Tag Archives: learning difficulties

Important case regarding learning difficulties

Posted on January 18, 2016 by suesspiciousminds

It is a Presidential pronouncement, and a long one. So expect it to be cascaded to all Judges and Courts in the next few days.

To be honest, a case that makes the President say this:-

This is by some margin the most difficult and unusual care case I have ever had to try.

is going to be worth a read. It is really difficult. Just as when many of us read Re B, we felt that the circumstances described by the Court of Appeal and then the Supreme Court didn’t seem to justify a finding that threshold was met and that adoption was the correct outcome, this one made me feel deeply uncomfortable. I don’t think that I agree with the eventual conclusion, though to have decided the case otherwise would have caused a huge shift in the legal approach to such cases.

I’m afraid that it is long. And I am also afraid that in my attempts to condense what is a very long judgment into manageable size, some of the nuance and detail will be lost. There is no real substitute for reading the whole thing.

Re D (A child) (No 3) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/1.html

This case has appeared in the blog many times. It is the one where a child was placed at home with parents, who had some learning difficulties, under a Care Order in 2012. The Local Authority then removed that child and placed the child in foster care. So initially it was key case law about the principles in law that apply to a removal of a child under a full Care Order. The LA then decided that their plan was adoption and made an application for a Placement Order. It then took many months of arguing about the lack of availability of legal aid for the parents (and lawyers not only working for free but signing indemnities that if cost orders were made against the Official Solicitor that they would guarantee to pay them out of their own pocket. Doesn’t quite fit with the conspiracy narrative that parents lawyers don’t try…)

It is the plaintive case where the mother cried out during one hearing that nobody seemed to be talking about her child at all, that all of the attention was on regulations and LASPO and fripperies, when what was surely important was the child. Quite so.

Anyway, this is the decision about whether the child should live with the parents, or be made subject to a Placement Order and hence go on to be adopted.

It raises some really challenging philosophical questions – and not ones of idle curiousity but ones that go to the heart of how such cases should be run.

Were the things that happened to this child a result of parental deficiency, or were they frankly things that could happen to any child and any parent, but they were pathologised because of the parents known issues?
Were the failings here attributable to the parents, or the support provided?
Is there such a thing in law as reparative care, or is insisting that a child needs higher than good enough care simply a social engineering argument in disguise (topical, given the proposed reforms to adoption)
Is a parent with learning difficulties treated differently (or discriminated against) than a parent with physical disabilities?
Is a plan that involves extensive professional support and carers really harmful to a child, or is it the sort of thing that happens all the time with children whose parents are very rich?

I’m going to steal the arguments in relation to each of these from the submissions of Deidre Fottrell QC and Sarah Morgan QC contained in the judgment, because the day that I can write something that is better than the way Deidre or Sarah puts it is the day that I’ll be closing up the blog to spend quality time with my Pulitzer Prize.

Ms Fottrell, who it must be remembered acts on behalf of the father but also takes instructions from the Official Solicitor, expresses their deep concerns about what, with every justification, she calls the “notable deficit” in the support being given to the family by the local authority in relation to its failure to provide the father with the adult support services to which, as it eventually conceded, the father was entitled. As she submits, this impacted on the family in two ways: first, the father has not had the support he required, and thus continued to struggle with day to day tasks for himself; and, secondly, this meant that the mother was overburdened by being required to support him – which must have impacted on her ability to look after D. This is not, Ms Fottrell says, a small point, for it undermines the local authority’s case that the parents were fully supported when D was living at home. It is not enough for the local authority to assert that it was committed to D remaining at home and that it provided support. The key issues, she says, are (i) whether the local authority offered the right support and (ii) whether it was entitled to expect, as it did, that the support could be reduced and eventually withdrawn. Her answer to each is clear: No.
Ms Fottrell identifies what she suggests are two fundamental flaws at the heart of the local authority’s case. First, she says, there is an inherent contradiction given that the nature of the parents’ learning disabilities is, as she puts it, inherent and unchanging, a fact known to everyone when the original order was made: so the need for ongoing support on an indefinite basis underpinned the care plan approved the court in November 2012. It is therefore, she submits, unfortunate and somewhat harsh for the local authority and the guardian now to be saying that the parents have failed to ‘improve’ their parenting. She suggests that this goes to demonstrate either that the support envisaged was not provided to the extent required or that the local authority’s expectations of the parents were either unclear or unrealistic.
Secondly, she challenges the assertion that D needs better than good enough parenting: it is, she says, circular and dangerous and runs the risk of a parent with learning difficulties being held to a different and more onerous standard. It would, she suggests, exclude a parent with learning difficulties who requires support from being able to parent their child if the child also has learning difficulties. She points to what Gillen J said in Re G and A and observes, correctly, that the court has to comply with both Article 8 and Article 14 of the Convention. It cannot be right, she says, for the court to sanction a local authority’s intervention in the family life of a parent with disability in a way which would be discriminatory under Article 14. Moreover, as she points out, there is a positive obligation on the State under Article 8 and that, she submits, in a case such as this, imposes a broad obligation to provide such support as will enable the child to remain with his parents.
More generally, Ms Fottrell aligns herself with the submissions put forward on behalf of the mother, to which I now turn. Before doing so, I should mention two other important points made by Ms Fottrell. She challenges the assertion that the parents need support round the clock – a proposition, she submits, not made out on the evidence. And she points out that D has never suffered any physical injuries. Insofar as there are said to have been what can be characterised as ‘near misses’, she poses the question: Are these the kind of incidents, familiar to every parent, where the reaction is ‘there but by the grace of God …? Or were they, in truth, disasters waiting to happen where by some miracle nothing did happen?
In conclusion, Ms Fottrell submits that, with the right package of extensive support provided by a combination of Mrs P and the professionals, the parents will be able to care for D safely and appropriately, as the court had intended in November 2012

Ms Morgan and Ms Sprinz acknowledge that the mother has had her difficulties with MB and the foster carers and they do not shy away from some of the things the mother has said about professionals. But they urge me to remember the context. What after all is a parent likely to think about the social worker who has advocated the removal of her child or about the foster carer who is doing what the parent herself wants to do? And they urge me to accept TG’s appraisal of the mother as someone who can – and, they say, will – work with professionals if they are there to assist, support and advise, rather than to assess and monitor, and who treat her as an adult and a mother rather than, as she perceived it, as if she is “stupid.”
Moving to the heart of the case, Ms Morgan and Ms Sprinz challenge the assertion that the level of support the parents need carries with it the danger that people other than the parents will in truth be bringing D up and acting as his parents. There are, they suggest, two aspects to this: Is this really the case? And, even if it is, to what extent does it matter? In relation to the second point they caution against the risk of making a value judgment (as opposed to coming to a judgment) if it is, in truth, based upon no more than the circumstances in which the particular parent – these parents – come to need help. They submit that what matters is that the child has a clear and secure knowledge of who his or her parents are. The fact that some parents either need or choose to have assistance with the way in which their children are brought up does not, they say, alter that.
Here, as they rightly say, the parents need help. But how, they ask, do these parents, with their particular difficulties, differ from the parent physically disabled by Thalidomide, or the parent who is blind, or a parent with a brain injury as distinct from a learning disability, who may not be able to see or to react quickly to some risk to which their child is exposed. What such parents need, they submit, is that a reasonable adjustment is made for the deficits in their parenting which arise from their own inherent difficulties rather than from neglect or failure or indifference. The fact that such adjustments are made, and that such parents may be receiving a high level of help and support, does not, they say, mean that they are not bringing up their children. Why, they ask rhetorically, should it be any different for these parents with their difficulties?
They suggest that the true approach is best illustrated by those parents who choose to have assistance, for example, parents working long hours who employ a live-in nanny not merely to look after the children while their parents are at work but also to help with the daily beginning and end-of-day routines, or parents who send their children away to boarding school (and will therefore not see their children for days or possibly weeks on end), or the parents moving in circles where, even today, there is a domestic staff cooking the meals and where the children may eat separately from their parents. No doubt, they say, in all these cases the parents hope for continuity throughout the child’s childhood, but, as they point out, that is not the real world. Nannies move on, staff change, teachers leave, so the children are exposed to differing professionals providing care for them at differing stages during their childhood.
The point, they say, is that if one steps back and considers not the circumstances which bring about this help with or delegation of parental care but the experience of the child in these various examples it does not differ markedly, if at all, from what D’s experience would be under his parents’ proposals – except that he would probably have rather more parental care. They stress that these are not flippant points. They are made to underline the submission that it is easy to criticise, easy to buy into the notion that there is a way in which parents in care proceedings are expected to take sole unassisted responsibility for parenting and that if they do not or cannot then it is not good enough.
Ms Morgan and Ms Sprinz conclude with two further submissions. They reject the guardian’s approach that the parents will need 24 hour wrap-around support. That is not what the mother is seeking, nor is it what she, or the father or D need. Finally, they suggest that there has been an undue emphasis on risk, particularly in relation to D’s safety. Quite apart from the fact that all the incidents relied upon predated the local authority’s volte face, they point out that risk cannot be eradicated from children’s lives, although of course it can and should be reduced. They urge a sense of proportion: of course, a child can fall and poke himself in the eye with a dinner knife, but so too with a pencil, a crayon or a toy. The parents can learn to manage by modelling, which the mother, they say, will accept and learn from. Moreover, as they point out, risks change through time: road safety with a small child becomes internet safety with an older child; bath-time is hazardous for a very small baby but the risk diminishes over time to nothing for the older child. The parents, they urge, with proper training and support will be able to manage the changing risks. The mother, as they point out, has changed in her view of D’s needs and limitations. Earlier on, she was unwilling to accept that there was anything wrong or that he had any difficulties; in her evidence, she was able to acknowledge that that this was not so, saying that “it’s on both sides of his family, so it’s not that surprising.”
With proper support, they submit, D’s parents will be able to care for and look after him adequately. They point out that whoever looks after D will need help and support. They urge me to be rigorous in my Re B-S analysis, carefully evaluating and balancing the benefits to D of returning to his home to be looked after by devoted parents who love him very much and who have done and always will do their very best to care for him, accepting him and loving him as he is, against what they suggest are the unknowns and perils of adoption, particularly for a child with D’s characteristics. My assessment of what the parents propose for D must, they submit, be based upon the full support package proposed, that is, with input from A+bility, the local authority, other professionals and Mr and Mrs P. Adoption, they say, is not a panacea. I should be cautious about accepting the local authority’s rather sanguine view as to the ease with which suitable adoptive parents will be found – a view based, they suggest, on a limited understanding by that part of the local authority of D’s particular needs and complexities. They urge me to feed into my evaluation the risk that D may not be adopted and thus end up remaining in foster care.
At the end of the day, as they rightly observe, it is not my task to find a ‘better’ family for D if, in truth, his parents, with proper support and assistance, can provide him with good enough parenting. I must be vigilant not to countenance social engineering.

Okay, to be fair, I have not also quoted from the counter submissions from the Local Authority and the Guardian, who make a series of very good points also. But the argument is challenging nonetheless.

I felt when I was reading the judgment that the President was very drawn to the spirit of these arguments, and there’s a passage where he makes it explicit that he was striving to reach a conclusion that would have returned D to his parents care.

Ms Fottrell, Ms Morgan and Ms Sprinz join in submitting that, with the benefit of the right package of extensive – what they accept will need to be very extensive and intensive – support, with all the right input from A+bility, from the local authority and other professionals and from Mr and Mrs P, the parents will be able to provide D with adequate care, today, tomorrow and well into the future, indeed throughout the remainder of his childhood.
In response, the local authority and the guardian make three essential points, with each of which I am, sadly, at the end of the day, driven to agree:

i) The first is that the proposed package will simply not work, is simply not sustainable for as long as it would have to be maintained in place to meet D’s needs. Despite the best intentions of the parents, they have, the mother in particular, great difficulty in accepting guidance, advice or support when it does not fit in with their own views. The experience of what happened between November 2013 and March 2014 is, unhappily, an all too likely predictor of what will happen again. I am driven to conclude that the parents – through absolutely no fault of their own – will simply not be able to maintain over the ‘long haul’ the effective working partnership with the support team which is essential if the package is not to collapse.

ii) The second is that, even if the package can somehow be maintained, the gap between what the parents can offer D and what he needs is very large indeed and, sadly, in my judgment, simply too large to be capable of being bridged by even the most extensive support package. I refer, without further citation, to what I have already set out (paragraphs 145-149). I am driven to this conclusion after the most careful consideration of all the evidence, including, of course, the important evidence of Mrs P, which points in the other direction.

iii) The third is that even if a sustainable package could be devised which was in one sense capable of bridging the gap, it would not in fact be promoting D’s best interests. His parenting would, in reality, become parenting by his professional and other carers, rather than by his parents, with all the adverse consequences for his emotional development and future welfare identified by MB, by Ms Randall and by the guardian.

In relation to this last point I must, of course, address the powerful and perceptive submissions of Ms Morgan and Ms Sprinz (paragraphs 116-119). There is much in what they say with which I agree. And in many cases their analysis would indeed point in the direction to which they would have me go. But at the end of the day the outcome will always be case specific, dependent upon the particular, and often, as here, unusual, facts of the particular case. In the present case there are, in essence, two reasons why on this point I am unable to follow Ms Morgan and Ms Sprinz. The first is that this is only one of three quite separate reasons why, as I have said, no sustainable and effective package can be devised – so this particular point is not, in fact, decisive. The second reason flows from their submission (paragraph 116) that what matters is that the child has a clear and secure knowledge of who his parents are. But that, in the light of what MB, Ms Randall and the guardian have all told me, would at best be very questionable here.
I confess that I have struggled hard to try and find some proper basis upon which I could conscientiously have come to a different conclusion. But at the end of the day, and for all the reasons I have given, I am driven, however reluctantly and sadly, to the conclusion that D must be adopted. I am satisfied that ‘nothing else will do’; that D’s welfare throughout his life requires that he be adopted; and that his parents’ very understandable refusal to consent to his adoption must be dispensed with.

In effect, the President’s decision was that adoption was the right outcome for the child because it was not possible to devise any plan that would work to keep the child at home with the parents and have his needs met, partially because of the scale or what was needed and partly because the parents understandable issues with professionals would cause any such plan to break down.

On the reparative care point (for a particular child can the LA say that the parenting required is higher than ‘good enough’ because of the child’s needs) the President says this:-

Finally, the question of whether D needs ‘good enough’ parenting or ‘better than good enough’ parenting. There is, I think, a risk of this becoming mired in semantics. The reality is clear and simple. As Ms Randall put it, D has complex special needs (paragraph 76). The guardian expressed the same view when she said that D’s care needs are over and above those of other children of his age (paragraph 95) and said that, because of his own difficulties, D will need additional support both through childhood and as a young adult (paragraph 100). I agree with those assessments.
Ms Randall went on to express the view that in these circumstances D will require ‘better than good enough’ parenting in order to achieve his potential (paragraphs 76, 82). Although this is a conventional way of expressing it, the real point surely is this. What is required is parenting which is ‘good enough’, not for some hypothetical average, typical or ‘normal’ child, whatever that means, but for the particular child and having regard to that child’s needs and requirements. Where, as with D, the child has needs over and above those of other children of his age, then what is ‘good enough’ for him may well require a greater level of input. D, in my judgment, plainly will. That is the point, and that is what is relevant, and in this case highly relevant. The descriptive label is merely that, a convenient form of professional shorthand. I make clear that in coming to this conclusion and in expressing myself in this way I have very much had in mind and taken into account Ms Fottrell’s submissions.

Somewhat side-stepped so as to preserve the principles of “good enough” parenting, but stressing that it must be “good enough” for this particular child with these particular needs.

Standing back, I return to the questions I posed at the outset: Given that these are parents who the local authority, the guardian and the court agreed in November 2012 were able to provide their son D with good enough parenting, given that that conclusion was endorsed by the local authority on 3 February 2014 after careful evaluation and in the light of a very careful core assessment completed as recently as 29 January 2014, What has happened? What has changed? Why is the local authority now proposing, and why am I agreeing to, something so radically different?
The answer, in my judgment, is to be found in a telling phrase used by the guardian and a question posed by Ms Fottrell. As long ago as November 2012 the guardian had described the local authority’s plan as “courageous”. The sad reality is that it turned out to be too courageous. Ms Fottrell, as we have seen, posed the question of whether the reason D was removed in March 2014 was because the necessary support had not been provided by the local authority or because the local authority’s expectations of the parents had turned out to be unrealistic. In my judgment it was the latter. Despite the very intensive support provided by the local authority, it gradually became apparent, contrary to everyone’s hopes and expectations, that the parents were not able to manage. Matters came to a head in March 2014 when, in effect, if one wants to put it this way, MB admitted defeat and realised that her, and her colleagues’, hopes and expectations were not going to be, in reality could not be, achieved.
This, as I said at the outset, is a desperately, indeed, a wrenchingly, sad case. D’s parents are devoted to him and have always wanted to do, and have done, their very best for him. They would never harm him, and have never done so. They are not in any way to blame. They are not to be criticised. It is not in any sense their fault. They have struggled against great odds to be, as they would want to be, the best possible parents for D. But ultimately it has proved too much for them. Their own difficulties are simply too great. My heart goes out to them.

The President also imports some new principles / approaches into English law, by borrowing from a decision in an Irish Court.

This leads on to the profoundly important of observations of Gillen J, as he then was, sitting in the Family Division of the High Court of Justice in Northern Ireland, in Re G and A (Care Order: Freeing Order: Parents with a Learning Disability) [2006] NIFam 8, para 5. So far as I am aware, his decision has never been reported, but the transcript is freely available on the BAILII website.
Gillen J referred to a number of papers and reports, including “Finding the Right Support”, a research paper from Bristol University’s Norah Fry Research Centre funded and published by the Baring Foundation in 2006. He continued:

“A reading of these documents leads me to set out a number of matters which I feel must be taken into account by courts when determining cases such as this involving parents with a learning disability particularly where they parent children who also have a learning disability.”

He then set those matters out in eight numbered paragraphs. Although lengthy, they are so important that they require quotation in full. Accordingly, I set them out in an Annex to this judgment. I respectfully agree with everything said by Gillen J. I commend his powerful words to every family judge, to every local authority and to every family justice professional in this jurisdiction.

David Burrows and I will probably ponder for aeons as to whether this is actually binding on anyone, and whether it actually forms part of the decision or is simply part of the President’s stylistic approach to judgments whereby they are part judgment, part speech, part policy initiative and part a Practice Direction without a consultation process. But for non geeks, it is a pretty simple message. Follow this stuff, or else.

Extract from the judgment of Gillen J in Re G and A (Care Order: Freeing Order: Parents with a Learning Disability) [2006] NIFam 8, para 5:

“(1) An increasing number of adults with learning difficulties are becoming parents. The Baring Foundation report records that whilst there are no precise figures on the number of parents with learning difficulties in the population, the most recent statistics come from the First National Survey of Adults with Learning Difficulties in England, where one in fifteen of the adults interviewed had children. Whatever the figure it is generally recognised that their number is steadily rising and that they represent a sizable population whose special needs require to be adequately addressed. The Baring Foundation report refers to national policy in England and Scotland committing government to “supporting parents with learning disabilities in order to help them, wherever possible, to ensure their children gain maximum life chance benefits.” Nonetheless the courts must be aware that surveys show that parents with learning disabilities are apparently more likely than other parents to have their children removed them and permanently placed outside the family home. In multidisciplinary jurisdiction such as the Family Division, it is important that the court is aware of such reports at least for the purposes of comment. It is important to appreciate these currents because the Children Order (Northern Ireland) 1995 places an emphasis on supporting the family so that children can remain with them and obligations under disability discrimination legislation make public services accessible to disabled people (including parents with learning difficulties). Moreover the advent of the Human Rights Act 1998 plays an important role in highlighting the need to ensure the rights of such parents under Articles 6 and 8 of the European Convention of Human Rights and Fundamental Freedoms (“the Convention”).

(2) People with a learning disability are individuals first and foremost and each has a right to be treated as an equal citizen. Government policy emphasises the importance of people with a learning disability being supported to be fully engaged playing a role in civic society and their ability to exercise their rights and responsibilities needs to be strengthened. They are valued citizens and must be enabled to use mainstream services and be fully included in the life of the community as far as possible. The courts must reflect this and recognise their need for individual support and the necessity to remove barriers to inclusion that create disadvantage and discrimination. To that extent courts must take all steps possible to ensure that people with a learning disability are able to actively participate in decisions affecting their lives. They must be supported in ways that take account of their individual needs and to help them to be as independent as possible.

(3) It is important that a court approaches these cases with a recognition of the possible barriers to the provision of appropriate support to parents including negative or stereotypical attitudes about parents with learning difficulties possibly on the part of staff in some Trusts or services. An extract from the Baring Foundation report provides a cautionary warning:

“For example, it was felt that some staff in services whose primary focus was not learning difficulties (eg in children and family teams) did not fully understand the impact of having learning difficulties on individual parents’ lives; had fixed ideas about what would happen to the children of parents with learning difficulties and wanted an outcome that did not involve any risks (which might mean them being placed away from their family); expected parents with learning difficulties to be ‘perfect parents’ and had extremely high expectations of them. Different professionals often had different concepts of parenting against which parents were assessed. Parents’ disengagement with services, because they felt that staff had a negative view of them and ‘wanted to take their children away’ was also an issue, as were referrals to support services which were too late to be of optimum use to the family – often because workers lacked awareness of parents’ learning difficulties or because parents had not previously been known to services”.

(4) This court fully accepts that parents with learning difficulties can often be “good enough” parents when provided with the ongoing emotional and practical support they need. The concept of “parenting with support” must underpin the way in which the courts and professionals approach wherever possible parents with learning difficulties. The extended family can be a valuable source of support to parents and their children and the courts must anxiously scrutinize the possibilities of assistance from the extended family. Moreover the court must also view multi-agency working as critical if parents are to be supported effectively. Courts should carefully examine the approach of Trusts to ensure this is being done in appropriate cases. In particular judges must make absolutely certain that parents with learning difficulties are not at risk of having their parental responsibilities terminated on the basis of evidence that would not hold up against normal parents. Their competences must not be judged against stricter criteria or harsher standards than other parents. Courts must be acutely aware of the distinction between direct and indirect discrimination and how this might be relevant to the treatment of parents with learning difficulties in care proceedings. In particular careful consideration must be given to the assessment phase by a Trust and in the application of the threshold test.

(5) Parents must be advised by social workers about their legal rights, where to obtain advice, how to find a solicitor and what help might be available to them once a decision has been taken to pursue a care application. Too narrow a focus must not be placed exclusively on the child’s welfare with an accompanying failure to address parents’ needs arising from their disability which might impact adversely on their parenting capacity. Parents with learning disabilities should be advised of the possibility of using an advocate during their case eg from the Trust itself or from Mencap and clear explanations and easy to understand information about the process and the roles of the different professionals involved must be disclosed to them periodically. Written information should be provided to such parents to enable them to consider these matters at leisure and with their advocate or advisers. Moreover Trusts should give careful consideration to providing child protection training to staff working in services for adults with learning disabilities. Similarly those in children’s services need training about adults with learning disabilities. In other words there is a strong case to be made for new guidelines to be drawn up for such services working together with a joint training programme. I endorse entirely the views of the Guardian ad Litem in this case when she responded to the “Finding the Right Support” paper by stating:

“As far as I am aware there are no ‘family teams’ in the Trusts designated to support parents with a learning disability. In my opinion this would be a positive development. The research also suggests that a learning disability specialist could be designated to work within family and childcare teams and a child protection specialist could be designated to work within learning disability teams. If such professionals were to be placed in the Trusts in Northern Ireland they could be involved in drawing up a protocol for joint working, developing guidelines, developing expertise in research, awareness of resources and stimulating positive practice. They could also assist in developing a province-wide forum that could build links between the Trusts, the voluntary sector and the national and international learning disability community.”

(6) The court must also take steps to ensure there are no barriers to justice within the process itself. Judges and magistrates must recognise that parents with learning disabilities need extra time with solicitors so that everything can be carefully explained to them. Advocates can play a vital role in supporting parents with learning difficulties particularly when they are involved in child protection or judicial processes. In the current case, the court periodically stopped (approximately after each hour), to allow the Mencap representative to explain to the parents what was happening and to ensure that an appropriate attention span was not being exceeded. The process necessarily has to be slowed down to give such parents a better chance to understand and participate. This approach should be echoed throughout the whole system including LAC reviews. All parts of the Family justice system should take care as to the language and vocabulary that is utilised. In this case I was concerned that some of the letters written by the Trust may not have been understood by these parents although it was clear to me that exhortations had been given to the parents to obtain the assistance of their solicitors (which in fact was done). In terms therefore the courts must be careful to ensure that the supposed inability of parents to change might itself be an artefact of professionals ineffectiveness in engaging with the parents in appropriate terms. Courts must not rush to judge, but must gather all the evidence within a reasonable time before making a determination. Steps must be taken to ensure that parents have a meaningful and informed access to reports, time to discuss the reports and an opportunity to put forward their own views. Not only should the hearing involve special measures, including a break in sessions, but it might also include permission that parents need not enter the court until they are required if they so wish. Moreover the judges should be scrupulous to ensure that an opportunity is given to parents with learning disabilities to indicate to the court that something is occurring which is beyond their comprehension and that measures must be taken to deal with that. Steps should also be taken throughout the process to ensure that parents with learning disabilities are not overwhelmed by unnecessarily large numbers of persons being present at meetings or hearings.

(7) Children of parents with learning difficulties often do not enter the child protection system as the result of abuse by their parents. More regularly the prevailing concerns centre on a perceived risk of neglect, both as the result of the parents’ intellectual impairments, and the impact of the social and economic deprivation commonly faced by adults with learning difficulties. It is in this context that a shift must be made from the old assumption that adults with learning difficulties could not parent to a process of questioning why appropriate levels of support are not provided to them so that they can parent successfully and why their children should often be taken into care. At its simplest, this means a court carefully inquiring as to what support is needed to enable parents to show whether or not they can become good enough parents rather than automatically assuming that they are destined to fail. The concept of “parenting with support” must move from the margins to the mainstream in court determinations.

(8) Courts must ensure that careful consideration is given to ensuring that any decision or judgment is fully explained to such parents. In this case I caused a copy of the judgment to be provided to the parties at least one day before I handed it down to facilitate it being explained in detail before the attendance at court where confusion and consternation could be caused by a lengthy judgment being read which the parents could not follow at the time.”

[I’m rather struck by the underlined words in paragraph 4 In particular judges must make absolutely certain that parents with learning difficulties are not at risk of having their parental responsibilities terminated on the basis of evidence that would not hold up against normal parents

Although threshold had already been established in this case when the original Care Orders were made, it does appear that the worst thing that happened to D whilst he lived with his parents before being removed and a plan of adoption approved was that there was an occasion when mother closed a kitchen drawer not knowing that D’s finger was in the way, giving him a swollen and no doubt quite painful finger. Hmmmm.

The Judge had this to say about that

First, the question of D’s physical safety. It is important both to keep this in perspective but at the same time also to understand the real focus of the local authority’s concerns. I start with two obvious but important points. The parents have never done nor, I am satisfied, would they ever dream of doing anything to harm D. And the fact is that, with the sole exception of the occasion when his finger was trapped in the drawer – something that could happen to any child in the care of the most attentive and careful if momentarily distracted parent – D has never suffered any physical harm while in their care. Moreover, the specific incidents to which the local authority understandably draws attention are none of them, viewed in isolation, anything particularly out of the normal; indeed, probably familiar, if we are honest about it, to any parent. On occasions, children do escape. On occasions they find things which may cause them injury if they fall over. On occasions they make more or less perilous journeys up or down potentially dangerous staircases. On occasions parents, in exasperation, throw things.*

I should add that I reject any suggestion that the parents have ever been other than caring and diligent in making sure that D receives appropriate medical treatment whenever the need arises. I accept the mother’s explanations as to why, and in my judgment quite reasonably, she took the view that D did not need medical attention after his finger was trapped in the drawer. Whatever she may have said to TG, and the words TG reports are capable of more than one meaning, I reject any suggestion that this was a deliberate attempt by the mother to cover up. She would, I am confident, always have put her child’s safety first. That is simply the kind of mother she is.

[*Expect to see Re D a child No 3 2016 turn up in responses to thresholds for all manner of similar issues over the next few months. This seems to be judicial authority for it being okay to throw things in exasperation and will no doubt be pleaded as such]

He does, however, say that the evidence was that the parents could not properly anticipate risks

So what is the real focus of the local authority’s concern in relation to safety? Looking to the various views expressed by A+bility (paragraph 52 above), by MB (paragraph 61), by TG (paragraphs 67-70), and by Ms Randall (paragraphs 78-79, 81), all of which are to much the same effect and point in the same direction, and which I have no hesitation in accepting, the problem is a group of difficulties the mother has: in anticipating possible risks (particularly if they are novel); knowing how to react quickly and effectively in the face of potential hazard; not always being able to anticipate or control D’s actions; not being able to transfer past experiences or training into practical precautions next time round (as TG put it, progress ‘in the moment’ tended not to be carried through over time); not being able to bring her theoretical awareness of risk to bear effectively when confronted with a live situation; and not being able to multitask in situations where she might be distracted from her focus on D. TG’s description (paragraph 67) of the contrast between the mother’s fluent explanations and her inability to translate this into practical terms is striking and illuminating, as indeed is the whole of TG’s evidence on the issue of danger.
In my judgment, these are very real and very worrying concerns. The cumulative weight of all the professional opinion on the point is compelling in identifying and evidencing just why the professionals are, and in my judgment rightly, so concerned. Not just for the here and now but also for the future, as D, who Ms Randall describes as a child with little sense of danger, becomes more challenging and finds himself exposed to new and different forms of danger.

Again, hmmm. In all the time that D lived with the parents (and remember, against a backdrop of the LA REDUCING the practical support to the family), this failure to anticpate risk led to just one injury, a pretty innocuous one. Have we really here ensured that:-

In particular judges must make absolutely certain that parents with learning difficulties are not at risk of having their parental responsibilities terminated on the basis of evidence that would not hold up against normal parents

And I have to ask myself, rhetorically, whether the Judge who decided Re A, would have countenanced within a threshold that a child’s finger was accidentally caught in a drawer that mother was closing IF THE MOTHER DID NOT HAVE LEARNING DIFFICULTIES and that was being used as evidence that her difficulties made her a poor parent?

11 Comments

Posted in adoption, assessment of risk, case law and tagged 2016 EWFC 1, can a parent meet the needs of this particular child, good enough parenting, learning difficulties, learning disabilities, president, president of the family division, re d a child no 3 2016, reparative care. Bookmark the permalink.

Re-e-wind, when the crowd say Bo Selecta!

Posted on August 7, 2015 by suesspiciousminds

(I had to go back and google to make sure I hadn’t used this before as a title – I had not, but I had hankered after it here

https://suesspiciousminds.com/2013/11/25/rearrange-these-three-letters-f-w-t/ )

This case is Re M, not Re E, but is a case where the Court made a decision to re-e-wind the care proceedings.

Re M (a child) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/71.html

The case was decided by the President of the Family Division, because it related to a failure of the Legal Aid Agency to provide public funding for the mother to be represented.

Here is the nub of it

M was born in December 2011. A skeletal survey in July 2012 revealed a fracture of her arm. The local authority commenced care proceedings the same month (DO12C00164). A finding of fact hearing took place in the County Court before His Honour Judge Bond in December 2012. His judgment is dated 3 January 2013. He found that the fracture was inflicted “by either the mother or the father, the other parent failing to protect M” but that “it is not possible to determine which of the two parents was responsible.” The care proceedings concluded on 15 November 2013 when Judge Bond made a 12 month supervision order and a special guardianship order in favour of one of the mother’s relatives.
On 11 July 2014 the mother made an application to the Family Court (BH14C00470) seeking “discharge of Supervision Order and Special Guardianship Order.” That concealed the true nature of the application. As set out in a skeleton argument dated 23 February 2015 prepared by her counsel, Ms Alison Grief QC, what the mother was seeking was a re-hearing of the finding of fact hearing because of what was said to be a breach of Article 6. Her case was that: i) New evidence demonstrated the full extent of the mother’s disability, rendering her a vulnerable adult.
ii) The fact finding hearing was conducted without this vital information.

iii) The integrity of the fact finding hearing was so significantly compromised as to amount to a breach of Article 6, thus necessitating a re-consideration.
The application came before Judge Bond on 24 February 2015. It was opposed by the local authority. His judgment is dated 26 February 2015. He explained that he was concerned only with Stage 1 of the three-stage process explained in Re ZZ and others [2014] EWFC 9 . He expressed his conclusion in this way:

“Article 6 provides an absolute right to a fair trial. That right cannot be diluted. The findings that the court made as to the mother’s reliability as a witness were central to the finding as to her possible role as a perpetrator of M’s injuries. In the light of the information which is now available it cannot now be said that the mother did receive a fair trial in December 2012.

I am therefore satisfied that she has provided solid grounds which satisfy Stage 1 of the Test.

I therefore give the mother leave to re-open the fact find.”

Judge Bond added that his decision “does not include any indication of the ultimate result of a re-hearing.”
Given the way in which Judge Bond expressed himself and, importantly, the basis upon which he decided to re-open matters – the fact that, as he found, the mother had not had a fair trial – it is quite clear that the effect of his judgment is, as it were, to rewind the care proceedings, by which I mean the original care proceedings, DO12C00164, back to the point at which the finding of fact hearing was taking place in December 2012. In other words, this is not a case in which the application to set aside the supervision order and the special guardianship order is founded on some subsequent change of circumstance. It is founded on the fact – now established to the satisfaction of the original trial judge – that the mother was denied a fair trial of the original proceedings. In other words, the matter now before Judge Bond is not application BH14C00470; it is the substantive proceedings in DO12C00164.

The Legal Aid Agency had treated mother’s application for public funding as being an application to discharge the SGO, which would not get legal aid, rather than an application to be represented in care proceedings, which would.

It rather irks me that nobody took the simple solution here, which is – the final orders made in November 2013 are discharged (on the basis that the hearing was not a fair trial), and declare that the original application for care proceedings issued in 2012 is now a live application. The Court could then go on to make either no order (if there is agreement that the child stay with grandparents whilst the matter is being determined) or an ICO (if there is no such agreement).

Of course, that is going to absolutely BATTER the Court statistics for that particular Court, since the care proceedings when they finally finish will have taken not 26 weeks, but something more like 150 weeks.

So the alternative is:-

Discharge the existing orders
Direct that the LA prepare a section 37 report (which in effect will be their initial statement in fresh care proceedings)
Make an ICO under the section 37 powers
LA apply for fresh care proceedings, on the basis that if they do not, the child will return to mother’s care

Either of those solutions mean that the substantive litigation will be done under care proceedings, and thus the legal aid is mandatory non-means, non-merits for the mother.

But anyway, given that the case was before the President, what could be done instead is the muscle-flexing don’t mess with the President approach

It may be that the Legal Aid Agency was given inadequate information as to the nature of the proceedings now before Judge Bond, but in my judgment, what is now before Judge Bond – which, to repeat, is the original care proceedings DO12C00164 – is plainly a “special Children Act 1989 case” in relation to which the mother is entitled to legal aid in accordance with paragraph 2 of the Regulations.
There is, therefore, no need for me to consider whether the mother is entitled to look to any other source of funding. It was common ground before me that the effect of the recent decision of the Court of Appeal in Re K and H (Children) [2015] EWCA Civ 543 , is to preclude the making of any order against Her Majesty’s Courts & Tribunals Service. Had the need arisen, Mr Tughan would have pressed for an order again the local authority, relying for this purpose on what I said in Re D (A Child) [2014] EWFC 39 , para 35. That, unsurprisingly, is an order that Mr Nother made clear his clients would resist.
I trust that the Legal Aid Agency will now be able to move with appropriate speed to ensure that the mother has legal aid for the next and subsequent hearings before Judge Bond.
I make the following order:

“Upon reading the judgment of His Honour Judge Bond dated 26 February 2015 and the orders subsequently made by Judge Bond

It is declared that (a) the effect of that judgment is to re-open the proceedings DO12C00164 under section 31 of the Children Act 1989 (b) future hearings before Judge Bond will be of the proceedings DO12C00164 and (c) the ongoing proceedings before Judge Bond are accordingly a “special Children Act 1989 case” within the meaning of paragraph 2 of The Civil Legal Aid (Merits Criteria) Regulations 2013, SI 2013/104.”

It is not at all clear to me how everyone in the original set of proceedings missed mother’s learning difficulties, thus leading to an unfair trial, but it happened. Perhaps the State shouldn’t now compound that injustice by failing to give her the free legal advice and representation that she’s entitled to.

6 Comments

Posted in case law, costs, fact finding and tagged learning difficulties, legal aid, president of the family division, public funding, re m a child 2015, sir james munby, the president. Bookmark the permalink.

Medway case part 2 – a lot of practice issues

Posted on June 3, 2015 by suesspiciousminds

Following on from the last blog – I don’t often split case discussions, but in this one I felt that the issues over the foster carer and recording was worth a piece on its own.

This piece now tackles some of the many practice issues raised by Medway Council v A 2015 http://www.bailii.org/ew/cases/EWFC/OJ/2015/B66.html

Let us start with our old friend section 20

6 On 6.8.14 the SW claims she contacted the Maternal Grandmother and Mr S to see if alternative arrangements could be made within the family to support them. Issues have been raised about her manner of doing so, and whether appropriate support was offered. I make no finding as it has not been possible to explore this fully, but I note that there were several meetings that took place on this date and the SW will have wanted that information beforehand and so may have sounded abrupt and left little time for matters to be considered.
7 By the end of that day the parents had signed a section 20 agreement which they and Mr S thought simply covered a two week period in a mother and baby foster placement. It is clear from the notes in the medical records, and the SW accepts, that the issue of Mother’s vulnerability was raised by Mrs Rose before Mother signed the section 20 agreement. The SW also accepted that in addition to the hospital’s concerns, Mr S and the Maternal Grandmother had confirmed that Mother had a learning difficulty. The SW accepted that it was not appropriate to have obtained Mother’s signature to an agreement under s20 in such circumstances where her cognitive abilities had been questioned by other professionals and no assessment had taken place. I also note that it was obtained prior to the strategy meeting taking place on 7.8.14.

We now know that the mother’s IQ was 54, making it extremely questionable that she had capacity to sign a section 20 agreement – certainly without it being really carefully explained to her. In any event, the parents understanding was that they were agreeing to a two week placement and the placement was actually intended to be for twelve weeks, breaking down after 40 days. This, once again is not a fair and proper use of section 20.

The guidance of Hedley J in Coventry City Council v C, B, CA and CH [2012] COPLR 658 is as follows, at paragraph 46: “i) every social worker obtaining consent to accommodation of a child from a parent (with parental responsibility) is under a personal duty to be satisfied that the person giving consent does not lack the required capacity; ii) the social worker must actively address the issue of capacity, take into account all the prevailing circumstances and must consider the questions raised by Mental Capacity Act 2005, section 3 and in particular the mother’s capacity to use and weigh all the relevant information; iii) if the social worker has doubts about capacity, no further attempt should be made to obtain consent on that occasion. Advice should be sought from the social work team leader or management.”
I acknowledge that the Father signed the section 20 agreement, but this is not good enough (cf s.20(7) Children Act). I have been appalled at the reliance placed by Medway on a section 20 agreement signed by the Mother. She was encouraged to sign it on 6.8.14 without any assessment of her learning difficulty or her capacity. This is wholly unacceptable when the SW knew from the hospital staff and family members that Mother had a learning difficulty and appeared to have problems with her understanding.
Medway should not have waited to rely on assessments prompted and undertaken by another agency. Given the anxieties expressed by Mrs Rose at the meetings on 6.8.14, I consider that a section 20 agreement should never have been pursued that day.
While I accept that subsequent assessments, by the Learning Disability nurse and by Dr Conning, have suggested that she has capacity, these should not vindicate this practice of relying on a section 20 agreement that was obtained beforehand. In any event I do not consider that an Learning Disability nurse’s assessment on the ward should have been relied upon in relation to the import of a section 20 agreement by which a parent agrees to major interferences with the family’s life. And I further note that Dr Conning’s assessment of the Mother’s capacity in October 2014 was couched in terms of having capacity in the context of her being supported by her legal team and her husband (also legally advised by then).
It is likely that the cognitive assessment appointment two weeks after the section 20 agreement was signed, on 21.8.14, followed from the Resource Panel’s concerns expressed at the meeting on 19.8.14, and there appears to have been no attempt by the SW or her team manager to arrange one before then. Although I acknowledge that efforts were then made to obtain a cognitive assessment of Mother on 21.8.14 and 2.9.14 that were not successful due to the Mother’s non-attendance, nonetheless it meant that the section 20 agreement that was extended on 3.9.14 was equally flawed.
Mr Crimes’ assessment was sent on 8.9.14. He assessed Mother as having a full IQ score of 54, and as he noted in the accompanying email to the SW this was about the lowest level of functioning he had ever assessed. This was not an assessment of her capacity but set out a grave picture of impairment of her ability to comprehend and make decisions about complex information. Mother was not then assessed as to her capacity until 10.10.14 which was within the care proceedings and with the benefit of legal advice and representation – an important difference. Given the information from Mr Crimes on 5.9.14, Medway should immediately have taken steps in early September and not continued to rely on a section 20 agreement obtained from a vulnerable new mother with this degree of learning disability.
Several difficulties arise for vulnerable adults in these circumstances. They are unlikely to want to appear to be difficult or obstructive and so they may well agree to section 20 arrangements that are not necessarily appropriate. Once they have agreed to such arrangements, and are in a mother and baby foster placement as in this case for example, there is a natural impetus to remain with the child and so be locked into a continued agreement to the arrangement. Most significantly, the use of section 20 agreements results in vulnerable adults coping with such circumstances without legal advice or representation.
This was compounded here by there being no referral to adult services and no input from social workers experienced in working with vulnerable adults and who are not focussing simply on child protection issues, but are able to bring their knowledge and experience to bear on the case.
Just over 40 days passed between the section 20 agreement and the issue of proceedings. It was in this period that the Mother was placed in an inappropriate placement, isolated from her family and increasingly deprived of the support of her husband, and moving towards the breakdown of the placement. I acknowledge that this is not the length of time experienced by the families in the recently reported cases of Re P (A child: Use of section 20) [2014] EWFC 775 and Northamptonshire and DS [2014] EWHC 199 (Fam), but the real significance is this: if it had been properly recognised that section 20 should not be used in these circumstances and proceedings had been issued at an earlier stage, it is likely that arguments about appropriate placements and assessments would have been raised by the parents’ legal representatives, and an inappropriate placement and lack of assessment and ultimately early separation of baby A from his parents may well have all been avoided.

Learning difficulties

We touched in the last piece on the failure to find a specialist placement for the mother, and as you can see from the passage above, no referral was made to Adult Services to get help for mother in her own right, though it must have been apparent that she needed it. There simply wasn’t proper thought given to what the mother’s difficulties meant in terms of how she should be supported, helped or treated

I have set out in Appendix A and B to this judgment respective links to the 2007 DoH Good Practice Guidance on working with parents with disabilities which is cited as a relevant resource in the 2015 Working Together Guidance, together with limited extracts from those documents (while of course recommending that these documents should be properly considered by those involved in this case in their entirety).
I also quote here from Mr Justice Baker’s analysis in Re X Y X (Minors) [2011] EWHC 402 (Fam):

“132. The last thirty years have seen a radical reappraisal of the way in which people with a learning disability are treated in society. It is now recognised that they need to be supported and enabled to lead their lives as full members of the community, free from discrimination and prejudice. This policy is right, not only for the individual, since it gives due respect to his or her personal autonomy and human rights, but also for society at large, since it is to the benefit of the whole community that all people are included and respected as equal members of society. One consequence of this change in attitudes has been a wider acceptance that people with learning disability may, in many cases, with assistance, be able to bring up children successfully. Another consequence has been the realisation that learning disability often goes undetected, with the result that persons with such disabilities are not afforded the help that they need to meet the challenges that modern life poses, particularly in certain areas of life, notably education, the workplace and the family. 133. To meet the particular difficulties encountered in identifying and helping those with a learning disability in the family, the government published in 2007 “Good Practice Guidance on Working with Parents with a Learning Disability”. In their closing submissions, Miss Ball and Miss Boye contended that such good practice guidance is required because there is little evidence of effective joint working between adult and children’s services and practitioners in each area rarely have a good working knowledge of the policy and legislative framework within which the other is working. They submitted that local authorities frequently do not take account of the fact that, if children are to be enabled to remain in their own families, a specialist approach to a parent with a learning disability is absolutely central to any work that is done, any protection which is offered and any hope of keeping the family together. The 2007 guidance points out, inter alia, that a specialised response is often required when working with families where the parent has a learning disability; that key features of good practice in working with parents with a learning disability include (a) accessible and clear information, (b) clear and co-ordinated referral and assessment procedures, (c) support designed to meet the parent’s needs and strengths, (d) long-term support where necessary, and (e) access to independent advocacy; that people may misunderstand or misinterpret what a professional is telling them so that it is important to check what someone understands, and to avoid blaming them for getting the wrong message; that adult and children’s services and health and social care should jointly agree local protocols for referrals, assessments and care pathways in order to respond appropriately and promptly to the needs of both parents and children; and that, if a referral is made to children’s services and then it becomes apparent that a parent has a learning disability, a referral should also be made to adult learning disability services. The guidance also stresses that close attention should be paid to the parent’s access needs, which may include putting written material into an accessible format, avoiding the use of jargon, taking more time to explain things, and being prepared to tell parents things more than once.”

And Wall LJ makes a relevant comments in P v. Nottingham City Council and the Official Solicitor [2008] EWCA Civ 462:

“175. It is, I think, inevitable that in its pre-proceedings work with a child’s family, the local authority will gain information about the capacity of the child’s parents. The critical question is what it does with that information, particularly in a case where the social workers form the view that the parent in question may have learning difficulties.’ 176. At this point, in many cases, the local authority will be working with the child’s parents in an attempt to keep the family together. In my judgment, the practical answer in these circumstances is likely to be that the parent in question should be referred to the local authority’s adult learning disability team (or its equivalent) for help and advice. If that team thinks that further investigations are required, it can undertake them: it should, moreover, have the necessary contacts and resources to commission a report so that as soon as the pre-proceedings letter is written, and proceedings are issued, the legal advisers for the parent can be in a position, with public funding, to address the question of a litigation friend. It is, I think, important that judgments on capacity are not made by the social workers from the child protection team.’

181. In the pre-proceedings phase local authorities should feel free to do whatever is necessary in social work terms to assist parents who may become protected parties. My view, however, is that this is best achieved by members of the adult learning disabilities team who do not have responsibility for the children concerned.”

It is clear that the purpose of the 2007 DoH Good Practice Guidance, namely to ensure that appropriate steps are taken to ensure services and training are in place to meet the needs of parents with disabilities, has yet to be met in Medway; and there appears to have been little if any awareness of the DoH Good Practice Guidance’s recommendations shown by Medway’s practice in this case.
In order to comply with their duties under s17 Children Act 1989 and in accordance with the good practice set out in the Guidance, this SW, her managers and this local authority should have:

Immediately made a referral to the adult services Learning Disability team and worked together with them to benefit from their advice, training, experience and resources;

Triggered an assessment of Mother’s abilities via the Learning Disability team;

Ensured the appointment of an adult care SW for Mother:

Identified and provided a specialist resource within a short period of time, in order to assess the Mother, and her and the family’s needs for support;

As soon as the parents expressed complaints about the placement, if not before, provided her with details of how to complain;

Investigated more fully the support options available from Father, friends and family.

Bundle-culling

The stipulations of Practice Direction 27A were followed in this case – care was taken to produce a bundle that did not exceed 350 pages in length. The problem is that despite that intention to comply with those stipulations, the culling exercise itself was problematic.

Thus at the outset of this hearing there were significant contested findings and the most serious of final orders sought against the parents. However, it became apparent that the preparation for such a hearing had been a mess, and there were a number of evidential and procedural issues that almost forced the adjournment of an entire final hearing that would have caused significant delay and extended further the separation of parents and child. I will discuss aspects of this case management as a separate final section of this judgment.
In short, it quickly emerged that the documents included in the 350 page PD27A compliant bundle prepared by Medway had been ‘culled’ (to use the term coined by counsel for Medway) from all the documents relating to the case. That cull had been undertaken unilaterally by Medway at the last minute and without agreement of the other parties, and they unsurprisingly considered it to be partial and incomplete. Last minute attempts were made by A’s advocate to prepare a more comprehensive bundle. Given the wide-ranging and serious counter-factual issues it was necessary to further expand the bundle during this hearing to include key missing documents. These have included the medical notes and social work case recordings for the key period of August to September 2014, but the bundle was also even missing the Mother’s statement and the Father’s first statement.
Additionally, the evidence has now included the statements and notes of the Safeguarding Midwife Mrs Rose and the Health Visitor Ms Gibson. These were directed by DJ Gill at the IRH held on 5.2.15 to be filed by Medway by 12.2.15 and they were named in the IRH order as witnesses to be heard at the final hearing, but their evidence and notes were still outstanding at the outset of this hearing (mid-April). I made peremptory directions to ensure, in A’s interests, that this evidence was available by day 3 of this hearing. Such directions were among those that should and could have been sought and made since the IRH but long prior to the final hearing. I was also obliged to direct that missing foster carer’s notes and social work recordings from the crucial period in August and September 2014 should be provided. I did not permit Medway to file a further statement by Ms Down, supervising SW from ISP (the agency providing the foster placement), as to what she had seen, heard or done regarding the foster placement. This application was made over a week after the final hearing had begun and on the morning that the foster carer was due to give evidence. Ms Down had not been one of the named witnesses in the IRH order, and I considered it was unfair for the local authority to be attempting to add further evidence and witnesses at this very late stage in the proceedings, and would risk an unnecessary and disproportionate adjournment.
I have read all the documents and evidence filed in this case and all the documents additionally prepared by the advocates (whom, I must add, have been of great assistance to the court in the challenging circumstances in which this final hearing came to court). I have heard evidence from Mrs Rose, Ms Gibson, Ms Anyimiah, Ms Barton, the foster carer Ms McG, Ms Stewart, the parents and the Children’s Guardian; and I have heard and read the parties’ submissions.

a) PD27A COMPLIANT BUNDLE – There is little point in Medway having created a bundle a few days before a final hearing by unilaterally selecting documents to fit the 350 page limit. Needless to say it was not considered fit for purpose by the other parties and I have already identified that it lacked crucial documents. This, and the various acts of non-compliance discussed elsewhere, betray an unacceptable failure by Medway to adequately prepare the case, to consider properly which documents would be required, to focus on the issues and the evidence, and to apply itself with care and a sense of the necessarily heavy responsibilities borne by applicant local authorities when applying for care and placement orders which have life-changing consequences for families.

b) In order to achieve a meaningful compliance with PD27A, the local authority should liaise with the other parties at an advocates’ meeting prior to the IRH to agree a provisional core bundle index. This will not only assist with the proper analysis of the issues and evidence in readiness for an IRH, and permit a proper resolution of issues at that hearing, but will also identify any further documents that may need to be the subject of an application to depart from PD27A and form a supplemental bundle, and which can be addressed and resolved at that IRH. I will be implementing directions to facilitate this approach at CMHs, but even absent such directions it is evident that a local authority applicant should be taking on this responsibility in any event.

That is the only way that the 350 page stipulation can actually work. However, that hinges on getting actual responses from the other advocates. If they have not yet read all of the source material and records, or are not going to be trial counsel, then there’s resistance to culling any document. I can see why – who wants to agree that “we don’t need the Health Visitor records” only to find later during exhaustive preparation that there’s something vital within them. And rather than argue that those particular records must go in, it is simpler just to not agree to any culling at all. Of course, if everyone came to an IRH having prepared their cross-examination and knowing all of the issues they would want to take up with witnesses at final hearing and what documents would assist, that would solve everything. But that’s not likely to happen. Preparation for an IRH IS different to preparation for a final hearing. For one thing, you’ve got all of the evidence, whereas all too often at IRH final statements from this or that party are still outstanding. For another, counsel preparing for a final hearing knows that they are actually going to be the ones asking the question, whereas at IRH the final hearing will be listed at the Court’s convenience and it will be pot-luck whether counsel at the IRH will be free to do the final hearing. [That’s a solveable problem by going back to the old system of listing a final hearing at the early stage of the case that everyone can work towards. That’s even more important given that we have to conclude cases by week 26, so only deciding to list a final hearing at week 20 is a recipe for disaster. Everyone bar HMCS thinks that is a good idea, but as HMCS don’t like it, it won’t happen]

10 Comments

Posted in section 20, welfare of the bundle and tagged 350 page bundles, adult services, cognitive assessment, Her Honour Judge Lazarus, judicial criticism about section 20, learning difficulties, learning disability, medway council v a 2015, misuse of section 20, parents with vulnerabilities, pd27a, practice direction 27A, section 20, section 20 Children Act 1989, welfare of the bundle. Bookmark the permalink.

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.

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.
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.
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:-

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.
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.
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

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.
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.
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.

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.
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.
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.
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.
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.
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

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.
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.

18 Comments

Posted in adoption, case law, social work and tagged allegations against foster carer, allegations of racial abuse, destruction of evidence, destruction of notes, foster carer, Her Honour Judge Lazarus, learning difficulties, learning disabilities, medway council v a 2015, mother and baby foster placement, parent with learning difficulties, racial abuse, tape recording. Bookmark the permalink.

suesspiciousminds

Tag Archives: learning difficulties

Important case regarding learning difficulties

Re-e-wind, when the crowd say Bo Selecta!

Medway case part 2 – a lot of practice issues

Follow Blog via Email

Nonsense, family law, sarcasm. Not always in equal proportions

Recent Posts

Follow me on Twitter

Archives

Top Posts & Pages

Categories

Blogroll