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Abuse by foster parents – can the Local Authority be sued?

Posted on November 12, 2015 by suesspiciousminds

 

Almost every case I write about is full of human tragedy and sadness, and this one particularly so. It involves a woman who when she was a child was placed in the care of foster parents, one presumes because it was decided that her own parents could not perform that task. That particular foster carer went on to physically and sexually abuse her. Dreadfully sad and unspeakably awful. I hope (but don’t know) that the foster carers have been convicted and punished.

The issue for this case was whether the woman could sue the Council who placed her there. They did not know of the abuse at the time, and there is no suggestion here that there was negligence on their part  (which would be either that the fostering checks hadn’t been carried out, or that they failed to make the visits and ongoing checks that were required by law at that time, or that they learned of the abuse and failed to act).  Councils can be sued for negligence, if any of those things were alleged and capable of being proven, but negligence is not the case pleaded here. The detail makes it plain that none of those failings were present.

 

Instead, it is something called “vicarious liability”, which in simple language means that an employer can be held legally responsible in some situations for things that its employees did. Vicarious liability can be a useful remedy where the organisation was not negligent, but where they have the necessary care and control over the employee’s actions. It is useful in particular because generally an employer (for example a Council) has more money (and insurance) than the wrong-doers themselves, who would not have the financial means to pay the compensation that the victim would really deserve.

So the fundamental question for the Court of Appeal here was “Can the Council be vicariously liable for criminal actions carried out by foster carers?”

 

NA v Nottingham County Council 2015   (It should be Nottinghamshire, but who am I to question the Court of Appeal?)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1139.html

 

Unpleasantly, a lot of the law around vicarious liability involves the sexual abuse of children, with the lead case being one about the Catholic Child Welfare Service Various Claimants v Catholic Child Welfare Society and Others [2012] UKSC 56, [2013] 2 AC 1

 

“35. The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer.”

 

In this case, the critical element was (v) whether the employee (the foster carers) to a greater or lesser degree was under the control of the employer (the Council)

 

The Court of Appeal ruled unanimously that there was no vicarious liability here

 

The provision of family life is not and by definition cannot be part of the activity of the local authority or of the enterprise upon which it is engaged. Family life is not capable of being so regarded, precisely because inherent in it is a complete absence of external control over the imposition or arrangement of day to day family routine, save insofar as is provided by the general law or by ordinary social conventions. The control retained by the local authority is at a higher or macro level. Micro management of the day to day family life of foster children, or of their foster parents in the manner in which they create the day to day family environment, would be inimical to that which fostering sets out to achieve, for the reasons expressed by McLachlin CJ at paragraph 24 of her judgment. The control retained by the local authority, over and above the proper selection of foster parents and adequate supervision of the placement which is here not in issue, is thus irrelevant to the risk of abuse occurring during the unregulated course of life in the foster home. In the Catholic Child Welfare case Lord Phillips described the relationship between the Brothers and the Institute as “closer than that of an employer and its employees.” The manner in which the Brother teachers were obliged to conduct themselves as teachers was dictated by the Institute’s rules. There is in my view not the remotest of analogies to be drawn between that situation and the relationship of local authority to foster parents.

 

 

and

 

For vicarious liability to exist, there would have to be (1) the necessary relationship between the foster parents and the local authority and (2) the requisite close connection between that relationship and the abuse that they committed (see paragraph 21of Lord Phillips’ judgment in Various Claimants v Catholic Church Welfare Society, supra, and also paragraph 88 where he proceeds to apply what he has distilled from the authorities in the preceding paragraphs). I do not consider that the relationship between the foster parents and the local authority was of the required nature. It was not, to my mind, sufficiently akin to employment. Although the significance of control in the relationship has changed over the years, it remains a relevant aspect of the assessment of whether there is vicarious liability. Certain aspects of the care of a child by foster parents are, and were at the relevant time, regulated and the local authority have a supervisory duty over the placement, which can be ended if they consider it appropriate. But the essence of the arrangement is, just as it was at the time with which we are concerned, that the child is placed with the foster parents to live with them as a member of their family. The child’s day to day life is in the charge of the foster parents, who are expected to give the child as normal an experience of family life as they can. The degree of independence that this gives the foster parents is not indicative, in my view, of a relationship giving rise to vicarious liability.

 

 

There was a second part of the claim which was that this was a “non-delegable duty”  – i.e that it was the Council’s job to provide a child whom they are looking after with a safe home and they could not delegate that duty to the foster carers. This is a much more technical argument, and beyond the scope of this blog to explore in detail, but the Court of Appeal ruled that there was not such a duty here. That possible remedy arises largely from a case called  Woodland v Swimming Teachers Association and others [2013] UKSC 66 [2014] AC 537, decided in the Supreme Court and setting out five ingredients.

The Court of Appeal did not think that this case met all of those Woodland ingredients, and were also cautious about viewing the Woodland ingredients in isolation.

 

 

  • I do not propose to take my discussion of this point any further because it seems to me that consideration of the five features set out in Lord Sumption’s paragraph 23 should not be undertaken in a limbo. This is because the question of liability for non-delegable duty has got to be approached having very much in mind what he said at paragraph 25 of the Woodland case:

 

“The courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services. A non-delegable duty of care should be imputed to schools only so far as it would be fair, just and reasonable to do so.”

Lord Sumption explained why he considered that no unreasonable burden would be imposed in that case. In this case, however, I am of the view that to impose a non-delegable duty on a local authority would be unreasonably burdensome and, in fact, contrary to the interests of the many children for whom they have to care.

 

  • I therefore find myself in agreement with Males J’s conclusion about this aspect of the case. I take into account the desirability of providing a remedy of substance for someone in the Appellant’s position. Nothing that I say here should be taken as suggesting that I am anything other than deeply conscious of the dreadful treatment she has suffered and sympathetic to the lasting impact that it must have had upon her. However, there are powerful reasons against the imposition of liability in circumstances such as the present ones.
  • It is a fundamental principle of social work practice that children are best placed in a family environment. If they cannot live with their parents, the majority of children are therefore likely to benefit most from a foster placement. Careful screening of prospective foster parents, training, supervision of the foster family, proper checks and balances in relation to the foster parents’ practice, and regular contact between social services and the child all play their part in ensuring that the child is safe with the foster parents. If, through the duty that it places upon the local authority, the law of negligence improves the chances of these safeguards being rigorously maintained, it is a very good thing. But, as this case demonstrates, even proper care on the part of the local authority cannot always prevent harm coming to the child from the foster parents. It seems to me that the imposition of liability for the actions of the foster parents by means of a non-delegable duty, operating in the absence of negligence on the part of the local authority, would be likely to provoke the channelling of even more of the local authorities’ scarce resources into attempting to ensure that nothing went wrong and, if such were possible, into insuring against potential liability (see paragraph 201 of Males J’s judgment). Particularly influential in my thinking is the fear that it would also lead to defensive practice in relation to the placement of children. Local authorities would inevitably become more cautious about taking the risk of placing children with foster parents and may possibly place some children who would otherwise have had the benefit of a foster home in local authority run homes instead, simply in order that the local authority can exert greater control over their day to day care. Males J dealt with this at paragraph 204 of his judgment. It was referred to also in the Canadian case of KLB v British Columbia [2001] SCR 404, in the context of vicarious liability, at paragraph 26.
  • The imposition of liability on the local authority might also give rise to another undesirable consequence for children. Important amongst the ways in which, under the statutes of the time, the local authority could discharge its duty to provide accommodation for the child was by allowing the child to live with a parent or relative (see section 21(2) of the Child Care Act 1980). If the local authority had a non-delegable duty towards a child in their care under a care order, making them liable for abusive actions on the part of a foster parent, there seems little principled basis for saying that they would not also be liable for such actions on the part of a parent with whom the child had been placed in this way. That sort of strict liability might well, it seems to me, affect the willingness of the local authority to take what would otherwise be seen as the manageable risk of allowing the child to live at home, thus reducing the chance of reuniting the child with his or her own family where that would, in fact, benefit the child. That is the point made by Males J at paragraph 206.
  • To these points, I would add that it is material, when considering a possible non-delegable duty rather than liability in negligence, to remember that the local authority has the powers and duties of a parent. I raised earlier my uncertainty as to what the precise implications of this are in the context of non-delegable duty. However, whatever they may be, I think it appropriate to bear in mind that a parent would not have a strict liability for harm caused by someone to whom he or she had entrusted the child’s care, for instance a nanny or, to take Burnett LJ’s examples, friends or relations. If the local authority’s powers and duties under statute are those of a parent, and where it is day to day care by a third party that is under consideration rather than strategic and management decisions on the part of the local authority, it is difficult to see why the local authority’s liability should be more onerous than a parent’s.
  • I acknowledge that although I am quite clear in my conclusion that the judge was right that the imposition of a non-delegable duty would not be fair, just and reasonable, I have not expressed firm views about the precise nature of the duty that should be considered to be at the heart of the non-delegable duty argument or about all of the five indicia of non-delegable duty. As Baroness Hale observed at paragraph 28 of the Woodland case, the common law is a dynamic instrument, but caution is needed in developing it. The law in relation to non-delegable duties is still evolving, as the Woodland case itself showed, and it seems to me preferable that I should only determine those matters which are essential to the determination of the appeal which, for the reasons that I hope appear from the preceding paragraphs, I would dismiss.

 

 

 

It does seem awful that this woman has no legal remedy for the awful things that were done to her – assuming that Criminal Injuries Compensation is not open to her (it may not be, due to the passage of time).  Nothing in this case affects a Local Authority’s liability under negligence – i.e if they had known of the abuse and failed to stop it, or it had been a foreseeable risk that they had failed to prevent through carelessness.

 

There are some hints in this judgment that it might go up to the Supreme Court – as it is largely interpretation of two distinct and recent Supreme Court authorities, that seems a distinct possibility.

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Tape recording paying off

Posted on June 3, 2015 by suesspiciousminds

Prepare to be very shocked. And then very angry.

At the Transparency Project Conference on Monday, a question was asked about whether parents should be allowed to tape record discussions and conversations. Both Lucy Reed (www.pinktape.co.uk) and myself gave the opinion that where a parent wants to do this, they should be able to.  Social work can involve an imbalance of power with a parent, and where a parent feels that they want their own record of what was said, or to be able to go back to it later to hear it again, they should be able to.  That’s my own opinion, I don’t speak (as always in this blog) for anyone other than myself. But I think that the mood and the ground has shifted on that.

It is easier and easier for a parent to record conversations, and I can absolutely see why they might want to do it. I’ve always said to social workers that they should never say or write anything that they wouldn’t be happy hearing being read out loud in Court. Good social workers have nothing to fear from a parent recording them. It is awkward, it feels uncomfortable, but if you put yourself in the parents shoes for a moment, that must be how they feel all of the time. If it levels the playing field a little, that may be a good thing.

This case, decided by Her Honour Judge Lazarus in Medway County Court is a good example of how that really paid off.  Without the recording, would the mother have been believed? Hard to know, but it certainly provided incontravertible evidence of the most appalling behaviour that she was subjected to by those who were supposed to be helping her.

The case involves a huge catalogue of errors and lessons that need to be learned, and I think I’ll tackle it in two posts rather than one.

This particular issue of recording (both written records and sound recording) is worthy of its own piece, I think

Medway Council v A and Others (Learning Disability: Foster Placement) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B66.html

 

The case involved a mother with a learning disability, and an IQ of 54, who was British but of Indian origin.  The case began very poorly with the Local Authority placing the child in care through a section 20 agreement.  It seems that the lessons about misuse of section 20 are still not being learned. She eventually went to a mother and baby foster placement. There were arguments about whether that placement was the right sort of placement for someone with the mother’s needs – it wasn’t a specialist placement or one experienced in teaching and supporting parents with learning difficulties or disabilities.

 

  1. I find, and the SW accepted, that this was not an appropriate placement. I accept that Ms McG is an experienced foster carer and has successfully cared for children including her current charges for many years. I also accept that in the first couple of weeks she described getting on very well with the parents. However, Ms McG was not a specialist foster carer with specific training and/or expertise in working in partnership with parents with learning disability, as is recommended in the DoH Guidance (at 2.2.15). This placed A and the Mother, and indeed Ms McG, at a disadvantage which it was Medway’s responsibility to avoid. Ms McG explained that she underwent two days training a year as a foster carer, and that this contained elements relevant to learning disability such as having to speak slowly and make sure that parents understood. It was absolutely clear from her oral evidence that any comprehension she had of Mother’s difficulties was extremely limited. She described her as ‘unwell’ or that ‘she wasn’t well’. And she also, at the strategy meeting described the Mother as trying to ‘turn the tables on me’. She repeated this in her oral evidence, saying that Mother was ‘devious’, and ‘building [a case] up so that she would be removed from the house’ and that her actions had been ‘calculated to provoke me’. This implies a degree of cleverness, cunning and forethought that it is clearly beyond the Mother’s abilities, and thoroughly demonstrates Ms McG’s lack of understanding of learning disability. It is clear to me that Ms Mc G’s lack of experience and understanding in this area, and the attitude to Mother’s learning disability that she betrayed in her evidence, must have meant that her interactions with Mother were unlikely to have been sympathetic to Mother’s needs and therefore unlikely to have been successful in supporting Mother.
  2. I also accept that it was not ideal to place Mother in a non-Muslim household. While Ms McG had a Muslim teenager placed with her, this is vastly different to living in a Muslim household and being in an environment geared to and familiar with the practices and expectations of a very different culture. Ms McG was asked about her accommodation of Mother’s needs as a Muslim and gave three practical examples in that she had provided a mat for prayer and had bought halal food and not cooked pork, and had provided separate eating utensils which were not used after the first occasion. These were appropriate steps and I do not criticise the foster carer for doing her best in this respect. Parents cannot always expect to be placed in culturally matched placements, and it should not necessarily have determined whether this placement should be used, but it was an additional difficulty for an already vulnerable mother to cope with in an otherwise ill-suited placement in terms of meeting her and A’s primary need for an environment skilled in supporting parents with a learning disability.
  3. The SW acknowledged that a specialist foster placement or a ‘specialist placement setting’ (as in her email of 10.9.14 to her managers) should have been provided. She asked for a specialist foster placement and was offered this placement. I appreciate that Mother and Baby placements are a scarce resource, but if it was not suitable it was not suitable and an alternative resource should have been pressed for. The success of Mother and Baby placements often relies heavily on the direct relationship forged between a mother and the foster carer. This will become all the more crucial and potentially fragile where the mother suffers from a difficulty such as a learning disability. I find that Medway fundamentally let down A, his Mother and indeed Ms McG, by placing them together in what should have been evident at the time was an unsuitable arrangement.

 

 

Additionally, there were differing accounts of a dispute between the mother and foster carer. Each said that the other had been aggressive and hostile during an incident towards the other.  I am sure that parents who read this will be imagining how that plays out – the foster carer has recordings and credibility, the parent won’t be believed.

What happened in this case was truly extraordinary.

 

Firstly, the foster carers notes:-

 

  1. The foster carer’s records and statements gave me great concern. Her initial recordings are in the form of brief and informal emails. These recordings progress in late August/early September to more formal notes using a set form. The first set of her records filed by Medway in these proceedings was missing all her notes from 8.8.14 to 3.9.14 and the note of 14.9.14 and the document entitled My Personal Statement dated 15.9.14. By day 3 of this hearing most of those missing documents had been provided, at my direction, but notes for 11, 12, 19, 26, 27, 28, 30 and 31 August, and 3 and 8 September were still missing.
  2. When the foster carer attended to give her evidence, I directed her to email and bring on the following day any of those remaining missing notes that had been emailed at the time in August and September. I stipulated that these should only be the original emails bearing the original notes to ISP, so that we could be quite clear that they had been sent at the time and what they had said at the time. I also clearly explained that they should not be newly written up, but that I was directing the provision of only the original recordings sent at the time in August and September. This was not done by Ms McG. Instead she chose to bring newly written notes of most of those dates, unconnected to any emails. She confirmed that they had not been sent at the time, but she had written them up that night before returning to court with them, and had done so from her handwritten notes that she had found for the purpose.
  3. This was concerning in a number of respects. Firstly, they had not been written up at the time and thus were not sent, but neither ISP nor the SW noticed that these dates were missing. This is indicative of poor management and supervision of this placement by ISP and Medway. Secondly, she had claimed the day before that she had shredded all the hand-written notes that she had made, but was now claiming that she had found some notes. She had also claimed that she used a ‘diary’ to record her observations. This then became a ‘notebook’, the pages of which she tore out and shredded, and so she said she was unable to bring any original notes to court. I have taken into account her submissions that this was all a misunderstanding, and that she meant that she had only shredded the notes she had written up and sent. This was not what she told me during her oral evidence, and I find that Ms McG was dishonest and actively misleading about her note-keeping practice. I find that I cannot rely on her assertion that none of her original notes could be inspected, as she clearly then found some in order to cover up her gaps in recording. I also find that she did not regularly write up her notes each evening as she claimed, or there would have been no such gaps.

 

 

[This would have been a good point to deploy the nice bit of case law which was excavated in the Mirror phone-hacking case –  Armory v Delamarie  1722 http://www.bailii.org/ew/cases/EWHC/KB/1722/J94.html  a case in which a chimney sweep boy went to a jeweller to ask him to value a jewel. The jeweller pocketed the jewel and would not return it. Because the jeweller then concealed the jewel, how could one establish how much it was worth and what the chimney sweep was owed?

“. If the wrongdoer prevents the innocent party proving how much of his property has been taken, then the wrongdoer is liable to the greatest extent that is possible in the circumstances.”  

 

In short, if a foster carer shreds her notes, then the Court is entitled to take the dimmest view possible of what might have been contained within them.  ]

 

I have not before encountered a finding that a foster carer had been dishonest and misleading about their records. It gets worse

  1. The document My Personal Statement dated 15.9.14 (N45-46) differs from the placement recording note she completed bearing that date (N21-22). It appears to have been sent to Ms Down at ISP either late that night or the next morning as Ms Down attaches it to her email to the SW at 09:01 on 16.9.14. Ms McG claimed in her oral evidence that she thinks she wrote it several days later over the following weekend (20-21.9.14) and that is why it was not in her foster placement recording of that date. I do not believe that it was written so long afterward given Ms Down’s email. I note that My Personal Statement contains an inaccurate reference to the conversation in which Ms McG viciously shouts ‘piss off’ repeatedly at the Mother before slamming the door on her, characterising it instead in both the note recording and My Personal Statement as a rude attack by Mother to which Ms McG claims she mildly responded.
  2. We know however, having listened to the recording and read its transcript, that in fact the Mother was calmly and fairly meekly pointing out that the conversation was noisy for the baby and that Ms McG was ‘shouting so loud’ and that she did not ask who Ms McG was talking to as Ms McG claims. After a few exchanges of this nature Ms McG explodes against the Mother, shouting and using a remarkably vicious, loud and nasty tone:

    “R….. piss off out I’m getting it on the phone piss off out R….. piss off out I’m on the phone when you on the phone chatting loud in your in your Pakistani language I don’t say anything I just grin and bear it yeah I don’t (indistinct) so piss off out and leave me on the phone piss off. Piss off when (indistinct) your Pakistani language I not saying anything I leave you (indistinct) but get with I don’t say anything to you right, so get lost”

    This is then followed by the sound of steps walking away and a door loudly slammed.

    Ms McG accepted that this is her voice and this was how she behaved to Mother on this occasion. She was unrepentant during her oral evidence, but in her submissions indicates she has now reflected on this and accepts that she behaved inappropriately, for which she now apologises and will be seeking support from her fostering agency. She claims that this inappropriate behaviour was as a result of repeated provocation and the breakdown of the placement. I shall return to that assertion later.

  3. I find it is significant that My Personal Document is written after this incident and is then sent to Ms Down, and contains an allegation against the Mother that she had slapped Ms McG that is not in the recording note covering that period; and that it also contains an inaccurately anodyne account of this wholly inappropriate loss of temper and swearing at Mother. I do not understand why its content about Mother slapping her was not included in the recording note of 15.9.14, unless it simply had not happened and so had not been written up into it earlier that evening.

 

So not only had the foster carer shouted at mother and racially abused her, but she lied about it in her notes and made up an allegation that it had been the mother who behaved badly towards her.  It isn’t easy to be sympathetic to a professional who has said the things set out above – and I’m afraid that I can’t manage it.  I do, however, place it in the context that this was a wholly unsuitable match from the outset and the blame for that doesn’t lie at the foster carers door.

 

I am afraid that it continues to get worse.

 

  1. Ms McG tried to claim in cross-examination that her tirade against the Mother on 15.9.14 that I have set out above did not use swearing, and that it was not ‘abuse’. This is obviously an absurd minimisation in the face of wholly inappropriate behaviour. She was thoroughly and vehemently unrepentant, claiming she would do ‘absolutely nothing’ differently. She also tried to claim that this was the only occasion she spoke this way to the Mother, and that the Mother had deliberately provoked her by coming down and asking her to be quiet. In her submissions she further claims that the parents began a campaign to complain about her and repeatedly provoke her in order to bring about the end of the placement so that they could live together and thereby preserve the Father’s immigration status. I do not accept these assertions. A good point well made by the Children’s Guardian’s advocate was how unlikely it was that on the occasion that Mother tries to record the foster carer it happens to be the only occasion the foster carer swears loudly and viciously at her. The Mother’s case is that she was recording her as she was not being believed about being treated abusively and that this was a regular occurrence. I find that it is highly unlikely that this was the only occasion, and that the Mother was indeed trying to record her following a series of such occasions of verbal abuse and mistreatment that she had tried to complain about. I also consider that it is highly unlikely that the parents could have planned such a campaign, hoping to get such a response from the foster carer, or could have predicted what outcome would arise from highlighting the problems they were experiencing.
  2. Ms McG also submits that her allegations against the Mother that the Mother was abusing and slapping her were not properly investigated and so she could not present her explanation fully. Ms McG attended a strategy meeting on 17.9.14 at which she repeated at least some of those claims, and was assisted by Medway’s legal department to prepare her first statement filed in these proceedings. Her agency ISP has supported her in making her statements and by attending court to support her attendance. Until a point in this hearing after Ms McG had completed her evidence, Medway itself was pursuing these findings against the parents. Ms McG was the source of these allegations and has been able to set them out in statements and repeat them to me and be questioned about them, and therefore I do not follow and reject this submission.
  3. There is no contemporaneous written note by the foster carer of her allegation that she saw Mother shaking the baby. It only appears via the recordings of professionals involved at the time and in the foster carer’s first statement dated 11.3.15 which provides little clarifying detail. The foster carer’s oral evidence was inconsistent with accounts recorded by those professionals. She said it took place soon after midnight and she demonstrated two slow shakes by Mother while saying ‘shush shush’ to A. The records suggest she claimed there were three shakes to the SW and paediatrician, and she subsequently accepted she may have said three shakes to them. ISP worker Ms Hannett’s account of what Ms McG told her was noted by the duty SW in the early hours of 17.9.14 and state that Ms McG told her she saw Mother holding A under the arms but with her hands behind his head. The call from a PC French also set out in the duty SW recording at 04:51 states that ‘the actual shaking incident did not involve the baby’s head moving separately from its body’. I conclude from these recordings made very soon after these professionals had spoken with the foster carer that they are recounting a description given by her of a limited kind of shake involving some protection of the head from moving, although it is difficult to imagine someone both holding a baby under the arms and holding their hands behind his head. This contrasts with the ‘vigorous shaking’ described by the foster carer to the paediatrician and repeated in the strategy meeting notes. Finally, Ms McG’s submissions refer to seeing Mother “jolt the baby whilst trying to shush him”, and this is a slightly different version again, and certainly not one shared at the time with the child protection and medical professionals. These descriptions were not greatly assisted by Ms McG’s oral evidence where she demonstrated two limited forward and backward movements. She was unclear when pressed about the position of Mother’s hands. She said she had not seen Mother’s face as Mother’s back was to her. She described Mother as holding A out in front of her, in which case I am not convinced that she could have had the clear view of what was happening in front of Mother’s body as she claims. For these reasons, and as outlined already in conjunction with the timing of her extremely abusive reaction to Mother on the night of 15.9.14 and the timing of Mother’s complaint against her on 16.9.14 of being pushed and hurt, I do not consider that this can be seen as a reliable account by the foster carer of having witnessed Mother shaking A. I was unsurprised when Medway chose not to pursue these allegations against Mother further.
  4. The second conversation, in which her adult son can be heard speaking, I also find to have been wholly inappropriate. The foster carer claims that some disrespectful comment by the Mother precedes the start of the recording and led to her son’s reaction challenging the Mother not to disrespect his mother. I acknowledge that her son does not raise his voice and I accept that on one level they do simply point out that she is not prevented from leaving but if she were to do so they would have to inform social services, but the foster carer does not intervene to control or limit the conversation which repeatedly challenges the Mother and in which she is accused of being attention-seeking. She joins in the conversation with a number of challenges and some sarcastic laughter. However, it is all conducted with a level of inconsideration bordering on scorn for her predicament and her learning disability. Ms McG claimed that there was nothing wrong with this conversation and that the Mother was attention-seeking. She should not have permitted or conducted such a conversation with the Mother, and (until receipt of her submissions) has clearly failed or refused to see why. As I have already discussed, this conversation is likely to have taken place some time on the morning of 16.9.14 before the situation escalated further.
  5. I am asked to consider whether the foster carer was racially abusive to the parents. She denies it, claiming that as she is black she is aware of how inappropriate it would be, and countering with her own accusations that the Mother called her a ‘black bitch’. In her oral evidence she added that the Mother had called her a ‘black bastard’ and said that she had never wanted to live in a black home. Being called a ‘black bastard’ has not featured previously in any account given by the foster carer. I am aware that the parents were indeed very unhappy at not being in a Muslim household, but given the manifest difficulties with the foster carer’s evidence and that Medway do not seek such a finding, I do not consider making such a finding against the parents.
  6. In her oral evidence the foster carer made some notable remarks. She repeated several times, and with almost as much venom and resentment as in the recording I have quoted above, that she had to ‘grin and bear it’ while the Mother was talking on the telephone ‘in her Pakistani language’. Mother speaks Urdu and is British of Indian origin. She never once in her recordings or her evidence correctly used A’s name, but dismissed this due to the name having been changed. She denied using the terms ‘Indian dog’ or ‘Pakistani dog’. She described the parents as ‘reeking’ of body odour that permeated her home, and in her emailed note of 15.8.14 wrote that they ‘absolutely stink’, a phrase she repeated more than once and with emphasis in her oral evidence. While I accept that she needed to draw attention to examples of poor hygiene, I find that the manner in which she did so was vindictive and pointed, and not simply a straightforward observation. Overall I find that there was an ongoing vigorous antipathy to the very physical presence of the parents in her home, that she resented listening to Mother speaking in Urdu, and I do find that she demonstrated in court gross racial insensitivity and a visceral dislike of the parents, nastily expressed. The evidence is however insufficiently clear to make any finding of racial abuse and I do not make such a finding against the foster carer.

 

 

Bear in mind that not only was the mother having to live in a home with this foster carer, but that this foster carer was (a) going to be a large part of the assessment of how mother was doing and whether she could parent AND (b) was supposed to be providing her with support and guidance, and one can see just how catastrophic a failure this placement was.  It must have been utterly unbearable.

 

The Council were rightly criticised for their failure to investigate the complaints made by mother about the placement and to take action

  1. It will be evident from what I have set out so far, that Medway did not adequately investigate these complaints by the parents. It is unclear whether Ms Down of ISP was requested to look into the earliest set of complaints, which included verbal abuse by the foster carer, or whether she was simply informed of these complaints and looked into them automatically as part of her role as supervising SW at ISP. It can immediately be seen that the SW of the agency being paid by Medway to provide this foster carer is in a compromised position with an obvious conflict of interest in doing so. The brief discussion of the complaints at the pre-proceedings meeting and LAC review meeting on 3 and 4.9.14 were not adequate: full details were never sought from the parents, nor their complaints properly noted in the social work records; the only forum for exploring the issues was at formal child protection meetings primarily concerned with other matters; no complaints process was offered or explained to the parents; and even the ‘agreement’ referred to at the end of the LAC review minutes was never pursued. This forms part of my concern that the parents’ complaints were never properly attended to or taken seriously by the professionals, but were dismissed as insignificant or unworthy of proper attention. This was a serious corporate failing by all concerned.
  2. It beggars belief that after the events of 16.9.14, when the foster carer was claiming that she had been slapped by Mother and Mother was claiming she had been pushed and hurt by the foster carer, that the SW encouraged Mother to return to the placement and her management sanctioned its continuation. Notwithstanding where the truth of those allegations lay, this was clearly not an appropriate environment for A, nor his vulnerable Mother. As I have already mentioned in considering the Children’s Guardian’s evidence, I find that this environment would undoubtedly have had an extremely negative effect on Mother, depriving her of the support of the Father, exposing her to unskilled and unsympathetic foster care, and in a hostile environment about which she complained but where her complaints were dismissed. It is unsurprising that she became anxious, upset and distressed and that the placement broke down.

 

 

This is the most dramatic of the failings of the case, but there were many many others, which I’ll deal with in part 2.  This case is a perfect illustration of the benefits of the President’s drive for transparency.  Her Honour Judge Lazarus is not (yet) in a position to make binding case law [though she does earn herself a Tag in ther blog], and so a case of this kind three years ago would not have been reported, I would never have seen it and the dreadful catalogue of poor practice and decisions would have been brushed under the carpet.  Never has the President’s motto of “sunlight is the best disenfectant” been truer.  We need to drag cases like this into the light, and hold them up to public exposure.

What happened here was dreadful and the only hope of stopping it happening again is to make sure that everyone sees just how bad it was.

If you want to know the outcome – the Local Authority were seeking a Placement Order – to place the child with adopters, and the Judge instead granted the application that mother and father should be placed with their child in a specialist assessment centre who could report fairly and accurately on whether they would be able to care for their child with the right support.

 

 

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The Staying put arrangements (and a toast to not being a moaning minnie)

Posted on March 21, 2014 by suesspiciousminds

 

The more I look at the Children and Families Act 2014, the more I seem to be complaining about  (I have a long piece on s2’s foster-to-adopt provisions coming a bit later), and sometimes I think that writing my blog pieces I am just complaining about everything and generally being a moaning minnie.

 

Well, it took a while, but I found two provisions in the new Act that I do like, and don’t want to complain about. One is the inclusion of Young Carers  into s17 assessment of need and provision of services, which I think is long overdue and a damn fine thing.

 

And the other is the “Staying put arrangements” which enables a young person if they and their foster carer are up for it, to stay in the foster placement until the young person is 21. 

[I know that campaigners want this extended to children in residential care, and maybe that will come in the future] 

 

I think it is a good thing that young people will have this option – it won’t be forced on them or pushed on them, but it is a bit of a safety net from the State, and I commend it to the House  (sorry, went off on a delusion of being Chancellor of the Exchequer then)

Not only is the central idea good, I think the drafting is pretty decent. It is understandable, does what it needs to, doesn’t end up with any weird gaps or new concepts that don’t get defined properly  (cough, section 2, cough)

 

I think there are some details to be thrashed out on the logistical side of things (how much do the foster carers get paid, is that a sum of money they have to pay tax on? Are they in effect landlords to that young person?) but the core of it is there, and I have nothing to moan about.

[Well, maybe I don’t like that the Children Act is now up to a section 23CZA (2) (b)  – that’s more nesting than those glass tables people used to have in the Seventies, section 23 currently runs to 10 pages, but where else could you put it?]

Staying put arrangements

98 Arrangements for living with former foster parents after reaching adulthood

(1) The Children Act 1989 is amended as follows.

(2) After section 23C (continuing functions in respect of former relevant children)

insert—

“23CZA Arrangements for certain former relevant children to continue to live with former foster parents

(1) Each local authority in England have the duties provided for in subsection (3) in relation to a staying put arrangement.

(2) A “staying put arrangement” is an arrangement under which—

(a) a person who is a former relevant child by virtue of section

23C(1)(b), and

(b) a person (a “former foster parent”) who was the former relevant child’s local authority foster parent immediately before the former relevant child ceased to be looked after by the local authority, continue to live together after the former relevant child has ceased to be looked after.

(3) It is the duty of the local authority (in discharging the duties in section 23C(3) and by other means)—

(a) to monitor the staying put arrangement, and

(b) to provide advice, assistance and support to the former relevant child and the former foster parent with a view to maintaining the staying put arrangement.

(4) Support provided to the former foster parent under subsection (3)(b) must include financial support.

(5) Subsection (3)(b) does not apply if the local authority consider that the staying put arrangement is not consistent with the welfare of the former relevant child.

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