Tag Archives: criticism of social worker

Social worker on the naughty step

Posted on June 19, 2018 by suesspiciousminds

This is a decision of a Circuit Judge, so not binding, but illuminating as heck.

M and N (Children : Local authority gathering, preserving and disclosing evidence) [2018] EWFC 40 (1 June 2018)

http://www.bailii.org/ew/cases/EWFC/HCJ/2018/40.html

It revolves around an investigation into a child who was two months old and how they sustained bruising to the neck and a fracture to the clavicle.

The social worker interviewed the parents, took handwritten notes and later produced a typed note. The LA case was that neither of the explanations for the injury offered by a parent (a trip and fall whilst carrying the child, or a bump in a car) accounted for the injuries, and the experts agreed.

On later enquiry within the care proceedings it emerged that the handwritten notes were used to produce that typed note two weeks later

Social worker, (SW1), was charged with investigating the matter on behalf of the local authority. SW1 spoke with the mother on 22nd September when she was given the seatbelt explanation. On 25th September, the Monday, SW1 visited the parents’ home and met with the mother and the maternal grandmother. At this meeting, she was given specific details of the fall explanation. On 26th September, the following day, SW1 visited M at her school. Each of these meetings need further expansion but before doing so, I must comment on the way the meetings were recorded.

During her evidence SW1 referred to her formal recording of the meetings which was set out in case notes and notes prepared for the purpose of the local authority section 47 report. Both sets are very similar as there was clearly a lot of copying and pasting from one to the other. Significantly, the formal notes were largely made up on 9th October, some two weeks after the meetings took place. When questioned by Miss Mallon about the potential for these notes being inaccurate because of the delay, the social worker was adamant that they were accurate as she relied on her memory, supported by her handwritten notes taken at the time. The cross-examination was highly relevant as there was a material dispute as to what was said during the meeting on the 25th.

The handwritten notes were duly requested and produced. Were they good? My good friends, they were not. Did they show an accurate record mapping clearly onto the typed version? My good friends, they did not.

The handwritten notes had not previously been disclosed by the local authority and did not form part of the bundle. At the conclusion of SW1’s evidence, the court asked her if the notes existed and if they could be produced. It transpired the notes did exist and they were produced the following day and circulated. The contemporaneous notes comprised seven pages of handwritten material. It is difficult to overstate how unprofessionally prepared these notes were. They were largely undated, they failed accurately to recall who was present, much of the handwriting is illegible, they were in large part disjointed and had to be translated by SW1 who gave further evidence but despite their unsatisfactory condition, the notes were illuminating.

Until the notes appeared, no plan of the living room of the family home had been prepared. The notes, however, contained a sketch plan of the room with a faint line which the social worker confirmed denoted the path M was taking when it was alleged that she had tripped falling on to N. The path is clearly towards N’s head and right shoulder. It is entirely consistent with the evidence given by the mother and the grandmother and suggests a graphic explanation for how M could have placed her knee on N’s right shoulder causing bruising to her neck but not to the remainder of her torso.

The significance of this is twofold. Firstly, the fact that the mother was denied this crucial contemporaneous recording of what she said four days after the event was to deny her the opportunity of supporting her version of events with crucial evidence and left her to rely on her memory many weeks after the event. Secondly, it deprived the experts of corroborative evidence to explain how the neck could have been bruised but not the body.

16. The handwritten notes contained a record of SW1’s meeting with M. They are as illegible and disjointed as the other notes but start with the words, “Naughty step”. SW1 was unable to explain why these words appear and could only speculate. The note contains a record of the child saying something and then correcting herself and concludes with the words, “Said never tripped/fell on to N/mat”.

17. As a result of this meeting, it is claimed there is formal record supporting the local authority’s case that M has denied falling on to N. This has been taken up by the experts who have used this in support of their opinion that the event did not happen. This is not a criticism of the experts as they are entitled to assume M was interviewed in a professional manner. Unfortunately, she was not. During the social worker’s evidence she said that she had been ABE trained. If this is the case, I have grave reservations as to the quality and effectiveness of that training.

Ticket for one to the Burns unit please. Oh, that’s a deep burn.

Two tickets to the gun show

On the third day of the five day hearing the local authority took stock of the evidence and, quite rightly, concluded that there was an unrealistic prospect of establishing threshold and asked the court for permission to withdraw its application. The court ordered the local authority to make its application formally by way of C2, supported by a child-in-need care plan. These have been filed and the children’s guardian has had the opportunity to consider the way forward.

My analysis is as follows. If N had been injured by her seatbelt, she would have woken up and cried. She did not. It is medically implausible that this event caused the injury and, in my judgment, it did not.

There is unanimity between the experts who attended court that N could have been injured in the way she was by M’s knee landing on her clavicle. I accept the evidence of the mother and the grandmother that this event occurred precisely as they say it did, that M was walking back to N who was lying on her changing mat, that M tripped, that M’s knee was the first part of her body to make contact with N and it did so directly on to her right clavicle. The break was caused by this mechanism. I am entirely satisfied that this was an unfortunate accident and that neither parent was in any way responsible for its occurrence.

The local authority was right to apply for leave to withdraw its application but we now have a dreadful situation where both children have been separated from their mother and in N’s case her father’s unsupervised care for over six months. The parents have separated and it is unknown how much the stress of these proceedings has contributed to that. M, who we are told cannot understand why she has to live with her great grandmother, must now be told at some point and in the most sensitive way possible that the reason was because her parents had been accused of harming her sister when, in fact, the injury was actually caused by M herself. There is a significant amount of work to do to put this family back together again.

The local authority has prepared a care plan and I am content that the care plan meets the children’s needs. Having considered the children’s welfare and in doing so having had regard to the welfare checklist, I am satisfied that it is in the best interests of both children for the proceedings to be withdrawn and give leave accordingly.

That’s all desperately sad – what a cost this family has paid for the failure of the social worker to properly record her notes, transcribe them accurately and grasp the importance of what was in them.

Judicial comment on gathering, preserving and disclosing evidence

I cannot leave this case without making comment on the manner in which the local authority has conducted itself. I have three main areas of concern. Firstly, the gathering and recording of evidence by the social worker was, in my view, wholly inappropriate. The local authority was investigating an allegation of serious child abuse where it was thought possible that an 8-week-old baby had been seriously injured by one or other of the parents.

34. In discharging its duties, the local authority could and should, in my view, have kept proper notes in a professional way which would have served as a coherent, contemporaneous record and this did not happen. To compound the problem, the notes were not made up into formal case notes until several weeks after the event, leaving much room for error caused by the inadequate contemporaneous notes and failing memory. If the local authority thought it appropriate to obtain evidence from a 4-year-old child, and it clearly did, it should have followed the ABE guidelines. Failure to do so renders any evidence obtained from the child to be of no value.

Secondly, I have concerns over the failure of the local authority to present a full picture to the experts. If Dr. Elias-Jones had known the explanation given by the parents days after the event in the manner that it was given to the social worker, this would have changed his opinion. This is clear because when he did understand it, his opinion changed but unfortunately this was four and a half months after he filed his report. Dr. De Soysa in his report dated 27th September, which will have been read by the other experts, reports:

“SW1 had interviewed M with regard to this incident. SW1 informed me that M had no recollection of this event.”

There is reasonable scepticism as to whether a 4-year-old should have been interviewed at all. However, if she had been interviewed appropriately, and by that I mean in accordance with the ABE guidelines, the outcome may have been very different. It may be that she would have given an accurate account of events which would have meant this whole case could have lasted days rather than six months. One can only speculate. In any event, to have given an account of events of what M said was, in my judgment, irresponsible as the experts could not be expected to question the basis upon which this information had been obtained.

My third and final area of concern is on the matter as to whether the parents and the children have had the benefit of natural justice in this case and thereby whether their Article 6 rights have been breached by a local authority which is, of course, an instrument of the State. These proceedings are borne out of a serious allegation of child abuse which, if found, would have had a profound effect upon the parents and the way they would be able to care for their children in the future.

38. I have already given my comment upon my interpretation of the local authority’s duty of care on gathering evidence but I feel obliged to comment on the local authority’s failure to disclose material evidence in advance of being required to do so during the final hearing. It is clear that the content of the social worker’s contemporaneous notes was material in securing the sea‑change in the professional opinion of Dr. Elias-Jones. The parents should not be expected to have to go on a search to obtain such important evidence which supports their case.

39. The local authority should have made this evidence available to the parents and their advisors at the earliest opportunity. It is again speculation as to what effect this would have had on the length these proceedings have taken but it is, in my judgment, worth speculating. For the future, the comments I have made highlight, in my view, that there may be significant areas for improvement in the training the local authority gives to its social workers, particularly in the areas of gathering, preserving and disclosing evidence in care proceedings

If you’re a social worker, now would be a very good time to find your handwritten notes, and have a serious hard look at whether the typed ones capture everything. If you’re a local authority lawyer, ask your social worker on any NAI/CSA case to let you have their handwritten notes. If you’re a parent solicitor or representing a Guardian, ask for those notes.

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Posted in case law, judicial spanking and tagged 2018 EWFC 40, ABE, contemporaneous notes, criticism of social worker, handwritten notes, keeping accurate recordings, poor record keeping, providing handwritten notes from investigation, re m and n 2018, recordings. Bookmark the permalink.

Local Authority, go and sit in the naughty corner

Posted on July 3, 2015 by suesspiciousminds

We don’t seem to go more than about a week without some Local Authority or other getting a judicial spanking, and here’s another.

[I probably need to create a new Category on the website of ‘judicial spanking’. No sooner said than done. If you did type ‘judicial spanking’ into Google and have arrived here, then I apologise, and I hope that you weren’t doing it on HMCS computers…http://www.theguardian.com/law/2015/mar/17/three-judges-removed-and-a-fourth-resigns-for-viewing-pornography-at-work ]

TM and TJ (children : Care Orders) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B83.html

Fundamentally, these complaints are about the Local Authority turning up to the Issues Resolution hearing, without its final evidence being in order, so that nobody really knew what their plan was and certainly hadn’t been able to respond to it. It also touches on an issue dear to my heart, where LA “A” who are running the case, decide at the last minute that LA “B” should have a Supervision Order for these children and expect that authority to agree to this without knowing any of the background.

1. On 12^th March 2015 the Bristol Magistrates ordered that the case should be made ready for a preliminary which is called an ‘Issues Resolution Hearing’ (‘an IRH’). The intention of that kind of hearing is to identify the issues that remain between the parties and see whether they are capable of being resolved without the need for a full final hearing. It is not just a ‘directions hearing’ because Practice Direction 12A of The Family Procedure Rules 2010 (which is well known to family lawyers) provides that, at the IRH:
- The court identifies the key issues (if any) to be determined and the extent to which those issues can be resolved or narrowed at the IRH;
- The court considers whether the IRH can be used as a final hearing.
- The court resolves or narrows the issues by hearing evidence.
The court identifies the evidence to be heard on the issues which remain to be resolved at the final hearing.
The court gives final case management directions.

If, by the time of the IRH, the Local Authority has not filed adequate evidence, it means that the whole purpose of the IRH is negated. Thus the magistrates ordered that, by the time of the IRH, the Local Authority should have filed its final evidence including its assessment of the parents. The Local Authority had been ordered to file its final evidence (including all assessments) by 15^th June 2015, the parents had been ordered to file position statements by 22^nd June 2015 and the guardian had been ordered to file a position statement by 23^rd June 2015. There was to be a meeting of advocates on the 16^th June but that had to be abandoned because the Local Authority’s final evidence had not been filed. The court was notified that there were delays. Some final evidence was filed by the Local Authority by 22^nd June 2015 although the mother’s solicitor did not receive any of the final evidence until the morning of 25^th June 2015.
On 25^th June 2015 this case was referred to me by the Magistrates. The parties and their legal teams had all been at court since 1 p.m. that day. I knew nothing of the case before it came in front of me late that afternoon. There were the following reasons for that referral: i) All parties accepted that the Local Authority had not filed adequate final evidence. The Local Authority itself presented its case on the basis that the assessments that it had conducted were inadequate and could not be relied upon.ii) The care plan proposed that the children should go to live with the father in the east of England under a supervision order to a Local Authority in that part of the country. There was no input from that other Local Authority and there was no indication of how that authority might support the father if the children did go there. That authority was first notified of the suggestion that there should be supervision orders in its favour (and also of the hearing on 25^th June 2015) on 19^th June 2015. Before the email that was sent on the 19^th June, that authority had no knowledge of the case at all. It is not surprising therefore that that authority did not consider that it could participate in the hearing on 25^th June; it has never seen the papers in this case.iii) There was no adequate evidence of the arrangements that the father would make if he were to care for the children there. In particular, the father’s plan, if he does move to the east of the country, is to be assisted by his aunt in the care of the children. There is no evidence from her; there is no more than a ‘viability assessment of the aunt’ that was filed on 17^th April 2015. Although the agency social worker who dealt with the case before leaving is thought to have spoken to the aunt before the care plans were filed, there is no record of any such discussion.iv) There had been no adequate assessment of the mother. She opposes the suggestion that the children should live with the father and wishes to care for them herself. There was an assessment of the mother that was carried out in November 2014 but this was not a parenting assessment and was carried out when the children were already in foster care. There had been a previous assessment of her in January 2014; this was a parenting assessment and was completed at a time when the children were still with her; however, that assessment was underway at the time of the birth of the second child and expressly was not an assessment of the mother’s ability to care for two children. There simply was no parenting assessment of the mother within the proceedings and there was no assessment of her ability, as a parent, to care for two children. That is despite these proceedings having been running now for very nearly six months, with the children in foster care.v) Because the Local Authority had not put forward any adequate evidence or proposals it meant that the parents did not know what case they had to meet. Even now I do not have any idea what the Local Authority recommends for these children.vi) The root cause of the problem lay in the fact that the previous social worker, who was an agency worker who had been employed in January 2015, had been charged with the responsibility of writing assessments of the parents, had said that she had done so and then left her temporary employment with the Local Authority without fulfilling that responsibility properly, I am told by the Local Authority. The new social worker had only been involved in the case for three weeks prior to the IRH on 25^th June and, quite understandably, did not have the knowledge upon which to write fresh assessments.
vii) Given the omissions in the Local Authority assessments I was told that it would take 14 weeks for the current social worker to complete assessments, given her case load and summer leave. The alternative, I was told, was that an independent social worker could be instructed to report by the 14^th August. The result now is that the Local Authority will have to pay from public money for an independent social worker to be employed to do the job that a social worker, employed by the authority, should have done.

viii) Given the shortage of time, the final hearing therefore could not be sustained at the beginning of July and another date would have to be found.

ix) The work of the guardian was materially impaired. How could she advance recommendations when she did not know what the Local Authority proposed.

The case had to be adjourned, and an independent expert had to be appointed to conduct the parenting assessments that the Local Authority hadn’t managed to do, and the LA had to pay for that.

The Judge, obviously being very critical of these failings, said this towards the end of the judgment:-

I understand the difficulties that the Local Authority faces and criticisms from the bench do little to repair the problems. Indeed criticism can simply add to the recruitment difficulties that Local Authorities face. From the time of my first speech as Designated Family Judge in this area I have stressed that there are four alliterative concepts that I wish to drive forward – i) a collaborative approach amongst the many professions and institutions involved in the family justice system; ii) Proper communication between those involved in that system; iii) a recognition of the need for changes in practice and iv) a commitment to the people who really matter – the children, family members and professionals who are obliged to turn to the family court system when there are family and personal difficulties that cannot be resolved consensually.
But I would like to make these points:i) If a case is going off track it is imperative that the issue is brought to the attention of the court as soon as this occurs. It may then be possible to retrieve the position. Once the problem has occurred, as it has here, it is too late.ii) Cases do not involve just one professional. They involve a large array of people and it must be a collective responsibility on all to bring a case to the attention of the court once it is going off track in this way.iii) Where one party to a multi party case fails it brings down the others and also affects the efficient running of the court.iv) If a social worker is not performing as she should there are management and legal teams within a Local Authority that should pick up on what is happening.
In this court area there has been a recent and considerable increase in the number of cases that are not meeting the 26 week statutory deadline. Of 181 public law cases there are 49 cases that are now ‘off track’. That means about 27% of our cases are exceeding the 26 week deadline. This has got to stop. Many people have worked extremely hard to improve upon the performance of this area and we are not prepared to see that slide away from us now. This type of poor case performance is unnecessary and is damaging to the system as a whole.
There are reasons why some cases may need to exceed the 26 week deadline. For instance there are cases involving complex issues of fact (e.g. where there is an allegation of a serious offence having been committed), cases which involve large and complex family dynamics and cases involving complex medical issues. This is not such a case. There are far too many cases like this one where the issues are straightforward and where delay is manifestly harmful to the children concerned. The only reason why this case has been so delayed is inefficiency.
If three days of court time are lost in this way it may well not be possible to fill those days with other work where this sort of thing happens so close to a final hearing. Not only are adjournments plainly contrary to the welfare of young children, they also cost a lot of public money and mean that very valuable court time is being lost. There is now immense pressure for every hour of court time to be used to its very fullest advantage and if one case is neglectfully prepared, as this one has been, it means that other cases and, other children and other parties suffer. It also means that public money is being used to fund the inefficiency of those people who do not engage in the system properly. It is perhaps commonplace but, nevertheless I do observe that the Local Authority that contends that the mother has not ‘co-operated with professionals’ has, itself shown a distinct and at least commensurate lack of co-operation with the court.
I am therefore adjourning this case to an IRH before me in September and will list a final hearing, again before me, as soon as possible afterwards. I will also try to call the case in for review once the report of the independent social worker has been obtained. I will release this judgment on BAILII . I know that it will be picked up at least by the local press and I consider that people in South Gloucestershire need to know how their Local Authority is functioning.

I think that there’s a lot of powerful and impressive stuff in this judgment. The ‘four C’s’ approach of Collaborative, Communication, Change and Committment is a damn fine philosophy.

I had a long quibble about whether the passages in the judgment that say that there are ‘far too many’ expert assessments in Bristol Courts and that the Courts must ‘crack down on them’ were somewhat blurring the lines between the statutory requirements and judicial impartiality on applying the requirements to the facts in an individual case, and Judges in their role of being spanked for their poor performance on statistics. But I think on re-reading that HH Judge Wildblood QC does (just ) enough to put this marker on the right side. (just)

So, instead,this (unconnected to HH J Wildblood QC who uses plain English where possible):-

Bearing in mind that coming across an impenetrable allusion in judgments is an occupational hazard (“I thought I had seen a white leopard” “As in the famous quotation by Lord Wellington [quotation not supplied]” “contumelious” and so forth), I think that we do rather better than America. As you may have heard, in the gay marriage case in the US Supreme Court, the words ‘apple-sauce’ ‘arrgle-bargle’ and ‘jiggery-pokery’ were used, but this Judge goes even further

http://blogs.wsj.com/law/2008/02/04/the-linguistic-talents-of-judge-bruce-selya-2/

Defenestration. Don’t walk past an open window if Selya is inside writing an opinion: He is liable to defenestrate anything and everything. Items thrown out the window in Selya opinions include speedy trial claims, punitive damages awards, arbitral awards, claims of co-fiduciary liability and laws that unduly favor in-state interests. The latter, Selya has noted, “routinely will be defenestrated under the dormant commerce clause.”
Philotheoparoptesism. Philotheoparoptesism refers to the practice of disposing of heretics by burning them or boiling them in oil. Another judge challenged Selya to include this word in a decision, which resulted in its sole reported usage (in secular courts, at least). For the record, Selya declined to consign a misguided prosecutor “to the juridical equivalent of philotheoparoptesism.”
Repastinate. To repastinate means to plow the same ground a second time. When considering appeals that raise previously decided issues, Selya and his colleagues have come down firmly and repeatedly on the side of “no repastination.”
Sockdolager. A sockdolager is a final, decisive blow. Selya’s published opinions deliver almost 60 sockdolagers, which is more “sock” than one finds in the decisions of the rest of the federal judiciary.
Thaumaturgical. The 1st Circuit takes a dim view of magical arguments, or what in one opinion Selya called “thaumaturgical feat[s] of rhetorical prestidigitation.”

Defenestration I knew, due to the ‘Defenestration of Prague’ and thaumaturgical I knew, because I love magic. The others, not a scooby.

Of these words, I found that only one of them appeared in Bailii law reports – three times in all. http://www.bailii.org/ew/cases/EWCA/Crim/2009/649.html

In R v Johnson 2009, I think the Court of Appeal use it wrongly, when they describe a burglar leaving a building .As a matter of inference, he left the premises by means of defenestration .

I think that defenestration involves throwing something out of, or being thrown out of. I don’t think jumping or climbing out counts.

The second one Downing v NK Coating Limited 2010 http://www.bailii.org/nie/cases/NIIT/2010/07397_09IT.html fails for the same reason, but it does bizarrely involve the Court having to think about a lab assistant who left his office by climbing out of a window, thus leaving a urine sample unattended and potentially able to be tampered with.

And Ormerod and Gunn is more of an essay (an interesting one) and once again, is referring to cases of people jumping out of windows, albeit to escape a threat of assault. It also talks about our old friend, Wilkinson v Downton 1887 http://www.bailii.org/uk/other/journals/WebJCLI/1997/issue3/gunn3.html

So I haven’t found the term being used in its proper sense. The challenge is on.

It appears that the English Courts are fonder of throwing things out of windows then they are in magic, ploughing, boiling people in oil [glossing over the Middle Ages law reports], or whatever the heck sockdologing is…

[Ha! In an unwitting irony, it turns out that one meaning of sockdologer is to determine something in a decisive and final manner. Which is clearly something that the English Courts aren’t interested in doing. I honestly didn’t know that when I wrote the previous sentence. ]

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Posted in case law, family justice modernisation, judicial spanking, social work and tagged court statistics, criticism of local authority, criticism of social worker, defenestration, expert assessments, experts, his honour judge wildblood qc, necessary to resolve the proceedings justly, psychological assessments, social work delay, tm and TJ 2015. Bookmark the permalink.

Angola – gross, inexplicable and unjustifiable delay

Posted on May 5, 2015 by suesspiciousminds

This is a judgment by a circuit Judge, His Honour Judge Wood, sitting in Newcastle. It is not binding precedent, but I think that it illuminates some important issues.

The mother in the case was Angolan, born in 1977. The eldest child had been born and raised in her early life in a refugee camp in Angola. The family came to England in 2005. It was sadly and brutally apparent that this mother had seen and experienced things that you would wish on no human being, and that obviously as a result, she had severe and serious need of help that she did not receive.

Re N (Children) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/37.html

I have found this case simultaneously to be very difficult, very sad and also to have made me very angry. In reverse order, the anger flows from the failure of this Local Authority to meet these children’s needs in a significant way. First, the gross, inexplicable and unjustifiable delay, the breach of statutory duty under section 1(3). Secondly, this is a family with, if not a unique background, a relatively unusual and extraordinarily difficult one, which until Mrs Louw reported does not seem to the court to have been really considered at all and even following her report I question the extent to which it was properly embraced. The search for suitable cultural support has come really very late indeed.
Thirdly, the likelihood of the parenting course that the mother was sent on barely scratching the surface was evident before the mother even went on it. I do not say that she learned nothing from it, she was able to explain what she had learned and spoke to me in quite complimentary terms about it, but the real difficulty identified by Mrs Louw was completely beyond its scope. Fourthly, the delay in obtaining the evidence from Mrs Louw was caused entirely by the Local Authority not identifying that need until these proceedings were issued. It was ordered at the earliest point at the case management hearing but by then 17 months had elapsed since the children went into care.
Fifthly, the Local Authority knows about this mother’s isolation. It is apparent on all of the evidence. She belongs to a church but does not mix with other families, at school or elsewhere. She has, on her account, maybe one or two visitors from her church to her home but she does not visit the homes of her visitors and she has no other family or friends, certainly locally. As an asylum seeker from a war-torn country but with children brought up in a western educational system, the potential for cultural issues and expectations to give rise to conflict ought to have been obvious. I do not underestimate the difficulty of finding appropriate help. Even at the end of this hearing it is not clear what does exist but no real attempt was made even to mount a search until much too late. To criticise the mother for not having learnt from five group sessions of an effective parenting course is really just not fair.
Sixthly, the background of being a refugee, particularly from Angola, even with an elementary knowledge of recent Angolan history and absent that an enquiry just on the internet, should have alerted the Local Authority to the likelihood that this mother had experienced real trauma likely to be of a severe kind which should have set alarm bells ringing as to her likely needs. On all of these scores the President’s textbook example of how not to conduct a care case seems to the court to have been met.

The Judge was rightly scathing about the delay between the Local Authority taking these children into care and issuing proceedings, some 17 months. With all of the features of this case, it should have been apparent that section 20 would not be sufficient and that proper plans for the long-term future of these children was needed. Even worse than the delay was that the Local Authority took SEVEN MONTHS to issue the proceedings from the date that they wrote to mother’s solicitors saying that they were going to issue. As the Judge points out – if the LA had issued when they said they were going to, the proceedings would have been concluded a month earlier than when they were actually issued.

[Even worse than this, the children had been taken into Police Protection a year before the section 20 accommodation, as a result of a physical assault, and then returned home, so the LA were seized of the issues and concerns for some 29 MONTHS before care proceedings were issued]

5. I want to say at the outset that the course that this case has taken in the hands of this Local Authority has been deeply unsatisfactory. Following a precipitating event in the middle of June 2013 the children were accommodated with the mother’s consent under section 20 of the Children Act 1989. Despite taking a decision in January 2014 that the plan was to be long term foster care and the Local Authority writing to the mother’s solicitor in March of that year to the effect that proceedings would be issued within seven days, they were not issued for another seven months on 22^nd October 2014. As I observed when Miss Woolrich on behalf of the Local Authority addressed me, had the proceedings been issued when the Local Authority said that they were going to issue, they should have been concluded before the date when they were, in fact, issued. That they were not is bad enough but that bald fact ignores the period of nine months that preceded that statement of intent. Thus, these children were voluntarily accommodated for 16 months prior to the issue of proceedings and can properly be said today to have been in limbo now for 21 months.

It is difficult to avoid a direct application of the words of Sir James Munby P in the recent Darlington Borough Council case reported at [2015] EWFC 11 in which he described that case as being, “Almost a textbook example of how not to embark upon and pursue a care case.” A specific criticism from that case that applies directly in this case is, “The misuse and abuse of section 20”, that the President said could no longer be tolerated endorsing, as he did, the observations of the Court of Appeal in Re W [2014] EWCA Civ 1065 and Northampton County Council v AS [2015] EWHC 199 quoting with approval the remarks of Keehan J recorded at paragraphs 36 and 37 of that latter judgment.
This all lies entirely at the door of the Local Authority and requires addressing at the highest levels within Children’s Services and their legal advisors. That said, no parent in such circumstances is left without a remedy. Legal advice is available from the outset of notification of proceedings and it is a matter of both surprise and disappointment that the mother here was not encouraged to force the point as she was perfectly entitled, and I would say bound, to do in the circumstances of such gross delay by withdrawing her consent. I want to emphasise I do not blame this mother personally but it is the fact and a matter of regret that this did not happen long before the Local Authority belatedly got round to issuing proceedings. The effect of delay varies from case to case but in no sense could it here have been described, using the now disapproved term, as being purposeful. It served no identifiable purpose, it has delayed the outcome inordinately for young children wanting their futures decided and, as a matter of law, it has amounted to a complete and inexcusable breach of the statutory delay principle enshrined in section 1(2) of the Act.

The Judge sadly had to make Care Orders – one will never know whether if during those 17 months of drift the mother had been given the right help whether the outcome would have been different.

He decided that these failings were not solely those of the social worker but of the organisation and system as a whole, so followed the President’s decision in Darlington not to name and shame the individual workers

I make a disclosure order to the head of service and to the independent reviewing officer in respect of this judgment which will be transcribed as anonymised, the cost of which to be shared equally by all parties. I should say that for the avoidance of doubt for the reasons that the President gave in the Darlington case itself, I have also directed that the two social workers who have been involved should be anonymised as well because it seems to me entirely unfair that, whatever individual shortcomings may have arisen, the criticisms that have been levelled against the Local Authority should be laid at their door or that they should be identified as responsible.

It also seems to me that with all of the demonisation of asylum seekers that goes on in both political discourse and the media reporting, it is worth reading this little passage and remembering that asylum seeker ought not to be used a synonym for ‘sponger’

The mother was born on 23^rd October 1977 in Angola. By then the brutal civil war that shocked the outside world had been underway for two years. G was born in a refugee camp in Zambia in 2002 just after that war ended. The psychologist who reported in this case makes the point that the mother grew up and came to maturity in a war-torn country. The central province where she lived is said to have been devastated. The mother herself reports that there came a day in 1999 or 2000 when they “all ran different ways” and she thereby lost contact both with her parents and her sister. She has no idea where they might be – that is to say, assuming they are still alive – and somehow she ended up following a convoy of complete strangers that took her to Zambia. Little more than that is known, albeit the expert assessment of her presentation was consistent with her affirmative nod in answer to a direct question as to whether she had been jailed and/or tortured. She is likely to have experienced first hand, or at least witnessed, extreme brutality that has traumatised her to this day.

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Posted in case law, international and tagged angola, asylum seeker, care proceedings with angolan element, criticism of section 20, criticism of social worker, darlington, delay, his honour judge wood, judicial criticism, re n children 2015, section 20. Bookmark the permalink.

Criticism of professionals – two cases

Posted on January 20, 2015 by suesspiciousminds

These aren’t earth-shattering judgments (though I think that both are very well written and constructed, and worth sharing for that alone) and they aren’t precedent authorities for any points, but both raise practice issues which are valuable, and they also show that Judges are prepared to call out faults when they see them.

They also both have happy endings for the families concerned, and that’s nice to see.

The first is in relation to a Guardian,

Re R (Care proceedings :Rehabilitation) 2014

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B193.html

It involved two children, one nearly 8 and one 4 1/2. The Local Authority final plan was for both children to be returned to their mother’s care, the Guardian opposed that and wanted the children to be made the subject of a Special Guardianship Order and to live with their current foster carer (a family friend).

This is what the Judge said about the Guardian’s evidence and report.

217 There are two aspects of the guardian’s final report that concern me. I have noted that in his analysis of the advantages of being brought up by a natural parent the guardian said very little about the benefits of that, although it is universally accepted by professionals and the courts. He provided helpful answers when I specifically asked him about it, and Miss Shah in her oral submissions suggested that the advantages are so obvious that the guardian did not need to set them out in his report. In my view, that is not the appropriate or just approach to the analysis by a guardian who, in a final report, asks the court not to return the children to their mother’s care, and it would be a pity if that omission perpetuated the mother’s impression that the guardian remained set in his views against her.

218 I also found it remarkable that in his final analysis the guardian did not mention Miss Jones’ report. There was no summary, no analysis, nor any explanation of his reasons for rejecting the views of a jointly instructed expert. That he does reject her views is obvious from his position, and he had raised questions with her at an earlier stage. Nevertheless I consider that a serious omission.

219 Further, I noted that the guardian described the carer as a member of the children’s family and argued for a different approach to the right to family life on that basis, although he had previously described her as a “family friend”. Also in his oral evidence he referred to the children’s attachment to their mother as “insecure”, although he had previously described it in his report as “secure”.

220 These two matters have raised a concern that at the final hearing aspects of the guardian’s case have been overstated in an effort to support his argument that the children should remain in the care of the carer.

221 The guardian considers the case as finely balanced, but ultimately prefers the “status quo”, the continuation of the children’s placement with the carer under a special guardianship arrangement. He considers the local authority’s final care plan to be “high risk”. I accept that if the mother does relapse and the rehabilitation plan breaks down it would be catastrophic for the children. I have considered the other risks. I am persuaded that the mother will deal with them with support robustly.

And in case you think that as a Local Authority lawyer, I’m just reporting a Guardian getting a hard time for my own amusement, the next case involves a Judge seriously criticising social workers.

This is Re EH (Supervision Order) 2014

http://www.bailii.org/ew/cases/EWCC/Fam/2014/B78.html

This case involves a girl aged 6 1/2. The final order made was a Supervision Order , which means that the girl would live with her father.

This is what the Judge had to say about the complaints that the parents made about the way they were treated by the Local Authority.

63. a) I deal with this issue here, not because the local authority’s capacity to care for EH arises, but because its approach has had an evident impact on all those discussed above, and with the agreement by all parties that there should be a Supervision Order it is clear that the Local Authority’s future conduct of the case will have an important effect upon EH’s future care.

(b) The parents, Mr and Mrs B and the Guardian have all raised concerns about the approach taken by the Local Authority in general and this Social Worker in particular.

(c) I am aware that it can be said that parents are bound to criticise a Social Worker involved in child protection proceedings relating to their child, and that the Social Worker is in a no-win situation, but it is not as simple as that. The roles a social worker and a local authority play are crucial and must demonstrate a real effort to work in partnership with a family, a readiness to try and rebuild a family and identify support to do so, a fair and robust analysis of all the information available, and sensitive interaction with the family to support all the above.

(d) I have already noted a number of concerning features earlier in this judgment: a failure by the Social Worker to include and consider carefully all the available evidence of the Father’s relationship and interaction with EH, and particularly her own s37 analysis; an unquestioning acceptance of the extreme analysis of the FAST assessor; a failure to include in the social work analysis of EH’s presentation during the FAST assessment crucial information that the Mother had told EH she might be removed into foster care and other potentially relevant factors; a failure to provide any adequate analysis of EH’s needs in terms of her close and loving relationships with her parents and the impact upon her of being removed from their care with limited contact; and an excessively rigid and negative reaction to the concerns raised in Mr and Mrs B’s viability assessment.

(e) As already mentioned, the downturn in the Local Authority’s approach and the parents’ relationship with the Local Authority and the Social Worker appears to have begun with the angry response received by the Social Worker and Practice Manager Jenny Jones in mid-March 2013 when Father was requested at short notice to extend his weekend staying contact. The negative viability assessment of Mr and Mrs B by the Social Worker followed in May 2013. This appears to have been communicated excessively bluntly and negatively to Mr and Mrs B, according to their account to the Guardian (E125). I take into account that they were not questioned directly about this while giving evidence and so I have to rely on the Guardian’s account of her conversation with them, but I also note that they were not challenged that this had been their experience, and I find that they had no reason to lie about this to the Guardian and they came across as entirely honest and helpful witnesses. I have subsequently seen an entirely proper letter, sent on 5.6.13 shortly after these conversations took place, setting out advice to Mr and Mrs B as to what steps they could take. By then however, that damage was done.

(f) The proceedings were then issued and first steps taken to progress the case. On 21.8.13 a FAST planning meeting took place between the Social Worker, Ms Mayet the FAST assessor and the Father. I have already found that his approach was hostile and unhelpful in trying to arrange dates for the FAST assessment. However, it was followed by the Social Worker, later at the same meeting, pressing Father to sign adoption medical consent and parental health forms. I accept the Guardian’s evidence that this was poor professional practice, and in any event it lacked sensitivity or any awareness of the meaning of these proceedings and assessments for the parents. A meeting about the Local Authority’s plan for adoption (even if a parallel plan) should not ride immediately on the back of a meeting that is about the assessment of that parent’s parenting. It will instantly undermine the parent’s faith in that assessment, particularly where the Local Authority is the assessor, and will appear to be grossly insensitive and as if the Local Authority are approaching the case with a closed mind. A separate meeting with a proper explanation of the parallel planning process should have been conducted.

(g) A similar and wholly unnecessary pressure and insensitivity was evident in the Social Worker’s actions on 8.11.13. On that date DJ Pilling’s judgment relating to the parents’ and Guardian’s applications for further assessment by ISWs was awaited from the contested hearing the day before on 7.11.13, and was handed down by email on the afternoon of 8.11.13. However, the Social Worker persisted with a meeting with Mother on 8.11.13, with the approval of her manager Jenny Jones, at which she sat with her for a lengthy period of time persuading her to complete parts of the Child Permanence Report which covers the views of the parent in relation to the proposed plan for adoption and contains a section relating to what information the parent would like the child to know in the future if adopted. I have seen that document. Understandably, the Mother described herself as intensely distressed by this exercise. The excuse for putting this highly vulnerable Mother through this was that the Social Worker had to prepare documents for the Agency Decision Maker to consider the Local Authority’s plan for adoption and that she would have been in trouble if the documents were not ready. However, she of course conceded that as soon as an assessment is to be carried out an ADM is not in a position to approve a plan for adoption, and of course it turned out that DJ Pilling’s judgment confirmed that both the Father and Mr and Mrs B should be further and independently assessed. Simply waiting one day for that decision would have saved the Mother a great deal of unnecessary distress and saved the Social Worker a waste of her time on preparing wholly unneeded documents. I could not fathom what drove the Social Worker and her manager to continue with this course of action in those circumstances. It cannot but have led the family to be convinced that the Local Authority was not prepared to think supportively and openly about the possibility of EH remaining in her family, and that the Social Worker was prepared to put the Mother through an intensely distressing experience come what may.

(h) Given that one of the key criticisms of the Mother was that she was failing to engage with the Social Worker, and of the Father was that he was aggressive and abusive to the Social Worker, I find it astonishing that she should take (or have been advised to take) such insensitive steps that cannot but have worsened the prospect of improving her working relationship with each of them.

(i) The Guardian was also concerned that the Social Worker called the police twice to EH’s home, in summer 2013 and February 2014. She considered that this was excessive and heavy-handed, particularly where a child is attending school and contact with another parent, and she could be seen through the window in summer 2013. It had a frightening impact on EH and again must have led the family to feel that the Social Worker had an excessively negative attitude towards the family.

(j) I note and accept that the Social Worker has agreed with hindsight in her oral evidence that some of these steps were not best practice and expressed regret through the Local Authority’s advocate for some of these actions. However, the matter unfortunately goes a stage further.

(k) In her final statement dated 21.2.14 at C143 the Social Worker reported a comment of the Mother’s that she had not in fact wanted the Father to spend Christmas with her and EH. The Social Worker then used this comment to suggest that the Father was again being inappropriately overbearing and that the Mother was being excessively weak, with consequent damaging exposure of EH to their relationship difficulties. However, during her oral evidence the Social Worker let slip that the Mother had in fact invited the Father to come for Christmas as EH had requested it. This is wholly absent from her written account and as a result it becomes a distorted and wholly misleading version of what occurred. Nowhere is the Mother’s willing and appropriate response to her daughter’s request mentioned. I am astonished that this could be characterised by the Social Worker as the Father overlooking the Mother’s feelings and the Mother being too uncomfortable to assert her wishes against him, when it was clearly nothing of the sort. This level of distortion to fit the Local Authority’s case is unhelpful in the extreme, unprofessional and frankly a misrepresentation of the true situation.

(l) Additionally, last week the Social Worker concedes that she answered Mother’s questions about what would happened at the end of this case by openly discussing in front of EH the need to pack a bag for EH. I fail to see how this should have arisen at all. The Social Worker should have either had this discussion long before with the Mother or should have deflected her questions so as to have the conversation in EH’s absence. This was a hugely insensitive and potentially destabilising discussion for EH to overhear. It is frankly flabbergasting to hear that that a child protection professional has acted this way. It is as if the child’s feelings are invisible.

(m) I must express my disappointment at having to consider these examples of the Local Authority failing to approach this case sensitively and with the aim of truly working in partnership with a family, and I consider that the family’s concerns as to the insensitive and negative approach they have been treated to are justified. Some examples appear to be the responsibility of the Social Worker and some of her management within her team. The attitudes betrayed by these examples must change for the Supervision Order to be properly administered by the Local Authority in EH’s interests. This is particularly the case given my findings in relation to EH and her Father that do not follow the Local Authority’s position adopted thus far.

(n) I am very grateful to the Local Authority for the addendum document dated 13.3.14 which adds to their care plan. I am also grateful for the Local Authority’s decision of which I have been informed this morning: to change the team which will be responsible for the Supervision Order. The Local Authority had originally confirmed that the Social Worker would change but that the team would remain the same and the manager Jenny Jones would remain in direct charge of the case. The Guardian had expressed the view that it would be preferable for the team and the manager to change. While aware of the limitations on my powers, I concurred and I had invited the Local Authority to think carefully and creatively about how to achieve the fresh start that it appears from the concerns set out above are urgently required to serve this family fairly, to enable the Local Authority, the Senior Social Worker and the Professional Assistant to look at these parents with a fresh eye, and to be able to work in partnership with them successfully. I had reminded the Local Authority to consider the guidance of Sir James Munby P in Re BS (2013) at §29 in terms of doing what is necessary to make the orders of the court work and not to be limited by resource arguments.

It is important, and in saying this, I’m aware that my own words might come back to haunt me in the future, that where parents have not been treated fairly and professionals have not behaved as they should, that Judges properly call them out on this, as these two Judges have done. Care proceedings are terrifying and confusing for parents and the very least that they can expect is that professionals treat them fairly and with dignity.

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Posted in case law and tagged criticism of guardian, criticism of social worker, eh supervision order 2014, re r rehabilitation 2014. Bookmark the permalink.

Bad character evidence

Posted on September 1, 2014 by suesspiciousminds

There are all sorts of rules and guidance in criminal proceedings as to when you can, or can’t adduce or cross examine on ‘bad character’ evidence. We don’t have those rules and guidance in care proceedings (yet).

If you are a parent in care proceedings, every bit of your life is pored over. There will be a life history, assessments, questioning, examination of records relating to school, health visitor and sometimes your medical records. You will find yourself scrutinised – if you are foolish enough to have an open Facebook page, you might see that produced – you might end up with your text messages being obtained and released into the proceedings, maybe your emails too.

So in a sense, a lot of the proceedings can be (or at least seem to be) about bad character.

There’s a new development though, which is that judgments in care proceedings are being published. Those can (and generally should) contain the names of the social worker and Guardian.

Now, what happens if in one of those cases, the Judge says that Steve Pink (your social worker) has done a bad assessment, hasn’t been fair, didn’t keep proper records and fell short of the standards required of a social worker conducting an assessment. (Or the Guardian, the same principle works for both)

(Or if you want a real example, read the last blog post – I don’t want to pick on those professionals specificallly, but I can see that there are things in that judgment that they wouldn’t want to be cross examined on in other cases)

If the parent’s case is that the worker has done the same thing again with THEM, are they entitled to cross-examine the social worker or Guardian about those matters? Is it material evidence that could undermine their credibility and bolster the parent’s case?

It would seem to be so. It probably feels uncomfortable and worrying for professionals that things they got wrong in one case could come back to bite them in another. But think for a minute – if the judgment was about the father instead, it would be relied on and used in care proceedings. Is what’s sauce for the goose sauce for the gander? Or is it on the parent who is ‘on trial?’

I will be interested to see when this issue arises, and how the Court’s deal with it. There’s a risk of article 6 unfairness if something material isn’t admitted (I think it has to have relevance to the case – i.e the complaint the parent is making has similarities, not just being done to make a witness squirm – there are some strictures against that in the Bar Council Code of Conduct (g) must not make statements or ask questions which are merely scandalous or intended or calculated only to vilify insult or annoy either a witness or some other person – I’ve seen plenty of people sail pretty close to that though)

Once the genie is out of the bottle though, it has implications – suddenly everyone has to search case law for any references to the social worker, Guardian or other professional witnesses to see if there’s any dirt there, the Court has to slog through an entire judgment on another case to ensure that the criticisms are not being cherry-picked out against a more positive overall view. And a Court might feel fettered in naming, or shaming a social worker if they know it might be brought up time and again. Also, it places even more pressure on social work evidence, particularly for the inexperienced ones who might have a blunder in one case dog them for the next year.

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Posted in transparency and tagged anonymised judgment, bad character evidence, can you cross examine a social worker about things from another judgment, criticism of social worker, published judgments. Bookmark the permalink.

Machetes, body armour and social work bashing

Posted on September 1, 2014 by suesspiciousminds

Oh, that’s a clickbait title if ever there was one. The case in question does contain all of that stuff though.
Re IMA (care proceedings :no threshold) 2014

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B110.html

This is a set of care proceedings heard in Manchester County Court, but it raises some important issues of wider importance.

It was a case in which the Local Authority obtained an Emergency Protection Order removing IMA in August 2013, and after that Interim Care Orders sanctioning IMA remaining in foster care, up until the final hearing, which took place in August 2014 a year after the initial removal.

The Local Authority had been seeking a plan of adoption, supported by the Guardian, but this had changed to permanent placement with a relative. It is of note that the plan of adoption had been supported by the Agency Decision Makers (whose job it is to assess separately to social workers whether the circumstances of an individual case mean that adoption is the right plan)

The Judge at final hearing found that the threshold criteria were not made out, and thus the child would be going home and no statutory orders would be made.

The threshold criteria was based on the risk of the child being exposed to domestic violence (which is, on the revised wording of the Children Act 1989 a matter which on its own is capable of meeting threshold). That had two aspects really (i) Was father a risk of violence or violent behaviour and (ii) was the child in mother’s care going to be exposed to the father.

The fact that the Judge found that threshold was not met therefore was significant. This wasn’t a case with a suspicious injury which on full investigation was found to be an accident or a peculiar medical condition, but rather that the child ought never really to have been removed. The Judge was not saying that the threshold HAD been met but due to changes the risks had dissipated or become manageable, but that the situation of this family had NEVER crossed the section 31 threshold.

And the Judge had advised the Local Authority in a number of hearings that he was concerned that the section 31 threshold was not made out on the evidence that they had presented and was giving them the opportunity to flesh out their evidence if they had more information which was not before the Court. He told them that on 17th February 2014, 14th April 2014 and 23rd June, before making it official at the final hearing by ruling that threshold was not met.
The Judge starts off scathing and continues in that vein

These proceedings concern a new born baby who has never suffered any harm in his parents’ care. If he has suffered any harm to date, it is the loss of the relationship with his mother during the first year of his life due to the fact that he was removed from her care when he was a week old.
The Court did say that the LA were not wrong to have brought the case, but hints strongly that they were wrong not to have taken stock after any of those hearings where the Court indicated that they considered satisfying s31 threshold to be an issue.

133. There is no suggestion that the local authority has not acted in good faith in seeking to bring the proceedings relating to IMA before the court. The court accepts that the local authority was bound to consider and act on the information provided by the police. The question, however, arises as to whether a more experienced social worker would have acted with greater circumspection and sought to clarify the factual basis for the “intelligence” he was given and its accuracy. This should have been apparent when the father was released from custody and bailed for further enquiry on the 19th August and should have resulted in the social worker re-evaluating the Children’s Services position. None of the information provided by the police as disclosed to this court and the parties appeared to establish that he was a direct risk to a child or children and, it seems to me, on my analysis of the evidence available open to question as to what the “emergency” was that justified the application for the Emergency Protection Order.

A major part of the Local Authority’s case was that the father’s convictions established that first part of their threshold – that he presented a risk. [In large part, that was because there was no evidence of any domestic violence in the relationship between mother and father – no injuries, no police call outs, no referrals from neighbours, no allegations from either of them] They were relying on two things – firstly the father’s convictions and secondly the history of domestic violence in his previous relationship
The Judge took a very different view as to whether the criminal convictions in themselves established that father was a risk. A major part of that was that offences which looked on paper very serious received such light sentences that the Judge (who sits as a criminal Judge) brought his experience to bear in saying that one had to treat the offences on paper in the light of the very light sentences – they cannot have been at the high end of the spectrum of those offences.
51. In reviewing the evidence, it is I think pertinent to remind myself that both the mother and the father have criminal records. The records for the mother appear at F6-12 and F131-137 in the bundle and for the father at F13-19 and F124-130. The mother has convictions for robbery and racially threatening and abusive behaviour in December 2007 in respect of which she received a custodial sentence of a 12 month Detention and Training Order. She was then aged 15. She is now 22. Her subsequent convictions are for what might be property described as minor offences and failing to comply with the requirements of community orders imposed as sentences. It is self-evident from the nature of the convictions, that she is not likely to respond well when attempts are made by those in authority to impose on her. It is unclear to me whether the social worker ever appreciated that.

52. The father has 3 convictions between 2000 and 2006 for offences involving possession of offensive weapons for which he has received sentences of a fine and community orders. None of those could properly be described by anyone who has a knowledge and understanding of criminal justice as serious offences. He has other convictions for disorderly behaviour and driving offences which demonstrate that he is something of a social nuisance. In 2010 he was sentenced to two separate terms of suspended imprisonment for dangerous driving and benefit fraud. In May 2011 he was sentenced to 12 months imprisonment for offences of possession of class B controlled drugs – cannabis – with intent to supply. Finally, there is a conviction for an offence of harassment on the 10th December 2013 in respect of which he was made the subject of a community order with an unpaid work requirement and a restraining order. This conviction relates to his former partner, RK. I will say more about this later. These convictions are of course a matter of record and are not disputed by either the mother or the father. The issue, as will become apparent, is how they have been interpreted and relied on by the local authority to substantiate the ‘threshold criteria’ it contends for.
By the time of the final hearing, the Local Authority’s threshold document was as follows (I commend the Judge for including it in full, it is extremely helpful when this is done, as one can then see the basis on which the case is put)

MAA is the father, JG the mother.
142 “The nature of the likelihood of harm alleged is expressed as “(i) Impairment to the child’s physical, intellectual, emotional, social and behavioural development; (ii) Impairment to the child’s physical and mental health; and (ii) Impairment suffered from seeing or hearing the ill-treatment of another.
(1) The father, MAA, has an extensive criminal history. This includes:-

(a) Possession of a machete in 2001;
(b) Arrested 8 February 2006 in possession of a knuckle duster, wearing body armour and in a car with 4 other men similarly equipped; drugs found at his home
(c) Drugs offences including possession, intent to supply and cultivation of cannabis for which he served a 13 month prison sentence in 2011
(2) On 19 August 2013, the day of IMA’s birth, MAA was arrested at the hospital in relation to an offence which took place on 29 November 2012 when he and two other males were alleged to have attacked an acquaintance and driven off in his car with the victim’s legs hanging out of the open door; a considerable quantity of cannabis was found in the boot. The case was not proceeded with by the CPS

(3) In 2013, MAA pursued a campaign of harassment against his ex-wife, involving regularly attending at her home threatening her, threatening violence to any new boyfriend, and stating he would persuade Children’s Services to remove her children from her
(4) She was so frightened that she moved into a women’s refuge with her children for 4 weeks in August 2013. (On a further 10 occasions recorded between 2 September and 8 October 2013 he visited her home and made similar threats)
(5) MAA was arrested on 13 October 2013 and charged with harassment. MAA’s ex-wife gave a police statement in which she stated that he had been violent towards her during their relationship as well as extremely controlling and she had been “terrified” by him.
(6) Following a strategy meeting on 13 August 2013, when JG was identified as a vulnerable person who may be at risk from MAA, a joint police and social work visit caused further concern when MAA would not provide his name, and refused to accept any concerns or co-operate with any form of assessment. JG took the same position. It was therefore not possible to obtain a clear assessment of any risk posed by MAA due to the failure of the parents to engage with Children’s Services either during the first visit or thereafter. This attitude of complete non-co-operation continued.
(7) JG failed to allow social workers into her home to discuss the issues, minimised the seriousness of previous domestic violence incidents and criminal drugs history involving MAA and refused to sign a working agreement.
(8) Although she agreed to reside at her parents’ home following her discharge from hospital with IMA in August 2013, neither JG nor IMA were at home when agencies visited on 3 consecutive days between 9am and 10am.
(9) JG’s refusal to engage in assessment or to accept any possibility of risk, despite information provided to her, demonstrated that she was unable and/or unwilling to prioritise IMA’s safety and protect him.
(10) Following the making of an emergency protection order on 23 August 2013, JG and MAA evaded the attention of police and Children’s Services until 25 August 2013 when they were eventually found at a property in Prestwich. Both their families colluded in the family hiding from agencies.

(11) There is evidence that the parents were involved in drug dealing activity at least up until IMA’s birth, as also found at the property in Prestwich were a further quantity of cannabis, drug paraphernalia and paperwork implicating the couple in fraud and money laundering offences. Although the CPS have not proceeded against MAA, JG faces criminal charges in relation to intent to supply cannabis, 165g having been found at the property.
Whilst that looks, on the face of it like a pretty decent threshold to establish that MAA (the father) posed a risk of harm -there’s a recent offence, offences including weapons, violent and controlling behaviour towards a former partner and that being recent, we already know that threshold was not found. So we need to see why.

The Judge deals with those matters in the following way (that is, in short, to reject all of them as being made out)

143. In respect of this amended threshold document I make the following observations and findings based on my assessment of all the evidence which has been put before the court –
(1) The father’s convictions are a matter of record which, absent specific offences involving harm to children or violence to women with whom he is or was in a relationship, have no relevance for the purpose of threshold and relate only to the character and personality of the father and not to parental care. This paragraph should be struck out.
(2) Given that the police took no further action against the father in respect of these allegations and did not prosecute him, none of what is alleged in this paragraph can be established as a fact. This paragraph should be struck out.
(3) So far as paragraphs (3), (4) and (5) are concerned, the issues cited post date the local authority intervention in respect of IMA. The issues raised relate to the father’s character and personality and not directly to any aspect of parental care relevant to IMA. These paragraphs should be struck out.
(4) A refusal to co-operate with Children’s Services (or the police) as identified at paragraphs (6), (7), (8) (9) and (10) does not go to threshold as there is no legal duty to co-operate unless the threshold is crossed. See Lady Hale at paragraph 207 of In the matter of B (A Child). These five paragraphs should be struck out.

(5) In respect of paragraph (11), any evidence of alleged drug dealing cannot go to threshold unless there is clearly established factual link to demonstrate that there is likelihood that a child will suffer harm resulting from a failing in parental care arising from such activity. There is no such evidence against either parent it being noted that, in any event, the father has not been charged with any offences arising from the circumstances related. This paragraph should be struck out.
If you are keeping count, the Judge struck out every paragraph of the Local Authority’s final threshold document. The whole lot, gone.

(The Local Authority did not appeal this decision. I think that they COULD have done on points 3, 4 and 5 – these are surely ‘risks that cannot sensibly be ignored’ and they go to the heart of ‘is the father a risk of domestic violence’)

I have reviewed the evidence in this case and have borne in mind all the guidance for the Supreme Court set out above in arriving at my conclusion which is that I do not find the ‘threshold criteria’ established for the purposes of section 31.
I am acutely aware of the consequences of any finding that the ‘threshold criteria’ is not made out and especially in proceedings which have been ongoing for as long as these because of the impact and implications such a finding has for the child and parents. On any view, a finding that the ‘threshold criteria’ is not made out self evidently means that not only has a considerable disservice been suffered by the parents and the child but also an injustice given the way in which these proceedings have been conducted and the length of time the proceedings have been ongoing. That, however, is no basis to shrink from doing what I consider to be right for the child, IMA, on the basis of the evidence before me which I can properly accept.
The Judge did identify that there were issues and concerns, but that these fell short of satisfying the threshold

47. Both the local authority and the children’s guardian rightly have criticisms in relation to the parents’ failure to co-operate and their lack of openness and honesty in their dealings with professionals. In fairness to the mother it has to be said that she did engage with the proceedings and the assessment undertaken by the psychologist and co-operated with the children’s guardian in his enquiries. She engaged with the local authority assessment and attended al the sessions as required despite her apparently limited understanding of what the assessment was for. She has made a very strong commitment to contact with IMA albeit there have sometimes been issues around her timeliness. She has been available at contact if the social worker has ever wanted to contact her and I have some difficulties now reflecting on the evidence as to why the social worker did not on occasions make more effort to go to see her at the contact venue if he needed to discuss issues with her. It is, I think, very clear that the mother has had issues around her relationship with the social worker and communication. However, these are not issues which go to threshold and, as Ms Kilvington observed in her submissions the mother’s lack of honesty on occasions or the lies she admits to having told do not denote harm.

48. The social worker and the children’s guardian were both clearly very troubled by having no clear understanding of how the mother and the father might conduct their relationship in the future. Let me say that I entirely agree that the father as demonstrated by him in his evidence is a very unprepossessing, and unappealing character based on what he said about the conduct of his relationships with women and the children he has. Having said that there is no reliable evidence before this court to indicate that he has ever harmed any child or posed any risk of significant harm to a child. I accept the submission made by Ms Kilvington that it is a matter for the mother and the father how they might conduct their relationship and whether they should be part of the same household or not. It is not for this court or others to judge or interfere with parental relationships unless it can be properly established that there is an identifiable risk of harm for the child or children.

The Judge was very critical of the written and oral evidence of both the social worker and the Guardian

61. [The social worker] gave evidence over nearly one and half days. He was subjected to lengthy and challenging cross-examination around many issues including his assessment of the mother. He was also questioned about his understanding of the police intelligence and information upon which he had acted and formed his views about the parents and the risk he considered they posed to IMA. He was uncertain about some specific dates and unable to demonstrate from the written records available some of what he was saying. His lack of experience as a social worker was evident.

…

69. He became very defensive in reply to Ms Kilvington asserting in very strong terms that it was a “very thorough assessment” when she sought to explore some of the issues in respect of it. That was a worrying response which smacked of the over confidence of someone who did not have the knowledge and experience to demonstrate a degree of circumspection and humility since it was clear, to me at any rate, that the thoroughness of the assessment was not evidenced in what has been produced to the court. [The social worker’s] response on the issues raised in connection with the conduct of the assessment and the confirmation of the unreliability of his evidence in respect of the assessment process was profoundly worrying.
…
155. I have real concerns about how the local authority responded to the initial referral and subsequent information given by the police. I do not understand why the PLO pre-proceedings procedures were apparently never initiated when dealing with a young, first time mother who should have been encouraged to seek early legal advice which might, and I cannot put it any higher, have resulted in a different direction being taken in respect of the removal of IMA from her care under the Emergency Protection Order when he was a week old. The social worker was not able to give an adequate explanation for not implementing the relevant procedures.

156. I was also troubled by the Child and Family Assessment record and the process of the assessment undertaken by the social worker. I have commented above on the timing of the relevant sessions with the mother which demonstrates what I would consider a real training issue which needs to be addressed with the social worker. However, I was also troubled by the electronic record of the assessment which appears to make no provision to actually describe what questions were actually asked of or explored with the mother in circumstances where this social worker failed to keep any contemporaneous notes which he was able to produce when being challenged about it. This is a practice issue which the local authority and its managers need to consider and address since it is likely to arise as an issue in many cases which are brought before the courts.

157. There are I think real issues about this social worker and his role in these proceedings which largely emanate from his lack of experience. The view I formed of him was that he was an inexperienced but highly intelligent and articulate young man who was committed to trying to promote and safeguard the welfare of IMA in circumstances which he found to be extremely challenging. He unfortunately appeared to me to have a lack of understanding and awareness of how to communicate with the mother in particular at a level which was basic enough to enable her to engage effectively. There were times in his evidence where he became very confused and resorted to saying things he was unable to properly substantiate. That was regrettable since it undermined his reliability so far as this court was concerned.
The social worker’s manager also takes some flak

158. I should also add that I am troubled by the role of the social worker’s manager in relation to steps taken within the proceedings. It was clear from the social worker’s evidence that many of the decisions made had not been his but those of his manager. The clearest example being in relation to the decision not to continue with any rehabilitation proposal or plan in or around the 7th May 2014. I found it surprising that the local authority did not consider it either appropriate or necessary to ask her to provide a statement or indeed to invite her to attend at court to provide an explanation.
And in relation to the Guardian

106. The guardian also premised his conclusions in respect of the mother on the basis of an acceptance of the risks that the father may pose to the child as if that had an established factual basis which is not evident in the evidence before the court at that time. This is evident at E37 where he asserts that
“the father in my view presents serious risk to IMA”.
107. However, he later goes on to say at E39

“In view of the father’s lack of engagement in the local authority’s assessment, the risks that the father presents to IMA remain unassessed. His criminal history and his relationship history raise understandable concerns. He appears to play a peripheral role in the lives of his other children. It is unclear what role he would play in IMAs life if he was placed in his mother’s care……. I share the local authority’s view that the potential risks presented by the father to IMA remain as relevant as at the outset of these proceedings”.

108. His report proliferates with references to the risk the father presents to IMA as being “unassessed”.

113. At paragraphs 106 to 114 of his report the guardian purports to address the ‘threshold criteria’ and refers to having considered the judgment in Re B. His approach has been to ask three questions – (i) what is the risk of harm? (ii) is it significant?; and (iii) how likely is it to happen? The answers he purports to give are both unsatisfactory and confusing, in my judgement. The suggestion that the risk of harm is that IMA will be a member of a household in which his emotional and social development is impaired is not evidence based on any factual foundation before the court. The suggestion that the father’s circumstances provide a “potential for disagreement and tension” with the mother that does not provide “a sound basis for a stable and harmonious household” does not appear to be factually founded. It is speculative and ignores the fact that there is no evidence of any domestic violence between the mother and the father

114. At paragraph 110 he says he “finds it difficult to assess whether the risk of harm is significant or not” and that “it may be significant or it may not.” He then asserts that he is satisfied that the “risk may be significant” but he then goes on to consider that the parents’ ability to work openly and honestly is relevant to the assessment of whether the risk, as opposed to the harm, is significant which misses the point. His conclusion at paragraph 113 that

“there is a real possibility of IMA suffering significant harm. There is a real possibility of him living in a household characterised by instability, disharmony and the use of intimidating or threatening behaviour. There is a risk of his emotional and social development being impaired if he is living in such an environment”

appears to lack any factual basis evidenced in the information available to the court to satisfy the ‘threshold criteria’ at the time the local authority implemented it protective measures for the child.
[The scattering of the ‘unassessed risk’ phrase is quite reminiscent of the case that Ryder LJ recently granted permission to appeal on – Ryder LJ’s remark there was “We are ALL unassessed risks”. Is there an issue with professionals confusing absence of an assessment due to non-engagement with evidence of risk?]
The Judge was also very critical of the ‘chinese whispers’ and assertions being repeated and reported as fact, particularly around the police intelligence
150. There are real issues in this case about the Children’s Services reliance on police “intelligence” as a basis for the actions taken by the social worker and others. The “intelligence” referred to has never been produced to this court or the parties and it is unclear as to exactly what information has been given by the police to the social worker or others within Children’s Services. There are two written documents before the court from the police which I found to be worrying within the context of these proceedings. There is an e-mail which appears at C1 in the bundle dated the 28th August 2013 which follows some meeting with the police on the previous day after the recovery of IMA and the arrest of his parents on the 25th August. I can understand how a social worker as inexperienced as Mr Baker reacted the way he did to this. However, I question the validity of the police risk assessment in relation to contact made by this police officer which, as I understand it, was put before the court when it was considering the extension to the Emergency Protection Order and the court was invited by the local authority to refuse contact between the mother and IMA until after a risk assessment had been undertaken. Fortunately, the court refused the local authority application.

151. Perhaps more worrying though is a statement from a CD Acton at F208 dated the 24th March 2014 which was written in response to a request for clarification as to why it was thought that the father was a risk to women and children. She describes that the case was deemed as high risk according to a DASH assessment. DASH assessments are based on a victim’s self report in answer to set questions. They are not objectively evidence based. That is an issue in this case given that the father has never been prosecuted for any offences of actual violence against his former wife, RK. This statement is I think very much open to question in respect of much of its content but for the present purposes I simply make the final observation that the assertion that the father “has been arrested in regards to sexual offences against females as well as violent offences against this victim” is not evidenced on the basis of any information before this court and appears demonstrably unreliable. It calls into question the reliability of any of the “intelligence” given to this social worker and how he responded to it.

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Posted in adoption, assessment of risk, case law and tagged criminal convictions, criticism of guardian, criticism of social worker, domestic violence, failure to meet threshold, IMA, IMA threshold case, police intelligence, re ima (no threshold), relevant when assessing risk to look at the sentence as well as the conviction, sentences. Bookmark the permalink.

Surrey seems to be the hardest word

Posted on April 14, 2014 by suesspiciousminds

The High Court decision in Surrey County Council v AB and Others 2014
http://www.bailii.org/ew/cases/EWHC/Fam/2014/1115.html

This is a judgment which might be pertinent for an elephant in the room issue since the Family Justice Review started moving us away from independent experts. Once you take that expertise out of court rooms and decisions about families, what is filling that gap? Is it sufficient to treat all social workers as experts without considering the huge differences between an experienced and analytical social worker and a relative newcomer?

The writer is aware of a pending article for Family Law Week prepared by Miss Battie of counsel, which touches on this very issue.

http://www.familylawweek.co.uk/site.aspx?i=ed128671

In this case, the Local Authority ended up apologising, in writing, to the parents and grandparents because the social worker they had been allocated was “at the bottom of her learning curve”

[Just like any profession, newcomers start out new and have to gain experience by doing it. Every social worker has to have a first case, a first contested case, a first adoption case. The significance of course is that adoption(or separation of a child from birth parents permanently) is, as the Supreme Court reminded us last year, the most dramatic order that can be made in family Courts and it requires a robustness and rigour in the analysis and decision-making if it is to be done fairly. I don’t mean to suggest that all experienced social workers get everything right, nor that all new social workers get everything wrong, rather that when you are looking at a social worker having the entireity of the assessment process on their shoulders rather than having experts to consult with, the individual ability of that social worker comes into play far more than it did two years ago.]

“That document repeats the apology given to the parents and paternal grandmother for them being at the bottom of the “learning curve” for the allocated social worker.”

[Any underlining is mine, for emphasis]

The child in this case was 2 ½ years old. He had significant needs

X has complex health needs. He was born with hypertonia, suffers from a visual impairment Peters Anomaly Type 1/Anterior Dysgenesis Anomoly, has significant motor delay, scoliosis of the spine and suffers from digestive difficulties. As a result of these health difficulties he requires a standard of care that enables his particular health needs to be met. Such care includes 24 hour postural support, careful monitoring of his diet and significant care when feeding and essential auditory and tactile stimulation to ensure his emotional needs are met and to compensate for his loss of other senses. He has been placed with foster carers since May 2012 under a section 20 agreement.
The parents also had significant needs

10. His parents have their own health difficulties. His mother has cerebral palsy involving weakness in one arm and both legs and a possible mild learning disability. The father was diagnosed as a child with ADHD and is said to have Asperger-like symptoms, although there is no formal diagnosis.

The quality of the assessment and interventions that the parents received were a critical part of the case (and given that the Local Authority apologised in writing, you can make an informed guess that there was some judicial criticism of them)

11. One of the central issues in this case has been the adequacy of the assessments of the parents as to their capacity to care for X. Put simply the parent’s case was that the local authority comprehensively failed in their duties to support X’s continued placement with his parents. It is submitted there has been an unfair process resulting in a catalogue of missed opportunities and inadequate assessments, which have resulted in the parents now being at a significant disadvantage in putting themselves forward to care for X.
12. The local authority acknowledges some of their procedures and assessments have been inadequate, but submit the basic factual background has not changed. This is a young boy who needs exceptional care due to his particular needs and the combination of the parent’s volatile relationship and the father’s inability to provide emotional care for this young boy mean his parents were unable to provide the care he needed.

The Judge follows through the chain of mistakes and missed opportunities
Core assessment
17. A core assessment was started on 23 March 2012 and completed on 25 April 2012. Curiously the core assessment under “Agencies contributing to core assessment” records “No Key Agencies identified”. Under the section asking whether there were any disability or communication issues for the child or parents are to be recorded the box is left blank. This is despite it then being known about some of X’s health difficulties and the body of the assessment refers to his ‘global delay’, the mother having cerebral palsy and learning difficulties and the father Aspergers. The assessment also records in relation to the mother that she was ‘unable to use public transport due her physical disability’. The assessment goes on to record under parents’ views ‘[the parents] do not believe that their difficulties will impede on their capacity to care for or meet their son’s needs and their wish for him to be returned to their care in the very near future’. The parents are recorded as not agreeing with the local authority’s recommendation that X be made the subject of a child protection plan, however it goes on to record that both parents ‘are keen to work with all agencies so that they will be able to care for their son’. In the decision section the ‘No further action’ box was ticked.
18. This was not a promising start. On the face of the document it seems incomprehensible that the core assessment failed to identify the disabilities and communication difficulties that were obvious on the face of the assessment. Of the ‘tick box’ decision options there was included ‘specialist assessment’ and ‘referral to other agency’ yet despite identifying difficulties which required further assessment and the parents expressing their willingness to work with agencies no further action was taken. It is suggested that this was one of the first lost opportunities to support the parents in their wish to care for X. I agree.
Core group meeting
19. There was a core group meeting on 27 April 2012 attended by the parents, maternal grandparents, allocated social worker Ms Perrin, the ATM Mr Taljaard, Ms Livingstone the health visitor and Ms Murdoch (described as other social care staff). The minutes dated 8 June 2012 (some six weeks later) record ‘a residential unit for AB and X was discussed with AB stating that she is not keen for this to happen as this would put further stress on [the parents] as a couple’.
20. At this time X remained in the care of the mother in the maternal grandparents’ home. After the parents reported the mother’s brother’s use of pornographic sites X was placed with foster carers pursuant to section 20. There is no evidence of what, if any, other options within the wider family were explored to enable X to remain being cared for by his mother.
Allocation of new social worker

21. Ms Kim Horrox became the allocated social worker on 29 June 2012. She took over from Claire Stevens. Garth Taljaard was the ATM and remained so until Ms Grindon took over in January 2013, she remains the ATM to date. Ms Horrox qualified in 2011 although she had some previous social work related experience. This was her first case that resulted in care proceedings. By this stage X had been with the foster carers for six weeks.
22. Ms Horrox was clear in oral evidence that at the handover meeting in June 2012 she was informed that a residential assessment had been refused by the mother and was not being further explored. However, this is not consistent with other documents at the same time which seemed to indicate this issue was being actively pursued. There is a record of a discussion with the mother on 15 May 2012 in which she says she would rather go to a mother and baby foster home or residential unit than go back to her parents’ home for further assessment. A letter from the paediatric dietician to the consultant paediatrician on 24 May records that the mother was ‘awaiting a mother and baby placement in foster care for her and X’, it was mentioned as being the preferred plan in a meeting with the safeguarding nurse Mel Baxendale on 29 May 2012 and on 22 June 2012 there is an email from Mr Taljaard ATM after the review CP conference stating that the team manager and area manager have agreed a care plan that allows mother and baby to be placed in an appropriate residential unit for further assessment. This is said to be a further lost opportunity, I agree.
Assessment by the new social worker

24. Ms Horrox stated that on taking the case over she wished to conduct her own assessment of the parents and make her own judgment. She met with the parents on 3 July and on 17 July a youth support worker informed Ms Horrox that the mother was declining support from adult services. Ms Horrox accepted in oral evidence that she should have been more creative in helping the mother access appropriate support.
Assessment of the parents

29. In February/March 2013 there was a referral by Ms Horrox to the adult services team for an assessment to be conducted as the parents were said now to be consenting to such an assessment. It is accepted by Ms Horrox that this referral was not accepted by the relevant team until 23 September 2013 some 7 months later. Ms Horrox said in evidence that having made the referral she chased it three times and on the third time was told it needed to be sent to the ‘transition team’, that required a different referral form which she completed and sent. That was apparently deleted by mistake, once that was discovered a further referral was sent and then, finally, it was ‘actioned’. I agree this was another lost opportunity.

Delay in issuing / drift in section 20
30. The care proceedings were issued on 25 March 2013, 10 months after X had been placed with foster carers and over 4 ½ months after the local authority issued letters of intent to the parents informing them of their intention to issue proceedings. Ms Horrox frankly accepted in evidence this delay was unacceptable, she acknowledged it was her first case where care proceedings had been issued and had been a ‘steep learning curve for her’. She agreed with Ms Jenkins on behalf of the father that it was not fair the parents were at the bottom of this learning curve she said ‘I apologise for it being at the expense of this family’.
Lack of supervision of the social worker
31. Despite the volume of material in this case and the length of the social work statements there is little, if any, evidence of effective supervision of Ms Horrox between June 2012 and September 2013. If there had been it would have been expected such unacceptable delays would have been picked up and effectively managed.

Failure to consider of all of the options
32. The local authority care plan at the time the proceedings were started was, in reality, adoption, although Ms Horrox said she kept an open mind. The discussions she had had with the mother at the PLO meeting in November was in the context of long term placement with Mr and Mrs SG, either under a care order, adoption or SGO. In her evidence Ms Horrox kept talking about ‘parallel planning’ but there was no evidence of any effective parallel assessment of the parents’ ability to care for X at the same time as investigating alternatives in the care of the local authority. That is what parallel planning means. It is right the mother is recorded at the meeting in November as effectively supporting the long term placement of X with Mr and Mrs SG but that was without legal advice and in circumstances where there was no evidence of any alternative involving X being cared for by his family being actively discussed at that time.

The social work assessment in proceedings being flawed

33. Following transfer of the proceedings to the County Court the first effective hearing was not until 13 August. HHJ Cushing case managed the four significant hearings between then and 17 October 2013 when the deficits in the assessments undertaken by the local authority became clear. In essence a parenting assessment had been undertaken by Ms Horrox without the benefit of any assessment from adult services, and the subsequent assessment by adult services was accepted by the local authority to be inadequate. The care plan filed by the local authority on 6 September sought care orders and placement orders with contact with the birth family 4 times a year and made no mention of any outstanding assessments
The failure of the professionals meeting to answer the agreed questions
34. The Professionals Meeting convened on 2 October 2013 was, unfortunately, not a good example of how such a meeting should be structured. The minutes record at the beginning the 8 questions that were described as the purpose of the meeting, which included such matters as what are the identified needs of the Mother and Father, now and in the foreseeable future? What services are required to meet those needs? How can those serves be provided? What services are therefore required to allow the parents to meet X’s needs? This is followed by 9 pages of typed notes of the discussion with a record at the end as follows:
Meeting confirmed that
1) X’s needs are such that he needs consistent care
2) CWD will not offer a service
3) SSD to arrange another TAC meeting (team around the child)
35. In her evidence Ms Horrox agreed with Ms Wiley, on behalf of the mother, that this meeting did not answer the questions at the beginning, although it is clear from the record of the meeting that both the CWD team and the AWD team informed the meeting that they could only do assessments of the parents if X returned home, which seemed an unnecessarily unhelpful and rigid position to take. This was another lost opportunity.

The failure of the community based assessment

37. The matter came before Mostyn J on 22 October 2013. He transferred the case to the High Court and the order provides for further comprehensive community assessments to be conducted with a recital recording that ‘the court indicating that there should be an independent element to the assessment and that if a different person from both the Children with Disability Team and the Adult Team undertake the assessment, this would constitute that independent element’.
38. A 6 week community based assessment plan was devised at the end of October which included the children with CWD and AWD teams. The assessments were completed in early December 2013 and involved nearly 100 hours of observed assessment by the various teams. The matter came before me on 18 December. I made directions leading to the final hearing on 12 March 2014. It transpired that Ms Gomesz carried out one of the assessments. She had been part of the earlier assessments, this was not made clear by the local authority in the evidence they filed. When the Children’s Guardian made enquiries she was informed there was no one else available and, in any event, it was too late to do anything about it. Whilst there is no criticism of the work undertaken by Ms Gomesz it was not what was intended by the order made by Mostyn J.
By the end of all of this (and a further independent social work assessment) consensus had been reached between the parties that the current foster carers who wanted to permanently care for X were the best people to do this.
This must be one of the most damning paragraphs I have ever read in a family court judgment. It is heart-breaking. We should NEVER be in this position.
48. I am satisfied the agreement reached in this case does meet X’s welfare needs. Whilst it will never be known if the correct assessments of the parents had been undertaken earlier, as they should have been, whether the parents would have been in a position to care for X the reality is now the comprehensive assessments undertaken since are united in their conclusions that the parents would not be able to care full time for X, even with extensive support being provided. Those assessments have been subject to the critical eyes of two independent people.

If all of that were not enough, the Court went on to make four particular findings about the failings of the Local Authority
(1) Delay generally and, in particular, in issuing proceedings
72. Some of the delays in this case have been wholly unacceptable. There are three specific examples that illustrate the point:
1) X was placed with foster carers in May 2012, care proceedings were not issued until March 2013 some 10 months later. The fact of that delay put the parents in an increasingly difficult position to seek to restore X to their care, as there was no structure to the period of time prior to the issue of proceedings and they did not have effective access to legal advice. To rely, as Ms Horrox did in her evidence, on the fact that they did not take up the offer of legal advice at the PLO meetings misses the point;
2) The decision to take care proceedings appears to have been made prior to November 2012 yet the proceedings were not issued until some 5 months later. Again leaving the parents in limbo with the local authority, in effect, recommending permanent removal of X from his parents care by way of adoption but the parents not being within the structure of legal proceedings to challenge that was unfair. I appreciate the mother at the November PLO meeting appeared to be endorsing the plan of the local authority, but that was without the benefit of independent legal advice and was perhaps illustrative of the internal struggle she has had about where X’s best interests lay.
3) The delay in the referral to adult services from February/March to September 2013 was unacceptable. It was caused by a catalogue of errors, a lack of effective co-ordination and structure between teams that should be effectively working together. There appeared to be no system in place to chase up referrals.
(2) Ineffective supervision, planning or co-ordination
73. This concern applies in almost every aspect of this case up until late October 2013. There appears to have been a chronic lack of effective supervision of the allocated social worker who was inexperienced and dealing with a complex case. I agree with the observations made by Ms Dove about the lack of effective multi agency planning which should have been in place immediately after the initial core assessment in April 2012. Again three examples well illustrate this area of concern:
1) The initial core assessment dated 25 April 2012 is on the face of it flawed. It details the disabilities both X and the parents have, yet fails to record that in the relevant box which specifically addresses that issue. It records the parents willingness to work with all agencies so that they will be able to care for their son and then in the decision section ignores the options that would flag up further assessment or referral to other agencies and just ticks the ‘no further action box’. There is no evidence these inconsistencies were picked up in any subsequent discussions with the ATM or in any of the meetings.
2) When Ms Horrox took over the case she was clear in her evidence that at the handover a residential assessment was no longer being pursued as the mother did not agree. However other contemporaneous documents, one just a few days before she took over from the ATM is reported to state ‘the team manager and area manager have agreed a care plan that allows the mother and baby to be placed in an appropriate residential unit for further assessment’ and a letter in May refers to the mother waiting to hear about a residential assessment. It is deeply concerning that there appeared to be such a deep level of miscommunication on such a fundamental issue by two of the key social work professionals managing the case.
3) The failure to pick up in supervision (i) there had been no referral to adult services or when there was the delay of six months; (ii) to consider getting advice about how to more effectively communicate with the father; (iii) what further steps could be taken to engage the parents with support services; (iv) filing a care plan seeking adoption when a key referral to the adult disability team was still outstanding (which is not referred to in the Care Plan dated 6 September 2013 or the parenting assessment dated 17 July 2013)

(3) Not keeping an open mind about placement
74. There is a thread of evidence which points towards the local authority making up their mind at a very early stage that X could not be restored to his parent’s care and that, in reality, the options were either adoption or an SGO with his current carers. Whilst Ms Horrox said she retained an open mind, from the parent’s perspective that may not have been readily apparent to them. There is no evidence of a structure as to how that position was reached and an analysis of the options, with the advantages and disadvantages being properly weighed up and considering what support could be available for the parents. From the parent’s perspective it may have seemed an unfair process.
(4) Content of the statements filed on behalf of the local authority
75. The social work statements were far too long and, in part, unfocussed and there was a lack of balance regarding their content. For example, it was extremely difficult to find the core relevant material that underpinned the threshold criteria. There were pages of generalisations which lacked any real evidential value. The lack of balance in the way some of the information in the statement was presented is illustrated by the reference in Ms Horrox’s statement referring to the police being called by the neighbours in early December as the parents were reported to be arguing. The statement records the mother being ‘dishevelled’ is not in the referral from the police, which is the only source of the information. Also, what the statement does not record, which is in the referral document sent by the police to the local authority, is the particular neighbours who alerted the police had been previously arrested for wasting police time for making such calls. That could have been an important context that should have been set out and addressed, not just left out.
76. Another matter that arose in the oral evidence was comments made by the mother in July 2013 regarding her concerns about the paternal grandmother. Whilst those comments were referred to in general terms in the written material the detail only came out under cross examination by Ms Stone on behalf of the Children’s Guardian. Ms Horrox’s instincts were correct that information should have been recorded and disclosed. She was understandably concerned about the management of when it was disclosed, but appeared to be awaiting authorisation from some unspecified person to disclose it. It is right to record that the Court has made no findings about the concerns raised by the mother and no party has suggested that those concerns affect the paternal grandmother’s ability to care for X in the future during periods of contact.
To be fair to the social worker, the Judge outlined that these were not faults that lay entirely with her, but systemic failings
81. The court is acutely aware hard choices have to be made about limited resources but the structural failures in this case, particularly at the early stages, to properly assess the parent’s ability to be able to care for X has caused enormous delay in decisions being made about X’s future care.
82. I should make it clear whilst Ms Horrox has been the person giving evidence and been at the front line, I am satisfied on the information I have seen that the faults appear to be primarily systemic faults within the structure of the local authority. It was Ms Horrox first case where proceedings had been issued. She accepted there were delays in the disability assessments, delays in completing the relevant documentation for care proceedings. Those and other delays should have been picked up by those with responsibility for supervising her much earlier.

The Local Authority did take on board those failings and presented the Judge, after the judgment was delivered, with a blueprint for how they proposed to remedy those failings in the future. That doesn’t help this family, who were badly let down.

Having reached a broad consensus that X should live with his foster carers and under Special Guardianship Orders, there was also agreement that the Court should review the case in six months time.

62. What is being sought by the parties is for the court to retain a welfare oversight for a short period of time to assist the parties, if required, to deal with issues concerning the welfare of X. In particular to provide a legal framework which kept all parties on equal terms and did not undermine the morale of the parents and made both the parents and the local authority accountable to the court for the maintenance of a proper working relationship.

That posed a problem – how to legally structure that review?
One can easily understand that simply adjourning the care proceedings was not a palatable one, with the LA being in the driving seat, given the raft of criticisms made of them.
The eventual solution settled upon was to give the Local Authority leave to withdraw their application for care proceedings, and for the Court to use its inherent jurisdiction (if one of the parties asked them to)

64. Having considered the position I have reached the clear conclusion that in the very unusual circumstances of this case, and particularly because of the history, the court should accede to the request by the local authority to withdraw the care proceedings and invite one of the parties to issue proceedings under the inherent jurisdiction with the other parties to the care proceedings being joined as parties.
65. I have reached this conclusion for the following reasons:
1) The agreement reached by the parties was on the basis that the local authority does not pursue its findings regarding the threshold criteria and seeks leave to withdraw the care proceedings. It would be inconsistent with the letter and the spirit of that agreement, if the court went on to make findings, albeit on the lower level necessary to found an interim supervision order. The risk with that course is that it may hinder the future good working relationship between the parties which is not in X’s best interests. Particularly as there is going to be a change of team.
2) I am satisfied that the withdrawal of the care proceedings is consistent with X’s welfare. In the light of the agreement reached between the parties it would be wrong to require a trial on the threshold issues in this case. The parents accept X will be cared long term by Mr and Mrs SG under an SGO and they accept the revised care plan put forward by the LA regarding their contact. There would be no demonstrable welfare purpose in such a contested hearing. On the contrary I consider such a trial would seriously risk the positive steps made by the parties in reaching agreement. Having said that I am certainly not prepared to say on a summary basis that threshold could not have been made out in this case. As I indicated in argument, Ms Wiley’s submission at the start of this hearing that the proceedings were unlawful was ambitious and was wisely not pursued. I did not hear all the evidence and whilst it looked like the issues concerning missed medical appointments and failure to provide breakfast on one occasion during the assessment did not stand up to forensic scrutiny there were other issues, such as the parents’ relationship and the emotional care of X that would, if necessary, have required detailed consideration by the court as to whether the threshold criteria was met.
3) X’s welfare requires the parties in this case to look forward. I consider that has the best chance of succeeding if the care proceedings are withdrawn at this stage, rather than lingering on in the way suggested which may hamper the parties on the ground being able to move forward with a proper working relationship, which is what X’s welfare demands.
4) I have been informed by the parties that there are no procedural or funding obstacles in the way of the same parties being re-constituted within different proceedings. This step will not cause delay.
I am not sure that I share the same degree of confidence about funding obstacles, but no doubt some assurances had been obtained from the Legal Aid Agency. Care proceedings receive no questions asked free legal advice for parents (or at least “non means, no merits” funding within tight fiscal limits) whereas representation within the inherent jurisdiction sounds to me like it will be entirely discretionary for the Legal Aid Agency.

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Posted in case law and tagged assessment of adults with difficulties, criticism of social worker, delay, expert, high court, inexperienced social worker, new social worker, surrey county council v ab and others 2014. Bookmark the permalink.

What the Court want from experts, and other adventures in judicial ass-whupping

Posted on August 19, 2013 by suesspiciousminds

The guidance given by the High Court in Re IA (A Child: Fact Finding: Welfare: Single Hearing : Experts Reports) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/2499.html

This case covers a LOT of interesting stuff, so although the guidance on expert reports is the highlight, there’s other valuable information within it; including a kicking for the Local Authority (the Judge agreeing that a suggestion that the social worker had been ‘sticking the boot in’ was apt and justified), the fact that the High Court don’t like mother’s being referred to as “mom” (hello everyone in the West Midlands!) a finding of fact exercise being completed years after the event, some very important judicial comments about what could be reasonably expected of the mother, a reverse-ferret from the professionals and an unexpected outcome.

There are many sections of the judgment where the Judge could easily have prefaced with a “Now I’m gonna open up a can of whup-ass”

Let’s start with the expert report.

Dr Rylance’s report

The very last matter for comment arises from Dr Rylance’s report. When I sanctioned his instruction in February, it was on the basis that he should “provide a short report on KA’s clinical presentation following the injuries sustained and …interpret blood test results.” Ms Jacobs letter of instruction explicitly referred to the President’s very recent Practice Direction in relation to Experts. She attached a copy to her letter. Although there is no mention of it with the correspondence, Ms Jacobs informs me that Dr Rylance was requested to confine his report within 10 to 12 pages. He apparently said he was content to do so.

When he gave evidence, Dr Rylance confirmed he was aware of the reforms to the way in which experts are now required to report, that they should be succinct, focused and analytical and should avoid recitals of too much history and factual narrative.

Dr Rylance’s report was 35 pages long. There was a reasonably lengthy section comprising the relevant background information (5 pages) extrapolating material from reports of other doctors and the medical records. Dr Rylance then dealt with the following issues – Timeframe for fractures; Possible / likely mechanism/ causation of rib fractures; Possible / likely mechanism / causation of right tibia metaphyseal fractures; Force to cause the fractures of the 4^th and 5^th ribs laterally; Force to cause metaphyseal fractures. He devoted about 5 pages to the issues of likely reaction at the time of and in the aftermath of injury and to whether or not a non perpetrator would have had awareness. Over the course of 5 pages, he provided advice upon the potential for there to have been a medical explanation for the rib fractures. Dr Rylance then tackled the explanations given by the parents and gave an opinion on plausibility before turning to consider (on page 25) the post mortem blood test results and their significance. He also provided an opinion as to the likely cause of the rib fractures.

None of the foregoing was requested. Those matters did not form any part of his instruction and for the obvious reason that Professor Malcolm had already reported in relation to them.

On page 27 of his report, Dr Rylance turned to consider and answer the specific questions asked of him, referring as he did so to many of his earlier paragraphs, as relevant, and repeating their content.

In the 1980s and 1990s before it became the norm for experts (particularly paediatricians and psychologists) to produce absurdly lengthy reports, courts were routinely confronted with, for example, radiological reports in the form of letters which extended to about a page and a half. Professor Christine Hall at Great Ormond Street Hospitals was masterly in her ability to distil essential information and opinion within an impressively succinct report.

Her contributions to cases of this kind, and she was but one example of the then general trend in radiology, contained all the judge needed to know about the nature of the injury, mechanism, force required, likely acute and sequential symptoms, whether a proffered explanation was consistent with the injury as revealed or not.

Reports of that kind were singularly helpful. The modern way exemplified by Dr Rylance’s over-inclusive and doubtless expensive report is no longer acceptable. Experts must conform to the specifics of what is asked of them rather than, as here, provide something akin to a ‘paediatric overview.’ I struggle to recall a single instance when such expansive and all inclusive analysis has been of real utility in a case of this kind.

In short – keep it short and focussed. And if the Court ask that the expert report is no longer than 10-15 pages, it had better not come in longer than that.

Anyway, the case itself. The mother and father had previously had another child, KA, who died when four months old, and who had had injuries discovered post-mortem. This had happened in 2011, and two years later, no charges had been brought. As there was no other child at that time, there had been no care proceedings brought. Thus, when the parents had their second child, IA, there had been no resolution, criminal or civil, as to how KA had died and whether there was any culpability on behalf of the parents.

The father had also had a child EA, and he had received a conviction for fracturing EA’s arm, although he denied that he had done this, he was rather undone by his pre-sentence report where he expressed remorse and contrition for what he had done. He had of course, told his family and the mother, the time-honoured explanation that he hadn’t done it but that his lawyer had told him to plead guilty to get a lighter sentence. (Naughty criminal lawyers, who always tell people to plead guilty when they are asserting their innocence. Naughty! /end sarcasm)

The Judge conducted a finding of fact hearing and concluded that the father had caused the injuries to KA and EA. The Judge also concluded that the injuries to KA had happened at a time when mother was out of the home and father was the sole carer, and that thus mother had had no idea of what had happened and had not failed to protect.

The Local Authority had asserted that mother ought to have separated from the father following KA’s death, and not gone on to have another child with him. The LA had been seeking a plan of adoption, and put their position as baldly as this:-

When the case was opened on Tuesday of last week, the London Borough of Croydon was inviting me to make a care order predicated on a care plan of adoption. It was said that even if the mother was not involved in causing the older child’s injuries and did not know that he had suffered fractures it would nevertheless still not be safe to return the baby to her care. It did not bode well for the mother’s ability to prioritise the child’s needs over her own in the years to come, said Mr Date on behalf of the local authority, that it had taken her two years to come to a position of being able to make concessions in relation to failure to protect.

She separated from the father shortly after the proceedings relating to IA had commenced (this being of course, before any findings were made about the injuries)

This is what the Judge decided about whether mother was culpable in any way in not separating from the father sooner. (Hint, the Judge doesn’t end up agreeing with the LA)

The circumstances prevailing at the time of and leading up to the period when injury is inflicted are all important. It would be manifestly unjust and inappropriate to look back, with the benefit of hindsight, so as to conclude that a parent had failed to protect because of information which became available him / her after key events occurred.

Thus, in the current context, it becomes crucial to consider what this mother knew or ought to have known by the time that KA came to be injured. There is, in fact, no dispute. She knew only what the father and his loyal family had told her about events involving EA. The mother was led to believe that the father was essentially innocent of wrongdoing, that the broken arm had been caused by EA’s mother and that the father had only pleaded guilty so as to avoid being sent to prison – he’d received advice that imprisonment was altogether more likely if he was convicted after a trial.

The mother described within her written evidence how her relationship with the father began, developed and became secure. He came across as extremely genuine; he respected and treated her well. She relates that in the months leading up to KA’s death, they had laughed a lot; she felt they had a great relationship and thought she had found her ‘soul mate’. She was never shown any violence or aggression. Even when they argued, he did not frighten or worry her. Nor did he ever ‘raise a hand’ to her. The only occasion upon which the mother witnessed the father as aggressive was when, after KA’s death, the father punched her former step father. At that time, as she said, “everything felt very raw.”

Those who knew the father best, namely his family, maintained his version of history. The paternal grandmother struck the mother as someone who would not stand by if she “felt something was not right and would speak her mind.” And yet, when the mother asked her and the father’s sister about his previous relationship with EA’s mother, they supported him, saying it had been turbulent. The mother believed neither the grandmother nor the father’s sister would have been supportive of him if they believed he had done anything wrong.

I do not believe she could be criticised for that which seems to me to be an altogether reasonable assumption, particularly given that the father’s sister has children of her own.

No one opened the mother’s eyes to the realities in relation to EA. She had no access to any of the court papers from the 2007 care proceedings. Nor, indeed, did she know of their existence; and that continued to be the position until the interval between her first and second police interviews in 2011 when there was a conversation with the father in which he had told her about EA’s family proceedings. She had no contact with the probation service because the father’s deliberate ploy was to keep her away from his probation officer. There was no ongoing local authority involvement with the father after the conclusion of the care proceedings in early 2008; and thus no opportunity for the mother to discover the actuality.

It is also relevant that the mother was 21 years old when she met the father and only 22 when KA was born. Should she have asked more questions? I don’t believe it is fair or reasonable to conclude she should. On behalf of the local authority, Mr Date suggests that at the time of KA’s death, the mother’s failure was that she did not recognise the warning signals and too readily accepted the father’s version of past events. I cannot agree, on a dispassionate analysis of the evidence, that those suggestions are apt. There were no warning signals. She was young and very much in love, entitled to trust what she was told by her partner particularly when his behaviour mirrored the notion that he was anything other than a danger to children.

It should be said that the mother, both in her written and oral evidence, has been all too ready to acknowledge that she failed to protect KA. She said that by choosing to get into a relationship with the father, trusting and having a child with him, her son has come to harm. If she had not got into that relationship KA would not have been harmed; and therefore, she said, she has failed her child. As a mother she wanted to do everything she could to protect him so she feels she let her first son down.

I have no doubt as to the mother’s sincerity. She was an extraordinarily impressive, transparently honest witness, revealing the depth of her sorrow time and time again throughout her evidence.

That said, I do not believe she should be as hard on herself as she has been. Standing back as I do, weighing information from all sides, there is in truth nothing to substantiate the claims that the mother should have acted differently, has failed to respond to a developing situation in which the child was placed at risk or otherwise should be seen as blameworthy for what happened to KA. Put shortly and more simply, the mother did nothing wrong. She is not to be viewed as a parent who has failed to protect her son. She is blameless in relation to him.

That is a pretty full exoneration.

The Judge then gives some useful comments about the process by which a parent arrives at a decision to separate from a partner who would be viewed as being dangerous, and applies that process to the facts of the mother’s case. (I have underlined a passage which I think those representing parents may find particularly useful, and which given that we still don’t know how fact-finding cases are going to fit into the PLO seems to me very important. I expect to see it cropping up in position statements quite often)

It is often and wisely said that the enlightenment process for the non abusing parent, particularly those who are not found responsible in any way for what occurred, should properly be seen as ‘a journey.’ It is expecting far too much, indeed it borders on the surreal, to suggest that more or less immediately in the aftermath of whatever defining incident, the innocent and truly ignorant parent should shun the other, depart the relationship and make definitive judgments for herself as to what has occurred.

Here, as the mother movingly relates, it is very difficult to describe what it is like to lose a child. It was for her an “extremely lonely and alienating experience.” “Everyone around her had known her child had died but no one knew what to say.” She had “felt angry and upset that (her own) and KA’s privacy had been invaded when everyone came to watch the air ambulance landing in the local school so that he could be taken to hospital.” People, said the mother, “had not felt able to ask her how she was or how she was feeling.” She became aware she “was making people feel awkward just by being there and being sad.” She had stopped wanting to go out, wore sunglasses if she did to avoid eye contact and “pretended she was invisible.”

The mother explained that she felt the father was really the only one who understood how she was feeling as he was going through the same thing. It had made her unite with him more and she was in no emotional state to start contemplating that he could have been the one who hurt KA.

She goes on to describe how, after KA’s funeral in September 2011, the intensity of the police investigation died down as did her conversations with the father about what had happened to their son. She knew there “remained a huge question mark which (she) would have to confront. However the weeks and months drifted on and (they) continued in a state of limbo.” No one had been asking her to think about what had happened to KA and she “supposed it was easier for (her) to cope with trying to grieve if she did not ask those questions” herself. For about a year the mother, was taking anti depressants and “just about coping.”

When soon after July 2012, she discovered she was pregnant, the mother had mixed feelings, knowing there was every likelihood she would not be given the chance to care for another baby whilst KA’s death was being investigated. She said in evidence she had contemplated an abortion. She had not wanted to bring a child into the world in such unsettled circumstances but she “could not do it – lose one child and then get rid of another.” But she had been “very, very scared.” She added she had “brought her second son into the world, he had been separated from her which was not the normal way.” She feels guilty about letting her first son down and that “will never go away.”

I cannot find the mother culpable or deficient in relation to what she has done or omitted to do since KA died. Reading her statements, listening to her evidence, I was profoundly impressed by her ability to describe her feelings. Nothing she described seemed to me to be anything other than the entirely understandable reactions of a bereaved and grieving mother. Her reactions to a rapidly developing situation after proceedings were begun in February this year, to my mind, were entirely reasonable. I find it impossible to be critical of her responses and choices living through events, as they have unfolded, since KA’s death.

It is noteworthy that, hitherto, most parents in this mother’s situation, have had the opportunity to participate at a two-stage care process – fact-finding followed some weeks, even months, later by welfare determination. Because from the child’s perspective it was vital so to do, those who were found to have failed to protect have been afforded the opportunity for reflection upon the judgment. There was then the potential for establishing whether there were signs of acknowledgment, sufficient to embark upon a process of rehabilitation. In this instance, there has been no such relaxed opportunity – responses were required in advance of fact finding in order to prepare welfare plans.

The impact of the consolidated hearing is that this mother, according to the way in which the local authority puts its case, has been expected to work out causation for herself in advance of the evidence being given, respond accordingly and defend her conduct as far back as August 2011. She is castigated for failing to separate from the father immediately after IA’s birth. Those expectations, to my mind, are profoundly unjust. They elevate what might be expected of a parent into the realms of professional reaction; a professional moreover seized of all relevant information.

All the signs are that the mother is not only capable of protecting IA, she is alert to the reality which is that she finds herself now in more or less the same situation as a first time mother. She described how KA’s death had left her anxious as does the fact that hitherto she has not been IA’s main carer. So she is worried about him settling and grateful to know that the support of her own mother will be right there.

The LA at the start of the case had been seeking the findings, and a plan of adoption. The Guardian had been asking for an assessment of the maternal grandmother, who was putting herself forward as either an alternative carer or as someone who could live with the mother.

After the grandmother gave evidence, the Local Authority had a change of heart

At the conclusion of the grandmother’s evidence, Mr Date announced that the local authority had been “hugely impressed” by her; and that he would no longer be asking me to endorse a care plan for adoption. There was agreement from the local authority that the child should be placed together with his mother in the grandmother’s home. Over the weekend, that plan has crystallised to this – that a residence order should be made either to the maternal grandmother alone or jointly with the mother; and there should be a supervision order for 12 months in favour of a specified local authority in the West Midlands.

In similar vein, when Ms Dinnall (the Guardian) went into the witness box on Friday, she relinquished her recommendation for further assessment, lending support to the suggestion that the child should be looked after by his grandmother and mother together under the auspices of a supervision order.

I have struggled to recall an instance where there have been quite such dramatic changes of position amongst the professionals; and whilst from the family’s perspective (particularly the mother’s and grandmother’s) those shifts were so very welcome, it must also be said that in the weeks leading up to this hearing there have been serious errors of judgment in the care planning exercise.

It is no great surprise that the Court endorsed the plan that mother and grandmother should care for IA jointly.

The next passages deal with the judicial criticism of the LA’s conduct of the case. The social worker is named in these passages – I don’t know the social worker in question and can’t comment as to whether these criticisms apply across the board or just to this case, but she certainly takes a hell of a kicking.

I report these not just for schadenfreude, but because it touches on issues of expertise and the intention in the PLO of social workers being treated as experts. In order for that to work, the quality of work has to be substantially better than this. Underlining again mine for emphasis.

94. Case handling by the local authority

Turning from the issues for decision to other matters, I cannot leave this case without commenting upon the way in which it has been handled by the local authority.

I take account, of course, of the considerable difficulties drawn to my attention by Mr Date in his final submissions – that the social services department is “an unhappy place;” that Ms Kanii, who had no handover from the previous worker has only been in post for six weeks; that there has been a change of team manager during that time and changes of personnel as well within the legal department. Mr Date accepts that the work of assessment undertaken by Ms Kanii was not as thorough as it should have been and the conclusions reached were incorrect.

All of that said, I should have been in the position of being able to place reliance upon the social work assessment so as to reach proper welfare determinations for IA. I should have had fair, balanced and proportionate advice resulting from a thorough inquiry undertaken over the five months or so since the proceedings were begun in February. I should have been able to view the social workers as experts in relation to the child’s welfare and to repose trust in their decision making.

As it is, I am bound to say that Ms Kanii’s work was of poor quality, superficial and, most worryingly of all, did not reflect the key principles which underpin the workings of the family justice system. I mention just three – first that wherever possible, consistent with their welfare needs, children deserve an upbringing within their natural families (Re KD [1988] AC 806; Re W [1993] 2FLR 625); second, that the local authority’s duty should be to support and eventually reunite the family unless the risks are so high that the child’s welfare requires alternative provision (Re C and B (Care Order; Future Harm) [2001] 1FLR 611); and third that orders ratifying a care plan for adoption are “very extreme” only made when “necessary” for the protection of the children’s interests, which means “when nothing else will do”, “when all else fails.” Adoption “should only be contemplated as a last resort” (Re B [2013] UKSC 33; Re P (a child) EWCA Civ 963; Re G (a child) EWCA Civ 965).

The mother’s second statement refers to the difficulty she encountered in speaking with Ms Kanii. She said she found her “quite intimidating” and she gained the “impression she had formed her opinions before really speaking with (her)”.

I found Ms Kanii to be quite extraordinarily uncompromising. Interested only in repeating her own view and seemingly unwilling to countenance she may have misjudged anyone. Overall, I would have to say she was quite arrogant. She delivered her evidence at breakneck pace and could not be persuaded to slow down notwithstanding several reminders. She referred to the mother throughout as “Mom” which seemed to me somewhat disrespectful. But the most important matter of all is that on any objective analysis, Ms Kanii simply made significant errors of judgment in her appraisal of the mother as well as the maternal grandmother.

In relation to the mother, Ms Kanii said it is “her view that she cannot care for IA. She lacks insight into significant harm. She would fail to protect the baby. She would not be able to prioritise his needs over her own.” Ms Kanii went on to say that the mother would “struggle to prioritise the child’s needs because fundamentally she does not grasp the significance of harm and how that would impact a child.”

As for the maternal grandmother, Ms Kanii’s overall position was that although the grandmother “came across as quite willing, she was not able to prioritise the needs of the child over those of her daughter.”

Challenged in cross examination by Miss Rayson and Miss King, and very properly so, Ms Kanii was essentially unmoved. Her only concession was that in the event the father was found to be the perpetrator then she favoured some further assessment of the maternal family. Although Ms Kanii denied she had “put the boot in” whenever the opportunity to do so had arisen, I’m impelled to say that Miss Rayson’s suggestion was both apt and justified.

Ms Kanii’s written statement and addendum viability assessments, it has to be said, were perfunctory, lacking in balance and indefensibly critical of the mother and grandmother. I was left bemused that such adverse judgments had been made of the mother in particular when the content of her written statements had given me such cause for optimism. My sense was that Ms Kanii could not have read and assimilated the mother’s statements and yet she said she had. More bewildering still was the thought that the mother must have presented very similarly in discussion with Ms Kanii to the way in which she reacted in the witness box. And yet, such harsh judgments were made. It seems to me that Ms Kanii was operating in a parallel universe, intent on securing a placement order whatever the strengths within the natural family.

Finally, in relation to this, two things should be said. First, I strongly believe – though cannot know – that Mr Date as the head of the local authority’s team intervened during the course of last week so as to retrieve an increasingly hopeless situation. If I am right about that, then I would wish to express my gratitude to him or to whichever individual it was who reconfigured the local authority’s position.

All in all, I think an important and illuminating case, and one which I expect to see cropping up from time to time. The importance of social workers evidence being balanced and not merely advocating for the desired course of action they recommend is vital, if care proceedings are to be fairly determined.

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Posted in adoption, assessment of risk, case law, threshold criteria and tagged adoption, criticism of local authority, criticism of social worker, experts, fact-finding, need for balance in social work reports, Re IA 2013, separating from a partner. Bookmark the permalink.

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