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Ellie Butler drawing together some strands and discussion

This post is a collaboration between myself, Lucy Reed of Pink Tape, Sarah Philimore of Child Protection Resource and Louise Tickle who is a freelance journalist – you have probably seen her pieces on family Justice in the Guardian.

 

You can also read it here

Ellie Butler – drawing together some strands and discussion

 

Several family lawyers have been discussing this case on Twitter, and it was suggested to us that it might be helpful to draw together a document with some important questions and our answers. We won’t necessarily agree on everything, but even our disagreements might help with the debate.

This post is a collaborative post to which a number of people have contributed. We would welcome others responses to the specific questions we’ve set – email info@transparencyproject.org.uk with your replies.

We are Lucy Reed (barrister and author of the Pink Tape website www.pinktape.co.uk)  Sarah Phillimore (barrister and author of the Child Protection Resource website – for a discussion of the principles the courts must apply when trying to find out in family cases how a child has been hurt, see this post), Andrew Pack  (local authority lawyer and author of the Suesspicious Minds website www.suesspiciousminds.com) and Louise Tickle, freelance journalist writing for the Guardian newspaper.

On the evidence that Hogg J heard at the time, what do we think about the finding that the father didn’t cause the shaking injury to Ellie?

Andrew Pack:

When I read the judgment about the shaking injury at the time, it looked to me like a solid and fair analysis of very complicated medical evidence. What causes that sort of head injury in infants is very complex and very controversial, and medical science is moving on all the time. Doctors in this field are talking about it all the time – a decade ago, the medical consensus was that these injuries could NEVER be caused by birth trauma and now we now that birth causes these bleeds on the brain (albeit to a lesser extent) in 50% of births. Reading the Court of Appeal decision in the criminal case, where the conviction was overturned, they highlighted some really unusual aspects about this particular case which would have given more doubt than is usual even in this very controversial field – Hogg J then had added to that the fresh medical evidence about the cyst, and whether that would have been a causing or contributory factor.  I think that the Court had the benefit of the best experts around, arguing both sides, and all of the evidence, and making the finding that the LA had not proved that it was more likely than not that father shook the child was the only safe one to make.  One might argue that the Judge did not give sufficient weight to father’s criminal history of violent behaviour and whether that might have tipped the balance if it was very finely balanced. Reading her analysis, I don’t think that she viewed the evidence as that finely balanced.  She was, on the evidence, confident that father had not done this.

Sarah Phillimore:

I agree with this. I don’t think the Judge can be faulted for how she treated this evidence.

Lucy Reed:

I also agree. The judge heard a large number of the most eminent experts in their respective fields, in some cases several from a single discipline – ophthalmologist, ENT, paediatrician, radiology, neuro-radiology, neuro-surgery…She also heard the evidence of the parents, which she took a particular view on – she thought the father convincing. The law is : if, having heard all the evidence, she was unpersuaded that it was more likely than not that the injuries were inflicted she should determine the infliction not proved – and exonerate the father of those acts.

What do we think about the exoneration speech and letter?

Andrew Pack:

As a matter of law, once the Judge has found that the LA didn’t prove their case about the shaking injury the legal finding is that father did NOT do it. Professionals working with the family would have been told of that legal finding and that the father could not be treated as a risk as a result of the head injury/shaking injury. The Judge clearly felt that father HAD been exonerated and that he had NOT caused the head injury, and her language reflected, I think, her view that the removal of Ellie and his imprisonment had been a miscarriage of justice. From the Serious Case Review, I think you can see that the strength of language that she used made professionals feel that they were being given the message of ‘back off’ and the parents felt that they were bullet-proof. That may have made professionals feel that when they were encountering behaviour that they found concerning they were powerless to act. I think it was a bit too strong at the time but not wildly out of order, and of course with the benefit of hindsight, it was far too strong and could have been couched more carefully – that there were other residual issues about the father that still presented a risk.

Sarah Phillimore:

This is the issue that troubles me. Yes, if there was no evidence that he caused the injuries in 2007 on either the civil or the criminal standard of proof, then as a matter of fact, no one could say that he did. But this was a man with – as I understand it – a clearly documented history of violence, who had served a three year prison term? ( I think – I have not been able to re-read the 2012 judgment as I understand it was removed from publication on line and has not been returned.). I do not know how that history was presented or what weight the Judge put on it. But, in the light of that history, and that the LA were clearly justified in being worried about the initial injuries caused to Ellie when she was a baby, I do not understand why the Judge thought it was appropriate to remove the LA from further oversight of this case and require that a letter setting out Butler’s ‘exoneration’ was sent to other agencies. The Judge found he had NOT hurt Ellie when she was a baby. She did not make findings about his propensity for violence and his criminal history. It may not have been appropriate to do that, particularly if the LA had not relied on these issues to prove their case. BUT. They were clearly part of the background and should, in my view, have given pause for thought before going down any route of widely publicised ‘exoneration’.

This issue also brings into focus some more general concerns about the standard of proof in care proceedings being the ‘balance of probabilities’. I appreciate the arguments that it is not always compatible with the need to protect children, if we insist on proof beyond a reasonable doubt. However, my concerns arise about the subsequent status achieved by a ‘finding of fact’ on the balance of probabilities. The courts are clear that a binary system operates; something is true or it is not. Therefore a finding of fact against a parent can determine the whole course of the proceedings. Parents are required to ‘accept’ the findings with little time for reflection, or risk the LA – and the court – ruling them out entirely as lacking ‘insight’. On serious and life changing matters, I do not feel comfortable with ‘truth’ being established as 51% more likely than not. As the Judge was operating in Butler’s case on the ‘balance of probabilities’ this also should have given some pause for reflection before being keen to ‘exonerate’ him and establish him as an entirely safe and responsible parent.

Lucy Reed:

There is a question as to how the exoneration letter came to be drafted and how it came to be expressed more broadly than the judgment itself. I’ve raised this in my blog post on Pink Tape here. The main issue for me though is the interpretation / response to the exoneration. Ben Butler was exonerated of the physical injuries. The LA elected not to appeal or to argue that he was culpable in any other way. The suggestion in the SCR is that professionals were paralysed by the exoneration. Some time passed before the LA conceded the balance of the threshold, and decided not to pursue findings on any broader threshold risks – from the judgment it is easy to infer that the LA took the reasonable view that to pursue such findings would have served no purpose, partly because the subsequent assessment of the parents was positive and this made it unlikely that the judge would find the threshold crossed on the basis of behaviours that on one view were attributable to the parents being wrongly accused and unlikely (based on the assessment) to endure. The more I consider this point the more I think it would be very illuminating to see the assessment report itself.

I don’t fully understand why, after proceedings had concluded and Ellie returned home, the exoneration should have made professionals feel like the couldn’t / shouldn’t pursue matters of concern. In any event, it appears (based on the SCR) that that subsequent events and information were assessed as not being sufficient to cross the threshold to move into child protection / proceedings, so I’d query what ongoing impact the exoneration had.

Louise Tickle:

I agree with Sarah on this. The psychological impact on on professionals working with Ellie of that letter could not have been anything but one of profound reluctance and fear of stepping in, and being torn to shreds by their own managers and in court if Butler and Gray had protested – which of course they would have done, and I believe in the case of the school raising concerns, did. This was a very senior judge, the LA had fought very hard, and lost. Where, really, were they to go at that point, without fresh evidence of harm reaching a high threshold – and how were they to be able to make assessments given total lack of access, and fear of what would be forthcoming if they were to seek such access?

Were the other issues that could have amounted to threshold properly dealt with, or did the non finding on shaking dominate?

Andrew Pack:

I think this really is the million dollar question. In the first fact finding hearing before Hogg J, the case was all about the head injury, and all of the evidence called and 95% of the documents looked at would have been about that. Having failed to prove that, there was of course still the convictions for violence to consider. Those offences were not against children, so they would not automatically mean that father would have posed a risk to a child, but it was material which needed to be considered in detail in an assessment and could have satisfied threshold.  That, coupled with the child’s presentation around father and the grandparents evidence COULD, have led to a decision that despite the finding on the head injury, Ellie wasn’t going to be moved from grandparents.  I would like to see the threshold document with the findings sought, and to have more clarity about which ones the Judge was specifically asked to make findings on and heard evidence about, and which were simply not put to her as a result of her very clear finding on the head injury and the direction of travel.

Sarah Phillimore:

I agree with this. If this was presented as a ‘single issue’ case – i.e. did he hurt Ellie as a baby, that would seem – with hindsight – to be a mistake. But of course, Judges can only decide the cases before them.

Lucy Reed:

The press coverage at the time focused heavily on the physical injuries but other matters of concern were known about and before the court, but were not the subject of findings. It is arguable that the other matters could have potentially amounted to threshold but the fact and force of the exoneration may have affected decision making about whether it was going to be a good idea to pursue them. The critical question is whether the other matters were presented and pursued and if not why not – and whether any thought was given to reframing threshold after the exoneration. Following the ISW assessment the balance of threshold was crossed. Although we don’t have the threshold document itself it appears from the judgments that the fact of the fathers convictions was not pleaded as a threshold risk in itself. The question of suspected domestic violence / control in the parents relationship was raised and evidence was heard – but the judge made no ruling on this evidence and adjourned off for further assessment. By the time the matter returned to court the LA were not pursuing findings and nobody seems to have asked the judge to record or make findings in respect of this evidence. The first judgment records that evidence was heard but does not record its extent or cogency. It is reasonable to assume that if the evidence was compelling and of high concern this would not have been dropped and would have been the subject of judicial comment or findings. But we don’t actually know.

Was the decision to have Independent Social Workers (ISWs) deal with not just the assessment of whether Ellie should move from her grandparents but the actual social work of the move unusual, and did this make a difference?

Andrew Pack:

The Judge was clearly taking into account that during the earlier hearing, the parents had been substantially criticised by the Local Authority for not accepting that father had injured Ellie and the working relationship was very strained. Having made the finding that father was exonerated, it was put to her, and she agreed, that any assessment by the Council would be ‘doomed to failure’.  That’s strong, but I think it wasn’t unreasonable to ask for the assessment as to whether Ellie should go home to be done by Independent Social Workers. What is much harder to understand is why those ISWs were also charged with doing all of the direct social work with grandparents, Ellie and parents, to prepare Ellie for the move and do the social work visits. The Serious Case Review shows that that agency were not given clear background information and essentially just had the judgment exonerating father – was it clear enough to them that this man had a history of violent offending? Might that have made them more concerned about the visits where they now report that he had been angry and unable to calm down for 10-15 minutes for some of these visits? Or, in the absence of knowing about his convictions for violence, did they assume that this was justifiable frustration about the process from a man who on that judgment had lost his child and been wrongly sent to prison and was still not reunited with his child?  I think that consideration should have been given to a fresh social work team within London Borough of Sutton doing the social work (ISW to do the assessment is fine) or if that wasn’t possible, perhaps a neighbouring authority.  ISW assessment work and direct social work with a family are very different. I think that the Judge got that wrong. At the time, I’d score that decision a 4 out of 10 (it was unusual and a bit strange at the time) and obviously in retrospect it was a major factor to the Court not having the proper evidence about Ellie after the fact finding judgment.

Lucy Reed:

I agree with Andrew. There is a big difference between an independent social work assessment and an independent agency taking over social work responsibility. I’m not sure whether the court intended them to perform this broader role or whether this got mixed up in the process of instruction or at some later stage – perhaps the LA / professionals took the view that they were being ousted for all purposes. It’s unclear whether the ISWs considered themselves to hold this broader responsibility (I’d say doubtful). It’s concerning to learn that over this period the Guardian was off sick and no cover provided. This may well have had a significant impact on the way in which the assessment was carried out and monitored.

Why did grandparents have to pay £70k for legal costs, can anything be done?

Andrew Pack:

The grandparents had parental responsibility by virtue of the Special Guardianship Order, so if these had been care proceedings (the Local Authority wanting to take Ellie away from them) they would have had free legal representation. Because instead this started as a rehearing of a fact finding, and then proceedings primarily regarding a younger sibling not cared for by the grandparents, the grandparents didn’t get legal aid, had to pay their own costs and eventually ran out of money. Grandparents representing themselves, up against two of the best family law Silks around, and a Judge who was viewing Ellie’s case as a miscarriage of justice to be put right – it certainly wasn’t a level playing field. I would strenuously argue for reform of the law here – these grandparents had been caring for Ellie for a long time and doing it well, and if they were to lose her against their will and what their eyes and ears were telling them was right, then they should have had lawyers to fight the case.  A starting point would be for the Ministry of Justice to write the grandfather a cheque for the full amount of his costs – it is bad enough that he lost Ellie, he shouldn’t have lost his life savings too.

Sarah Phillimore:

I agree with this. Ellie had lived with them since she was a very small baby. It is simply wrong in a civilised society that they were left in this position. It wasn’t a level playing field.

Lucy Reed:

This is a problem for grandparents AND parents – even where a parent or other adult has care of a child, public funding is means and merits tested for anything other than the main care proceedings. So, applications to discharge care or placement orders, to appeal or to apply to revoke placement orders or oppose adoption orders, standalone applications about special guardianship or any other private law application – no matter how complex – are means and merits tested. The threshold to be ruled out on means grounds is low so it is easy to be ineligible whilst still being unable to pay.

Judicial accountability and unwillingness to participate in the serious case review (SCR).

Andrew Pack:

I don’t think that the judiciary should routinely participate in Serious Case Reviews. Judicial independence is very important, and the way that SCR’s are conducted, with all parties being very honest about what happened, what could have happened differently, what lessons can be learned, don’t sit entirely comfortably with the judicial role, and the need for them to be independent and to NOT be a part of the professional agencies charged with child protection. However, in a case like this, where the child dies in a placement that the Court have not only sanctioned, but sanctioned in the teeth of opposition from grandparents and social workers, I think that it was unwise for the Judge not to at the very least have spoken with the authors of the Serious Case Review. There needs to be some mechanism for the most exceptional cases of this kind. Likewise, the family judiciary knew of this case 2 years before the verdict – yet the Judge was still given difficult family cases to decide, and they had no press statement or comment. It gives the distinct impression that the judiciary aren’t scrutinising this decision and accepting any part in this tragedy, and that’s a bad impression to give to the Press and public.

Sarah Phillimore:

I agree with this.

Lucy Reed:

On a human level it would be immensely helpful to hear the judge’s view in hindsight, and an explanation of what was going through her mind. But I agree that there are sound constitutional reasons why that should not happen. It’s really important that a judgment is an authoritative and final explanation of a decision or a set of findings. That’s an important protection for adults and children and I think that if alongside a judgment there is a public rumination about what might have been wrong about a judgment then the judgment loses its specialness and the authority of the court is lost. I think it’s right that where a judgment is wrong it can be appealed, and where material new evidence arises a finding can be revisited. That happened in this case when new medical evidence pointed towards a miscarriage of justice against Ben Butler, and of course with hindsight many people are now reappraising the exoneration finding.

For me though the corollary of saying that a judge should not participate in an SCR is that there must be meaningful transparency in terms of the judgments and process. We don’t have that in this case because the judgments have been pulled and the public can’t appraise the judgments or case documents against the SCR. Having seen some of the judgments in this case it seems to me that there is some tension between some of the accounts given and views expressed in the SCR and in media reports and the content of the judgments themselves. I think that constitutionally the public need to have access to this material.

Louise Tickle:

I don’t agree with this. I cannot see why the judiciary should have zero accountability when every other actor in the case has had to answer for their decision making and judgement calls. I think, in response to Lucy’s point, that the authority of the court is only as good as the public’s confidence in it. I do not think public confidence in the judiciary has been increased by this case, but worse, I think it has been even further damaged by the position taken by the President that a judge simply will not enter into the processes of examination as to why she acted in ways that went, in some people’s view, far further than was required, on a standard of proof that can be hardly said to truly exonerate anyone. Particularly anyone with the previous, safe, criminal convictions for violence that Ben Butler had. Overall, I cannot see why any part of our society’s agencies should be above questioning and scrutiny. A child has died. The ‘specialness’ of the judiciary is an irrelevance and an abuse of privilege in this extreme circumstance, if there is something to be learnt by other judges and indeed the rest of us. It is not about demanding heads on plates – it about Hogg’s thought processes and levels of risk aversion and judgement relating to facts and evidence she was appraising that could, if it were to be known, be reflected upon, considered, discussed and learned from. We do not get better understanding of failures by refusing to look at what let up to them. And judges have vast powers. The more power you have, the more accountable you should be when something very terrible goes wrong.

What pieces of information are we still lacking? Should for example suitably anonymised medical reports be in the public domain so press and public can see how complex and difficult the medical evidence is?

Andrew Pack:

I think we need the judgments available to the public and put in one easily accessible place – the Court of Appeal criminal judgment, the fact finding judgment from Hogg J, the second judgment from Hogg J where she decided that Ellie would live with Jennie and  Ben, and very vitally the judgments from King J about Ellie’s sibling after Ellie had died. At the moment, we don’t know whether King J reconsidered Hogg J’s exoneration at all, or whether it proceeded just on the evidence about Ellie’s death. Nor do we know what the outcome was for Ellie’s sibling– of course we shouldn’t have name or details of the sibling’s address, but I think there’s public interest in whether the child was placed with the grandparents and if not why that was decided. I think that unusually in this case, there is justification for the entire court bundle to be available to be seen. Obviously one has to be careful about any photographs and we don’t want prurient rubber-necking, but there is such public unhappiness about this decision that seeing the medical reports would, I think be justified.

Sarah Phillimore:

I agree with this.

Lucy Reed:

I agree also. I would in particular like to see skeleton arguments or written opening / submissions presented to the court at the rehearing, threshold documents filed at particular times, position statements and orders.

Poppi Worthington – the long-awaited judgment

Poppi was a little girl, aged 13 months, who died in December 2012.

 

Within care proceedings relating to Poppi’s siblings, a finding of fact hearing took place as to what caused her death and whether it meant any risk for those siblings. That took place in March 2014 and has not been published until this week. An inquest also took place and the Coroner described her death as “unusual and strange”.  Part of the reporting of the inquest discussed the existence of the finding of fact hearing and in particular that the Guardian in the case had prepared a schedule of professional failings.

 

Of course the Press and public would be very interested in those failings, and if there are lessons to be learned, one would want to learn from them.

The police decided in March 2015 not to charge the father with any criminal offences as a result of Poppi’s death (it taking 2 1/2 years to get that decision) and as a result, the father sought to overturn the finding of fact hearing.

The Judge therefore decided that whilst allowing a re-hearing of the finding of fact hearing, it would be potentially prejudicial to publish the results of the March 2014 hearing and have the Press comment on it. A decision was made that part of it would be published in the Winter of 2015.

 

(All of that is discussed here)

 

https://suesspiciousminds.com/2015/04/27/poppi-worthington/

 

And the (heavily redacted) fact finding judgment is now published

 

Cumbria County Council v M and F 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4886.html

 

The redactions really remove any scope for discussion of what happened to Poppi and why the father came under suspicion and what conclusions were made in March.  But it does outline the professional failing identified by the Guardian and endorsed by the Court.

 

What there ISN’T, at least within the published judgment, is any evidence or claim that social workers had failed to protect Poppi before her death or should have seen it coming. The criticisms are instead about the failings of various agencies to properly investigate it and whether the siblings had not been properly protected. Still very important, but at this stage, there’s nothing within the judgment that suggests that Poppi is another Baby P or Daniel Pelka (where professionals ought to have foreseen the risk to her and failed to act to keep her safe).   Until P’s death, none of the other children was subject to statutory intervention by the local authority and the mother cared for them all satisfactorily. There were no concerns reported by health, education or social agencies. 

 

What were the professional failings afterwards though?

 

  • 85. The observations below are made in the context of these good practice protocols and regulations, which appear to have had no effect in this case:

    The national multi-agency protocol: Sudden Unexpected Death in Infancy (SUDI), known as ‘the Kennedy Protocol’. This provides a framework for the collaborative investigation of all unexpected deaths in infants and children up to the age of 2 years. The emphasis is on finding the cause of an infant’s death, incorporating both medical and forensic investigation. Responsibility for oversight of the operation of the protocol rests with the Local Safeguarding Children Board.

    • Cumbria LSCB’s own complementary protocol at the time of P’s death: Sudden and Unexpected Deaths in Children and Young Persons. This guidance, since updated, applied to the sudden and unexpected death of a child under the age of 18 years.
  • The Local Safeguarding Children Boards Regulations 2006, which set out the criteria for holding serious case reviews.
  • 86.Cumbria Constabulary
  • It can come as no surprise that, well over a year since the death of this child, no decision has been taken about a criminal prosecution. As a result of the police view that Dr Armour may have jumped to conclusions, a decision was then taken by senior officers not to investigate until her report was received. Due to the extreme delay in that process, there was no real investigation into P’s death for nine months. Such minimal investigation as thereafter took place was inevitably affected by the delay and by actions not taken at an earlier stage. Instances may include:
    • Items at hospital not preserved for forensic analysis: ambulance sheet, paramedic’s gloves, hospital stretcher sheet.
    • Items at home not preserved for forensic analysis: P’s pillow, her clothing (pyjama bottoms if any), the parents’ sheet, any possibly penetrative item, the father’s computer.
    • Scene not secured: loss of P’s last nappy despite the presence of police officers.
    • Decision by DI S and DCI F not to visit the home, despite it being nearby. According to the national protocol, a senior officer should immediately attend the home to take charge of the investigation and ensure that evidence is intelligently preserved.
    • No reconstruction with the parents at home, so that their accounts could be understood and investigations focused.
    • No forensic medical examination at the time of death. Swabs were not taken until post-mortem. Under the Cumbria protocol, police are entitled to take anal swabs automatically. Delay in taking swabs may prejudice the forensic analysis.
    • No engagement of a paediatrician with specialist knowledge of investigating sexual abuse, in order for there to be a physical examination of the child, a viewing of the home and a report for the pathologist.
    • Dr Armour’s initial views were not clearly passed on to the local authority for safeguarding purposes.
    • The parents were not interviewed formally until August 2013.
    • No analysis of either parent’s mobile telephone or Facebook accounts.
  • Samples were not sent for analysis until after receipt of Dr Armour’s report. For example, the swabs from the father’s penis, taken on 12 December 2012, were not sent for analysis until 2 August 2013.
  • No statements taken from any witnesses (paramedics, nurses, doctors, family members) until September 2013, at which point three statements were taken (from the ambulance crew and from Dr B).
  1. Many of these matters were canvassed during the evidence of DI S, who led the enquiry at the outset, and she was driven with evident reluctance to accept a number of failings in the inquiry. Evidence was not taken from DCI F, the senior officer with overall responsibility for the investigation. He may therefore have further information to provide.Cumbria County Council
  2. Given the history, it can likewise come as no surprise that, well over a year after P’s death, the family still awaits a decision about the future of the other children.
    1. At the outset of the proceedings, the local authority was directed to file a statement explaining its actions. This led to a full account from the Assistant Director of Children’s Services. In it, she accepts that
    • Legal advice should have been taken at the outset, and certainly before the family returned home. In fact, the first time that legal advice was taken in this troubling and extremely serious case was on 30 August 2013. Even this was reactive (to the parents’ arrest) and even then there was no decision to issue proceedings for another eight weeks.
  • Proceedings should have been initiated as soon as it became clear that P had suffered injury prior to her death. Had that happened, the court would have been able to get a grip on the matter and ensure that proper investigations were carried out much nearer to the time of P’s death. The local authority shares responsibility with the police for the fact that this did not happen.
  • Even when legal advice was given on 23 September that care proceedings should be issued, a decision of the Legal and Placement Panel two days later rejected this advice. Another month passed before proceedings were issued in reaction to the mother’s rejection of supervision.
  1. I would add that the children should have immediately been medically examined and that in S’s case, a skeletal survey should have been performed. Furthermore, the local authority’s expectation that the mother should supervise the father in relation to this number of children was in my view wholly unrealistic, not to say unfair to her.
  2. In the result, the children were returned home without any effective child protection measures being taken. Fortunately there is no evidence of them suffering harm in the ten month period before they were removed from the parents’ care. The Coronial investigation
  3. It is not clear, and I have not asked, how HM Coroner proceeded in this matter. Concern has rightly been raised about the gross delay in production of the pathology reports. Cumbria’s protocol expects that within 48 hours of the post-mortem, the pathologist will provide preliminary findings to the Coroner. In this case, Dr Armour said that she wanted to have every piece of information before she committed herself. In particular, she was awaiting the results of routine histology on the leg bones. She did not accept the suggestion that the delay was unacceptable. Bearing in mind the interests of the surviving children, that was not a practical approach, though she was not to know that the consequence of her silence was that no other investigation was taking place.
  4. I have no information about the decision of the coroner to release for burial the body of a child who died in unexplained and possibly suspicious circumstances when a pathology report had not been received, a decision precluding the possibility of a second post-mortem. The NHS Trust
  5. In the light of the expert evidence, and having heard from the paramedics, doctors and nurses who were present on 12 December, it is apparent that they did everything they possibly could to resuscitate P. It is sadly likely that by the time she came into their hands she had already died.
  6. Unfortunately, Dr B, the locum paediatrician, had only been employed at the hospital for less than three weeks. He was not aware of either the national or local protocols for infant deaths. He was therefore unable to lead the forensic medical investigation in an appropriate manner.
  7. Neither Dr B nor, more pertinently, Dr W, completed the workbook provided as part of the Cumbria protocol. This would have ensured a methodical examination at the time of death and the timely taking of swabs.The Local Safeguarding Children Board
  8. Regulation 5 of the Local Safeguarding Children Boards Regulations 2006 sets out the functions of LSCBs. This includes the requirement to undertake reviews of serious cases in specified circumstances. Regulation 5 provides that a review must be held where abuse or neglect of a child is known or suspected and the child has died. This is mandatory: see page 66 of the statutory guidance in “Working together to safeguard children” (March 2013). Moreover, a review may be held even when the mandatory requirement does not apply.
  9. A sub-group of the Cumbria Local Safeguarding Children Board met on 4 February 2014. The meeting took place at police headquarters and was attended by six persons. The minutes show that DCI F, the principal investigating officer, played a prominent part, although he invited another member to lead the discussion. The conclusion was that the criteria for a serious case review were not met, although the matter would be reviewed in six months following the outcome of the family proceedings and any criminal proceedings.
  10. It will certainly be appropriate for the conclusion of the subgroup of the LSCB to be independently reviewed as it would appear to conflict with the regulations. Collective responsibility
  11. While I reach no conclusions, consideration by others of the above matters may lead to the view that P’s death did not receive the professional response to which she and her family were entitled.

 

 

The re-hearing has either just finished or is currently before the Court. With that in mind, no speculation please about what might have happened to Poppi or who may have been responsible if anyone.  The Court will reach and publish those conclusions and the Court is in possession of all of the facts, whereas we only have a sliver of them.

Serious case review – can a failure to call one be judicially reviewed?

 

In this case, Deeqa Mohammed v Local Safeguarding Children’s Board of Islington 2014   , the mother of a child, Nawaal Mohammed sought to judicially review the decision of Islington’s Local Safeguarding Children’s Board NOT to hold a Serious Case Review, following Nawaal’s tragic death at the age of 7 years and 4 months.

 

http://www.bailii.org/ew/cases/EWHC/Admin/2014/3966.html

 

[In this post, contrary to my usual practice – the underlining here is all to show the Court’s emphasis rather than my own]

 

Nawaal had fallen from the window of her home on the 11th storey of a block of flats.

 

The mother was claiming that this death had been as a result of neglect and mistakes by professionals and that the Regulation governing Serious Case Reviews when talking of ‘abuse or neglect’ should cover neglect and abuse by professionals as well as the child’s carers.

 

Reg 5 1(e) of the LSCB Regs 2006, setting out the functions of the LSCB

 

1(e) undertaking reviews of serious cases and advising the authority and their Board partners on lessons to be learned. .

 

And

 

Reg 5(2) For the purposes of paragraph (1)(e) a serious case is one where—

(a)abuse or neglect of a child is known or suspected; and .

(b)either— .

(i)the child has died; or .

(ii)the child has been seriously harmed and there is cause for concern as to the way in which the authority, their Board partners or other relevant persons have worked together to safeguard the child.

 

 

 

 

The importance of this is that if either of those criteria is met, the LSCB MUST hold a Serious Case Review – they have discretion about other cases, but in that type of case they HAVE to hold the Serious Case Review.

 

 

 

At the outset of the hearing, leading counsel for the Claimant, Mr Ian Wise QC, indicated that the Claimant wished to amend/refine her claim to substitute for the mandatory order (see [2] above) a declaratory order in these terms:

 

“a declaration that known or suspected abuse or neglect of a child in Regulation 5(2)(a) of the Local Safeguarding Children Board’s Regulations 2006 includes known or suspected abuse or neglect on the part of a public body”.

This re-formulation of the claim had been presaged in the original grounds of the claim (per §2(ii) of the Claimant’s Grounds) viz:

 

“Clarification of the law is necessary to ensure that failings including neglect of children on the part of public bodies give rise to a duty to instigate serious case reviews where the child dies or is seriously harmed and there is concern at the way the relevant agencies have worked to safeguard the child.” (my emphasis)

In essence, the Claimant wished to contend that the London Borough of Islington – either through its children’s services, its disabilities’ services and/or housing department – had been responsible for actual or suspected ‘neglect’ of Nawaal. In the circumstances, it was to be argued, the LSCB was required to commission an SCR.

 

 

The family had been known to Social Services and other professionals, who had been visiting – in part due to Nawaal’s challenging behaviour on the autistic spectrum, and the ‘smoking gun’ is probably this line from a social worker’s recording of a visit.

 

 

On numerous occasions in the period between 2010 and 2013, it appears that LB Islington was advised of Nawaal’s lack of safety awareness, her unpredictability, her craving for being outside and for climbing and exploring, and her challenging behaviour. In February 2013, the Claimant’s solicitors threatened LB Islington with judicial review proceedings for its failure to carry out a proper needs assessment for the purposes of her housing application. The various communications from the interested agencies (or at least some of them) are detailed in the Grounds of Claim; I have read those, together with the Claimant’s statement, with care although it is unnecessary for me to rehearse the contents more fully here. It suffices for me to reproduce a communication written by LB Islington on 25 March 2013, in which it was said that:

 

“Nawaal has no awareness of danger and enjoys climbing and jumping… if the window is open just a crack she will try and get out through it regardless of where it is … the longer Nawaal is inside the more frustrated she gets … she has no awareness of danger and enjoys climbing… This is a situation that is far too dangerous to continue this way. It is not a case of if Nawaal will fall but a case of when.” (emphasis added)

 

 

 

As the Judge said, this appalling prophecy sadly came true three months later.

 

The agencies looked at this, and considered whether to hold a Serious Case Review, but in effect decided that the death had not occurred as a result of violence, abuse or neglect. [Note here what the Coroner is reported to have said at the inquest]

 

Following Nawaal’s death, the Defendant arranged and held ‘Rapid Response’ meetings (28 June 2013 and 28 July 2013) to evaluate the circumstances of this tragic event, and in order to establish if there were (and if so what) lessons to be learned. A Multi Agency Management Review was convened, which ultimately reported on 22 February 2014.

 

On 4 September 2013, Dr. Tony Wheeler, a community paediatrician and Chair of the ‘Rapid Response’ meetings (as designated doctor for child death and safeguarding, with responsibility for reviewing services provided for all children in the area of the Defendant who have died), wrote to the Claimant attaching his report for the Coroner; in that report it was said that:

 

“The issues identified were focused on housing, and abuse and neglect were not identified as factors in Nawaal’s care or death. The consensus at both Rapid Response Meetings was that the requirements for a serious case review were not met.” (emphasis added)

 

In this regard, the reference in the report to the absence of ‘abuse and neglect’ plainly, it seems to me, referred to the provision and quality of parental care. Dr. Wheeler’s report concludes by indicating that ongoing consideration of the case would pass to the Islington Child Death Overview Panel (CDOP). Later (December 2013) Dr. Wheeler indicated that the CDOP would not review the case further until the post mortem results were obtained.

 

An inquest into Nawaal’s death had been opened; this process concluded in February 2014, with the Coroner finding (so I am advised) that “the fall was foreseen by various organisations working with the family who had been communicating concerns to the council since May 2010”. The verdict was one of accidental death.

 

 

The mother invited the LSCB to reconsider and to hold a Serious Case Review and when those discussions did not bear fruit *, issued her claim for judicial review.

 

 

(*actually, it’s a bit more complicated than that – after the claim was issued, the LSCB did agree to hold the Serious Case Review, but Ms Mohammed and those advising her felt that there was a broader issue of principle here and that it would benefit other families to have the Court give a declaration that in a case where it is alleged or suspected that neglect by professionals was a contributory factor, a Serious Case Review ought to be convened. NPIE in the paragraphs below is the National Panel of Independent Experts, a body from whom the LSCB sought advice)

 

The NPIE was duly instructed on 29 July 2014 by Alan Caton, the Defendant’s independent chair. The Defendant invited the Claimant to withdraw the claim, but she declined to do so. The hearing of the Claimant’s renewed oral application for permission to apply for Judicial Review was scheduled for 12 August 2014; this hearing was vacated by Nicola Davies J. when it transpired that the NPIE was to meet on the preceding day. In acceding to the application to adjourn, Nicola Davies J directed that:

 

“Within 14 days of being notified of the view of the Independent Panel of Experts … the Claimant shall notify the Court whether she wishes to proceed with the claim; if so the permission application to be listed as soon as possible thereafter”.

On 18 August 2014 the NPIE wrote to the Defendant in these terms:

 

“Following very careful consideration of the information provided at their meeting on 11 August, the Panel are strongly of the view that there is clear evidence of Islington LBC’s failure to protect the safety and wellbeing of child Nawaal. However, on the specific issue of whether an SCR is required, they concluded that in the apparent absence of relevant case law, or an explicit policy direction from the Department for Education as to whether a body such as a local authority can be guilty of neglect within the remit of Regulation 5(2)(a) of the LSCB’s Regulations (2006) as set out in Working Together 2013, it is not possible for the Panel to be definitive as to whether the criteria for an SCR are met. The Panel take the view that the particular issues raised by this case are more appropriately addressed either with a determination in the courts or by a clear policy directive from the Department for Education.” (emphasis added).

 

That advice was provided to the Claimant on 26 August 2014 by e-mail. On the following day, 27 August 2014, the Defendant’s solicitor wrote further to the Claimant’s solicitors in these terms:

 

“Further to my email … I have received the Defendant’s instructions. Yesterday morning the Board met to consider the Panel’s views. The Board has considered those views as sought by its referral to the Panel. With those views in mind, the Board will exercise its power to commission a Serious Case Review in this case, notwithstanding there is no duty to do so.”

 

On 29 August 2014 the Claimant’s solicitors, in acknowledging this significant development, wrote to the Defendant’s solicitors:

 

“The position generally remains unsatisfactory as in the light of the advice of the Expert Panel there is plainly a need for clarification about the circumstances in which an SCR should take place, we therefore consider that there is a real public interest in this case continuing and intend to seek a declaration as to the circumstances when a Serious Case Review should be instigated. … We write to enquire whether your client will be prepared to agree that the litigation should continue … We consider that the Secretary of State should be joined and it would be for him/her to respond substantively to the claim for a declaration. … This is obviously an unusual case. We invite you to consider our proposal carefully.”

 

On 8 September 2014, the Defendant’s solicitor sent a detailed reply rejecting the proposal that the litigation continue, and invited the Claimant to abandon the application “without more ado”. Not insignificantly, it further indicated that “the Board will entertain any contentions of institutional neglect pursued before it”; the Defendant argued that the claim was now “academic”, and without merit. Notwithstanding these representations, on the same day the Claimant notified the court the she intended to prosecute her claim.

 

 

 

The judicial review here was refused, for the following reasons [underlining in this bit is mine, for emphasis]:-

 

 

I refuse this application for permission to apply for judicial review. This decision, inevitably starkly expressed, does not reflect my considerable sympathy for the Claimant in suffering such an appalling family tragedy in the circumstances described earlier in this judgment. The refusal of this application should not be treated or understood as any indication of my views about the action or inaction of the LB Islington, or the associated relevant agencies, in the discharge (or otherwise) of their responsibilities towards the Claimant and her children.

 

However, I have reached this decision clearly for the following reasons:

 

  1. The claim as pleaded in its revised form does not enjoy a reasonable prospect of success; ‘neglect’ in regulation 5(2) does not, in my judgment, cover ‘neglect’ by a public body in failing to discharge its safeguarding duties to a child;
  2. The claim is academic, the Defendant having now agreed to conduct an SCR, which will include consideration of “institutional neglect”; there is insufficient justification in permitting the claim to proceed when there is now no lis between the parties;

iii. I am of the view that if consideration is to be given to a potentially wider remit of regulation 5(2)(a), this should be considered by the Secretary of State in the Department for Education in the first instance, not the court;

  1. The claim is premature; until the SCR has taken place, and/or the Secretary of State has considered the issue, there is no proper framework or decision, within which to consider this point of principle.

 

 

 

[As an academic exercise, the Court’s analysis of when it is proper for a Court to resolve an ‘academic’ argument between the parties is interesting – in effect it turns on this, from Secretary of State for the Home Department ex parte Salem 1997 :-

 

“The discretion to hear disputes, even in the area of public law, must be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so as for example (but only by way of example) where a discrete point of statutory construction which does not involve detailed consideration of the facts, and where large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future”

 

And thus, having established that the Islington LSCB were going to conduct a Serious Case Review, the case itself was an ‘academic’ exercise and one which should only be carried out if it was going to have a bearing on a large number of similar cases, which it wasn’t]

 

 

In relation to the third limb – that any such change to the Regs should be for the Secretary of State, the Court noted that coincidentally the Secretary of State had given that same day of the hearing a speech on the issue of Serious Case Reviews and reform

 

My conclusion on this aspect was fortified by my discovery that, on the day of the oral hearing of this application before me on 12 November, Edward Timpson MP, Parliamentary Under Secretary of State for Children and Families, was coincidentally addressing the LSCB Chair’s annual conference in these terms:

 

“I’m still concerned about cases where SCRs are not even being commissioned. About times when debates over semantics get in the way of finding out what went wrong. This may not happen that often, but it happens often enough for me and the panel to be concerned. So, following the panel’s recommendation, we’re planning further clarification of ‘Working together to safeguard children‘, so it will now include guidance about what ‘serious harm’ actually means in the context of making decisions on whether or not to commission an SCR. And to help you with information sharing, we’re planning to clarify in Working Together the need for local authorities to notify serious incidents.” (emphasis added) (source: MoJ).

 

This announcement followed, and specifically drew upon, the first annual report of the NPIE on Serious Case Reviews (July 2014) (DFE-00531-2014) (a report which was published shortly before the NPIE sent out its advice letter in this case, the contents of which are set out at [26] above). In that report, the panel had made the following significant observations as follows:

 

“The panel’s view is that opportunities to learn from mistakes are being overlooked in the argument over where the SCR initiation line is drawn. It is essential that everyone sees lessons for children’s protection (looking backwards and forwards) as the central issue, not the need to abide only by the letter of the law.” [19]

“The panel would encourage more LSCBs to consider carrying out a proportionate SCR, even in cases where the statutory criteria are not met, rather than another type of less formal review, so lessons may be understood and shared more widely. Indeed, it is their view that use of a range of investigative tools and techniques to carry out a review in a way which is flexible and relevant to the individual case circumstances may be more appropriate than a more fixed methodology” [20].

 

 

And that thus, the judicial review claim could now be considered premature given that the changes sought might be addressed in the Secretary of State’s forthcoming guidance. It is noteworthy that both the Secretary of State and NPIE have urged LSCBs not to shelter behind the technicalities and semantics of the Regs and to hold Serious Case Reviews or something similar where there are lessons to be learned.

 

 

[It may be occurring to lawyers with a civil background that an alternative route to judicial review might have been a claim for negligence, given that ‘smoking gun’ recording and the failure to take action in the three months before that appalling prophecy came true (coupled with the Coroner’s remarks). Not necessarily easy to run a negligence claim and I couldn’t possibly make any predictions about whether it has legs or not. I’m pretty sure that as the mother was represented by a Silk in these proceedings, it is an issue which has been given some considerable thought]

 

serious case review versus judicial review – a (cough) review

Who ‘owns’ a Serious Case Review, and what rights or  powers do the Courts have over its disclosure?

 

X (A child) 2014

http://www.bailii.org/ew/cases/EWHC/Admin/2014/2522.html

 

I do complain about the President quite a bit, but the one thing you could never accuse him of is being work-shy. This is yet another very tricky judgment that he has taken on – whilst still having two insanely difficult judgments still to produce –  Q v Q (how to fund litigants whose article 6 rights would be breached by them being unrepresented) and the fallout judgment from Cheshire West (how are the Court of Protection going to deal with the HUGE volume of additional cases that arise from the Supreme Court’s decision on deprivation of liberty).

 

This one relates to a child, X, whose mother stabbed him when he was about ten years old. He is now thirteen. Those care proceedings ended with the making of a Care order, hotly contested by the father, who has been in one form of litigation or another about this perceived injustice over the last three years.

Outside of the Court case itself, the Local Safeguarding Children Board (LSCB) – which is a group of senior representatives from all the relevant agencies in each local authority area (police, schools, health, social services etc), held a Serious Case Review.  These Serious Case Reviews are intended to be a scrutiny of what happened in the case and specifically whether agencies made mistakes, could have predicted what would happen, could learn lessons for the future, might need to change some policies and perhaps even whether someone professional is badly at fault and to blame.

 

The general rule and principle these days are that these Serious Case Reviews are to be published, although with names of children and parents anonymised. This in part, emerged from the public disgust at Baby P and the desire that these exercises were available for all to see. There’s a debate for another day about whether that transparency is a good thing, or whether it inhibits the ability of each agency to properly lay out their shortcomings.

 

The father contributed to this exercise and saw the report, but didn’t have a copy of it, and it was not made public.

 

The LSCB rationale for that was this :-

 

  • The LSCB received the overview report and executive summary on 15 July 2011. The LSCB considered the issue of publication of the reports, taking account of the letter of 10 June 2010, decided that there were such compelling reasons in this case and concluded that any decision on publication should be underpinned by the impact it was likely to have in relation to X’s current and future well-being and that the basis for this decision should be informed by advice from the psychiatric practitioners involved in his care. After careful deliberation the LCSB concluded that the overview report should not be published; that it would consider whether to publish the executive summary following a psychiatric assessment of the potential impact on X of so doing; and that the local authority would make the overview report and executive summary available to the court as part of the current care proceedings in relation to X so that all parties might have access to the relevant background information and that this be communicated to X’s parents.

 

 

 

  • Following a further psychiatric assessment of the situation in relation to X, the independent chair of the LSCB, Mr D, wrote to OFSTED on 26 October 2011:

 

 

“The Board has now been advised by the psychiatrist treating X that it continues to be her considered opinion that the publication of any document relating to the Serious Case Review which would cause comment or discussion in the media or local community would be seriously detrimental to X’s recovery. She has advised that although X is making progress his recovery is likely to be protracted and he is about to begin a course of psychotherapy that is likely initially to be unsettling for him. It is her opinion therefore that the Executive Summary should not be published.”

 

Two competing factors are being balanced – the interests of transparency and open public debate versus the impact on the child.  That underpins most of the transparency debate (and given the President’s well-known views on transparency, the LSCB must have been slightly fearing the worst when the case was listed before the President. That might be why they shelled out for a QC to represent them…)

 

The father’s application was a free-standing one under the Children Act 1989, but on analysis, the President found that this could not be right in law, and that the proper legal mechanism (indeed the only one) would be a judicial review of whether the LSCB had behaved in an unreasonable way (specifically a way that no reasonable body in their position could have behaved) in making the decision not to publish this Serious Case Review

 

 

  • In the final analysis the father’s application turns on quite a narrow point.

 

 

 

  • The first thing to appreciate is that the LSCB is a public body, juridically distinct from and wholly independent of the local authority. It exercises public functions in accordance with the statutory scheme to which I have already referred. In accordance with that statutory scheme it is for the LSCB, not the local authority and not the court, to decide whether or not to publish the overview report and the executive summary: see Re X and Y (Executive Summary of Serious Case Review: Reporting Restrictions) [2012] EWCA Civ 1500, [2013] 2 FLR 628, paras 7, 58.

 

 

 

  • The second thing to appreciate is that this is, as Judge Wildblood correctly said, a free-standing application. It is not an application made in pending proceedings for disclosure of documents into those proceedings. It is not a case (as Re X and Y (Executive Summary of Serious Case Review: Reporting Restrictions) [2012] EWCA Civ 1500, [2013] 2 FLR 628, was) of an application for a reporting restriction order to restrain publication of a document. It is an application by the father for an order requiring the LSCB to disclose to him a document which the LSCB in exercise of its statutory functions has decided should not be disclosed to him except upon terms that he is not willing to accept. It is, in other words, an application challenging the LSCB’s decision, a matter therefore, as Judge Wildblood said, of administrative law.

 

 

 

  • Such a challenge, in circumstances such as this, can in my judgment be made only by means of an application for judicial review in accordance with CPR Part 54. It cannot be made in the Family Court, nor in the High Court except in accordance with CPR Part 54. On that short ground, and irrespective of the factual merits, this application is misconceived.

 

On that basis, the President looked at the father’s arguments

 

  • The father has set out, both in his written statements and in his oral submissions, the various reasons why he wants a copy of the overview report. He says it should be published in the interests of transparency and so that public officials can be made accountable. He says that he should be allowed to study it with more time and scope for careful analysis and understanding than if he is merely allowed to read it at the local authority’s offices. He believes it contains material errors which should be corrected; he wants to ‘set the record straight’. He believes it contains material that will enable him to reopen the care proceedings by way of a further appeal or a renewed application to discharge the care order (thus correcting what he believes to have been a miscarriage of justice) and which may assist him in bringing a civil claim. He says that as X’s father he should be allowed to have a copy.

 

 

 

  • Those are all very understandable reasons why the father should be seeking the relief he is, but none of them demonstrates any proper basis of challenge to the decisions of the LSCB, whether the original decision not to publish or the decision explained in Mr D’s letter of 19 September 2012. As Mr Tolson put it, and I can only agree, the father does not identify, still less demonstrate, any flaw in the LSCB’s decisions or decision-making process.

 

 

With that in mind, the father’s application for judicial review was refused – the only crumb of comfort being that one of the arguments deployed by the LSCB was crushed from a great height by the President

 

  • I have set out the reasons given at the time by the LSCB for its decision not to publish (see paragraphs 6-7 above) and for its later decision not to allow the father a copy (paragraph 10). Those reasons are clear and readily understandable. They disclose, in my judgment, no arguable error of law. They set out matters, including in particular the advice of X’s treating psychiatrist, which plainly entitled the LSCB to conclude, as it did, that there were indeed the “compelling reasons” which had to be demonstrated if there was not to be publication. The LSCB plainly applied its mind carefully to all the relevant material and to the key issue it had to decide. Its process cannot, in my judgment, be faulted. It is impossible to contend that its decisions were irrational. Nor is there any arguable basis for saying that it wrongly struck the balance as between the various competing demands it had to evaluate: the right of the public to know; the quite separate right of the father to demand not merely access to but also to be supplied with a copy; and, most important of all, though not of itself determinative, the compelling demands of X’s welfare.

 

 

 

  • Mr Tolson also submits that permission to apply for judicial review should be refused because the father’s claim lacks any practical substance, because he cannot demonstrate, so it is said, how any flaw in decision-making might materially affect him, nor can he demonstrate why he needs a copy of a document which he has been able to read on three occasions. With all respect to Mr Tolson I find this most unconvincing. I would not have been prepared to refuse permission on this ground. But this does not, of course, affect the ultimate outcome given my conclusions in relation to Mr Tolson’s first two arguments.

 

 

 

 

 

Yet more Serious Case Reviews

 

Whatever the collective noun for Serious Case Reviews is  (a flurry, a murmuring, an avalanche, a papering, an omphaloskepsis*, a whitewashing?) that’s what we’ve had over the last few weeks.

 

The first I read about this week was from Glasgow, and involved a foster carer who was murdered by a young person placed in her care.  The main lesson was to have been cautious about the very good progress this vulnerable and damaged young person was making in the early days of the placement and to have had proper access and regard to the full chronology of his troubled life.

 

http://www.glasgowchildprotection.org.uk/CHttpHandler.ashx?id=17069&p=0

 

 

The second was Child T, a four year old in Haringey. 

 

http://www.haringeylscb.org/child_t__full_serious_case_review_overview_report-2.pdf

 

Now, if there’s anywhere in the country that is nervous about Serious Case Reviews, it would be Haringey. They were the authority in Victoria Climbie and Baby P, and they really don’t want to have a third tragedy.  They were brave to hold this one, since it didn’t automatically meet the criteria and they could have ducked conducting one.

 

In my opinion, they did the right thing in conducting one – I may as well say up front here, that there are real problems with the way they managed the case prior to that decision. (Whilst I think professionals are often harshly blamed after the event for failing to see into the future, this isn’t one of those. Sometimes a cock-up is just a cock-up, and I won’t defend those.  I have to call this one as I see it, and children were harmed here over many months as a result of professional error)

 

The child did not die, fortunately, though on removal in 2011 was found to have fifty bruises on his body. On my count, there were four episodes of bruising. Alarmingly, the last happened AFTER he was seen with 50 bruises, a few days later, whilst the case was being prepared for Court with a plan of him continuing to live at home.

 

 

(A) On Wednesday 30/6/10, at 10:30 pm, Child T was taken to the Accident & Emergency Department (A&E) at North Middlesex Hospital (NMHUT) by his mother and Mr C. He had bruising around the eyes, forehead and nose. Bruising and swelling was said to have become worse during the day. Mr C said that Child T often ran around the house and ‘bangs and hits himself on the wall’ 

 

Child T was three years old at the time. You may, if you are familiar with Baby P, be having shuddering sensations at the suggestion that the child’s bruises were self-inflicted. We have heard that before.

 

It gets worse than that though, because what follows is something that the professionals never had in Baby P – a direct disclosure

 

(B)On 4/7/10 a Polish speaking doctor, PR1, spoke to various family members who were visiting the hospital. He was told, by Child W, that Mr C had hit her so as to cause bruising to her bottom. PR1 spoke to CP2 who subsequently spoke to the Enfield Emergency Duty Team2 (EDT) as it was now the evening. It was agreed that there were no grounds to keep Child W in hospital that night but that the concerns raised should be followed up the next day. The following day, 5/7/10, before any follow-up action was taken, Child T was removed from hospital by his mother and Mr C, without the agreement of medical staff. Over the previous days Mr C had increasingly expressed his annoyance about the child’s prolonged stay in hospital, because, he said,of the disruptive consequences for family life

 

[Note the involvement of Enfield, rather than Haringey – it seems that the hospital were slightly confused about which local authority were responsible, but after that referral the case got properly passed on to Haringey]

 

 

I have to say, as a child protection lawyer advising local authorities, having missed (A) would be quite bad but not dreadful, but having missed (B) would be dreadful.  Having missed (B) against the backdrop of Baby P is, on the face of it, hard to fathom.

 

There were bruises to a young child, unexplained, the sibling was saying that the mother’s boyfriend hit the children, the boyfriend was being annoyed in hospital and the child was removed without the consent of the doctors. That is pure alarm bell territory.

 

(It doesn’t HAVE to equate to removal, but it is certainly something that ought to have made everyone involved very very concerned and vigilant)

 

A strategy meeting took place – the medical opinion was reported to be inconclusive  and the police who attended weren’t aware of a domestic violence callout between mum and Mr C that same day.

 

[This is what was actually said, and anyone who thinks that this is ‘inconclusive’ is on another bloody planet

 

The medical report considered at the Strategy Meeting had stated that “I am very uncomfortable with the injury on his forehead. I do not accept that a 3 year old child would bang his head with such severity and not cry out. In addition, bruising on the leftside is in a very unusual place and this cannot be incurred either from fallingor from play. I cannot exclude the possibility that some of these may have arisen from pressure from fingers”  ]

 

 

Despite the strat meeting having concluded and the case progressing to relatively low action on the basis of the social worker and police deciding that the medical opinion was “inconclusive”, the Consultant Paediatrician who first saw the child (CP1) wrote a letter containing this

 

(C) “I would like to highlight that this child had an injury to his forehead resulting in a haematoma… that could only have occurred if there were a large amount of force on impact … the second fact that concerns me greatly is the presence of bruising on the left side of the rib cage. This is an unusual place for bruising to be found in a child and implies a second mechanism of injury taking place, once again for which the parents claim to have no knowledge. My concerns here are that this is a 3 year old boy who has had two separate injuries for which there have been no explanations and each injury individually is concerning and in an area which is quite uncommon in a child of this age”

 

 

I’ve defended social workers before, and I will again, and I defended particularly the social workers in Haringey who worked Baby P because I think that they were fundamentally let down by a paediatrician who didn’t give them the medical evidence they would have needed to act and get the case before a Court.  The paediatricians here did their job properly and they simply weren’t listened to.

 

But I am afraid that this is a smoking gun. If that came across my desk, we would be having an amazingly urgent legal planning meeting (i.e, “I’m on my way to you, RIGHT NOW”)  to discuss this child and work out what we would be doing to keep the child and siblings safe.  If the conclusion was to work with the family to keep the child at home, I’m fairly sure we would have been getting the case before the Court to endorse that plan. I don’t think I’ve ever worked with any local authority lawyer whose advice would not have been “this is going before a Court, as soon as possible”

 

 

(D) On 9th August 2010, Mr C presented at his GP with self-inflicted cuts to his arms. The GP did not make any referral to social services.

 

(E) On 30th August 2010, the mother was seen at an obstetrics appointment with bruising on her arms – the notes showed up the suspicions of domestic violence, the obstetrician invited mother to be admitted overnight, mother declined. She was very nervous and keen to leave, and Mr C was very keen to get out of the hospital. No referral was made.

 

 

(F) On 31/8/10 Mr C took Child T to the GP, saying that he was concerned that he child bruised easily. He had bruises to his back and legs. The GP (GP1) arranged blood tests which indicated no medical explanation for the bruising. On 17/9/10 Child T was seen by a nurse (PN1) for immunisations. She noticed bruises on his arms, legs and back and asked a GP (GP2) to see

him. GP2 examined the child and arranged for him to be seen for follow-up on 22/9/10.

 

 

Now, I already thought that (B) and (C) were bad things to miss, but to add (F) into the equation just reinforces this.  Very often with Serious Case Reviews there’s a prediction bias and hindsight bias that means that working back from a known outcome, we tend to see all the footprints leading up to that event as being obvious and inexorable and that ‘of course that’s where this is all going, how could nobody see it’

 

But regardless of that, which is something to always be very cautious about; if you have suspicious bruises to a child, a strong paediatric opinion about those bruises and then another episode of bruising two months later; something needs to be happening.

 

A worker could, potentially, have gripped the case and made a decision that this risk could be safely managed at home; but that needs to be a conscious and deliberate and deliberated decision, not just inactivity resulting in that happening.  It is STAGGERING that the social worker on the ground didn’t ever share the paediatrician’s letter at (C) with his/her manager.

 

(G) On 14th September 2010, Mr C told his GP that he was injecting heroin every day. Three weeks later, he said he was drug-free and needed no further help.

 

(H) When the sibling child Y was born in December 2010, hospital staff noted tension and arguments between the mother and Mr C

(I) On 15th  February 2011, the case was closed by the social worker

 

(J)  Three days later, on 18/2/11 (a Friday) police were called to the family homeby Ms B who made allegations of violent conduct by Mr C to her and to Child T. Police could see that the child was extensively bruised and they arrested Mr C. Child T was left overnight with his mother. There was no recorded consultation with the EDT at that point

 

(K)The following day Child T was taken by police for medical examination and was seen by a paediatric registrar (PR2). The EDT had been made aware of the situation in the morning and both police officers and an EDT officer, EDT1, attended the medical. Child T was found to have more than 50 bruises of varying ages and sizes. He told the doctor of having been hit with a belt and a

stick by Mr C. The doctor judged that many of the injuries were caused by physical abuse and that others were ‘highly suspicious’

 

(L) The doctor spoke to Ms B who described how she had been the subject of repeated physical assaults by Mr C. She also said that she had suspected that Child T was being abused by Mr C and that Child T had told her this. She further said that Child W had now also spoken of being physically assaulted by Mr C and that he had tried to drown her whilst bathing her a few weeks previously. She said she had not told Ms B at the time as Mr C had made her promise not to do so.

 

And this is obviously where proceedings finally began, right?

 

Wrong. Professionals agreed with mum that Mr C would move out, and that the children would stay with her.

 

(M) On 22nd February 2011, the children were all medically examined. The medical opinion was that the three older children had all been physically abused by Mr C, and that mother had failed to protect them and that the children should be removed to a place of safety.

 

As a result of that conclusion, the LA decided that proceedings were inevitable.

 

(N) The next day, (23.02.11) the social workers met with mum and told her that care proceedings were to be initiated. In a police interview at around the same time, Ms B said that she knew that Child T was hit more frequently when Mr C was taking drugs

 

 

(O) A Strategy Meeting was held on 25/2/11. Information had been gathered from the various health services involved and, for the first time, the facts of repeated bruising to Child T were drawn together with the knowledge of the current and previous injuries. Agencies were concerned that Ms B and MGM were aware of the abuse and had not acted to prevent it. It also appeared that there may have been discrepancies in the accounts they had given to various agencies. However there had been no evidence that either of them was responsible for any previous physical abuse and there was no indication that the children might be directly harmed by them, or did not wish to be with them. It was confirmed that care proceedings were to be initiated but that there should be no immediate attempt to remove the children.

 

(P) On 28/2/11 Ms B told SW2 that Child T had new bruising. Ms B claimed that she had asked Child T about this and he had said that the injuries had been inflicted by that social worker, SW2. Later that day Child T was taken to Accident & Emergency, NMUHT, in the company of his mother, a different Social worker and an interpreter. Child T said that the “lady” hit him. When asked what the lady looked like and how she did it, he was unsure. Following a medical examination, where new bruising was confirmed, and some new bruising was seen on Child W, all four children were brought into the care of the local authority.

 

 

 

 

On this one, I’m afraid that there is blame – it isn’t just a failure to predict something unpredictable, it isn’t taking an informed decision that the risk was manageable and the outcome turned out bad. This is a basic failure not to recognise what risk looks like and what to do with it.

 

I feel bad for the people involved, and who knows what the workloads and pressures were at the time; but I’m afraid that this is systemic failure, not just making a judgment call that proved wrong after the event.  It is REALLY, really hard to see why that vital letter from the paediatrician at (C) never got escalated into a child protection issue. The social worker never discussed it with her manager, and it did not get escalated into a Legal Planning Meeting.

 

If this is happening at Haringey, which must be alive like no other authority to the perils of getting child protection decisions wrong, something has gone very badly awry – perhaps locally, perhaps nationally.

 

Again, as with Keanu Williams, the case was effectively ring-fenced into a ‘child in need’ case at an early stage, and thoughts about child protection disappeared once the decision was made that this was a “child in need” case.  Even then, things aren’t great – he wasn’t properly treated as a “child in need” with a formal plan and review system. He just got lost.

 

 

I agreed with Eileen Munro that when one looks at Daniel Pelka’s case through the eyes of any individual professional it is hard to say that they got it wrong and that another worker in their shoes would not have acted similarly, but that’s not the case here.

 

In many ways, this Serious Case Review raises more worrying issues than the Baby P one – in that case, the local authority never had in their hands the medical evidence that would have allowed them to save Baby P. Here, the evidence was handed over and simply stuck in a filing cabinet without its significance being absorbed or considered until this child and his siblings sustained many more months of physical abuse.

 

I’m not sure that it gives us ‘lessons to be learned’ in general practice – the individual failings here were so pronounced and obvious that the real lesson is ‘if people don’t do their jobs properly, bad things can happen’.

 

Haringey’s Local Safeguarding board response, in the interests of fairness, is here  – and the incidents were two years ago, so they have had time to make some changes.

 

http://www.haringeylscb.org/haringey_lscb_s_response_to_the_scr_of_child_t-3.pdf

 

(I didn’t think it was great, to be honest, and it was very light on how they would prevent social workers wrongly going down the ‘child in need’ path when child protection is the real issue. Or that a strat meeting could so utterly misunderstand what the medics were saying. But at least there’s now a powerpoint strategy.  )

 

 

 

 

*For those who have made it thus far, Omphaloskepsis is ‘navel-gazing’ – it came into prominence during the Renaissance, when there was much debate about what a painter should do when painting the midriffs of Adam and Eve. Did they have belly buttons, or having never been in the womb, were they smooth?  If God made Man in his own image, does God have a belly button, or not? Because this was such a controversial issue, many such paintings just have hands or branches covering the vital area.

Are we learning anything?

 

A discussion on Serious Case Reviews, Keanu Williams and Professor Ray Jones.

 

Tragically, Serious Case Reviews seem to be piling up at the moment. We have just had Daniel Pelka’s, Keanu Williams’ came out last week. No doubt we will have one soon on Hamza Khan and I have already read today of another mother charged with the death of one child and neglect of another three. As we know from recent articles, most social workers don’t manage to find time to read them, and anyone who does read them finds the same themes continuining to crop up.

                   

The Keanu Williams one is here   http://www.lscbbirmingham.org.uk/images/stories/downloads/executive-summaries/Case_25__Final_Overview_Report_02.10.13.pdf

 

 

{This one actually identifies really early on that Keanu’s death could not have been PREDICTED, but that he ought to have been identified as a child who was at risk of significant harm. We actually know from reading the Serious Case Review that his social worker took the case to Child Protection Conference, with a report identifying why Keanu was at risk of significant harm and why he should be placed on the register and have a child protection plan – the Conference took a different view and decided Keanu was a child in need, instead

 

“A well-argued social work report, stating the risks and concerns that had been assessed for Keanu, formed the basis for the Child Protection Conference. However, the Conference concluded that Keanu did not require a Child Protection Plan but was a Child in Need requiring a family support service such as the nursery place as the focus of the meeting changed.

 

 

The outcome of the Child Protection Conference led to a loss of focus on Keanu, because the Child in need services moved the attention towards practical matters such as the lack of settled accommodation and provision of the nursery place.

 

Paradoxically the services failed to consider precisely what the impact was on Keanu’s development and welfare of being moved around and cared for by many different people.” }

 

But what also interested me was Professor Jones take on Serious Case Reviews, as reported in the Daily Telegraph

 

http://www.telegraph.co.uk/news/uknews/law-and-order/10355475/Theres-no-more-learning-left-to-be-done-says-child-protection-expert-in-wake-of-Hamzah-Khan-death.html

 

 

(A brave thing to say, since the gut instinct when reading “we have no more learning left to be done” is  to retort – then why are these cock-ups continuing to happen?)

 

I can sort of see where Professor Jones is coming from. With every child death of this kind there is a clamour for ‘lessons to be learned’ and ‘we must ensure that no other child has to go through this again’  and of course the media clamour that someone in authority must have bungled and they should be identified and sacked. That’s backed very often by central government (at least some element in David Cameron’s rise to power was on his tough handling of Baby P) and their demand that all Serious Case Reviews should be made available to the media and public.

 

The media of course, take a long and dense document, and strip out the bits that show that “Professionals had X chances to save baby Morris” , because that’s what makes the good story. Never mind that any of those chances would only have been a real chance if (a) the professionals could see into the future or (b) were so risk averse that they were removing children with similar histories left,right and centre, most of whom would have been okay at home. 

I will defend professionals from unfair criticisms that they didn’t accurately predict the unpredictable, but mistakes do get made in child protection and where those mistakes are due to sloppy practice or laziness then those responsible ought to be dealt with. If a child died because professionals didn’t make referrals, or the referrals got ignored or visits weren’t made (or you were a paediatrician that can’t spot a broken back), then yes, those involved ought to be rethinking their career – I just don’t believe that having failed to identify that of your thirty kids with bruises and low-level neglect THIS was the one where it was going to go awfully wrong is that sort of mistake.

 

{On the same basis, given how many times serial killers are described as ‘quiet blokes who wouldn’t harm a fly and was nice to his mum’ we could be cutting down serial killing by imprisoning in advance every person like that… Or blaming the police for every such bloke who goes on to commit murder, on the basis that it was obvious that he would turn into a serial killer one day}

 

 

And of course all of those Serious Case Reviews start with the known fact that the child died, and works backwards from that foundation, which allows them to in part discount the very thing that makes social work hard – the tension between family preservation and child rescue.

 

If the child has died, then we KNOW that the child ought to have been removed from home before then and that the family ought not to have been preserved. So the Serious Case Review can just look for any opportunities professionals had to break up that family unit and rescue the child.

 

Here are the things that a Serious Case Review CAN potentially do

 

(a)  Handwringing  (lessons have to be learned)

(b)  Finger-pointing/witch-hunting

(c)  Identifying whether there were flaws in local procedures, or in following those procedures

(d)  If there have been serious and genuine bad practice or negligence, taking action as a result

(e)  Extracting lessons of general principle to be learned in other cases

 

I think that our current system is pretty good at (a), not bad but not great at (b),  pretty poor at (d), okay at (c)  and it THINKS that it is very good at (e) but actually isn’t.

 

So I agree with Professor Jones that most of the ‘lessons to be learned’ are already well-established and well known. We know in advance that common themes from an investigation into a child death will include

 

(i)            That information held by different agencies was never really shared properly and that had one person known all of it, different decisions could have been made

(ii)          That a rule of optimism was applied

(iii)         That a history of low level neglect or bruising continued over time and nobody took it seriously enough

(iv)         That the voice of the child was overlooked or the child simply wasn’t seen enough

(v)          That too much of professional attention was focussed on the adult

 

 

And that having report after report say that, really doesn’t help.

 

I don’t think that the Keanu Williams one is particularly bad, it is fairly typical of these reports (and is to my mind, a better one than Daniel Pelka’s, for example)

 

So do Serious Case Reviews tell us anything at all? Or are they just handwringing and witch-hunting?

 

[I would disagree with Professor Jones on two categories of inquiries  – I think that the Victoria Climbie inquiry did genuinely tell us new and important things about the dangers of walking on eggshells around respecting differences in culture and losing sight of child protection, and I think that all of the inquiries relating to situations where ‘child rescue’ went too far – Rochdale, Cleveland, Orkney Islands, tell us a great deal of significance about what happens not in an individual case where a judgment call went wrong but when there is a systematic failure to properly balance evidence, risk and the desire to keep families together]

 

 

I would myself like to see Serious Case Reviews focussing on whether what had happened in the case throws up issues of poor practice amongst the professionals involved (not that they failed to predict the future correctly, but whether they weren’t alive to the possibility that their prediction might be wrong) or where local procedures need to be improved, and shy away from the ‘broad lessons to be learned’ unless it is a case like Victoria Climbie which genuinely has something new and important to say.

 

Frankly, the only real way to tell whether it was bad luck or bad social work in a Serious Case Review is to run them blind – the board are given information on two cases with children of similar ages and length of professional involvement. One is the child death in question and one is a child who remains at home unharmed.  If child deaths are caused by bungling professionals missing the obvious, then the Serious Case Review ought to have no problem at all in identifying the bad social work that led up to the child death, without knowing which case is which.

 

Always/never

I’ve been reading a book by Eric Schlosser recently, called “Command and Control”  – it is primarily about the history of incidents and accidents in America with nuclear weapons, Schlosser’s research turning up an eye-watering number of hushed-up accidents with nuclear bombs and missiles in America, including the centrepiece of his story a fire in a nuclear missile silo where workers battled to stop the fire detonating the warheads.

 

http://www.amazon.co.uk/Command-Control-Eric-Schlosser/dp/1846141486/ref=sr_1_1?s=books&ie=UTF8&qid=1380449302&sr=1-1&keywords=command+and+control

It is a great book, with there being something good on every page (following the Raymond Chandler edict of “put a diamond on every page”) – whether that be Fermi’s calculations about the possibility of the first nuclear explosion potentially going wrong and setting fire to every atom of oxygen in earth’s atmosphere (that would be a bad thing), the fact that in the early days of the Cold War whilst US media politicians and military spoke about how the US military stockpile of nukes could wipe Russia off the map they actually had just one functioning nuclear weapon (“for all the talk about the stockpile, there was no stock, and there was not even a pile”), the naming of the early computer system to plan nuclear conflict being called M.A.N.I.A.C, the British nuclear bunker to plan for life after the apocalypse having a pub called “The Rose and Crown” in it, and much more.

But the bit that struck me, and is applicable to this blog generally, is the battle that the US had over this dilemma, “Always/Never”.  They wanted to make nuclear weapons that would ALWAYS detonate and work when they wanted them to, but would NEVER go off when they weren’t intended to. That means that they had to be reliable and ALWAYS detonate when fired, but had to be sturdy and strong enough to survive maintenance, fires, the planes they were in crashing or being shot down, even accidents with testing.

And that was a goal on paper, but the reality was that the show was being run by the military, and thus the “ALWAYS” part had priority. For them, it was more important that they knew that if the Russian planes or missiles went up, they could launch and hit their own targets and get the job done; than the risk that an accident might occur. Whilst the calculations on “NEVER” seemed pretty good – a one in ten million chance that any individual nuke would go off accidentally, when multiplied by the number that they ended up with, the risk ended up feeling pretty unpalatable. (And as Schlosser identifies, there ended up being hundreds of incidents where things went wrong with nukes, sometimes quite badly wrong)

 

Now, in child protection, we also run an “ALWAYS/NEVER” ideal.  Children who are going to be seriously hurt or killed by their parents should ALWAYS be protected and kept safe, and children who ought to be at home with their parents should NEVER be removed.  As Munro and others have identified, this ideal is never going to actually work 100% of the time in practice. The myth for a long time was that with more information, more assessment, more structure, more procedures, more rigour, we could get very very close to that 100% figure, but that’s only a myth.

At the moment, like the US military in the Fifties and Sixties, we are more focussed on the “ALWAYS” portion of the equation – we strive for ALWAYS/NEVER but the ALWAYS bit is more important. I can’t really think of a time when the fear of getting another child death has been higher, post Baby P, but as you can see, even with that heavy focus on child rescue, individual tragedies still occur.  Looking at the Looked after Children statistics recently published by the Department for Education https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/244872/SFR36_2013.pdf  in amongst the (imho wrongly triumphalist) boasting about the increase in number of adoptive placements found for children, is the incredible statistic that the numbers of children currently the subject of Placement Orders   (the legal order which sanctions an adoptive placement being found for the child) has gone up by 95% since 2009.   Ninety-five per cent.

 

Even against that backdrop, the Serious Case Reviews and child deaths continue to happen. Even when everyone is very heavily focussed on ALWAYS, the truth is that you can’t keep all children safe.

 

And of course, whilst a mistake in the ALWAYS part of the equation is easy to detect – the child dies, there is an inquest, a criminal trial, a serious case review – everyone knows that something went badly wrong;  any mistake in the NEVER part of the equation is harder to pick up. You can tell if you took too much of a risk with a child, because something awful happens. But you can’t tell if you were far too cautious with a child, because that child doesn’t go home, the family is broken up and you never know whether that was the right call or not.

Our legal system is intended to be the check and balance on the NEVER part of the equation – we have laws and case law which makes it plain how important family preservation is, and a forensic process that gives parents free legal advice, the opportunity to present their own evidence and to test the evidence against them, with independent judges to make decisions, and an appeal process as a safeguard for those individual judgments getting it wrong.

 

All of that isn’t foolproof though. It would be hard to devise a foolproof system – I know that some of my regulars believe that the threshold for child protection intervention ought to be more like criminal offences, and that cases should be decided by juries not judges. That may or may not help, but we only have to look at criminal trials to realise that things go wrong with those – the wrong people do get convicted; and undoubtedly a criminal definition of threshold, a criminal standard of proof, a jury system would be moving much more towards the NEVER side of the equation.  ( In our criminal justice system we accept the possibility that guilty people may go free as an acceptable price for ensuring that innocent people are not punished – and even then sometimes it still goes wrong and innocent people go to prison)

 

I don’t have any solutions – I think really my point is that there isn’t a solution that will deliver ALWAYS/NEVER in child protection – you’ll make mistakes on both sides of that equation, and lurching too much to either side produces more mistakes on the other.  It is important to remember that you are trying to balance family preservation and child rescue, and that this is a difficult task and there’s no easy shortcut to getting it right, and that sometimes with all the best intentions, individual mistakes will happen and get past the system. Each of those individual mistakes is life-destroying for families and for children.

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