In which a Judge describes family placement assessments as ‘lackadaisical’ and orders fresh assessments with the LA to pay for them. And in which I try, but fail, to avoid the pun of “ruff justice”
Cheshire East Borough Council v PN & Ors (Flawed Local Authority Assessments)  EWFC 20 (03 March 2017)
it is a matter of very considerable dismay to the court that it has been necessary, on the second day of this final hearing and having heard the evidence presented by the local authority in support of its case, not only to grant the maternal aunt’s application for a further assessment of her and her partner by an independent social worker, but to direct a further assessment of the paternal great aunt and her husband by an independent social worker, in order to remedy patent defects in the local authority’s assessments caused by social work that has, at best, been lackadaisical and, at worst, is in plain contravention of the applicable statutory guidance and long established good practice.
Let us explore further
There were two assessments – one was of maternal aunt and her partner, and one of paternal great aunt to care for a baby where there had been findings that the parents had caused him significant head injuries.
Problem 1 – although the assessment was of the aunt and her partner, the assessor hadn’t in fact met the partner – she had one short phone conversation with him, whilst he was at work. AND she just ended the assessment once she knew of the findings, unilaterally.
19.The assessment conducted by Ms Fallows makes it plain that the assessment was intended to be of both the maternal aunt and her partner, CS (at times incorrectly referred, as I have already noted, to as ‘CN’ in the assessment). Notwithstanding this, Ms Fallows was forced to concede in cross-examination that, apart from a very brief conversation with him on the telephone whilst he was at work, she had not spoken to CS as part of her assessment. It would appear that whilst Ms Fallows had planned to speak to CS (and indeed had cancelled a number of appointments with him) she changed her mind after becoming aware of the outcome of the finding of fact hearing, apparently concluding without discussing the findings with CS (and possibly before she had discussed the findings with the maternal aunt) that the findings made by the court were simply fatal to any proposed placement of PN with the maternal aunt and CS.
20.Having listened to the evidence of Ms Fallows, I was left entirely unclear why she considered she was justified in drawing such a definitive conclusion without first speaking to CS to establish the extent to which he constituted a protective factor and, accordingly, the extent to which his presence in the household mitigated any concerns Ms Fallows had regarding the maternal aunt’s capacity to protect PN from the identified risk of harm presented by the mother and the father. Whilst it might be the case that CS does not constitute a protective factor, it might also be the case that he does. The point is that Ms Fallows made no professional effort whatsoever to assess the position before reaching her conclusion that the assessment of the maternal aunt and her partner was negative.
21.In particular, Ms Fallows took no time to explore with CS his understanding of the findings made by the court, his acceptance of those findings, his attitude towards those findings and, in light of the information provided by him, the nature and extent of his ability to protect PN from the identified risk of harm consequent upon the findings of the court, including those in respect of the maternal aunt. This despite the fact that Ms Fallows’ task was to assess the capacity of the maternal aunt and CS to protect PN from harm, including from any person who presents a risk of harm to her. In the circumstances, Ms Fallows assessment of the maternal aunt and her partner contains a patent lacuna and is fundamentally flawed.
Call me old-school, but it is rather tricky to assess someone without meeting them.
Problem 2 – the key issue in the assessment of great aunt was obviously going to be her ability to keep the baby safe from the parents. That wasn’t covered in the assessment at all. The section on risk dealt solely with stair guards, the green cross code and a Jack Russell. (I am not even kidding)
22.The assessment of the paternal great aunt and her partner by Mr Twigger gives the court even more cause for concern and is of extremely poor quality. It comprises little more than a collection of bare statements of fact with virtually no evaluation or analysis, leading to conclusions that are so simplistic and anodyne as to be little more than a statement that the paternal great aunt and her husband have successfully raised children before and would be able to promote PN’s identity.
23.However, of most concern is the manner in which the purported assessment deals with the key issue when assessing the viability of the placement, namely the ability of the paternal great aunt and her partner to protect PN against the identified risk of harm presented by the mother and the father. In this respect, the relevant part of the initial assessment in November 2016 and the same part of the updated assessment completed following the finding of fact hearing read in the following identical terms:
“Ensuring safety (Describe the applicant’s capacity to protect the child from harm and danger, including any person who presents a risk to them.)
[NM] and [HM] would wish to ensure that PN is taught age appropriate life and safety skills as she grows older and matures in their care. From an early age this would include issues such as safety around the home and they would of course ensure that they had the necessary safety equipment in place once PN became mobile. This would incorporate such items as stair gates and plug guards etc. As PN grows older she would be taught basic road safety and personal safety e.g. not talking to strangers and always telling someone where she is going which is what the couple have taught their own children and then grandchildren.
The couple have a dog that is a Jack Russell dog. As stated elsewhere in this report [NM] and [HM] have stated that they are aware that PN becomes alarmed by sudden noises and for this reason if their application were to be successful they have suggested that they would be willing to re-home the dog to their nephew who also has a Jack Russell”
24.Despite the Form C prompting the need to include harm and danger from any person who presents a risk to them, there is no reference at all in the updated assessment to the plainly identified risk of harm presented by the parents or to any engagement with the paternal great aunt and her husband regarding their response to that identified risk of harm and the manner in which they would propose to ensure PN is protected from such risk. Indeed, the courts detailed findings of fact do not appear to be set out anywhere within the body of the updated assessment.
25.Of further concern is that the relevant part of the initial assessment in November 2016 and the same part of the updated assessment completed following the finding of fact hearing are in identical terms. Indeed, it is plain that the latter has simply been ‘cut and pasted’ from the former. Within this context, the concern engendered by Mr Twigger’s assessment is heightened still further by Mr Bolt confirming during his oral evidence that the paternal aunt and her husband have not been shown the finding of fact judgment of this court, are not aware of the precise terms of the court’s findings against the mother and the father and that the same have not been discussed with them by the local authority.
26.In the circumstances, Mr Twigger’s assessment of the paternal great aunt and her husband is wholly inadequate and fundamentally flawed. Whilst Mr Twigger deals with road safety, stairgates and a loud Jack Russell, there is no assessment or evaluation whatsoever of the central question of the ability of the paternal great aunt and her husband to protect PN against the clearly identified risk of harm presented by the mother and the father, nor does any attempt at all appear to have been made to undertake such an assessment. The inevitable result is that there is no assessment of this cardinal issue before the court in relation to those proposed carers.
See, I told you I wasn’t kidding…
27.Finally, there were also very real difficulties with the evidence of Mr Bolt when it came to the question of the capacity of the paternal great aunt and her husband to protect PN against the identified risk of harm presented by the mother and the father.
28.Despite the fact that he claimed to have considered the assessments of both Ms Fallows and Mr Twigger when arriving at his final care plan, Mr Bolt demonstrated a marked inability to recall even basic elements of the contents of those assessments relevant to the question of capacity to protect. In particular, he had apparently not identified the patent and obvious deficiencies in each of those assessments that I have outlined above. Further, he was not able to assist the court with even the most basic information concerning other matters highly relevant to the question of the capacity of the paternal aunt and her husband to protect PN from harm. For example, having revealed that the father had, between his release from a recent custodial sentence and until last Thursday, been permitted by the paternal great aunt and her husband to sleep at their property because the paternal great aunt was not prepared to see the father sleep on the streets, and that the father had not disclosed this information, Mr Bolt was unable to assist the court with answers to the very obvious questions that flowed from that information and which the court would have expected an allocated social worker to investigate.
29.In particular, Mr Bolt was entirely unable to assist the court with how long the father had stayed with the paternal great aunt and her husband for, whether the paternal great aunt and her husband had volunteered the information that the father had been staying with them or had been discovered allowing him to do so and whether the paternal great aunt and her husband considered it appropriate to allow the father to reside with them when they were putting themselves forward as carers for PN. Mr Bolt’s evidence reached a remarkable nadir when he claimed, in answer to questions put by the maternal aunt regarding number of contacts the paternal great aunt had had with PN (in the context of the paternal great aunt having only recently commenced contact with PN and her husband having had only one contact with PN despite the fact he is retired and does not have work commitments), that it was “not necessary” for him to know the details of how many times the paternal great aunt had had contact with PN since the very recent commencement of that contact.
30.Accepted good practice in respect of assessments is plainly established by statutory guidance and longstanding good practice. The statutory guidance Working Together to Safeguard Children (HM Government March 2015) sets out at  the principles and parameters of good assessment.
31.These principles and parameters include the need for such assessments to be rooted in child development and informed by evidence, to involve children and families, to adopt an integrated approach, to be a continuing process and not an event and to be transparent and open to challenge. It is self-evident that the need for the assessment to involve children and families and to be informed by evidence will require information to be gathered from all of those adults in the child’s household or in the household it is proposed the child should live.
32.The three domains of the assessment specified at paragraph  of the guidance should be the child’s developmental needs, the parents’ or carers’ capacity to respond to those needs and the impact and influence of wider family, community and environmental circumstances. Once again, it must be self-evident that an assessment of the carers capacity to respond to the child’s needs (including their capacity to respond to the child’s need for protection against an identified risk of harm) must involve contact and communication with each of the carers who are, or it is proposed will be, responsible for meeting the child’s needs.
33.At  the guidance makes clear that the interaction of these domains requires careful investigation during the assessment and that it is important that (a) information is gathered and recorded systematically, (b) information is checked and discussed with the child and their parents/carers where appropriate, (c) differences in views about information are recorded and (d) the impact of what is happening to the child is clearly identified. With respect to the assessment and management of risk, at  the guidance further provides that in order to manage risks, social workers and other professionals should make decisions with the best interests of the child in mind, informed by the evidence available and underpinned by knowledge of child development. Overall, Working Together makes clear that the aim of an assessment is to use all the information to identify difficulties and risk factors as well as developing a picture of strengths and protective factors.
34.Within this context, when undertaking an assessment concerned with establishing capacity to protect against an established risk of harm, in addition to ensuring that an assessment of the carers capacity to respond to the child’s need for protection against an identified risk of harm involves discussions with each of the carers who are, or it is proposed will be, involved in meeting the child’s needs, it is also surely self-evident that the assessment must include a process that ensures that those who are the subject of the assessment of their capacity to protect from risk of harm are aware of what the precise nature of the risk of harm is. Further, it must likewise be self-evident that having been made aware of the precise nature of the risk of harm, each of those being assessed must be the subject of a comprehensive evaluation of their understanding of and attitude towards that risk in order to establish the extent to which they have, or do not have, that capacity.
35.Having regard to the summary of the deficiencies set out above in respect of each of the assessments, and to the summary of the applicable statutory guidance also set out above, I am entirely satisfied that the assessments completed by Ms Fallows and by Mr Twigger are inadequate and fundamentally flawed. I am further satisfied that, in the circumstances, the assessments do not permit the court to reach a properly informed or fair decision at this final hearing as to which of the placement options before the court best meets PN’s identified welfare needs or, indeed, whether either is capable of doing do. The patent deficiencies in the assessments are such that, the court having heard Ms Fallows and Mr Bolt give evidence and be cross-examined, Mr Haggis on behalf of the local authority has been compelled to concede that the assessments were each insufficient to allow the court to reach a properly informed and fair decision. Notwithstanding the concession made by the local authority I make clear that this is my conclusion in any event having read the assessments and heard the oral evidence to which I have referred.
36.With respect to the assessment of the paternal aunt and her partner it is plain that the local authority simply decided, unilaterally, that the finding of fact judgment justified it terminating the assessment notwithstanding that that assessment of the couple was plainly incomplete and failed properly to address the key issue with which the court would be concerned at the final hearing. With respect to the assessment of the paternal great aunt and her husband, the assessment is entirely cursory and fails to engage in any meaningful way with the key issue that the court is required to resolve in determining whether the placement can meet PN’s identified welfare needs. It is apparent that, following the outcome of the fact finding hearing, the local authority felt that it could simply take a short cut by terminating prematurely the assessment of the maternal aunt and her partner and by undertaking the most cursory of updating assessments of the paternal great aunt and her partner. That is an entirely impermissible approach in circumstances where the process of assessment must not only constitute a comprehensive assessment of the child’s identified welfare needs and how those needs are best met in accordance with the statutory guidance, but also must be fair and be seen to be fair.
37.Before the court takes a final decision as to the welfare of a child it must be astute to ensure that the case has been fully and properly investigated and that all the relevant evidence necessary for the decision is in place, both to ensure that the court makes a fully informed decision as to the child’s welfare and to ensure that the proceedings are fair, the former being an aspect of the latter. Having regard to the matters set out above, I am wholly satisfied that the court is not in a position to conclude that the central question of respective capacities of the maternal aunt and her partner and of the paternal great aunt and her husband to protect PN from the identified risk of harm from the mother and father has been full and properly investigated and that all relevant evidence necessary to determine that issue is in place before the court.
38.Within this context, and with much regret, I am entirely satisfied that it is not possible to conclude the final hearing fairly without further assessment of the maternal aunt and her partner and the paternal great aunt and her husband, in particular as to the central question of their respective capacities to protect PN from the identified risk of harm from the mother and father. In the circumstances I have set out above, those additional assessments are plainly necessary for the court to deal with this case justly. I am further satisfied that the additional assessments should be conducted by an Independent Social Worker and should be funded by the local authority. In light of the patent omissions in the assessments of the local authority as identified above, those who are to again be assessed cannot reasonably be expected to have any confidence in a further local authority assessment. Further, in circumstances where the further assessments are required solely by reason of the local authority having comprehensively failed to discharge its duties I am entirely satisfied that it should pay for the additional assessments that are require in consequence of that default.