Haranguing Haringey

Posted on March 19, 2013 by suesspiciousminds

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

  The case itself can be found here:-

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

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

 

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

 

 

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

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

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

 

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

“47 Local authority’s duty to investigate.

(1) Where a local authority— …

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

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

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

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

 

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

 

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

 

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

 

 

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

 

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

 

This is what prompted the Haringey s47 investigation

 

 

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

“Dear Social Workers

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

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

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

 

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

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

 

 

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

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

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

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

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

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

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

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

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

 

 

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

 

 

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

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

 

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

 

The Court broke this down into four questions

 

 

  1. These grounds require these issues to be addressed:

(1) Was a section 47 enquiry decided upon?

(2) If so, was it unlawful?

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

(4) What remedies are the claimants entitled to?

 

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

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

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

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

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

 

 

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

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

 

 

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

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

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

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

 

 

The Court then moved on to remedies

 

 

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

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

 

 

The relevance of this decision is therefore this :-

 

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

 

 

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

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“Ex parte removal by the back door”

Posted on March 14, 2013 by suesspiciousminds

A discussion of the Court of Appeal decision in Re L (A Child) 2013

 I will begin this discussion by being frank. I do not like this decision. I do not like it on a train, I do not like it on a plane. I do not LIKE green eggs and ham.

 I feel deeply uncomfortable with it, and hope sincerely that it is not used as precedent for any future decisions. I hope that it rests with the peculiarly unusual facts of this case only.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/179.html

 In very brief terms, the central issue was this. The Court had profound concerns over a number of months about a child and had a wealth of information about difficulties in the parenting provided to the child. The Court, faced with a shift in the Local Authority stance that the time had come to remove the child, used the powers under section 37 of the Children Act 1989 to make an Interim Care Order, which allowed the Local Authority to remove the child.

 So far, nothing terribly questionable. The facts of the case justified the making of an Interim Care Order, they probably justified removal, and the Court had the power to make an ICO under section 37 of the Children Act 1989 although no application had been made.

 My issue with the case is that what actually happened was the Local Authority deciding that if they placed the mother on notice that they intended to make an application for a Care Order / Interim Care Order, that the child would not be safe.  They obtained a hearing before the Judge, to which the other parties were not invited and did not attend and had no knowledge of.

 

The Court looked at the section 7 report prepared by the Local Authority, which made plain their escalation of concerns, their intention to issue care proceedings and their fear of what mother might do if given notice of that intention, heard from those representing the LA and made a section 37 direction and an Interim Care Order, with a view to a hearing being listed at which the parents could challenge that ICO.

 

  1. On 22nd January 2013 I granted Mr and Mrs S permission to appeal. At that time the understanding that they had, together with their counsel, was that at the without notice hearing the judge had, then and there, made the full 8 week interim care order. In the absence of a transcript of all save for the judge’s final “on notice” judgment, the understanding was that the “on notice” hearing that followed was relatively short, concluding in a judgment in which the judge sought to justify the steps that had already been taken at the “without notice” hearing.
  1. For the purposes of the present hearing we now have a full transcript of the without notice hearing and the on notice hearing together with a short memorandum from counsel, Miss Anna McKenna for the local authority, who appeared before Parker J on 14th December and again before us at this hearing. The greater clarity that those materials provide indicate that some time between 1 p.m. and 1.15 p.m. the s 7 report was handed in for the judge to read in her chambers. At about 1.50 p.m. the local authority team went into court for the “without notice” hearing. Miss McKenna’s recollection, which is confirmed by the transcript of the hearing which runs to just over two sides, is that this hearing lasted a matter of no more than 5 minutes. The judge stated that she had read the s 7 report and was contemplating making an interim care order but questioned the power to do it at a without notice hearing. The potential to utilise s 37 is raised by the judge and the scheme that was apparently adopted is encapsulated in one short exchange:

“Miss McKenna: You can make a s 37 placing the child into our care, take the matter immediately and hear inter partes arguments.

Mrs Justice Parker: Including an application for discharge. Could I discharge the care order on that basis?”

  1. There is then a short discussion about security arrangements and the decision that the local authority have taken. The judge then twice states that she is keen to get “everyone in”. At the conclusion Miss McKenna says “may I take it that a s 37 direction has been made?” to which the judge replies “yes, a s 37 direction and a care order, and for the purposes of the transcript I am satisfied that there is a real risk of significant harm to this child if I do not make an interim care order prior to Mrs S understanding that this local authority is wishing to take care proceedings. There is no doubt about that.”

 

 

And the Court of Appeal felt that this was permissible and justified

 

In circumstances where, as I have held, the judge was justified in holding that this child’s safety required immediate protection by means of compulsory removal from her home, a submission that the procedural path chosen by the judge was technically not available to her is only likely to succeed if there is no escaping the procedural points that are made. This is not such a case. The course adopted by the judge is not excluded by any provision in the CA 1989, the FPR 2010 or elsewhere.

Mr Tolson accepts that, in an emergency, the court is not required to follow the pre-proceedings protocol in PD12A. He accepts that if an application had been made either for an emergency protection order or an interim care order it would either be commenced in, or transferred immediately up to Parker J in, the High Court where these long running proceedings were pending (Allocation and Transfer of Proceedings Order 2008, Art 5(3)). Given that M was a ward of the High Court, the local authority would in any event require Parker J’s permission before making an application for an emergency protection order or an interim care order and, before such an order was granted, Parker J would have to order the discharge of the wardship.

Whilst in another case, of course, the alternative steps that I have described could be taken, the fact that an alternative route exists does not mean that the s 37 route chosen by the judge was impermissible. To my mind, the legal requirement for the case to come before Parker J before any application for a public law order could be made, demonstrates the arid nature of the appellants’ technical challenge. Mr Tolson does not submit that Parker J could not have made an interim care order on 14th December or that, if the situation was properly regarded as an emergency, she could not have done so despite non-compliance with PD12A; his submission is simply that a different route should have been followed. It would, in my view, have been permissible for Parker J simply to have made the interim care order upon the local authority undertaking to issue their application that afternoon or the following morning. Finally, if the October s 7 direction had been made under s 37 (as a number of previous directions had been) no jurisdictional issue would exist.

In the unusual circumstances of this case, I am entirely satisfied that Parker J, who had concluded that M’s safety required an immediate order, was justified in using s 37 to achieve that outcome.

 

This is my problem, in a nutshell.  Where a Local Authority wish to initiate care proceedings and they think that the risks of doing so on notice are too great, there is a mechanism for making an application ex parte and having it heard before a Judge.

 The mechanism is to make an ex parte Emergency Protection Order application.

 And because the nature of such an order is draconian, and because the risks of making an order without the parents being there and represented are so serious and risk a breach of article 6, there are incredibly stringent requirements of the Local Authority, who have to demonstrate extraordinarily compelling evidence to do so, pace RE X (A CHILD) sub nom RE X (EMERGENCY PROTECTION ORDERS) (2006) [2006] EWHC 510 (Fam)

It sits extremely badly with me that in private law proceedings (albeit ones that are about to become public law proceedings) a Local Authority can go in and see the Judge ex parte   [not least because they have no locus standi to make any sort of such application] and that a decision can be made which is in practice an ex parte Emergency Protection Order using section 37 of the Children Act, without any of the protective mechanisms of Re X.

I also think, for me, there is a wealth of difference between a Judge weighing up the facts of a case and reaching for section 37, and a Local Authority effectively asking the Judge to exercise the section 37 power to make an ICO without there being an application on the table.

I’ll make it plain, on the facts of this case, which the Court was extremely familiar with, there was a considerable argument that the removal was the right thing to do. There was some very peculiar stuff happening with this poor child, and the watershed moment had been reached.

And I suppose one takes into account that unlike a traditional EPO application where the Court knows nothing of the case but what the applicant tells them, the Court here had a wealth of knowledge.  I have pretty little doubt that HAD the application been framed as an ex-parte Emergency Protection Order application   [there’s sadly quite a bit of song and dance to how you get that heard by the High Court Judge who knows the case, rather than in the Family Proceedings Court] it would have been given and a judgment delivered that would have been safe from appeal. BUT it would have had to have had the Re X safeguards.

Or if the Court of Appeal had said, it is acceptable to use section 37 in this way, but the applicant should have the same duties as set out in Re X and the Court should approach the section 37 request in the same way, where the application is made ex parte.

 I really don’t like this decision, and for me, this is the second recent time that the Court of Appeal have looked at the ability of the Court to make an Interim Care Order (sanctioning removal of a child from parents without the parents having had sight in advance of the Local Authority case and a threshold document) using section 37 as the hook, and have taken a very permissive “the law doesn’t prevent this, so go ahead” stance, rather than focussing on the issues of natural justice and saying that it is a tool to be used with extreme care.

I probably would not have allowed the appeal, since the decision to remove was probably the right one, but would have made it plain that a Court in future faced with any such ex-parte consideration of using section 37, should have firmly in mind the principles of Re X.  

The Court of Appeal don’t, for me, seem to have contemplated that it was never envisaged that the Court would make a section 37 order and ICO without the parents being present or represented at a hearing, because it would TAKE PLACE IN PRIVATE LAW PROCEEDINGS to which they are parties.  It was never envisaged that a Local Authority would be having an ex parte hearing in proceedings where they had no locus (having been asked to compile a section 7 report).

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“Social Services are asking me to put my child in care, and they want me to do it now”

Posted on March 8, 2013 by suesspiciousminds

 Some important things for you to know, if you are asked to put your child in care. And some practical tips.

 

Firstly, and I can’t stress this enough – I am not your lawyer, just A LAWYER, and what is right for you and the circumstances of your case are things I don’t know, and the best thing I can recommend is for you to either talk to your own lawyer or find a lawyer and talk to them.

If you need to find one – you came here on the net, so you have internet. Google “family law firms in X” (where X is your town or county). Look for ones who do Care work if you can. Get in touch with them and make an urgent appointment.

There might be a good reason for you, and your family, why agreeing to the children coming into care is a good thing. What I want to help you with is not agreeing just because you feel you have no choice, and before you have had chance to think and ask your own lawyer what to do. If you honestly feel that it is the right thing for you, don’t be put off by me. I am trying to help people who feel that it ISN’T the right thing for them.

That done, back to your situation. You are a parent, social workers have come to your house, told you that they are worried about your children and think they need to come into care and are asking you to agree.

Here are some important things to know before you make any decisions

1. You don’t have to say yes. It has to be your free choice.

2. You don’t have to decide right now.

3. You are entitled to tell them that you want some legal advice before you decide something as big as that.

4. If you are told “If you don’t agree we will go to Court”, this is supposed to make you agree to avoid going to Court. It doesn’t have to. The Court will listen to your side of the story, and it might be that going to Court is the right thing for you to do. At the very least, it will get you a lawyer who will listen to you, give you advice and speak on your behalf.

5. The social worker doesn’t have any magic powers to be able to take your children away. They have to have either your agreement, or a Court order. Except in very specific circumstances, they can’t get a Court order without you having a chance to be there, to have your own lawyer speak on your behalf and have the chance to have your say.  They should NEVER go away and try to get that order without you being there if they have asked you to consent to the children coming into care and you have said no. That hearing should be with you present.

6. If they DO have that Court order, you will have a chance at a later Court hearing to challenge and fight it, but I’m afraid the order does give them the power to remove (if it is an Emergency Protection Order or an Interim Care Order) and trying to prevent them won’t do much good. You can try to tell them the names of other family members who would be willing and able to look after the children (as they have to consider placing the children within the family rather than with strangers if it is safe to do so)

7. The police do have the power to take your children away without a Court order (I’ll come back to that later) so you will know that if the police aren’t there and there isn’t a court order, your children will not be going anywhere unless you agree or until you have your say in Court.

Here are suggestions for what you can do if you are asked to make that decision

Very hard to do, but keep calm. It is likely that what you do and say in the next hour or so will end up being information given to the Court. It can be information that helps you (you were calm, reasonable but firm) or that hurts you (you got aggressive, shouting, or physical, or the children were exposed to lots of drama and distress whilst all this was going on).

With that in mind, it is perfectly fine to say something like “That’s a real shock. I want to talk about this, but I don’t want the children to have to hear it. Can we sit down with the children being in another room and talk about it for a bit?”

And “I’d really like to get some legal advice about all this before I decide anything at all, does this have to be decided right now?”

If they are insisting on it being right now, it is fine for you to ask why, and also fine for you to ask them for some paper, so you can make a note of what they are saying.

It is also fine to say “I would like to call my lawyer to see what they think and I am going to do that now, just so I know where I stand”

[I don’t know whether agreeing to the children coming into care is right for you, or right for your situation, that’s a matter for you and your lawyer. What I want to do is give you the chance to make that decision and think about it and know what it means.]

The social worker will probably say something along the lines of “I’m afraid if you won’t agree now to the children going into care, then I’ll go to court and get an order for them to come into care”

And as I said earlier, you need to remember, that what they actually mean here is “I’ll go to court and ASK for an order for the children to come into care, and you will be at Court and you can ASK for them to stay at home, and the Court will make a decision”

And also that the Court don’t automatically grant those orders – they require the social worker to have evidence that the children are at risk and that going into care is the only thing that can be done, and that everything else that could be tried either has been or isn’t safe to try.

It might be that for you, going to Court is better than agreeing for the children to go into care. You would have your chance to fight this in Court, to have someone speak for you, and the chances are that if Social Services are in your home asking you to agree to the children going into care that you will eventually have to be in Court in order to get them back. So the threat of the case going to Court isn’t a good reason to agree to the children going into care, if you wouldn’t otherwise agree to do it.

Agree if you do think it is best for you or your children, or if talking it through with your lawyer you decide it is right for you right now, and that you need to sort some things out for yourself first before you have that fight.

If you feel that you are being bullied to agree or make that decision right away, you can say to the social worker “I believe that the High Court in Re CA, decided that section 20 consent has to be voluntary and not as a result of pressure, and that my human rights could be breached if I was cajoled into that agreement”

And “It isn’t that I am not cooperating, but I think a decision about whether my children should be removed is a very big one, and I don’t agree that right now. I’d want to see all of the evidence and have my own legal advice before I thought about it”

What if the police are there?

If the police are there, all of these discussions become much more serious. The police do have the power to take the children away, under Police Protection. That lasts for 72 hours, after which time the social workers have to either get a Court order, or your agreement to the children being in care, or a Court order.

So you would have a right to challenge and fight to get the children back in 72 hours, but you obviously want to avoid that happening if at all possible.

So firstly, again keep calm. Shouting, yelling, screaming, throwing things, being aggressive are all things that make the police more likely to use that power. Try not to give them any excuse.

Here are the magic words, if the police say “we are going to take your child into police protection” or something similar.

“Officer, I’m not being difficult, but I see that you have come with the social worker, which means social services are already involved. And as the High Court said in Re CA 2012, where that is the case, the social worker ought to go to Court to seek an order from the Court, so my human rights aren’t breached by the police or social services. And you will know from the Liverpool case that the police shouldn’t just take a child into police protection to save the social worker the trouble of going to court. And so you should only take the children into police protection if the risks are so great that they can’t be kept safe until the case is heard in Court. I won’t do anything silly and I won’t run away. I will go to Court and the Court will decide. If you want, you can watch me with the kids, or they can go to (my mother/aunt Beryl/whoever) until the Court case starts, then you know everything will be fine.”

That may well put the fear of god into them. It will probably make them think “God, I don’t know anything about the law on this, but this person seems to, and the High Court say we shouldn’t do this”

And you won’t have said anything that isn’t (a) true and (b) fair. No threats, no shouting. Just a reminder that the police aren’t supposed to do social workers dirty work for them, unless there is evidence that the children won’t be safe with you even for an hour whilst the social worker gets a Court hearing sorted out.

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Hippocratic Oath and the Brownie Promise

Posted on March 5, 2013 by suesspiciousminds

The Argentinian writer, Jorge Luis Borges (who once described the Falklands conflict as “like two bald-headed men fighting over a comb”) once observed that despite the Koran being set entirely in the Middle East, there is not one reference to a camel within its pages.

 In a similar vein, the Children Act 1989, which governs what we do when conducting care proceedings, makes no reference to social workers at all (and the much bandied about word ‘cooperation’ appears only once, in section 27, which relates solely to two Local Authorities co-operating with one another).

 In large part of course, that’s because the Children Act addresses itself to Local Authorities, and puts the duties and powers on them as a corporate and administrative body, and occasionally speaks of ‘officers of the Local Authority’

 And of course, social workers have not only to answer to the duties and obligations that fall on the Local Authority under the Children Act 1989 but also to their terms of employment, their line manager and their professional code of conduct. They have very firm guidance on Best Practice – there are reams and reams of guidance and strictures and stipulations they have to follow. And the profession is much more introspective and committed to doing the job well than the media would ever give them credit for.

 But it did get me musing on whether one could import something like the Hippocratic Oath (or the Brownie Promise) into social work  – one fairly short, pithy and clear statement of what society expects of a social worker and the code by which they should live.

 [I did not realise until I began looking at this, that around 50% of UK doctors don’t actually ever swear the Hippocratic Oath – which is the common name for what is actually the Declaration of Geneva 1948 . Looking at its terms, I sort of wonder what Doctor would have an issue in swearing it, other than Harold Shipman. And weirdly the major omission in this from the Hippocratic Oath was that under that, the doctors also swore to refrain from seducing their patients or members of the patients household during visits…

 

AT THE TIME OF BEING ADMITTED AS A MEMBER OF THE MEDICAL PROFESSION:

  • I  SOLEMNLY PLEDGE to consecrate my life to the service of humanity;
  • I  WILL GIVE to my teachers the respect and gratitude that is their due;
  • I WILL PRACTICE my profession with conscience and dignity;
  • THE HEALTH OF MY PATIENT will be my first consideration;
  • I WILL RESPECT the secrets that are confided in me, even after the patient has died;
  • I WILL MAINTAIN by all the means in my power, the honour and the noble traditions of the medical profession;
  • MY COLLEAGUES will be my sisters and brothers;
  • I WILL NOT PERMIT considerations of age, disease or disability, creed, ethnic origin, gender, nationality, political affiliation, race, sexual orientation, social standing or any other factor to intervene between my duty and my patient;
  • I WILL MAINTAIN the utmost respect for human life;
  • I WILL NOT USE my medical knowledge to violate human rights and civil liberties, even under threat;
  • I MAKE THESE PROMISES solemnly, freely and upon my honour. ]

 

 

Also, in looking at this, I see that some social workers have of their own accord devised a similar Hippocratic Oath for social workers and signed up to it themselves.  A quick google search will turn some up. They are, for my tastes, a bit long and wishy-washy   (and frankly, do parents and children care that “My colleagues will be my sisters and brothers” ? ), though I admire the spirit of them.

 So, if you were writing, from scratch, a Hippocratic Oath for social workers, with what you wanted the professions ideals to be, what would you have in it?

 I will pre-empt some of the responses that I might get  (ha ha, the Oath should be “I promise to bully, intimidate, lie, cheat and deceive, and be a jackbooted nazi wherever possible” )    – let’s look at what we would want the ideals of the profession to be, and to have something fairly short and simple that would allow the public to know what was expected of social workers.

 For my part, I think a starting point would be  “I will always be honest and open with families, and my starting point will be to keep families together if I can”

 I would also want  “I will respect the people I am working with, and respect that I am intruding in their life and may have to say things that are hard to hear. Where they have problems, my starting point will be to try to help them.”

 And “I will listen to the child and their welfare will be my paramount concern, and I will always remember that where it is safe to do so, the best place for them is with their family”

 Would that be a decent start?

Or, in even snappier form  “A social worker should Be nice, be truthful, be fair, be patient,  be understanding, be sympathetic, be alert, be there”

 

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Strip-searching of children

Posted on March 4, 2013 by suesspiciousminds

I wrote fairly recently about the excessive use of physical techniques to subdue children in young offender prisons (though the name for those has been changed in some sort of ‘rebranding exercise’)

https://suesspiciousminds.com/2013/02/11/pindown-revisited/

So this piece in the Guardian struck a chord with me. It is a sensational piece in terms of opening your eyes to something which is genuinely shocking, but not written in a sensationalist style.

http://www.guardian.co.uk/society/2013/mar/03/43000-strip-searches-children

In effect, children who are detained in young offender institutions, can be strip-searched, the official purpose being to look for contraband such as drugs or weapons.

Two years ago, the Youth Justice Board said that this practice would stop, saying that children it had consulted described the practice as undignified, leading “to feelings of anger, humiliation and anxiety”.

The piece then tracks that through careful and dogged Freedom of Information requests made by the Children’s Rights Alliance, we now know that in the last two years nearly 44 thousand strip searches of children were carried out  (I’ll say that again, 44 thousand )

 Of those only 275 searches found anything, mostly tobacco. No drugs or knives were found.

There are just under 1700 children in such institutions, to put that number of 44,000 into context.   It is roughly one strip search per month per head of population. [Obviously in reality, not every child was strip searched once a month, there were probably a small number of children who were searched very very often who pushed those numbers up]

 

A good piece of work by Children’s Rights Alliance, and I thought a damn fine piece of journalism by the Guardian. This is something that makes me feel uncomfortable, and I hope that their work does something to bring it to an end.

 

“The degree of civilization in a society can be judged by entering its prisons.”
–Dostoyevsky

 

 

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“To lose on a case once in the Court of Appeal may be regarded as a misfortune, to lose three times on the same case looks like carelessness”

Posted on March 4, 2013 by suesspiciousminds

The misadventures of the LA in the case of Re B  (2012)  (the Slovakian grandmother case)

 This is indeed, the third time that the Court of Appeal have heard the case, and on each occasion, the LA have lost. They have had a steadily increased judicial kicking each time that they did so, and the Court of Appeal almost seem to be running the case management of the case. 

The latest instalment is here

 http://www.familylawweek.co.uk/site.aspx?i=ed111948

It involves a case where the LA had put forward a plan of adoption for children and rejected a grandmother, who was living in Slovakia. At the very first appeal hearing, the Court of Appeal determined that adoption was not the right plan for the children and that the children should be moved over to Slovakia, although that would require a transition and a build-up of contact.   

That was on 9th November 2011.

 The case came back to the Court of Appeal on 16th November, with the LA seeking amplification and also seeking to introduce some fresh evidence about grandmother (including an allegation that she had attended a meeting with the mother, posing as the mother’s interpreter)

The Court did not think that these fresh allegations were any impediment to the plan, and were gravely disappointed that the LA had not moved on with the transitional plan. They delivered a judicial ‘get on with it or we will take your ICO away from you and run things ourselves’ warning.

It was therefore pretty surprising that the case came back for a third time on 14th December, with the Court of Appeal being asked to decide between three plans for transition, and there having been no increase to contact since the Court of Appeal had decided that these children were going to move to Slovakia and live with the grandmother.

The Court were not best pleased that the LA had unilaterally decided that they weren’t going to implement the Court of Appeal’s decision.

The Court of Appeal expressed this fairly witheringly

3. The performance of the local authority since seems to me, albeit without the fullest investigation, lamentable. We have not had any evidence from officers of the county council, which might of course explain or justify what on the correspondence seems to have been almost a conscious endeavour to defy the direction and pace for transition clearly set out in the judgment of the majority on 16 November.

4. The tragedy is that, whoever may be responsible for the confusion, lack of control, and lack of direction over the last four weeks, the children have suffered. The transition is now more difficult to manage and plan than it was on 16 November. A precious period of four weeks has elapsed which only increases the uncertainty for the children and introduces the stagnation of a process which essentially required firm forward progress.

 

It emerged that the LA had been unhappy with the Court of Appeal decision and been taking advice about appealing it, and had decided that they wished to do so. They had taken the decision that increasing grandmother’s contact and building up the relationship might hamper their appeal and thus had not implemented a transitional plan as the Court of Appeal had asked them to do (and subsequently pressed them to do)

They had not, at the November hearings, sought leave to appeal, or a stay, or indicated that they were contemplating that course of action.

The Court was therefore given one plan of transition to grandmother’s care drawn up by those representing grandmother, one by the Slovakian authorities (who were obviously perplexed by the scale of the resistance to these children moving to their country) and one that had been drawn up by the LA  (obviously slowing the pace of transition to give them the chance to go and get their behinds kicked by a larger number of Judges in an altogether different building. Also see below for the timing of the creation of the plan)

 Always a risk in having three plans before a Court that they decide that none of them pass the Goldilocks test, and make their own, which will be ‘just right’ and that’s exactly what they did.

 

9. Our first task, perhaps, is therefore to be much more directive in relation to the next steps than we were on 16 November. On that occasion we relied on the responsibility of the local authority. We relied, perhaps over-optimistically, on the belief that there would be harmony, that there would be collaboration and that there would be a general acceptance of the orders of this court. In that we have been disappointed.

The submission made by Mr Bellamy, which has much force with me, is that this transition plan proffered by the local authority saw the light of day at about 30 minutes past midnight this morning and is written without any consultation at all with the grandmother or with her very experienced solicitor and counsel.

 

10. How then should we be directive? If fairness to adults and general justice were to rule, I would certainly opt for Mr Bellamy’s plan, if not that of Ms Cisarova. But whatever the history of adult behaviour, we have to above all search for the welfare of the children, and I reach the reluctant conclusion that the proposal of Ms Cisarova and, more narrowly, the proposal of Mr Bellamy fail the test of what is best for the children.

11. Accordingly I would reject all three proposed transition plans. I would direct that the process of transition must start immediately, by Monday next at the latest, and that it must be completed to ensure that these children have left this jurisdiction and arrived in Slovakia by 4 January at the very latest.

 

 

That pretty much settled that. The Court then considered whether this should be done under an Interim Care Order, or a Residence Order, with grandmother agreeing to the children being section 20 accommodated during the transition period. There was a two-to-one split on that, with the Court opting for a Residence Order and s20 consent.

 Leave to appeal was also refused, the LA were directed to get any formal application for appeal in by 19th December (I think 3 working days later) and the stay was refused.

 It would be fair to say that Mr Norton, representing the LA, whom I know and like, has had more successful days in his professional career.

 

14. It is high time that the adults surrounding these children, whether they be family members, whether they be laudable foster carers, or whether they be local authority officials, started working wholeheartedly to achieve the result which we impose. If there is some fundamental unforeseen development which requires judicial intervention then there must be an application to the Applications Judge of the Family Division

 

This case does point up the difficulties in trying to get the Court of Appeal to case manage a case, the family were very lucky here that they were able to get hearings so quickly. It also shows that you defy the Court of Appeal at your peril, and that if you do intend to appeal a decision that they make and not begin implementing it, you had better put everyone on notice.

 It doesn’t seem that any applications for costs were made, but the need for the December hearing must have sailed pretty close to that point.  I don’t know if they lodged their appeal, they may have been tempted, given that they had three different Court of Appeal judgments to appeal against…

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Serious Case Review in relation to Kaiya Blake

Posted on March 1, 2013 by suesspiciousminds

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

The Serious Case Review can be found here :-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

 

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

 

 

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

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

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

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

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

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

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

 

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

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

 

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

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Keep feeling FAScination, or Bolt-On Wanderers

Posted on March 1, 2013 by suesspiciousminds

(Yes, two awful puns in one title)

If you do any advocacy in family proceedings, you will be familiar with the FAS form  (the Family Advocacy Scheme) that the advocate has to hand in to the Court to have stamped, in order to get paid for their work.

It is a peculiar creature, and the scheme has been plagued by inconsistencies about what one has to have stamped, or signed, or initialled.

If you are not the advocate, but another participant in the hearing, you may have wondered what that form was all about. It all seems very unseemly that you see advocates at the end of the hearing waving pieces of paper about like a bunch of Tory backbenchers

You can find the form here

http://www.justice.gov.uk/downloads/forms/legal-aid/advocates-attendance-form-0212.pdf

The FAS form came about in part because the previous form called SIPS had allowed advocates to claim some time for “special preparation”  i.e that the case had taken more hours of preparation than one would usually expect. There were suspicions (and in one high profile case, more than suspicions) that these “special preparation” hours were sometimes padded to make the attendance at Court pay a bit better.  Everyone has to eat, after all.

The other big change about FAS was that it suddenly applied to solicitors as well as barristers, and that while it was a reduction in fees for a barrister, it was quite an increase for solicitors, making advocacy now the ‘juiciest’ part of a case for a solicitor to do, thus placing solicitors and barristers in competition for the advocacy task in cases.  Classic divide and rule stuff.

The first thing this FAS form ushered in was the need for advocates to record on the form :

Start time or time court required you to attend (if earlier):

And that in turn ushered in the otherwise inexplicable practice of everyone wanting to turn up an hour before the hearing starts, and the Court orders always incorporating a direction that they do so.

The next peculiar things relate to the “Bolt ons”, or uplifts to the fee for attending.

There are 4 of them :-

1. Representation of a client who is facing allegations that they have caused significant harm to a child which have been made or adopted by the Local Authority and are a live issue in proceedings

2. Representation of a person who has difficulty in giving instructions or understanding advice

3. The evidence of an independent expert witness being cross-examined and substantially challenged by a party at the hearing

4. The size of the Court bundle  (there being a higher fee once the bundle passes 350 pages and then another higher fee once the bundle passes 700 pages)

The first 3 represent a 25% increase each.

To be honest, there’s an element of that that seems fair enough. If you are representing a parent who has learning difficulties or mental health problems, then explaining the process, taking instructions and getting a sense of what is happening on the ground is harder.  [Although helpfully, you don’t get the bonus unless there’s a cognitive assessment, so the first hearing, where you really earn the money, you don’t get it, and the later hearing where you take instructions from the Official Solicitor and the task is made easier, you then do get it]

Likewise if you are going to a hearing knowing that you are going to need to cross-examine an expert then you have to put more work into it.  And if you are going to have to read 700 pages rather than 350, it takes longer to read them.

But as any economist would tell you (and sadly, the LSC don’t seem to have asked any), if you give any group of individuals a reward and remuneration system based on certain indicators, they will work at meeting those indicators. It’s called ‘gaming the system’ and is found in pretty much any walk of life where there’s a performance related pay system.

For example, the LSC wanted to pay advocates less for any hearing that took less than an hour. That seemed like a pretty smart scheme, but in reality, it was only going to have two outcomes (as the payment for doing a hearing less than an hour was perceived as being far too low)

  1. If the start clock for the hearing time starts at 10.00am (when the Court starts hearing cases), then nobody would be ready before 11.00am, to make sure they go into the second hour and get a proper payment.  Thus keeping the Court waiting, and losing one of the five hours of Court sitting time a day. So yay, reducing effective Court sitting hours by 20% !
  1. OR, and the above is why it happened, the Courts acquiescing to the request of advocates for a direction that they attend at 9.00am, or 9.15am, so that the clock just starts running earlier.

Another example would be that it now being rewarding to pad the court bundle out with documents to get it past the 350, or 700 page mark (and ideally documents that don’t really have to be read that thoroughly) led to a proliferation of contact notes, medical records, police disclosure, foster care diaries and such to go into the bundle.  That in turn leads to the cost of everyone else reading them (assuming they get read at all)

Don’t get me wrong, there are occasions when those disclosure documents are very important and necessary – but they don’t go in only when important and necessary, but as run of the mill.  And there’s no attempt to try to agree the key pages and winnow the disclosure documents down   (firstly because nobody really reads them to find the key documents until the days before the final hearing, and secondly because why would you want to spend hours reading them in order to winnow them down so that you can cut your fees?)

And then we have the peculiar quirk in the section of

 Representation of a client who is facing allegations that they have caused significant harm to a child which have been made or adopted by the Local Authority and are a live issue in proceedings

[25% bonus to the fee if it applies]

Firstly, that it only applies where the allegations are a ‘live issue’ in proceedings.  That means there is no bonus in cases where the threshold has been agreed   (which is something the court tries to encourage, as part of the process of narrowing the issues and to concentrate on those things that are in dispute) or determined by the Court.

Secondly, the criteria for what constitutes significant harm is a little perplexing, since it is not ‘significant harm’ in the sense which is defined by the actual bloody Act that we deal with, or the wealth of caselaw by which that definition has been polished, glossed and finessed, but instead a particularly narrow subset of it :-

For the purposes of the bolt-on the following conditions constitute significant harm:

 

a) death

b) significant head and/or fracture injuries

c) burns or scalds

d) fabricated illness

e) extensive bruising involving more than one part of the body

f) multiple injuries of different kinds

g) other significant ill-treatment (such as suffocation or starvation) likely to endanger life

h) sexual abuse.

You will note that the big loser here is neglect  [and also emotional harm]. Unless the neglect is likely to endanger life (which is very rarely the case), you don’t get an uplift for neglect.  But you will get an uplift if the child has five bruises, even if that’s a really small part of the threshold.

Anyone who has done care proceedings knows that neglect cases require a lot of thought, a lot of effort, a lot of preparation and really are cases where the ‘devil is in the detail’.   An advocate representing a parent in a case where the harm alleged is neglect is going to have to go through a wealth of material often many years of records, looking at reports of home conditions and children’s presentation, watching how they fluctuate, looking at the support that has been offered and how that has impacted, looking at the chronology for periods when the care was good enough and Local Authority concerns subsided, working out how best to refute the allegations of neglect, or to reduce the risk for the future, how to get the situation to a level where the Court can have confidence in the future care of the children.

If you add into that mix that the child also has five bruises, and that finds its way into the threshold, the advocate will get 25% more on their fee, when the extra work involved is really looking at one medical report, a bodymap and perhaps some GP notes at around the time the injuries were observed.

 

Frankly, if the potential consequences for a parent of the allegations of significant harm are that they might lose their child, even temporarily, isn’t that the key aspect which means that they want their advocate to be totally prepared and recompensed properly to fight their case?

 

You probably can’t ever design a scheme for the payment of advocates which is flawless, but this particular one has ended up with Courts routinely directing parties to attend an hour before the hearing with no thought as to whether that’s actually necessary   (including doing that for hearings where there will have been an advocates meeting the night before to get an order pulled together), an expansion of court bundles, and there being no recognition that preparation and defence of neglect cases is actually pretty labour intensive compared to a case of five bruises.

I do miss the old days where we just wrote on the directions “Certified fit for counsel” and any grubby issues of money were dealt with solely by the clerks and nobody at the Court ever had to think about money and fees and could focus exclusively on the case and the client.  I really don’t like those forms being handed in at the end of the hearing, just at the time when the client really needs 100% focus on them.

It does feel to me like a shame that so much of our hearings these days seem to be focussed on money, and who is going to pay for this and that, whether the LSC will pay for this or that, what the expert is going to cost, what can be filled in on the FAS form, whether the LSC will accept the FAS form if the Judge hasn’t initialled it here, here and again here.

In a Jonathon Swift style suggestion, perhaps in the interests of making advocates feel too ashamed to hand in the form and thus reduce costs, the LSC should name the next form “Ski-holiday fund form”  or “the ME-ME-ME” form, and insist that if advocates do not hand it up to the Judge in front of the clients saying “May I now hand in my Ski-holiday Fund form?”  it is null and void.   Further protocol should be for the Judge to look at the form, whistle in amazement and say the phrase “Gosh, you’ve done really well out of this, haven’t you? Bet you’re off shopping now at Harvey Nicks”   or alternatively, depending on circumstances “Bloody hell, money for old rope” *

And now, because it is Friday, and it is an excuse to please some of my readership, here is a picture of the handsome Michael FASSbender

to be fair, he is handsome

* That is intended to be satirical. Good Barristers do work very hard for their clients and put in long hard and unsociable hours, and those doing care work don’t necessarily  live a salubrious lifestyle, and some of them are allergic to fondue and don’t go ski-ing.

[And last minute edit – I am being too harsh overall – the vast majority of advocates are worse off under FAS then they used to be and are doing the same hard job for less money, and nobody wants to do that.  It only takes a few of the sharper advocates, the Edgar Venal’s of this world (as if he would sully his hands with care work) to make the system’s rules favour them to create that bad impression. I honestly don’t like, and never have, the idea that the last thing we do in a court hearing involving people’s children is connected with getting paid and think it is ugly and charmless that the system forces advocates to do it. Also in fairness to FAS I should have said that the one really good thing is that finally, one gets paid more for representing parents – which is the hardest job and one which takes the most preparation, than for representing the child]

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Getting the best out of your solicitor

Posted on February 26, 2013 by suesspiciousminds

Some general advice and suggestions for making good use of a solicitor in a case involving children.

For most people, the only time they see a solicitor is when they are buying a house, or when something has gone badly wrong for them. So it is not surprising that if you have to go and see a solicitor about your child, you don’t know what to expect.

If you don’t see them in real life, the other place is TV and in films.

The only solicitors we see on television tend to be on crime shows where their role is limited to either (a) being quiet and nodding  or (b) saying  “Stephen, you don’t have to answer that Stephen!” just as Stephen confesses all, two minutes before the final credits.  Or those personal injury lawyers, walking along a street in crisp white blouses looking all stern and ready to kick someone’s ass on your behalf if you fell off a stepladder.

They are either nodding dogs, or rottweilers with lipgloss…

So, when you go to see a family lawyer, you will find that they won’t be like either of those things. They aren’t quiet nodders, and they aren’t rottweilers with lipgloss (well, not always)

[Three quick definitions of phrases we use as solicitors, to put into plain english  :- a solicitor is someone who works in law, who has a degree and has passed specialised training to become a solicitor, and a lawyer is anyone who works in law. All solicitors are lawyers, but not all lawyers are solicitors.   And then ‘instructions’ means the things that you tell the lawyer to do, or what your position is on any question that they ask you about.]

There are some things that you can really do to help yourself for that first appointment (especially important if you are paying for it yourself, since making things more efficient for them is cheaper for you)

  1. When you make the appointment, make it clear what it is about. Is it about a mother and father disagreeing about arrangements for a child, or is it about Social Services and your children?  If the reason for your appointment is that you’ve been sent some papers telling you that you have to be in Court on Thursday, make sure you tell them that, so that the person you are seeing knows that they will be going to Court with you on Thursday.
  1. Bring with you the stuff they tell you to bring. That will usually be, something with your photo on it, and something with your address on it (so they know that you are who you say you are), some recent payslips or benefit book (so that they can work out whether you qualify for free legal advice and can take copies) and any court papers you have been sent.

(I know that the temptation when you get court papers is to tear them up, or write “LIES”   all over the margins, but that really is going to make it harder for your lawyer, as they will be the copies they have to take to court and use)

  1. Have in your mind, or even written down, a short introduction – a page will do.  Who are you, who are the important other people in the case. Who are the children, how old are they, where do they live. If it is about you splitting up with someone, when did you split up?   And most importantly, what is the main reason why you have come to see the solicitor.   “Things were all going okay, I was seeing the children every weekend, until I got this new girlfriend, then my ex stopped all contact, that was four weeks ago”   or  “Social Services say that my son has got a broken arm and it wasn’t an accident and now they want to take it to Court”     that sort of thing.
  1. Be clear in your mind, and say to them, what it is that you really want to achieve.   “I want to get my contact started up again”   “I want my son to stay with me and not go into care”
  1. You may also want to have in your mind a Plan B – if it is not possible to get what you really want, what is the next best thing?  Having a Plan B doesn’t mean that your solicitor will give up on your main thing and go straight for that, it just means that it is better to be prepared in case your main aim is not something you can achieve straight away.
  1. Everything you say to your lawyer is secret. They won’t tell anyone else, so you can tell them the truth. The one qualification to that is that if you tell them that you have lied, and ask them to keep on with that lie for you, they won’t be able to do that. So you would have to then decide whether to get new solicitors, or whether to change your instructions to them so that you aren’t asking them to lie to the Court.

[You might be a bit surprised about that – I know that for most people, lawyers and lies go together like wasps and strawberry jam, but actually, there are really strict rules about it. A lawyer can’t ever lie to the Court or mislead the Court.  They can legitimately do their best to put you in the best possible light, and to take any criticisms that other people are making about you and defend you against them, but they can’t say that you did X or Y, or didn’t do X or Y, if you have told them different.   The rule is that they can make you look good, or less bad, but they can’t lie for you]

  1. Your lawyer is going to have the best chance of being able to achieve what you want if there are no surprises in store for them. It is no fun preparing a case for Mother Theresa, only to get to Court and find that the other side have lots of evidence that you drink like a fish and were in prison for punching policemen in the face.  Best to know that sort of thing up front, so the lawyer can deal with it and plan for it.
  1. Give the lawyer the best way to get in touch with you – whether that is mobile, email, or by letter. If there are specific problems (you can send me a text, but I never check my voicemail) then let them know.  If you change your mobile number or your address, let them know.
  1. If during the meeting, or afterwards, you feel like you don’t understand something, just ask.  You have come into a world that is strange, that has weird language, weird customs and everything is new to you. It really is fine to say “Hang on a second, I’m not sure I get what a CAFCASS officer is, can you explain it again?”
  1.  At the end of the meeting, make sure you know what is going to happen next. Are they asking for you to do anything? If so, what is it, and when should you do it? Or are they doing something for you, in which case what is it, and when would they need to talk to you or see you again?

Going to Court

  1. Make sure you know where the Court is, and what time you’ve got to be there. You usually want to be in Court forty minutes or so before the hearing is due to start.  Be aware that like a doctors surgery, everyone is told to be there at ten or two, so you might not be the first case to be heard and there might be waiting around.
  1. Get to Court on time.  Take the papers with you, and when you book in, say which case you are there about and who your solicitor is.  If you can’t make it or you are late, ring your lawyer to let them know.  They may have booked someone else – a barrister to come to court and speak to the court on your behalf. They will know the background to your case and they will probably have some additional things they want to talk to you about.
  1. Probably not a good idea to talk to anyone else who is on the case or sit near them, just find a spot on your own until your lawyer finds you.
  1. As tempting as it is to go up to the social worker / your ex and shout “Happy now are you?”  or similar stuff,  you should really avoid it.
  1. When you go into Court, sit on the row directly behind your lawyer. It is Court manners to all stand when the Judge/Magistrates come in, and go out.  (Usually there will be someone official who says “All stand”).  Even if you are a rebel-without-a-cause  “nobody tells me what to do” sort of person, just stand up, it really isn’t worth causing a fuss over.
  1. Ideally in the Court hearing, unless you are giving evidence, the only person you should speak to is your lawyer, which you will do very quietly. Don’t interrupt or shout out when other people are talking, and don’t sit there whilst other people are talking saying “well, that’s lies” and so on. If someone does say something that is wrong, or a lie, or a mistake, gently get your lawyers attention and let them know what you have to say about this.
  2.  Storming out of the Court room, slamming the door never looks good. If you need to leave the room, just quietly say to your lawyer that you have to go outside for a bit, and why. And when you come back in, don’t make a big fuss, just come and sit down behind your lawyer.
  3. After the hearing, make sure you understand what happens next, what anyone expects you to do, and if the case is coming back to court on another day, that you know when that day is.

Giving evidence

  1. If you think you are going to have to give evidence, ask your lawyer beforehand how that works – where you stand, how to speak and so on. Your lawyer can’t tell you how to answer certain questions (that’s called ‘coaching’ and is banned) but they can give you tips on how to give your evidence and how to keep calm if you find yourself getting confused or upset or angry.
  1. You will give evidence from the witness box. The first thing you will have to do is give a promise to tell the truth, and that promise is written down on a sheet of card for you to read out. You can swear on the bible, or other holy book, or you can ‘affirm’  which means reading the promise out without having your hand on a holy book, if you aren’t religious.
  1.  The top tips in giving evidence are that everyone in the room is trying to write down what you say, so speak a bit louder and a bit slower than you normally would,  don’t take anything personally, and it is not a quiz show where you have to answer immediately so if you want to take a few seconds to think about your answer that is fine.

Hopefully, and this is the idea of the whole thing, you will find a lawyer who listens to what you have to say, gives you good advice and who you feel you can trust and who is doing the best job they can for you.

If you don’t, you need to try to sort this out. Not by simply not communicating with them, or by ringing them up and shouting, but by saying “The other day when X happened, I don’t think you really did what I wanted. Can you explain why that happened?”

If you can’t resolve it by talking through your problem, then you may want to get another lawyer, maybe someone at the same firm, maybe a different one, and you should be able to get guidance on how that works.

But if you don’t talk to your lawyer, especially about any big changes in your life or your case, or about your worries or doubts, they won’t be able to help you, and that is what they are there for.

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“Don’t ever invite a Judge into your house, you silly boy, it renders you powerless”

Posted on February 22, 2013 by suesspiciousminds

 A peculiar little case, considered by the High Court, and not just a cheap opportunity to quote from The Lost Boys, honest. [But come on, when would Suesspicious Minds ever pass up an opportunity to reference the Lost Boys?  “Burn rubber, does not mean warp speed!”]

Re AMV and MV 2012

http://www.familylawweek.co.uk/site.aspx?i=ed111643

It isn’t an important case, save for those involved, nor does it say anything vital about the law, but it is one of those interesting ones that I collect and write about where the mind boggles at how cases sometimes end up being conducted.

The Judgment is very short. Here is the nub of it.

A private law dispute where the mother and the children were living sometimes at her own home and sometimes with the maternal grandparents. The father alleged that the mother was living full-time with the grandparents, in an unsuitable property and not living at her own address at all.

The District Judge decided that the best way to assess that was to go out and see for herself.

So the mother was asked to agree to that site visit, there and then, and given 15 minutes to decide.  [I like to imagine that the Judge was also loudly humming the Countdown theme tune, but this did not actually happen]

Obviously, saying no might have given the impression that there was something to hide, so with some confusion, she agreed.

It hadn’t been possible to contact the grandparents to forewarn them / ask them, so the Judge, accompanied by the mother, father, counsel and the CAFCASS officer set out on the journey.

All parties duly arrived at the mother’s house, were permitted entry and apparently combed the premises, opening doors, looking in cupboards and fridges, even looking in wastepaper baskets. I was told that the District Judge had specifically looked into a dustbin and, as a result, made an express finding, arising from this as to the likely occupancy of the house.

6 On completion of this outing, the parties (still in the two separate cars) drove to the maternal grandparents’ property. On arrival they were given admittance. The maternal grandparents were to an extent taken by surprise. They did not have independent legal advice. The process of investigation, as already described, then took place in their home, with doors being opened, the contents of drawers being investigated and the like.

7 The parties returned to court. The entire outing took about one and a half hours. The District Judge made findings in reliance upon what had been seen – indeed, a great deal of cross-examination of the CAFCASS officer took place on the basis of counsel’s perception of the state of the two homes.

It is not going to take a genius to work out that the Court having made decisions based on these site visits, the mother was going to appeal those decisions, and that she was going to succeed in that appeal.

To my mind, this entire procedure was wholly unacceptable. In the first place, it was a suggestion which came within or shortly after the opening of the case and did not permit time for proper consideration of the implications. In reality it gave the mother and her adviser little effective choice but to agree for fear that a negative response would draw an adverse inference from the court. It was, in effect, litigation by ambush.

9 Although I have not been addressed in detail by either counsel, it would also seem to me it was, prima facie, a breach of the mother’s Article 6 rights to a fair trial. It is not the role of a judge in such a situation to play detective and enter a person’s home. 10. More importantly this Judge entered the home of a third party in order to elicit evidence. Prima facie, that was a breach of the maternal grandparents’ Article 8 rights.

To my mind, a judge’s job is to consider the facts presented, weigh up that evidence after cross-examination, make findings and a determination. If the methodology adopted by this District Judge was correct, it would lead inevitably to breaches under the ECHR. A Judge cannot seek to determine who is telling the truth by a surprise or unannounced visit in relation to disputed facts. That is not an appropriate way to litigate.

Moreover, the method of approaching third parties and seeking entrance into their home in those circumstances as I have stated left them with effectively no choice. I doubt that they felt that they had any alternative but to open their front door and make the Judge, counsel, their daughter and their former son-in-law welcome in their flat.

The District Judge found their home was cramped, dirty and untidy. Hardly a matter which was appropriate in all the circumstances.

10 I consider that it is inappropriate for any District Judge to seek to deal with a case in this manner. Especially as the site visit came at the Courts suggestion without any or any sufficient time for mature reflection let alone legal advice.

If there are real concerns that children are not being cared for properly (and that was not an issue in this case) it is a matter that can be dealt with by social services who are entitled to, and do make, regular unannounced visits.

I deprecate the method used by the District Judge and would urge that nothing similar occurs in the future.

I suppose the process of the District Judge effectively making an unannounced visit and looking in dustbins, and the parents counsel cross-examining the CAFCASS officer about a home visit to which not only they, but also the Judge had also been present (and thus technically witnesses about) was slightly more scientific and forensic than the Judge starting the judgment with “Ip dip sky blue, it is not you” , but not all that much more.

Please, judges and counsel of the land, keep making such extraordinary and peculiar decisions, it brightens up my day.

[The usual tangent – it seems that the lore that a vampire must be invited into your home comes from Bram Stoker, in “Dracula” “He may not enter anywhere at the first, Unless there be some of the household who bid him to come; though afterwards he can come as he please.” – where Van Helsing is recounting the powers and limitations of the vampire, and wasn’t around as a myth before then]

we trashed the one who looked like twisted sister - totally annihilated his nightstalking ass

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