of a subsequent child in a new family unit of which he/she

is part suffering significant harm or is it a ‘finding’ that must be totally ignored in the subsequent proceedings?

17. There have been authoritative statements in judgments of the Court of Appeal and the

Supreme Court which assert that the previous adverse ‘finding’ must be totally

ignored in any subsequent proceedings involving a new family unit, on the basis that a

‘finding’ that there is a ‘real possibility’ is not a ‘finding of fact’ at all as, by

definition, it falls short of a finding on the balance of probabilities. Despite these

apparently clear authoritative statements, the appellant argues that such statements

are, or may well be, at odds with the fully reasoned analysis of the approach to be

taken to the statutory threshold criteria in Children Act 1989, s 31 as set out by Lord

Nicholls of Birkenhead in a trilogy of cases in the House of Lords.

 

 

The particularly troubling authority, is the Supreme Court authority of Re SB, and this passage in Baroness Hale’s judgment :-

 

“49 There is a further reason to remit the case. The judge found the threshold crossed in relation to William on the basis that there was a real possibility that the mother had injured Jason.That, as already explained, is not a permissible approach to a finding of likelihood of future harm. It was established in In re

H [1996] AC 563 and confirmed in In re O [2004] 1 AC 523 , that a prediction of future harm has to be based upon findings of actual fact made on the balance of probabilities. It is only   once those facts have been found that the degree of likelihood of future events becomes the “real possibility” test adopted in In re H. It might have been open to the judge to find the threshold crossed in relation to William on a different basis, but she did not do so.”

 

 

And the assertion therefore is that in allocating a pool of perpetrators, the Court has not said in relation to any particular one of them that they HAD caused the injury, but rather that an injury HAS been caused and that there is a real possibility that it was caused by A or B.   That is sufficient for THAT particular child, but on moving onto another child born to A or  B  at a later stage, it does not satisfy the threshold criteria for the younger child.

 

As a Local Authority hack, it would greatly trouble me for the Court to conduct a fact-finding hearing, and decide that the injury was caused by either A or B, and neither could be excluded, but for A and B to then part company and have new families, and the finding to be completely excluded from consideration  (rather than an approach where there is a historical risk to be assessed and considered by the Court and the parents change in circumstances, passage of time, any reflection or admissions etc be taken into account as to what action, if any is required in relation to the new child)

 

 

You will spot immediately, that the Court of Appeal are in difficulties, since they can’t over-rule what Baroness Hale said in Re SB  (though if they consider that the interpretation of what Baroness Hale said has been misconstrued, they can provide some clarification)

 

 

The next problematic authority is Re F (Interim Care Order) 2011, and the facts of that case are set out below :-

 

The second recent authority which has been at the forefront of our consideration is ReF (Interim Care Order) [2011] EWCA Civ 258. Re F involved a father in respect of whom there had been a previous finding of fact relating to his eldest child who had suffered two leg fractures. In care proceedings relating to that child the finding as to the perpetrator of the fractures was that both of that child’s parents were in the pool of possible perpetrators. Time then moved on, the father separated from that child’s mother and he became a parent for a second time when a baby was born to his new partner. The local authority issued care proceedings with respect to the new baby on the basis that the previous finding of the father being a possible perpetrator was sufficient to cross the threshold criteria on the basis that the new baby was likely to suffer significant harm. The trial judge dismissed the care proceedings on the basis that the previous finding was insufficient to support a ‘likelihood’ threshold finding in relation to the new baby. The trial judge did, however, grant the local authority permission to appeal to the Court of Appeal.

 

The Court of Appeal, when hearing Re F, grappled with the Re SB issue here (my bolding):-

 

Mr Heaton contends, and Mr Hayden concedes, that the reasoning so clearly set out in In Re S-B, at [49], has caused great consternation among local authorities, among other professionals who work in the area of public law and among academic commentators. Mr Heaton’s aspiration is to persuade the Supreme Court to modify its demand for proven factual foundation in uncertain perpetrator cases. Take, says he to us this morning, a case of two parents who are consigned to a pool of possible perpetrators of non-accidental injuries to their child; and who then separate; and who each, with other partners, produce a further child, who together become the subject of conjoined care proceedings. Are both those applications for care orders required to be dismissed even though before the court is, on any view, a perpetrator of injuries to that older child? No doubt there are hard and worrying cases. But the requirement of proven factual foundation is a bulwark against the state’s removal of a child from his family, which I consider very precious. I also applaud the Supreme Court’s regular acknowledgement of the fact that, although it can depart from its previous decisions, the exercise of departure is highly unsettling for the law and should be undertaken only with great caution.

 

For those reasons I would not wish us to foist upon the Supreme Court a full appeal in circumstances in which it had not itself had the opportunity to consider whether to accept it.”

 

 

 

 

 

 

As luck, for good or ill, would have it, the parents in Re F made some other admissions which were capable of resolving the threshold, and therefore the issue of whether threshold was met fell by the wayside, but the problem as outlined by Mr Heaton above, remained a live one, hence the Court of Appeal revisiting it in this case of RE J.

 

In a nutshell, here are the counter arguments deployed by the parties :-

 

76. Mr Cobb’s attractive presentation of his case leads the judicial listener

through the words of Lord Nicholls endorsing, as he does, the earlier utterances of Wall J and Hale LJ. The Local Authority’s ultimate submission is that the court should adopt theapproach of Lord Nicholls in Re O and N to the determination of the “likely to suffer” threshold criteria in a later case, with the result that an uncertain perpetrator from anearlier determination is regarded as equally likely to have been the cause of past significant harm, and that that established “fact” is a sufficient vehicle to satisfy the threshold in the later case.

 

77. Attractive though that argument is, Mr Paul Storey QC on behalf of JJ and Miss Rowe QC on behalf of DJ argue that it is untenable. They submit that to compare the stage of proceedings being described by Lord Nicholls in Re O and N with the stage of proceedings being undertaken by HHJ Hallam in the present case is not to compare like with like. In the former the threshold was crossed and there was no strict evidential yardstick to be deployed by the court in exercising its jurisdiction in affording the child’s welfare paramount consideration in deciding what, if any, order to make in the concluding “welfare stage” of the proceedings. Judge Hallam, on the other hand, was required to operate within a strict evidential context, only relying on past facts which had been established on the balance of probabilities.

 

78. The opposing counsel submit that Mr Cobb’s argument falls down because a finding that someone is in the pool of perpetrators is no more than a finding on the basis that there is “a real possibility” that they perpetrated past injuries, a finding which by definition falls short of the balance of probabilities. To use that finding as the basis for holding that there is a further “a real possibility” (that is a likelihood) of that person causing significant harm in the future, is to find the threshold crossed on the basis of two successive findings of “real possibility” and no finding at all of fact on the balance of probabilities in relation to the one, now separated, parent. Mr Storey submits that such an outcome, on the present law, would be impermissible and that parents and children would risk permanent separation by the State in circumstances where absolutely nothing adverse about the parental care had been established on the balance of probabilities.

 

 

In weighing matters up, the Court of Appeal warned against the risk of artificially limiting or restricting the issues and evidence available to the Court and gave this helpful guidance (again, bolding is mine)

 

81. Pausing there, I would question the desirability of artificially limiting the judicial consideration to just one, albeit important, aspect of the case. A judge hearing a fresh s 31 application, some years later, about a new family unit which involves a parent about whom adverse findings have previously been made in another family context, should be exposed to the full detail of the available evidence and be permitted to come to her own overview and determination taking into account all of the material insofar as she considers it to be relevant and giving it such weight as she may see fit at the time of her determination. Artificially to limit the judicial exercise in a manner which invites the court to ignore part of the evidence in the case, might well set up the legal point for determination in a clinically clear and legally accessible manner, but it cannot, in my view, represent a proper exercise of the judicial task. In determining whether the threshold criteria are satisfied in relation to each of these three children as at 3rd March 2011 a judge must be under a duty to acquaint herself with all of the available evidence and then bring it to bear on the ultimate question of whether, in the context of this case, each or any of these three children can be said to be “likely to suffer significant harm” attributable to failures in parental care likely to be given to him as at that date.

 

82.I would go further and criticise the decision to tee up the preliminary issue for

determination within an otherwise entirely empty evidential context. By the relevant date seven years had passed between the death of T-L and the commencement of child protection procedures in relation to the new family unit. JJ was seventeen when T-L died and she is now twenty five. Much has no doubt happened in her life in the intervening period, some of it has continued to involve SW. On the positive side it is apparently the case that she had lived with these three children as DJ’s partner for well over two years prior to the implementation of protective measures and without apparently causing any degree of concern to child protection professionals.

 

83. When a local authority issues a s 31 application seeking the court’s determination that the threshold criteria is crossed at the present time in relation to a child or children, the court must be under a duty to ensure that it has before it not only evidence of what may have happened in one of the parent’s lives years before, but also some account of the events in that parent’s life during the following years and the current circumstances in the family unit which is now being brought before the court within the proceedings. The extent, quality and character of the evidence that a judge may need will of course vary from case to case. But in the present case it would seem to me that, in addition to social work evidence as to what, if any, social work and other professional contact there has been with the mother and/or the new family over the intervening period, together with a basic social work assessment of the children’s current circumstances within the home, there should be an expectation for the mother to file evidence which should include an up to date statement of what she now says with respect to her care of T-L and the matters that had been the subject of HHJ Masterman’s findings.

 

84. A judge in care proceedings at the threshold stage has the important responsibility of determining whether or not he or she is satisfied that, at the relevant date, that is therefore in the current period of time, the threshold criteria are or are not satisfied with respect to a particular child. Artificially to limit the judicial exercise to the consideration of facts relating to a period seven years earlier and, further, to limit consideration to only some of those facts, seems to me to fall well short of the required evaluation of the circumstances of the new child before the court in the current time period.

 

85. Despite making these negative observations about the process adopted in this case, I have nothing but professional sympathy for HHJ Hallam who was presented with the task of determining the preliminary issue in accordance with ground rules chosen by the parties. The Local Authority chose not to file any additional evidence. A direction for the mother to file a statement was made but produced no more than a position statement. The Local Authority expressly elected not to rely upon any of the negative findings made by HHJ Masterman other than those relating to the perpetrators of physical injury. Having been presented with the case within this restricted compass, HHJ Hallam was further handicapped by the fact that she was not HHJ Masterman, who had plainly regarded the aspects of the case that fell short of the direct physical injury of T-L as being of an equal standard of concern with the infliction of those injuries.

 

86. It is sometimes convenient, efficient and realistic for local authorities to make concessions as to aspects of the evidence. Indeed, such no doubt is the stuff of every day experience in courts conducting care proceedings. There is, however, a danger of such matters being elevated to the status, as would be the case in civil proceedings, of points of pleading, thereby removing from the judge’s consideration evidence which may, despite the view of the local authority, be of some importance

 

 

I think that this paragraph, during the Court of Appeal’s analysis of the authorities and the issue at hand, demonstrates the Court’s willingness to approach this with child protection being at the forefront :-

 

92. Standing back from these cases, there is, I would suggest, a qualitative difference, in terms of the need for child protection, between a situation where absolutely no adverse findings have been made as to past child abuse, and a situation where serious findings of child abuse have been made in relation to a child in the joint care  of her parents either one or both of whom were the perpetrator(s).

 

I am, of course, biased, but that seems to me an entirely sensible approach. Of course there is a difference in the risks to be considered where one parent has been found to be a potential perpetrator of really serious injuries as opposed to a parent who has never come to the attention of the Local Authority, and pretending otherwise does not address the issues.  (That doesn’t mean that the previous finding automatically damns the parent, but it must be right that there is a risk to be weighed and assessed in relation to whether there is a risk of future harm arising from it)

 

108. With respect, I do not consider the very narrow evaluation of this issue which it is said the short judicial statements in Re S-B and Re F require is supportable on the basis of the earlier authorities, the principal one in this context being the Court of Appeal judgment of Robert Walker LJ in Lancashire County Council v B which allowed the appeal in relation to the child minder’s child, B. In my view the Lancashire case can be readily distinguished from the present case. The only culpable matter that could have been established against the child minder was that she had caused the injuries to child A. The evidence was insufficient to establish, on the balance of probability, that she was the perpetrator. There was no suggestion that she would in the future be part of a group of carers with the parents (about whom, collectively, there was a finding). There was therefore no proven fact upon which the risk of future harm could be established.

 

110. The Lancashire case in the Court of Appeal is undoubtedly authority for the proposition that where there is absolutely no adverse finding of fact against a parent, the likelihood threshold cannot be established. It is not, however, authority for the obverse proposition that you can only establish the likelihood threshold if you can identify the perpetrator irrespective of any other adverse findings that have been made.

 

111. Likewise Re S-B is not authority for the proposition ‘if you cannot identify the past perpetrator, you cannot establish future likelihood’. In that case, which was of a oneoff        (‘whodunit’) injury, there was no question of failure to protect and no finding of collusion. Thus when, in paragraph 49, Baroness Hale describes as it as impermissible to hold that the likelihood threshold in relation to the non-injured child, William, was established on the basis only that there was ‘a real possibility’ that the mother had caused the injury, she does so in the context of there being no other adverse findings against that mother.

 

 

And here is the conclusion:-

 

114. At paragraphs 79 to 87 I criticised the narrow and legalistic approach adopted before HHJ Hallam in the present case. In my view, where there are significant adverse findings made on the balance of probability against a parent in previous proceedings, irrespective of the previous court having been unable to identify a perpetrator, a court seized of an application under s 31 has a duty to look at all of the available material including those adverse findings. Each case will no doubt differ from each other both on the question of whether in the new circumstances the s 31 threshold is actually established and on the question, if it is, whether the welfare of the child requires protection under a s 31 order. These are matters for courts to evaluate on a case by case basis and are not the stuff of a blanket policy based on the single point that,irrespective of what else has been found, if the past perpetrator has not been provedthe threshold cannot be crossed.

 

 

Given that the Supreme Court in RE SB weren’t deciding this issue, but the principle has been derived from authority building on judicial decisions made within the SB case, it would seem to now be the law, unless and until the point comes before the Supreme Court, that  :-

 

A Court is not obliged to ignore a previous finding purely because it was made on a “Lancashire” type basis (that a parent is one of a pool of perpetrators), but has to look at all of the available material to consider whether the threshold is made out.

 

That appears to me to be a very good compromise between the polar opposites of  ‘A past finding of harm equals likelihood of future harm always’ and ‘if you were only identified as one of a pool of perpetrators rather than the actual perpetrator, that must be ignored when determining future risk to other children’

 

 

 

The future

130. The difficulties that have arisen in this case, in Re F and no doubt elsewhere, originate from the Lancashire case in the Court of Appeal and have been given additional focus and emphasis by Baroness Hale’s words in paragraph 49 of Re S-B. We were told, and I readily accept, that the situation is a cause for concern amongst child protection agencies.

 

131. Given the importance of the point in terms of its impact on the ground for families and for those charged with protecting children, there is a pressing need for the issue to         be determined by the Supreme Court so that a clear and full statement of the applicable law is achieved.

 

 

I am not sure whether any of the parties to the case intend to appeal the Court of Appeal decision, but I read that sentence to mean that they might be pushing at an open door in such an application for leave to appeal.

 

 

I’m reminded that of the three most crucial case-law arguments / decisions which could be categorised as a debate between a narrow construction of the law and the Court’s ability to make the orders that they consider in the best interests of children,  all three have now been ruled on and gone against the narrow legal construction.

 

(the previous two being the debate that certain remarks in RE H &R meant that the standard of proof with serious allegations was higher and that the difference with such serious allegations between the civil standard and the criminal standard was largely illusory, and the ‘imminent risk of really serious harm’ being the soundbite test for ICOs where the care plan was separation)

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We’re only making plans for Nigel

Posted on April 2, 2012 by suesspiciousminds

 

 

Inherent jurisdiction and vulnerable (yet competent adults)

 

 

 

DL v A Local Authority and Others  [2012] EWCA Civ 253

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/253.html

 

 

 

A fascinating case, and one which deserves to be analysed by someone with greater skill and expertise in adult social care law than I possess. But I am interested in it, and felt it was worthy of discussion.

 

It deals fundamentally, with the tension between individual autonomy and protection of vulnerable persons; and of whether there is a bright line to be drawn between when the State can tell a person that they can’t make that decision because it is not in their best interests to do so, and where if so, that bright line is to be drawn.

 

Many people might have thought that the introduction of the Mental Capacity Act 2005 settled that once and for all :-  the State, and ergo the Court, can replace a person’s decision with one that is in their best interests if, and only if:-

 

(i)            they are a minor, when the principles of the Children Act 1989 apply

(ii)          they are suffering from a mental illness or disorder sufficient to justify intervention under the Mental Health Act

(iii)         they lack capacity to make that decision, when the principles of the Mental Capacity Act apply.

 

 

But nothing much in law is settled “once and for all”   (with the honourable exception perhaps of precisely what words one can or cannot use when advertising carbolic smoke balls)

 

And the Court of Appeal have been grappling with the issue of whether a person who has capacity, is not a child, is not mentally disordered but is nonetheless “vulnerable” can have their autonomy restricted by use of the inherent jurisdiction of the Court.

 

The facts of the case are relatively straightforward, and I’ll quote them from the judgment  (the bolding is mine) :-

 

  1. For the purposes of the determination of the legal point the parties have helpfully agreed a set of “assumed facts” which formed the basis of the case before Mrs Justice Theis and before this court. I set them out below in full but in doing so make it clear that these assumed facts are not agreed by DL as being true and are, in fact, in the main denied by him.

“Mr and Mrs L are an elderly married couple. He is 85: she is 90. They live with their son, DL, (who is in his fifties) in a house which is owned by Mr. L. Mrs L is physically disabled. She receives support by way of direct payments and twice daily visits from health and social care professionals commissioned and paid for by the Claimant local authority under its statutory community care duties. At the time that these proceedings were commenced, the local authority accepts, for the purpose of this hearing, that neither Mr nor Mrs L (nor, for that matter, DL) was incapable, by reason of any impairment of or disturbance in the functioning of the mind or brain, of managing their own affairs, and, in particular, both Mr and Mrs L appeared capable of deciding what their relationship with their son should be and, in particular, whether he should continue to live under the same roof as themselves.

 

Mr L has, however, been recently assessed as lacking capacity to make his own decisions and a decision is soon to be reached whether he has requisite capacity to litigate. Mr. L is no longer residing at the family home and it is not known if or when he will return to the family home. Nevertheless the need to resolve the preliminary issue remains and for that purpose it is assumed that both ML and GRL have capacity as to residence and contact with DL for the purposes of s 2 of the Mental Capacity Act 2005.

 

The local authority is concerned about DL’s alleged conduct towards his parents, which is said to be aggressive, and which, on occasions, has resulted, it is said, in physical violence by DL towards his parents. The local authority has documented incidents going back to 2005 which, it says, chronicle DL’s behaviour and which include physical assaults, verbal threats, controlling where and when his parents may move in the house, preventing them from leaving the house, and controlling who may visit them, and the terms upon which they may visit them, including health and social care professionals providing care and support for Mrs L. There have also been consistent reports that DL is seeking to coerce Mr L into transferring the ownership of the house into DL’s name and that he has also placed considerable pressure on both his parents to have Mrs L moved into a care home against her wishes.

 

The local authority has brought these proceedings to protect Mr and Mrs. L from DL. It has considered (and rejected) using the criminal law. It has considered (and rejected) an application to the Court of Protection under the Mental Capacity Act 2005 (MCA 2005). It has considered (and rejected) an application for an ASBO (an anti-social behaviour order) under the Crime and Disorder Act 1998. It has considered (and rejected) an application under section 153A of the Housing Act 1996.

 

The local authority acknowledges that, on the information currently available to it, neither Mr nor Mrs. L lacks the capacity to take proceedings on behalf of themselves or each other by reason of any impairment of or disturbance in the functioning of the mind or brain. The local authority recognises that Mrs L, in particular, wishes to preserve her relationship with DL and does not want any proceedings taken against him. Furthermore, the local authority acknowledges that whilst Mr. L is more critical of DL’s behaviour, it remains unclear as to whether he, Mr L, would wish to take steps in opposition to his wife’s wishes.

 

 

When this case came before Lord Justice Wall in October 2010, he made injunctions under the Inherent Jurisdiction to safeguard Mr and Mrs L from the alleged domestic abuse from their son; notwithstanding that they did not apply for such an order and did not want that protection and were happy for their son to live with them.

 

Whether you think that is right or not, depends largely on where you stand on the personal autonomy versus protection of the vulnerable debate.

 

The legal issue for the Court of Appeal was framed in admirably concise prose by Mrs Justice Theis :-

 

“The central issue in this case is whether, and to what extent, the court’s inherent jurisdiction is available to make declarations and, if necessary, put protective measures in place in relation to vulnerable adults who do not fall within the MCA but who are, or are reasonably believed to be, for some reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent by reason of such things as constraint, coercion, undue influence or other vitiating factor.”

 

The hearing in the Court of Appeal makes for interesting reading and some very strong arguments were marshalled on both sides.

 

For the appellant, DL, represented by Ms Nathalie Lieven QC  (someone I am sadly not familiar with, but without any doubt on reading this, a considerable force to be reckoned with and a piercing mind)  :-

 

  1. The principal arguments deployed by Miss Lieven in this court can be summarised as follows:

a) The only authority prior to the introduction of the MCA 2005 which indicated that the inherent jurisdiction extended to adults who maintained their mental capacity is limited to one case, namely Re SA. Re SA was not supported by any earlier authority and is therefore to be seen as an isolated decision which is insufficient to bear the weight now put upon it by subsequent decisions, including that of Theis J in this case;

b) The MCA 2005 was clearly intended to provide a comprehensive statutory code for those who lacked capacity;

c) If a case, such as the present, does not fall within the provisions of the MCA 2005, then there is no jurisdiction for the court to make orders controlling the lives of those who do not lack capacity within the meaning of the 2005 Act;

d) To the degree that there is any remaining inherent jurisdiction in this field, it is limited to providing a short period for the individual to be allowed to make his/her own decision, and if appropriate the provision of advice.

 

  1. In developing her submissions Miss Lieven understandably stressed the premium which the courts have habitually attached to the right of autonomy enjoyed by every individual in a democratic society. She relied upon the words of Lord Reid in S v McC: W v W [1972] AC 25:

“English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty. We have too often seen freedom disappear in other countries not only by coups d’état but by gradual erosion: and often it is the first step that counts. So it would be unwise to make even minor concessions.”

 

[From my own distorted and unreasonable perspective, if you don’t feel even a tiny urge to stand up and applaud when reading Lord Reid’s words, I would raise an eyebrow at your decision. Were the world ever to lose all reason and appoint me to the higher echelons of the judiciary, deployment of that quotation in a relevant context would be a “Win the Game button”]

 

 

The difficulty for that case, as is obliquely noted in the Court of Appeal decision, is that it invites the Court of Appeal to conclude that Judges can’t be trusted to exercise powers with restraint and a great deal of caution, and they call upon a number of examples where such restraint and caution has been deployed to the advantage of the vulnerable.

 

And for the Local Authority respondent, represented by Paul Bowen  (I note that in this case, both parties had what might be described as ‘thankless briefs’  – one of them trying to justify the Local Authority’s right to interfere in the lives of people who had capacity to make their own decisions, even if those decisions might appear wrong to others, and the other trying to justify that even if the Court felt these adults were vulnerable and needed protection, the letter of the law forebade it)

 

  1. The appeal is opposed by Mr Paul Bowen on behalf of the local authority. He submits that the appeal is based on the false premise that the inherent jurisdiction argued for would permit the court to override the decision of any competent adult and thereby ignore their fundamental right to autonomy. Mr Bowen submits that the case is far more narrowly based than that and is limited to those individuals who fall outside the MCA 2005 but who nevertheless have not given, or cannot give, a ‘true consent’ to a particular aspect of their lives not as a result of mental incapacity but for some other reason, such as the undue influence of a third party. Mr Bowen’s submissions have therefore been to delineate the extent of the jurisdiction so that it only covers those cases where it is necessary for the court to act because a person’s capacity to make decisions for themselves has been overborne by circumstances other than those covered by the MCA 2005.
  1. Mr Bowen has the substantial benefit of being able to rely upon the analysis and conclusions of Munby J in Re SA and, understandably, much of his argument was designed to highlight and support those matters. In addition he drew attention to the fact that Parliament was expressly aware of the concept of ‘elder abuse’ during the pre-legislative scrutiny process. The MCA 2005 makes no express provision limiting or extinguishing the use of the inherent jurisdiction. Mr Bowen therefore submits that Parliament can be taken as intending that in so far as the inherent jurisdiction may cover matters outside the 2005 Act, then the legislation leaves that jurisdiction untouched to develop under the common law as it had done prior to 2005.

 

 

 

The decision

 

If you have read carefully so far, you will not be surprised that faced with deciding that Munby J and Theis J and Wall J are wrong and that Judges ought not to be trusted with the power to use the inherent jurisdiction to protect vulnerable adults, or deciding the opposite, the Court decided the opposite.

  1. I do not accept that the jurisdiction described by the learned judge is extensive and all-encompassing, or one which may threaten the autonomy of every adult in the country. It is, as Mr Bowen submits and as the judgments of Munby J and Theis J demonstrate, targeted solely at those adults whose ability to make decisions for themselves has been compromised by matters other than those covered by the MCA 2005. I, like Munby J before me in Re SA, am determined not to offer a definition so as to limit or constrict the group of ‘vulnerable adults’ for whose benefit this jurisdiction may be deployed. I have already quoted paragraphs 76 and 77 from the judgment of Munby J (see paragraph 22 above). I am entirely in agreement with the description of the jurisdiction that is given there.
  1. The appellant’s submissions rightly place a premium upon an individual’s autonomy to make his own decisions. However this point, rather than being one against the existence of the inherent jurisdiction in these cases, is in my view a strong argument in favour of it. The jurisdiction, as described by Munby J and as applied by Theis J in this case, is in part aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by a reason other than mental incapacity because they are (to adopt the list in paragraph 77 of Re SA):

a) Under constraint; or

b) Subject to coercion or undue influence; or

c) For some other reason deprived of the capacity to make the relevant decision or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.

  1. I do not regard the Re SA decision as a one off determination, which is unsupported by earlier authority and not to be followed. As Munby J demonstrates in his thorough review of the earlier case law, the organic development of the inherent jurisdiction, following its rediscovery by the House of Lords in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, had lead to decisions, particularly those of Re T and Re G (above), which moved away from cases where the individuals plainly lacked mental capacity to take a particular decision themselves. The fact that the subject matter of the cases related to medical treatment, rather than some other class of decision, cannot affect the principle; either the jurisdiction exists or it does not. The question of the class of decision to which any orders are directed will be a matter of application of the jurisdiction, and of proportionality, dependent on the facts of any given case.
  1. In the same manner, the argument that in the Westminster case the court was concerned with a type of relief (preventing removal from the jurisdiction) which is not catered for in the MCA 2005 and therefore the existence of the inherent jurisdiction to supplement the statutory scheme is acceptable, in contrast to the present case, simply does not stand scrutiny. Either the inherent jurisdiction is there to act as a safety net for matters outside the Act or it is not. The fact that Thorpe LJ and Wall LJ were so firmly of the view that the jurisdiction had survived the implementation of the 2005 Act is a powerful indicator that the Appellant’s argument is wrong.

 

 

 

And then

 

  1. My conclusion that the inherent jurisdiction remains available for use in cases to which it may apply that fall outside the MCA 2005 is not merely arrived at on the negative basis that the words of the statute are self-limiting and there is no reference within it to the inherent jurisdiction. There is, in my view, a sound and strong public policy justification for this to be so. The existence of ‘elder abuse’, as described by Professor Williams, is sadly all too easy to contemplate. Indeed the use of the term ‘elder’ in that label may inadvertently limit it to a particular age group whereas, as the cases demonstrate, the will of a vulnerable adult of any age may, in certain circumstances, be overborne. Where the facts justify it, such individuals require and deserve the protection of the authorities and the law so that they may regain the very autonomy that the appellant rightly prizes. The young woman in Re G (above) who would, as Bennett J described, lose her mental capacity if she were once again exposed to the unbridled and adverse influence of her father is a striking example of precisely this point.
  1. For the reasons given by Munby J at paragraph 77 and elsewhere in Re SA, it is not easy to define and delineate this group of vulnerable adults, as, in contrast, it is when the yardstick of vulnerability relates to an impairment or disturbance in the functioning of the mind or brain. Nor is it wise or helpful to place a finite limit on those who may, or may not, attract the court’s protection in this regard. The establishment of a statutory scheme to bring the cases in this hinterland before the Court of Protection would (as Professor Williams described) represent an almost impossible task, whereas the ability of the common law to develop and adapt its jurisdiction, on a case by case basis, as may be required, may meet this need more readily.

 

And this bit is particularly important, as the Appellant’s fallback position was that if the inherent jurisdiction could be used, it should ONLY be for a short period, to allow the vulnerable person a period of time for reflection (and where appropriate to seek their own independent legal advice)  – this was rejected.

 

68. It follows that, despite the clarity and skill with which it has been argued, I have no hesitation in dismissing the appellant’s primary grounds of appeal and upholding the decision of Theis J in this case. Although argued as a separate, fall back, ground, it must follow from my unreserved endorsement of the full jurisdiction described by Munby J in Re: SA and applied subsequently in a number of cases at first instance that I reject the idea that, if it exists, the exercise of the inherent jurisdiction in these cases is limited to providing interim relief designed to permit the vulnerable individual the ‘space’ to make decisions for themselves, removed from any alleged source of undue influence. Whilst such interim provision may be of benefit in any given case, it does not represent the totality of the High Court’s inherent powers.

 

 

In the second judgment, Lord Justice Davies is able to express matters pithily  (perhaps as Lord Justice MacFarlane had done all of the heavy lifting in his seventy paragraphs of judgment)

 

 

76. Miss Lieven stressed the importance of personal autonomy. She expressed concern to the effect that the retention of the inherent jurisdiction might for the future be resorted to by public authorities, pursuing a “Big Brother” agenda, with a view to ensuring that adults make decisions which conform to an acceptable, state decided, norm (I put it in my words, not hers). I acknowledge the point but do not share the concern. It is, of course, of the essence of humanity that adults are entitled to be eccentric, entitled to be unorthodox, entitled to be obstinate, entitled to be irrational. Many are. But the decided authorities show that there can be no power of public intervention simply because an adult proposes to make a decision, or to tolerate a state if affairs, which most would consider neither wise nor sensible. There has to be much more than simply that for any intervention to be justified: and any such intervention will indeed need to be justified as necessary and proportionate. I am sure local authorities, as much as the courts, appreciate that. It is at all events neither possible nor appropriate exhaustively to define “vulnerability” for this purpose. Cases which are close to the line can safely be left to be dealt with under the inherent jurisdiction by the judges of the Family Division on the particular facts and circumstances arising in each instance.

 

 

What is not clear is whether these powers will be used sparingly – I recall Wall LJs injunctions being reported in the mainstream press, but they don’t seem to have opened the floodgates to lots of these applications.

 

And what there is not, as yet, is any decision implying that a Local Authority would have a duty to use these powers to apply to the High Court for orders in the inherent jurisdiction and under what circumstances – reading the clear need for flexibility and not circumscribing the precise situation in which the powers should be used, I rather think that there will not be a decision that sets out the Local Authority’s duty to make such applications.

 

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

Posted on April 2, 2012 by suesspiciousminds

 

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

 

 

 

 

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

 

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

 

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

 

 

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

 

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

 

 

Adoption Panels

 

 

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

 

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

 

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

 

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

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

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

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

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

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

 

Politically correct yoghurt-knitting social workers insisting on ethnic matches

 

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

 

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

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

 

 

 

 

Court proceedings and assessments

 

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

 

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

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

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

 

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

 

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

 

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

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

 

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

 

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

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

 

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

 

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

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

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

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

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

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

 

 

 

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

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

 

 

 

 

 

 

Local Authority legal representation

 

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

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

 

Working relationships between Local Authorities, CAFCASS and the Courts

 

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

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

 

 

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

 

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

 

 

 

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“Opening the windows and breathing in petrol”

Posted on March 30, 2012 by suesspiciousminds

The recent furore over petrol-shortages (which have come about because people think there might be a petrol-shortage, and have thus manufactured the situation they were fearful of)  reminded me of a piece of work I did way back in the mists of time, when “Schedule One offender” was a phrase often deployed within care proceedings.

Peculiarly, this phrase was generally distorted by the mothers within care proceedings to be “that Schedule Offender One”  making certain aspects of conversations take on a Liverpudlian, Brookside twang (despite being on the other side of the country).

The piece of work I had to do was to slog through all of the legislation and draw up a list of exactly what offences WERE accurately labelled as Schedule One offences, and which were not.

One of the particular quirks (as it arose in a case where the parents following the final hearing, shut the contact supervisor in a cupboard and legged it with their child being on the run for about a fortnight, and plea-bargained that down at criminal trial to “attempted abduction”) was that for many offences, an attempt was not a Schedule one offence, only the successful execution of it.

But I do recall, quite vividly that at that time, you could become a Schedule One offender by selling petrol to a child under sixteen.

(and frankly, I don’t need much of an excuse to (a) be topical and (b) throw in a Jam lyric)

I also remember that allowing children under 14 to do street performances, and that allowing a child under 12 to do any dangerous activity would be Schedule one offences.   It was many, many, years ago, but I also recall that regardless of whether a child was within ten miles of you, it was a Schedule One offence to set a fire in a telephone box….

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“Here they are, they’re so appealing…”

Posted on March 30, 2012 by suesspiciousminds

This is an interesting decision of the Court of Appeal

RE (R : Children ) 2011   – which although decided in June last year has only fluttered across my radar this week, courtesy of Pink Tape

http://www.bailii.org/ew/cases/EWCA/Civ/2011/1795.html

Two elements in particular interested me, as I have noted a growing tendency of the Court of Appeal to ‘get under the bonnet’ of findings of fact cases and make the reverse binary finding than had been made at first instance.

This passage may assist in any future such cases, and is from Mr Justice Hedley, whom I have previously hero-worshipped :-

“This was, it has to be remembered, a county court case, and this court simply has to accept that county court judges may not produce judgments under pressure that are reasoned with all the detail and finesse that may have come to be expected of a reserved judgment in the High Court. The judge here has found the background facts, correctly applied the law, identified all the matters that call for caution before making his central finding as to sexual abuse. That, in my view, was entirely adequate, as it explained to the parties and indeed to this court the matters that he had had in mind when reaching his decision.”

I think it is the element relating to identifying all of the matters that call for caution before making the central finding that has led to some of the successful appeals being granted – we are not too far away from a Judge dealing with sexual abuse allegations having to give herself (or himself) the sort of detailed direction as to the caution to be applied as has become customary in the criminal courts.

Lord Justice Munby (who has made some decisions that professionally have been a blight on my day to day work – particularly his obiter remarks in the judicial review that led to a ‘daily contact’ rule of thumb springing up across the land, but whom I always enjoy reading) makes some important remarks about case management, reflecting that by the time of the appeal, the case had been in proceedings and the children in care for 13 months, and the case had not actually progressed beyond fact-finding stage.

  1. Ever since the protocol was introduced in 2003 the objective has been to ensure that no care case lasts more than 40 weeks. That, as we all know, is an objective to which it has never been possible to achieve and, as we all know, there are still, eight years later, far too many cases in the system taking more than 40 weeks to come to a conclusion. That said, the periods involved in this case are not merely excessive in comparison with the target; they are greatly in excess of that and much to be implored. The issue, of course, is one of time. Those involved with the system do their best to achieve the outcomes for children and families as best they can, struggling against inadequate resources, but it is nonetheless a deeply distressing fact that this case should have lasted already as long as it has.
  1. The second feature, it would appear, is that no judge has ever been allocated to the case as the allocated judge who, whether or not he or she is able to conduct the hearing, is nonetheless the judge who, as allocated judge, has overall judicial case management responsibilities for the case, and part of whose functions is to ensure the maximum degree of judicial continuity. Indeed, the indication that has been given is that there has been a significant absence of judicial continuity in a case where a serious non-compliance with the procedures in the court there has never been a judge allocated. The principle that a judge should be allocated in a care case was laid down in emphatic terms, as was the necessity for the vigorous judicial case management judicial continuity in the protocol introduced in 2003. That has now been superseded but in this respect without any change in substance by the more recent public law outline. I find it disturbing that in 2011, eight years after the introduction of the protocol, there should be a care case involving allegations as serious as this case does, where there has apparently been such significant failure for whatever reasons to comply with the normal processes and practices of the court. I cannot help suspecting that those failures have had some contributory impact upon the third factor, which as my Lord has pointed out is the disturbing fact that the fact-finding hearing which, as the House of Lords has made clear, is merely the first part of a single process to be conducted by the same judge, the other part being the final or, as it is sometimes unfortunately called, disposal cases. The case was allocated for fact-finding purposes to a judge whose sitting patterns would have made it difficult and, as it has turned out, impossible for him, within any acceptable timescales, to conduct the second and, it may be in this particular case, the third part of the hearing.
  1. It is a matter of very profound concern and deep regret that the system should have operated in so unsatisfactory a fashion in a case of considerable significance to the parents and where, as my Lords have pointed out, a percentage of their lives, which in my assessment is wholly unjustifiable, have been taken up with litigation to which the end is not yet in sight. Something must be done.

I suspect, and I have known quite a few of them, that being the County Court family listing officer is one of the most thankless and under-remunerated jobs in the entire profession; and that very often the desire for judicial continuity gets gently set to one side in the desire to keep the number of cases who are told “you can’t go ahead and your hearing will need to be vacated due to unforeseen problems” to a minimum.  They are routinely trying to juggle listings that are running at 200% of actual judicial capacity, and sometimes something has to give.

I genuinely believe that every Court in the country, every Judge in the country, passionately believes in judicial continuity being a good thing and would want to preserve it; and that there would be savings and reduction in judicial reading and better case management if judicial continuity was sacrosanct. But I suspect that the price for that would be more and more cases being weighed off and vacated at the doors of the Court because of the pressures of trying to manage a court diary that has to, as a result of resources, run so much in excess of capacity if every case stands up to its time estimate.

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“Oh don’t leave me alone like this” – the legal test on Stays

Posted on March 30, 2012 by suesspiciousminds

Apologies both for the lack of blogging (have been on puppy-adoption leave) and bringing East 17 into this. Possibly the first time East 17 and the Children Act 1989 have been combined together, unless there was a case conference about whether having your child dressed head to toe in Burberry was emotionally harmful…

I thought I’d share the relatively recent decision on applications for Stays in care proceedings, firstly because it filled a gap in caselaw  (it remains a source of amazement and inspiration to me that nearly twenty years after the Children Act took effect, there are still gaps to be filled in), and secondly because I was trying to find this the other week, knowing that it existed and what the gist of it was, and I had a hell of a job…

The tl:dr version is that the case (Haringey 2011) derives these five principles to be applied in any application for a stay :-

  1. The Court must take into account all the circumstances of the case
  2. A stay is the exception rather than the general rule
  3. The applicant seeking the stay should provide cogent evidence that the appeal will be stifled or rendered nugatory unless a stay is granted
  4. The court applies a balance of harm test, in which the prejudice to the successful party must be carefully considered
  5. The Court should take into account the prospects of the appeal succeeding, and only consider a stay where there are strong grounds of appeal or a strong likelihood of success.

 

 

The word nugatory struck me as being potentially interesting, as well as having good ‘mouth-feel’  (like the word I got from Inky Fools this week ‘apricate’ meaning to bask in the sun)  and so I double-checked it  – it means ‘trifling’ or ‘of no value’  and derives from Latin meaning ‘jester’ or ‘trifler’

 

 

Neutral Citation Number: [2011] EWHC 3544 (Fam)

Case No: BT 09 C 00235

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

7th October 2011

B e f o r e :

MR. JUSTICE MOSTYN
____________________

Between:

NB

 Applicant

– and –

LB OF HARINGEY

 Respondent

____________________

____________________

MISS TERESA PRITCHARD (instructed by Eskinazi & Co.) for the Applicant
MR. JUSTIN AGEROS (instructed by LB Haringey) for the Respondent
MISS JANE PROBYN (instructed by Donald Galbraith & Co.) for the Guardian
____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

MR. JUSTICE MOSTYN:

  1. Yesterday, at 5.30 p.m., the North London Family Proceedings Court made an interim care order in respect of JG, who I think is nearly 3 years old. The application before me today is for a stay pending an appeal of that decision, which appeal would likely be heard on 28th October 2011 by the Circuit Judge in the Barnet County Court.
  1. Given the nature of the application and of the decision I have to make, it is important that I do not say more than is strictly necessary to decide the application and do not say anything which might influence the outcome of the appeal one way or the other.
  1. The application was made against a backdrop of considerable chaos in the life of this child. His mother is an admitted drug user who claims to have foresworn the use of drugs until comparatively recently, six weeks ago. She is a person who has not complied with agreements and directions for testing for drugs notwithstanding the plainest warning to her on the face of an interim order of the court that were she not to do so the inevitable inferences would be drawn; and she is a person who maintains a close relationship with her partner who is in prison convicted of serious domestic violence upon her.
  1. The position of the mother before the justices was that the interim threshold was not passed. In contrast, the position of the guardian was that the interim threshold was indeed passed but that an interim supervision order rather than an interim care order should be made. The position of the local authority was that the interim threshold was passed and an interim care order should be made. The result of the case was that an interim care order was made. The magistrates produced their reasons in an extremely abbreviated period of time. Inevitably, analysis of those reasons reveals that they may have been better put but the pressure of time meant that defects were almost inevitable.
  1. A complaint is that section 5 of the written decision relies only on the risk of domestic violence at the hands of a man who is in prison and will remain in prison until the matter is next considered by the justices, and does not make any explicit reference to the other matters, although in their account of the history it is clear that those other matters were at the forefront of their mind, which is hardly surprising given that the mother herself had given oral evidence before them.
  1. The appeal is governed by Part 30 of the Family Procedural Rules 2010 and Rule 30.8 states that an appeal notice does not operate as a stay of any order or decision of the lower court unless the lower court or appeal court orders otherwise. There are numerous authorities bearing on whether a stay should be granted although, rather surprisingly, there is none so far as I am aware on whether those tests are modified in a case involving a child, whether in private law proceedings or public law proceedings. Plainly, the test which I will adumbrate in a moment has to be seen through the welfare prism that overarches all family proceedings. That said, the principles cannot, in my judgment, be materially different whatever the nature of the dispute in hand.
  1. The leading authorities are Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065, Leicester Circuits Ltd v Coates Bros plc [2002] EWCA Civ 474, Contract Facilities Ltd v The Estates of Rees (decd) [2003] EWCA Civ 465, the old Court of Appeal case of Wilson v Church (No. 2) [1879] 12 Ch Div, 454, an unreported decision of the Court of Appeal, Winchester Cigarette Machinery Ltd v Payne (No. 2), 15th December 1993, and a helpful decision which seeks to draw all the authorities together given by the Chief Judge of the High Court of Hong Kong, Ma J, Wenden Engineering Services Co Ltd v Lee Shing UEY Construction Co Ltd, HCCT No. 90 of 1999. In that latter case the Chief Judge stated:

“7. The existence of merely an arguable appeal cannot by itself amount to a sufficient reason to justify a stay. It can be put this way, the existence of an arguable appeal, that is one with reasonable prospects of success, is the minimum requirement before a court would even consider granting a stay. In other words, however exceptional the circumstances may be otherwise justifying a stay of execution, if the court is not convinced that there exists arguable grounds of appeal no stay will be granted. Conversely, however, the existence of a strong appeal or a strong likelihood that the appeal will succeed, will usually by itself enable a stay to be granted because this would constitute a good reason for a stay. (See Winchester Cigarette Machinery Ltd)

8. In most cases the court will not be dealing with the extreme situations I have referred to. Often, it will be faced with simply the existence of an arguable appeal. Here, it becomes necessary for the appellant to provide additional reasons as to why a stay is justified. The demonstration of an appeal being rendered nugatory is one example albeit a common one. Here, where it is demonstrated that an appeal would be rendered nugatory if a stay was not granted the court may require no more than the existence of an arguable appeal. Correspondingly, where it cannot be shown that an appeal would be rendered nugatory if a stay were not granted, the court will require in the absence of any other factors the applicant to demonstrate strong grounds of appeal or a strong likelihood of success.

From these authorities I derive the following five principles in relation to the application before me. First, the court must take into account all the circumstances of the case. Second, a stay is the exception rather than the general rule. Third, the party seeking a stay should provide cogent evidence that the appeal will be stifled or rendered nugatory unless a stay is granted. Fourth, in exercising its discretion the court applies what is in effect a balance of harm test in which the likely prejudice to the successful party must be carefully considered. Fifth, the court should take into account the prospects of the appeal succeeding. Only where strong grounds of appeal or a strong likelihood of success is shown should a stay be considered.”

  1. In this case, given the proximity of the appeal hearing and given the nature of the dispute, namely, the effective residence of the child for the next three weeks and one day, there is no question that the appeal will be stifled were a stay not to be granted. It therefore follows, in my view, that in order for a stay to be awarded it has to be demonstrated today that there are strong grounds of appeal or a strong likelihood of success. I find it impossible on the material before me to reach that conclusion. Indeed, in circumstances where it was accepted by the guardian, and indeed positively asserted by the local authority, that the interim threshold had been passed, it likely becomes a simple question of analysing whether the exercise of discretion made by the justices to award an interim care order rather than an interim supervision order has miscarried or it is otherwise demonstrated to be plainly wrong. On the material before me I cannot say that that is the case, although I am not, I emphasise, deciding the appeal. What I am deciding is that I am not satisfied on the material before me that there are strong grounds of appeal or a strong likelihood of success and the application is therefore refused.

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sound the action klaxon, summon action jackson…

Posted on March 14, 2012 by suesspiciousminds

It is all go today, good job it is my non-working day. My bits will be in bold, on this piece – the non-bold stuff is directly from the report.

The much-vaunted Government Adoption Action Plan is finally published. No longer will we have to rely on scraps on information leaked by Ofsted or behind paid firewalls at the Times (just a little gripe that if you are going to launch far-reaching policy guidance on vulnerable children, maybe making people pay Rupert Murdoch if they want to read it isn’t the greatest plan)

Here’s where it is  (in usual government style, it takes a while to find by searching, so I’ll save people the trouble)

http://media.education.gov.uk/assets/files/pdf/a/an%20action%20plan%20for%20adoption.pdf

Firstly, tackling delay in adoption is a laudable aim, as is trying to do something about the disparity of time that children of different ethnicity have to wait, and promoting the concept that adoption might be something that more people want to try and removing some of the more unnecessary barriers to good-hearted people coming forward are all good things. 

Let’s see if they’ve accidentally thrown the baby out with the bathwater, however. The headlines flying around suggest that the report is yet more micro-management and exactly the sort of Tony-Blair target-setting that has (a) worked so badly in the NHS and (b) Munro thought so little of.  Are those headlines reflective of the report as a whole, or have the Government just done a press-release for the media that’s all “tough on lazy social workers, tough on political correctness gone mad” but with a report that is actually much more nuanced and thoughtful?

A shocking statistic early on  (albeit from 2004) – that 42% of looked after children aged between 5-10 had a mental disorder of some kind – this being five times the figure for children of that age-group generally.

The current number of looked after children under five is 15,680 and growing quickly.

.Delays in the adoption system cause lasting harm for vulnerable children, and may rob them of their best chance of the love and stability of a new family.  Based on an in-depth study of the case histories of 130 older looked after children for whom adoption had been identified as the best option, Dr Julie Selwyn concluded that: ‘delay in decision making and action has an unacceptable price in terms of the reduction in children’s life chances
and the financial costs to local authorities, the emotional and financial burden later placed on adoptive families and future costs to society’. We must not and will not allow unnecessary delay to continue

There’s a nice recognition of both the important role that social workers have, and the risks of breakdown – it is pleasing to see some proper research being commissioned into adoption breakdowns  (I’m sure we’ve all heard different figures bandied about, to suit various agendas, as to what proportion of adoptions break down and it will be good to get a definitive answer, and hopefully some better understanding of the factors that lead to this and how we can address them.)

32.Social workers have an extremely sensitive, challenging, and important job to do.  We expect them to make decisions which change lives, on what can only ever be imperfect evidence.  We owe them a great deal of gratitude.
33.When a social worker is considering a decision about adoption, the risks of getting it wrong are all too evident in terms of the impact on vulnerable children, birth parents and adoptive parents.  What can be less obvious is the harm done to the child by delaying adecision in order to allay all remaining doubts.
34.Social workers need time to gather the necessary evidence, work with birth parents and provide the basis for a robust decision.  Some argue that efforts to speed up adoption will lead to an increase in adoption breakdown, by forcing social workers and local authorities to make rushed and therefore lower quality decisions.  Adoption breakdown is of course an important issue and we currently have too little data and evidence about it.  Estimateshave tended to put it at around 20%, but in his recent report, Martin Narey convincingly argued that the true figure was much lower – around ten percent for children adopted under the age of five, and just three percent for those adopted under the age of one.  He cited a study which followed a high risk group of children – adopted between the ages of five and eleven – until their fourteenth birthday. It found that 23% of the adoptions had broken down by that age, which would suggest a much lower rate for adopted children overall.  We have commissioned the University of Bristol to undertake further research into the rate of and reasons for breakdown
35.But it is too simplistic to argue that speedier adoption will lead to more adoption breakdown.  First, it is wrong to suggest that unnecessary delay in the system is all down to social worker decision-making – the causes are much more widespread and include the regulatory and accountability frameworks, the supply of prospective adopters and issues in the family justice system. Second, as we have seen, taking longer to make decisions is in itself harmful to children and reduces the chance of successful adoption

This also sounds like a sensible proposal

.Currently, the generic degree for social workers contains limited content on child development, attachment theory and other relevant research from neuroscience, and very little on adoption.  The Government is asking that universities address these gaps as a matter of urgency
43.The Family Justice Review identified a similar issue and suggested that a better understanding of child development and the negative impacts of delay for children was an absolute requirement for all family judges.  It recommended that the Judicial College, the provider of training for judicial office-holders, reflect this in its training for family law work.  The Government accepted this recommendation and will work with the JudicialCollege to take it forward.
44.At present, there is no readily accessible reference material for family justice professionals, such as judges, magistrates and lawyers, on the impact of delay on a child’s development. To address this, the Government has commissioned Professor Harriet Ward to produce some concise but authoritative guidance which summarises the key research evidence in the context of care proceedings.  The Government will make this guidance available later this year

Best-practice – they were taken with the involvement of Coram in adoption, and particularly this model 

We spoke to a number of local authorities who had rigorous case management systems, which were effective in tackling delay.  The London Borough of Harrow, which works with the voluntary adoption agency Coram, holds monthly meetings chaired by a Coram senior manager at which the progress of every child is tracked.  These meetings help social workers to balance the demands on their time and give due regard to the child’s pressing timetable in their decision-making. They provide a forum for delay to be escalated and tackled – for example by widening the search for a family to other agencies.  They can also offer a useful mechanism for the
Independent Reviewing Officer (IRO) to monitor the local authority’s performance of its functions.  Every looked after child has an IRO, who is appointed by the local authority to quality-assure care planning.
48. Our fieldwork showed that these simple but effective approaches are not yet standard practice.  The Government will therefore work with the Children’s Improvement Board – the consortium of local government representatives responsible for supporting local authorities in improving children’s services – to gather and disseminate best practice in establishing management systems that help ensure swifter high-quality decision-making.

Ethnicity – the big hot potato of a political issue  – the italics are mine here, to show plans for new primary legislation

52.That is not to say that ethnicity can never be a consideration.  Where there are two sets  of suitable parents available then those with a similar ethnicity to the child may be the better match for the child.  Sometimes an ethnic match will be in a child’s best interests, for example where an older child expresses strong wishes.  However, it is not in the best interests of children for social workers to introduce any delay at all into the adoption process in the search for a perfect or even partial ethnic match when parents who are otherwise suitable are available and able to provide a loving and caring home for the child.
53.Similarly, there are approved adopters who are ready and able to offer loving homes but who are too readily disregarded because they are single, or considered too old.  These can, of course, be relevant factors, but we know that in most cases delay and the instability associated with it will be the greater potential cause of damage to the child.
54.The Government will bring forward primary legislation at the next available opportunity to  address these issues.  The overriding principle in finding a match for a child will remain what is in the child’s best interests throughout their life

National register – requirement to search on this register after 3 months if child not placed

56. It also proposes a legislative requirement on all adoption agencies to refer to the Adoption Register all prospective adopters who are not being matched to a child within three months of being approved (provided the adopters agree).

58 .We are also considering other ways of promoting earlier and wider efforts in family finding.  Over the last decade, about 20% of children who have been adopted were placed with adopters recruited and approved by voluntary adoption agencies, but voluntary adoption agencies tell us they could do more.  One of the reasons that many local authorities do not make more use of them is that they think the inter-agency fee is   too high. In fact, Dr Julie Selwyn has found that inter-agency placements cost virtually the same as in-house placements when overheads are taken into account. As part of our work for the summer children in care publication, we intend to review the effectiveness of local authority commissioning arrangements for adoption, and consider whether further action should be taken to increase the role of voluntary adoption agencies in the system.

(I have to confess that this bit makes me apprehensive, and thinking that when some people hear the phrase ‘conflict of interest’ they might possibly be hearing something different to when I hear it. My fear prior to reading this report is that it would be setting up a system that public authorities couldn’t comply with, in order to smuggle in private practice taking over the role of adoption agencies – this being a political belief that private=better than public always, which has served us so well in IT, security guards, the NHS, construction of schools, hospitals etc over the years. This was the first bit that made me shudder, as I am very aware of the gulf that currently exists between in-house and inter-agency placement fees/costs)

Concurrent placements, and make it more easy to convert from fostering to adoption

.We would like the principles behind concurrent planning to be used more widely and for children as well as infants.  Whilst there can be no question of pre-empting a court decision, we want to see local authorities working with family-finding teams as early as possible to find potential permanent carers for children, and children with families who may, if the court agrees, go on to adopt them.  Where a child’s case is still in court and no placement order has been made, these placements are foster placements under the Children Act 1989.
62.While such practice is consistent with the current legislative framework, the Government believes that it should be easier for local authorities to approve prospective adopters as foster carers as this would enable more children to benefit from a greater continuity of care.  We will therefore consult on changes to legislation to enable a more stream-lined process for prospective adopters to be approved as foster carers in appropriate cases. This will enable vulnerable children, for whom there is little likelihood of a return home, tobe placed with their potential permanent carers as early as possible.  Local authorities will make sure that carers have the necessary skills, training and ongoing support to meet the needs of the child who is being fostered whilst allowing full consideration of the placement order application by the courts, and the birth family will continue to be supported.

I’m very excited about the idea of concurrent placements and think that it has potential to really transform outcomes for children. I was very excited when I first came to my area that it was something they did, but in three years, I’ve not done a single one, and the distrust of it amongst other family justice practitioners has made it unworkable. I can see a real and genuine fear amongst those acting for parents that foster carers (who often are a source of primary evidence about say, how the children react to contact or missed contacts) might find themselves in a conflict of interest if they are at the same time hoping to adopt the child AND providing the Local Authority with evidence about the children.

Recruitment and training of adopters   (all seems sensible – though I’m not sure four months gives the time both for a robust assessent and for the prospective adopters to have really undergone the rigorous self-examination that is required)

76.At the heart of the proposals is a radically redesigned two stage training and assessment process.  For the majority of prospective adopters the first stage (pre-qualification) will be completed within two months and the second (full assessment) within four.  There will be a fast-track process for people who have adopted before, or who are already approved foster-carers who wish to adopt a child in their care.
77.The pre-qualification phase will involve initial training and preparation – clearly separated from the full assessment phase.  During this stage, prospective adopters will use initial training sessions and online training materials to develop their understanding of adoption and to reflect on what they have to offer before progressing with their application.  The full assessment stage will consist of more intensive preparation and training and a new more streamlined and analytical assessment process. Adoption agencies will sign up to assessment agreements with prospective adopters setting out what will be involved and what the timetable will be, given their particular circumstances.
78.We think this new process has the potential to improve significantly the quality of the service that prospective adopters receive from the adoption system and to begin to increase the numbers that enter and complete the assessment process while providing the appropriate rigour. This in turn will improve its reputation and attract greater numbers of prospective adopters.  We accept these proposals outright.  Implementing them fully will require changes to regulations, statutory guidance and the National Minimum Standards. The Government will consult on the necessary changes later this year, with aview to implementing them as early as possible next year.  In the meantime, theGovernment will work with the national and local agencies represented on the WorkingGroup to prepare for successful implementation of the new system.   BAAF has produced a draft new assessment form and intends to pilot this over the coming months.  We agree in principle with the proposal that the government develop new online training materials,and will consider further how they can best be developed.
A new national gateway to the adoption system  – again, seems sensible that adopters can get a secondary route into the process and not be solely reliant on their own LA

79.The Working Group’s second key proposal is the creation of a new national gateway to the adoption system.  This would complement adoption agencies by providing a central point of contact for anyone interested in adoption.  Through a telephone helpline and website, it would provide independent advice and information about adoption and how to apply to become an adopter.  In particular, it would make sure those interested in adoption knew they were not obliged to adopt through their local authority, and help them to choose the right agency for them in their local area.  It would also assess management  information about how prospective adopters are treated and support a national customer service charter.
80.We think the proposal for a new national gateway could dramatically improve the experience of those who enquire about adoption.  We think it could also help prospective adopters to exercise greater choice and so encourage improvement by adoption agencies.  We accept the proposal in principle but before we begin to implement it, we want to consider whether the gateway’s remit should extend further.  Should it for example have a role in supporting prospective adopters to hold local authorities, voluntary agencies and consortia to account for the quality of their service?  Should it be linked to the Adoption Register – the other national element in what is primarily a local system?  Should we seek to encourage all prospective adopters to use it as a first point of contact to ensure it has a comprehensive national picture of the supply of adopters? We will explore these questions and others, with the help of the Working Group, in order to develop a final proposal in time for the summer children in care publication.  We welcome the proposal for a customer service charter and we have asked the WorkingGroup to develop its contents, as we consider the proposal for a national adoption gateway

There’s also discussion of an “adopter’s passport” which will be a transparent guarantee of the support adopters will get – sounds very sensible (silent as to whether there will be more funds for adoption support, and silence speaks volumes, as we all know)

The adoption scorecard  (this is where the ghosts of Tony Blair and John Major’s cones hotline came in and rested cold skeletal hands on my shoulder, but I don’t think it is necessarily as bad as the truly awful name suggests – it might actually be a way of getting some quality information as to where the problems exist so that they can be targeted – and I mean where in the system more than where in the country)

A new adoption scorecard
94.All of this will make a difference, but we need to go further if we are to get the system from where it is now to where it needs to be to best serve children in need of adoption.
95.Generally, the Government does not believe in managing the performance of local authorities from the centre by reference to a large and comprehensive set of targets and indicators. In most circumstances, we think it is more effective for local authorities to be held accountable by their local residents through democratic means.  However, where necessary, we continue to take action ourselves to ensure adequate services are provided to the vulnerable. Looked after children are amongst the most vulnerable people in our society and they are not in a strong position to hold the local authority – who acts as their parent – to account.  It is clear that the current inspection and accountability frameworks have not secured the improvements needed to maximise their chances of being placed quickly in a safe and loving home.
96.At present, all but a small handful of local authorities fail on average to meet the timescales that statutory guidance sets out for the different parts of the assessment process.  And there is huge variation between local authorities.  Large numbers of them fall short by a significant margin, with the very slowest local authorities taking an average of nearly three years for a child to go from entering care to being placed for adoption.  As this Action Plan has made clear there are a variety of reasons for this, but for the sake of children whose best future depends on timely adoption, we need to increase the focus of the adoption system on eradicating unnecessary delay.
97.In the coming weeks, the Government will therefore publish new adoption scorecards for each local authority, which will then be updated annually when new data become available.  The scorecards will highlight key indicators for how swiftly local authorities place children in need of adoption and how swiftly they and adoption agencies deal with prospective adopters.  They will allow local authorities and other adoption agencies to monitor their own performance and compare it with that of others.  Because comprehensive national data on timeliness for prospective adopters will not be available until autumn 2014, the scorecard will focus initially on local authorities and the adoption process for children.  In the interim, we will assess the timeliness of the prospective adopter’s journey in a cross-section of adoption agencies as they prepare to implement
the new training and assessment process. From 2014, the scorecards will include data on prospective adopters and will be published for all adoption agencies so that they can
compare their performance in relation to timeliness with each other (see figure 1 below).

98.The first key indicator will relate to the overall experience of a child who is adopted. It will measure the average time it takes for a child who goes on to be adopted from enteringcare to moving in with his or her adoptive family.  The local authority leads this process, working with the child, the birth parents and the prospective adopters, but they share the responsibility for parts of this process with the other agencies in the family justice system,  including the courts and Cafcass.  Where this indicator signals weaknesses in the family justice system in a local area, this will be tackled both through the work of the Family Justice Board at national level and the Local Family Justice Operational Boards.
99.The second key indicator will look at the same period, but identify the proportion of  children who wait longer for adoption than they should.  It will help ensure the scorecard takes account of children still waiting, as well as those who have already been adopted – and allow us to act quickly if a large number of children seem to be stuck in the system in a particular local area.
100. The third key indicator will test the speed and effectiveness of family-finding.  It will measure the average time it takes for a local authority to match a child to an adoptive family once the court has formally decided that adoption is the best option.  Family finding is a part of the adoption process which is the sole responsibility of the local authority so this indicator will always give an undiluted picture of their performance.  We will measure the time it takes to match a child, rather than for the child to move in with their new family because we recognise that a smooth introductory phase is vital and will be different for each child. As we set out in chapter one, family-finding should begin as soon as a child is identified as needing adoption, and run in parallel with other parts of the adoption process. In many cases, prospective adopters should be ready and waiting
for the child when the placement order is made.
102. The introduction of the scorecard does not mean that we are asking adoption agencies to focus on the timeliness of adoption to the exclusion of everything else that makes a difference to a child’s adoption.  It is designed to incentivise the adoption system to give timeliness greater attention than it previously has.  We don’t want it to distort local authority decisions about whether adoption is the best option for children, for example by discouraging them from placing some children for adoption – such as older children, those in sibling groups or those with complex needs.  Both the Department, in looking at local authority performance in relation to the scorecards, and Ofsted in their inspections, will take account of and give credit to local authority efforts to place childrenfor whom it is difficult to find a family.  We will therefore include amongst the additional
information the numbers of older children being adopted, and the numbers of children where the local authority initially decides adoption is the best option, but revisits and changes that decision before the child is adopted

The overall target – there’s a recognition that one can’t make immediate dramatic transformations, and it is more stepped

. Initially, our performance threshold for the child’s journey overall will be twenty one months.  Within four years, it will be fourteen months. The threshold for the family finding indicator will be seven months initially, moving down to four months within four years. We will keep these thresholds under review as we develop and implement the changes to the adoption system set out in this Action Plan and elsewhere.  Achieving this level of transformation will help protect thousands of children from the harm associated with delay and instability

What’s at the end of the stick, Vic ?   (as usual, it is Ofsted, the paragon of good practice everywhere. Sorry, my SARCASMLOCK button got pressed accidentally there) Note the really big stick in my italics at the end.

105. In line with our general approach to local government, we expect the sector to lead efforts to ensure local authorities and the family justice system improve in line with these minimum expectations through its own improvement mechanisms.  However, given the vulnerability of these children and the current levels of under performance, central Government can and will intervene where necessary.  The indicators alone do not give a full and authoritative picture of local authority performance so there will be no automatic link between the performance thresholds and intervention. Where local authorities are below one or both of the thresholds, we will look at further information from the performance tables and from Ofsted reports to get a fuller sense of the results they achieve for the children in their care. We will, for example, look at whether poorperformance against the indicators reflects the complex needs of the children being placed for adoption, as opposed to failings in the local authority’s family finding.  We will also consider to what extent a local authority’s performance is already showing signs of improvement, even if the threshold has not yet been met.  Where this exercise substantiates performance concerns triggered by the scorecard indicator, we will have conversations with local authorities about their performance. Ultimately, we will consider where we may need to intervene in order to ensure that local authorities are providing an adequate service to children in need of adoption.
106. Where we need to intervene in the interests of children, we will use improvementnotices to require authorities to take specific action to improve their performance within set timescales. Where performance remains poor and the evidence suggests an authority will be unable to improve its own performance sufficiently, we will not hesitate to use our statutory powers of intervention.  This might involve, for example, directing local authorities to outsource all or part of their adoption service to another higher performing local authority or voluntary adoption agency with a strong record

My overall impressions – not as bad as I had feared – the document has clearly had input from people who have actually had something to do with adoption, rather than being a top-down this is what the Daily Mail will like hatchet job, and whilst I don’t necessarily embrace all of how they want to achieve their goals, the goals themselves are laudable. This reads to me like a genuine attempt to address problems, rather than the Politicians Syllogism  (1. We must do SOMETHING. 2. THIS is SOMETHING. 3. Therefore we must do THIS)

Comments Off on sound the action klaxon, summon action jackson…

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who assesses the assessors?

Posted on March 14, 2012 by suesspiciousminds

Always nice to get a little Alan Moore / Juvenal nod into the title if you can.

The Family Justice Council report on the quality of expert psychologists used in care proceedings (as trailed on Channel 4 news) is up .

You can find it at http://www.uclan.ac.uk/news/files/FINALVERSIONFEB2012.pdf

They looked at 126 reports from 3 courts, and used four independent assessors to judge the quality of the reports, both against the guidance of the CPR and a piece of American caselaw (which I have to confess was unfamiliar with me until today) giving guidance on the construction of expert reports and their own views as to the quality of the report. They found, as you may have heard, that :-

 One fifth of instructed psychologists were not deemed qualified on the basis of their submitted Curriculum Vitae, even on the most basic of applied criteria.  Only around one tenth of instructed experts maintained clinical practice external to the provision of expert  witness  work.   Two thirds  of  the  reports reviewed were rated as “poor” or  “very poor”, with one third between good and excellent.

Without wishing to be unkind, my preliminary view is that they’d obviously got  a particularly strong batch. I have found most psychological reports to be a blend of regurgitation of information already found elsewhere, a statement of the bleeding obvious, recommendations plucked from thin air and if you’re particularly lucky a hefty dose of God Complex thrown into the mix.   [I would add, however, that if you get a really good psychological report, it sings, and makes the gulf in quality even more visible. I’ve got a few psychologists, who are always snowed under and have huge timescales, but always, without fail produce a report that adds something worthwhile to the process. Sadly, their numbers are dwarfed by the people who tell you very little, and take 160 pages to do it]

Here are some of the particular issues that the report considers have been problematic with psychological assessments : –

Research has identified a range of criticisms of psychological reports in general.  These  include occasions where:
Psychological evidence has been presented as scientific fact when in fact it is speculation and conjecture 

There has been an absence of psychological theory;


Evidence has been provided concerning concepts which are not accepted within the field and have not been demonstrated empirically.  At times this has had a negative
impact on the outcomes of proceedings (e.g. with one of the most heavily criticized concepts being that of „recovered memory‟)

There has been a failure to provide evidence which is outside the knowledge of the typical judge or juror  

Psychometric evidence has been submitted as scientific fact when it does not meet the criteria for this (e.g. Daubert criterion).  Rather the evidence  has represented
specialised knowledge at most, with some submitted psychometric evidence based on research and not clinical assessment tools

An over-use of psychometrics, not all of which are applicable to the case being assessed.  Over-use of jargon and speculation, with poor content and style and a
failure to include the data from where inferences are drawn 

The credibility of the source has not been included, with no attempt  made  to evaluate the reliability and validity of the methods used to collect data

Psychological risk assessments have focused on first and second generation approaches (e.g. unstructured clinical and actuarial) as opposed to the more reliable
and valid third generation approaches (structured clinical, with or without actuarial anchoring)

Allegations have been reported as facts

Emotive terms have been applied where these could prejudice a decision

They found that 29% of the reports provided insufficient facts and moved ahead to a conclusion. That 22% had significant missing data but still expressed a conclusion.

To illustrate examples concerning missing data, these are as follows:
– Reports on more than one child which failed to include the data on all children but still cited an opinion on all the children;
– Reports drawing conclusions which have not been mentioned in the report, as noted by one reviewer: “Indicates in conclusion that any individuals assessing this
client should be knowledgeable of Aspergers type characteristics and the impactof this on parenting.  This was never mentioned in the report, or assessed, and
appeared as the last sentence” [rater comment].
– Reports where opinions are presented where data was completely absent, i.e.  “Comments on self-esteem, emotional loneliness, perspective taking, sexual risk,
but include no data” [rater comment].
– Reports where the data is completely missed, “Does not include fact section  –goes straight to opinion” or “cites psychometrics but no scores” [rater comment].17
– Report citing opinion without conducting a formal assessment, “stated that client presented as being of average intelligence without deficits in comprehension or
expression, formal intelligence testing was not undertaken” [rater comment].  
Further examples were:  “he seemed, at times, to be quite a jumpy person with arousal levels higher than an average baseline.  No assessment completed of this”
and “did not assess for personality and yet draws opinion on it”.
– Refers to the opinion of another as their opinion, “Refers to someone else‟s report in response to an instructed question” [rater comment].

Ouch.

They then considered the conclusions against the main body of the report  (a particular bugbear of mine, since if you can’t tell why the conclusions have been reached, how is any professional supposed to explain to their respective client why the expert is with them or against them, and whether they should shift their own position?)
Specific background missing/unclear (1). 34.0 %
Limited opinion (2). 17.0 %
Opinion confused or not clearly explained (3) 17.0 %
No background, just opinion (4) 9.4 %
Some opinions, not linked to factors  (4) 9.4 %
Opinions not substantiated (6) 7.5 %
Questions not answered (7). 3.8 %
No opinion (8). 1.9 %

Okay, the “no opinion” at all has a pretty low score, but that probably still represents from that pool five families who waited for three or four months for a psychologist to help decisions about their future to be made and who got nothing more than an expensive Scooby Doo report  (shrug of shoulders, “I-dunno”)

They found that 60% of the reports had missed the requirements of the CPR for an expert report.

They give some examples of the expert straying into areas reserved for the Judge (I point this out, because in general I agree with the report, but I think the example given here is quite badly flawed and rather weakens some of the other criticisms  –  “I am of the view that these children have all suffered significant harm”   – the ultimate decision on that is of course for the Judge, but there are many, many times when an opinion from the expert as to that is helpful, and generally it is provided as an answer to one of the questions. That, I think highlights the difference between the reports commissioned under the CPR for civil matters and for children matters – the expert is there to help the Court with specialised expertise rather than as a ‘gun for hire’ as happens/happened in civil cases. )

But the report isn’t just a woe-is-me hatchet job, it does go on to make some recommendations. They are worth reading in full, but these are the ones that I considered to be very important

 That instruction of experts should be restricted to those currently engaged in practice which is not solely limited to the provision of court reports.  Only
approximately one tenth of the instructed experts were engaged in practice outside of court work.  This is not in keeping with the expectation of an “expert” as a
senior professional engaged in current practice, suggesting that courts are accessing those whose profession is now solely as an “expert witness”.   There
should be an expectation that  psychologists providing court reports should continue to hold contracts with relevant health, government or educational bodies
(e.g. NHS, Private Health, Prison Service, Local Authority etc) or demonstrate  continued practice within the areas that they are  assessing (e.g. treatment
provision).   This is a means of ensuring they remain up to date in their practice, are engaging in work  other  than assessment, and are receiving supervision for
their wider work as psychologists.  Connected to this, courts should be wary of experts claiming to complete excessive amounts of independent expert work.

 That the instruction is clearly for the expert to conduct all aspects of the work and not graduate psychologists or assistants.  Such individuals are not qualified with
the term „graduate psychologist‟ used to describe those who have completed approximately one third of the required training (e.g. an undergraduate degree in
psychology and nothing more).  There was evidence of their over-use by experts,who were relying on them in some instances to review collateral information and
interview clients.  Courts should only be paying for the expert witness to complete all aspects of the report


Care should be taken with the use of psychometrics and these should not unduly  influence final judgments.   The current research indicated a wide range of such
assessments being used and not all relevant or up to date.  If tests are utilised then experts should be providing  courts with sufficient information to allow them to
judge their quality.  Using the Daubert criteria as a reference for this would assist with the quality of this information (e.g. provision of error rates, evidence of the
theory or method the test was based on), and assist courts to judge how it should be admitted as evidence.

A need for psychologists to provide provisional opinion and alternative opinions.  

The data from which opinions are drawn needs to be clearly indicated to the court.

The use of tested and/or generally accepted psychological theory to support core findings.    Courts are paying for  psychological assessments and this should be
evidenced to distinguish the opinions from those provided by other disciplines

(Hallelujah to that last one.)

The report doesn’t really get into the other side of the coin, which is – are we asking psychologists routinely to assess parents when it is not the right sort of assessment? When I started, psychological assessments were confined to cases where there was some unusual feature or behaviour and the professionals simply couldn’t understand fully and called in a psychologist to advise on that aspect  (I would add that the professionals at that time would have generally been a social worker very skilled and experienced at assessing families rather than a ‘commissioner of assessments’ and an old-school guardian whose role was to dig into the LA work with the family and see if things ought to have been, or could have been, done differently).  Now, a psychological assessment is routinely considered in neglect cases, where common sense tells everyone concerned that the problems are either motivation, lack of comprehension of what is needed to run a family in a non-chaotic way, or exposure as a child to poor parenting and thus no internal models of how to parent.

We go to psychologists when a social work assessment is what is needed. It is one of my main bugbears with both the Family Justice Review and the LSC cost-caps, that the ISW reports which are independent, swift, cost-effective and actually genuinely informative are sneered at and undermined and costs slashed to the point of extinction, whereas the bloated and we see often of varied benefit escape that exercise.

Rant over !

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The Banality (and relative rarity) of evil

Posted on March 11, 2012 by suesspiciousminds

I suppose if you asked a member of the public whether evil was to be found in any of these groups :- politicians, estate agents, journalists, people who abuse children and lawyers; once you got past the obvious barbed remarks, there would be a consensus that there is one group where you might actually expect to find it, not just in the worst outliers of that group but diffused throughout.

I haven’t ever kept numbers, but I think I’ve probably done over three hundred care cases over my long and undistinguished career.  And I would say that I have come across more evil than the average person, but substantially less than you might expect, given that every single one of those cases has involved a parent subject to at least a suspicious of harming harmed (or doing something that would cause a risk of harm) to their child.  Of course, some of them are exonerated by the enquiry and either did nothing wrong (the suspicious-looking injury turned out to be an accident, the unpleasant allegation turns out to be fabricated, the evidence of neglect turning out to be something more akin to an evidence that different people have different standards), but that doesn’t account for all that many of the cases – probably 20 or so?

The vast majority of the cases I’ve been involved in – for Local Authorities and parents, have been with people who had changes they needed to make in their life, because they’d taken a wrong turn – whether that be drugs, alcohol, inability to cope, depression or in Wodehouse’s lovely expression “Mistaking it for a peach, having picked instead a lemon in the garden of love”.  Some of those people, when shown that the wrong turn was having an effect on their children they hadn’t realised are able to turn back, most want to and try their best but aren’t able to and some think that they don’t really have to make the choices between their children and something else that professionals are telling them they have to. Like the famous advertising maxim  “Fifty per cent of the money we spend on advertising is wasted, we just don’t know which half”,  you can never be sure of which family that resources and attention are being thrown at will respond, which of them will try but fall short, and which of them won’t really give their all thinking that they can have it all.

But actual evil?  Pretty rare. I would say that I have worked with probably 3 evil people in those 300, which, given that we are drawing from a group of people who had harmed, or were suspected of harming children is a tiny proportion. I have worked with more people who have brought about the deaths of children than I have evil parents.

I once visited a client, who I shan’t name, but had murdered some children; and whilst seeing her, was less than twenty feet away from Myra Hindley, who I think most people might come up with if trying to name a truly evil woman. She wasn’t platinum-blonde, defiant-eyed and black-lipsticked. In fact both of these two women would not have looked out of place in a mobile library. And that made me think of the banality of evil concept – that most people who do truly monstrous things are not necessarily what we in our head think of as being abominations, but are instead shockingly normal.

The Press never seem to get this – as we can see in the last year’s press coverage of the murder of Jo Yeates, it was felt acceptable to smear, vilify and identify a man as the likely killer for not much more than him having a distinctive physical appearance that the Press felt snapped closely into the model that they had in their head of what a killer would look like. They were utterly wrong, and nearly destroyed a man in the process, because he had unorthodox hair…

This whole disconnection between what people who do terrible things look and act like, and what we (persuaded by culture) think they look and act like, causes problems in care proceedings all the time. When we all know that paedophiles look like dirty old men in macs and that they would leap on a child and abuse them the second they got the chance, small wonder that vulnerable women faced with someone who looks like a regular person and who is kind to them, loving to them, and ‘wouldn’t hurt a fly’ and aren’t presenting like a slavering wolf drooling at the prospect of getting at the children find it hard to believe that the person they know could have done the things in the past that they’ve been accused of.  If we equate in the media all people who do awful things to children (and heaven knows I’m not defending the actions) as monsters, it’s no surprise that vulnerable mothers just think to themselves “If he had done those things he was accused of, he’d be a monster. I know him and he’s not a monster. So he’s been wrongly accused”

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