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Watching the detectives

This is a quirky little case. I should tell you at the outset that we don’t get a conclusion and all of the answers. Half of the answer, with perhaps another half to come at a later stage.

The question arose in care proceedings. One of the issues in the case was whether the mother had genuinely separated from the father, or whether they were simply pretending to have done so and carrying on the relationship in secret. This happens from time to time in care proceedings.

The Local Authority paid a private investigator to watch the father, and the private investigator produced evidence that the father was staying overnight at the mother’s home, for about a week. (However, the evidence did not show whether or not the mother was also there, allowing the parents to run a defence that the father had been staying at that property but that mother and the children had not been)

Two legal issues arose in the case.

1. Whether the LA had obtained the proper consents under the Regulation of Investigatory Powers Act (RIPA) to conduct covert surveillance of a person, whether this was a breach of article 8 of the Human Rights Act and thus whether damages should flow from it. (which is the really interesting bit of the case and which SPOILERS doesn’t get answered)

and

2. If there was a failure to obtain the proper RIPA consents, is the evidence inadmissible?

The latter is of interest, because it may impact on other scenarios where evidence is improperly obtained (and of course, we are thinking here of clandestine recordings whether audio or video, done without the knowledge of those being filmed)

We DO get an answer to that.

This is a decision of a circuit Judge, so it is not binding case law, but it is an interesting overview of the law (and I agree with the conclusions)

Re E and N (no2) 2017

http://www.bailii.org/ew/cases/EWFC/OJ/2017/B27.html

2. In the course of the hearing before me the applicant local authority sought to rely on surveillance evidence which covered the period of 28 and 29 April 2017. The evidence showed that the father had stayed at the mother’s address in circumstances where the parents had maintained that they have been separated since November 2016. The local authority accepted that the evidence did not show that the mother was present during the aforementioned period. The local authority relied on this evidence as part of a wider canvas to prove an allegation that the parents have remained in a relationship despite their maintained assertion that they have separated.

3. Both parents agreed that due to the father’s difficult personal circumstances at that time, with the mother’s permission, he stayed at the mother’s address. The mother was staying at her own mother’s property and she was not present when the father stayed at her address.

4. At the conclusion of the hearing the parties made detailed submissions. This included submissions about the surveillance evidence and the local authority’s asserted overzealous approach to the parents in attempting to prove its case. The parents invited me to make a number of findings in this regard. I decided to give a separate judgment on these issues so as not to jeopardise an expeditious resolution to the last hearing before me.

5. The local authority in its written submissions dated 7 June 2017 and refined in its written replies to the parents’ submissions dated the same, invites me to;

a. Endorse the decision to conduct such surveillance as reasonable, or to make no findings in circumstances where the court has not received any evidence on this issue, or

b. Make no comment about it (given that it does not go to the central issue of the disputed findings), or

c. Find that it would be inappropriate to make any findings on the mother’s submissions that go to or are capable of going to the issues of alleged breaches of her Article 8 rights, or

d. Transfer the decision on this issue to a different tier of the judiciary, and

e. Confine my judgment to the issues arising out of the hearing.
6. The mother having taken the lead on these submissions and supported by the father, invites me to find that;

a. The actions of the local authority were misjudged and deeply unfortunate given the duty on the local authority to act in a fair way within litigation against individuals,

b. The authorisation for the surveillance (if any) and the surveillance itself were not fair, reasonable or proportionate,

c. The local authority has not complied with the terms of the Act (below),

d. The mother has been unlawfully subjected to surveillance;

e. This is an example of an over-zealous prosecution of the local authority’s case against her,

f. The directed surveillance is a breach of her rights under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950).

The father further submitted that there is no justifiable reason or purpose for the surveillance to have extended to following the father to the reception area at the contact centre and at the father’s solicitors’ offices.

The Judge looked at the safeguards about agencies of the State carrying out covert surveillance of members of the public, that are set out within RIPA – the surveillance needs to be properly authorised under s28, and the officer authorising it must be approved under s30 to do so. (Here, what seems to have happened is that a senior manager of Children’s Services authorised it, which is not RIPA compliant)

28 Authorisation of directed surveillance.

(1)Subject to the following provisions of this Part, the persons designated for the purposes of this section shall each have power to grant authorisations for the carrying out of directed surveillance.

(2)A person shall not grant an authorisation for the carrying out of directed surveillance unless he believes—

(a)that the authorisation is necessary on grounds falling within subsection (3); and

(b)that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.

(3)An authorisation is necessary on grounds falling within this subsection if it is necessary—

(a)in the interests of national security;

(b)for the purpose of preventing or detecting crime or of preventing disorder;

(c)in the interests of the economic well-being of the United Kingdom;

(d)in the interests of public safety;

(e)for the purpose of protecting public health;…

(4)The conduct that is authorised by an authorisation for the carrying out of directed surveillance is any conduct that—

(a)consists in the carrying out of directed surveillance of any such description as is specified in the authorisation; and

(b)is carried out in the circumstances described in the authorisation and for the purposes of the investigation or operation specified or described in the authorisation

The real point of this is that the authorisation of covert surveillance is firstly not a rubber stamp, and secondly, the decision about whether or not to authorise is taken by a RIPA officer someone who is trained in the application of the Act and the principles within it and not have a stake in the outcome of the investigation – i.e to scrutinise whether cover surveillance is really appropriate and proportionate.

The Judge did not reach a conclusion on whether the LA had failed to comply with RIPA or whether the parents article 8 rights had been breached – they would have to issue a claim and have proper evidence about this issue before a Court could rule on it. However, from what is said, I don’t think that what the LA did complied with RIPA (That doesn’t mean that they DIDN’T – they may have got a RIPA authorisation and not put that before the Court – though that seems a strange decision if so…)

In addition to the surveillance report, the only direct evidence in this connection is a document entitled “REQUEST FOR AUTHORISATION TO COMMISSION A PRIVATE INVESTIGATOR”. This documents was signed on 26 April 2017 by the “Director of Children and Learning Skills”. It is far from clear if the signature is that of the person making the application or the person authorising the request. On the face of it, the form does not appear to be a form authorising surveillance. This illustrates the evidential difficulties in the relief that the parents are seeking. These are exacerbated by further fundamental difficulties which include the lack of any formal application and the consequential lack of any formal reply. Therefore, having regard to the guidance that I have detailed above and the evidential difficulties that I have identified, in my judgment it would be entirely inappropriate for me to make any findings in respect of the local authority’s conduct, decision making processes and any alleged breaches of the parents’ Article 8 rights. Similarly, in my judgment it would also be entirely inappropriate for me to endorse the local authority’s actions. If there is to be such an enquiry into these issues, it must be undertaken in accordance with the guidance that I have set out above and by way of a formal application following which the court will give the necessary directions. Inevitably this will include the filing and service of appropriate evidence.

Anyhow, that whole issue will have to wait for part 3, if there is to be a part 3.

What we are left with is whether evidence that may have been obtained improperly is capable of being admissible, or whether it should not even get before the Court if it was obtained improperly.

15. However it is clear that the surveillance evidence is relevant to the issues in the case. Goddard LJ in the Court of Appeal decision in Hollington v. F. Hewthorn and Company Limited, and Another [1943] KB 587, at 593 and 594 explained the test in the following terms;

“Before dealing with the authorities, let us consider the question in the light of modern law relating to evidence … We say “modern law” because in former days, it is fair to say, the law paid more attention to competency of the witnesses that to the relevance of testimony …

It was not till the Evidence Act. 1843, that interested witnesses, other than the parties, their husbands and wives were rendered competent, and by the Evidence Act, 1851, the parties, and by the Evidence Act, 1853, their spouses, were at last enabled to give evidence …

But, nowadays, it is relevance and not competency that is the main consideration, and, generally speaking, all evidence that is relevant to an issue is admissible, while all that is irrelevant is excluded”.

Furthermore, the test for deciding “relevance” was succinctly expressed in the House of Lords decision by Simon LJ Director of Public Prosecution v Kilbourne [1973] 1 All ER 440, at 460 J in the following terms;

“Your Lordships have been concerned with four concept in the law of evidence: (i) relevance; (ii) admissibility; (iii) corroboration; (iv) weight. The first two terms are frequently, and in many circumstances legitimately, used interchangeably; but I think it makes for clarity if they are kept separate, since some relevant evidence is inadmissible and some admissible evidence is irrelevant in the sense that I shall shortly submit). Evidence is relevant if it is logically probative or disprobative of some matter which requires proof.”
16. Keeping the concepts of “relevance” and “admissibility” separate, I will first deal with the issue of relevance before turning to consider the issue of admissibility. The factual matters that the local authority sought to prove included an allegation that the parents remain in a relationship. Therefore on a cursory analysis of the facts that remained in issue and required the court’s determination, it is clear that the surveillance evidence was relevant to this allegation. Indeed no party has sought to submit that it was not.

17. As to the question of admissibility, I have made it clear earlier in this judgment I am not making any findings in respect of the local authority’s conduct or whether the surveillance is compliant with the provisions of the Act. However the questions of compliance and legality have a close connection to the question of admissibility. There is no automatic bar to admissibility of evidence that has been improperly or illegally obtained. In the context of family law, this was considered and illustrated in the Court of Appeal decision in Imerman v Tchenguiz and others [2011] 1 All ER 555where at paragraph 177 Lord Neuberger MR concluded that;

“Accordingly, we consider that, in ancillary relief proceedings, while the court can admit such evidence, it has power to exclude it if unlawfully obtained, including power to exclude documents whose existence has only been established by unlawful means. In exercising that power, the court will be guided by what is “necessary for disposing fairly of the application for ancillary relief or for saving costs”, and will take into account the importance of the evidence, “the conduct of the parties”, and any other relevant factors, including the normal case management aspects. Ultimately, this requires the court to carry out a balancing exercise, something which, we are well aware, is easy to say in general terms but is often very difficult to effect in individual cases in practice.”

A Local Authority v J [2008] EWHC 1484 (Fam) is an example where surveillance evidence was admitted by the court, although Hogg J in this case was not asked to consider the provisions of the Act.

Furthermore, Re DH (A MINOR) (CHILD ABUSE) [1994] 1 FLR 679 whilst predating the Act and concerning an individual, Wall J admitted the covert recording of a child by the child’s father.
18. In these circumstances I have assessed the surveillance evidence to be relevant and admissible. Accordingly I have admitted the same as evidence in the case. I made the relevant findings in my first judgment after considering the surveillance evidence together with a number of other pieces of evidence and have considered it in the context of the totality of the evidence that was before me. However the issue of admissibility of evidence is entirely separate to the requirements of public authorities and public bodies to comply with statutory provisions that regulate their conduct and their duties to the public. In circumstances where a public authority or public body has acted in breach of statutory provisions and where any evidence that is adduced as a consequences of those actions is admitted by the court, this will not absolve the public authority or body from its duties under any relevant enactment

Evidence, if it is relevant, can still be admissible even if it was obtained unlawfully. I have wondered for a long time whether Re DH’s principle survived the HRA. As this is not precedent, and of course, a Circuit Judge can’t overrule the principle that Wall J set down in a superior Court, but it is an interesting debate that might be had at a later stage.

The Judge draws the interesting distinction that whilst the evidence itself might be admissible, that doesn’t stop a Court taking action about the improper or unlawful conduct – just because they got to use the evidence, doesn’t mean that they get away scot-free if they behaved badly in obtaining it.

Morocco Mole too…. inspired by my trip to Marrakech

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Tape recording of an expert (a SHOCKING case)

Truly, absolutely shocking.

This was a set of care proceedings, transferred up to the High Court before Mr Justice Hayden. A  consultant clinical psychologist, Dr Ben Harper, was instructed by the Court to assess the mother. The mother unknown to him, tape recorded their sessions. After the report of Dr Harper arrived, containing words set out in quotation marks attributed to the mother that she says she did not say, those tape recordings were transcribed and showed that she was correct.

 

Re F (A Minor) 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2149.html

 

Here are the findings that mother’s team invited the Court to make – you’ll see that they are very powerful  (perhaps even career-damaging stuff)

 

  1. Ms Taryn Lee QC and Ms Olivia Weir prepared a very extensive schedule prefaced by the following summary of the findings they invited the Court to make:
    1. 1. Dr Harper has either misread or exaggerated the mother’s presentation during the appointments. The recordings do not support the assertion that the mother was at any point agitated, abrupt, irritated, defensive or frustrated. Indeed in respect of (iii) and (v) the conversations never, in fact, took place.

2. Dr Harper misrepresents, inaccurately surmises and/or falsely asserts that the mother made comments listed in the body of the schedule. The comments set out and attributed to the mother were either (a) not said by her in those terms, or (b) other factual information provided by the mother has been re-interpreted by Dr Harper and presented as a quote of the mother with a negative or twisted emphasis attached to it. Dr Harper then uses these ‘quotations’ by the mother to form his conclusions and recommendations.

3. Dr Harper records that the mother reported/stated various facts and/or provided the accounts listed below when in fact there is no evidence during either appointment that the subject was even discussed or if the subject was discussed these comments were not made at any point. Dr Harper has fabricated these conversations/responses and has chosen to attribute negative comments to the mother including assertions that during the assessment sessions the mother called previous experts liars, which she simply has not done. Dr Harper has abused his position of trust as a professional and as a doctor and his actions in fabricating these conversations, comments and conclusions are abusive to this vulnerable mother and are a contempt of court.

4. Dr Harper states that he completed the following psychometric tests: It is not easy to discern at what point in the assessment sessions Dr. Harper states he administered these psychometric tests and he is invited to provide (a) all of the relevant guidance and assessment papers/questions and identify within the transcripts where the assessments were conducted.

5. Dr Harper suggests that the mother was reluctant and/or unable to provide information in the following matters: Dr Harper did not, in fact, ask any specific or structured questions to elicit a response to any of the matters that he then seeks to criticise the mother for and in respect of. Some matters that he suggests she refused to provide information/answer questions in respect of [they] were never at any point raised by Dr Harper.

6. Dr Harper misrepresents what the mother has actually said, in such a manner as to create a negative impression of the mother in the examples identified.

7. Dr Harper inaccurately quotes other experts’ reports in a manner that presents a negative impression of the mother.

8. Dr Harper then relies upon his own false reporting of what the mother is supposed to have said to reach his conclusions, which ultimately lead to a recommendation of separation of the siblings and adoption of the youngest two children.

9. It is asserted that neither Dr Harper’s handwritten notes nor his comments regarding the 6th April 2016 can be relied upon for the reasons asserted in the schedule.

  1. As these findings were particularised it became clear that the allegations extended to: ‘false reporting’; ‘inaccurate quoting’ designed to present the Mother in a ‘negative light’; ‘fabrication of conversations’ and deliberate ‘misrepresentation’. In cross examination Ms Lee accused Dr Harper of ‘lying’.

 

 

Holy wow.

 

Dr Harper was invited to intervene in the proceedings, and was represented by Fenella Morris QC.

 

The Judge did not approach the matter on the basis of the schedule of findings drawn up  (that’s rather annoying for me, as it would have helped to look at such particularised findings, but that was a judicial decision)

 

  1. Whilst I am full of admiration for the industry which underpins the extensive schedule prepared by the Mother’s team and the equal energy expended in the detailed response document, I am bound to say that the two do not provide a user friendly framework to negotiate the contested issues. Partly for this reason but primarily because I consider it to be a distraction, I do not propose to address many of the minute allegations which, as I have indicated during the course of exchanges with counsel, are of varying cogency and forensic weight. What I propose to do is to analyse, in what I consider to be a proportionate manner, those allegations which it is necessary for me to determine in order properly to resolve the issues in the care proceedings. Thereafter I must consider a further important question: are the findings made out against Dr Harper sufficiently serious so as to render his evidence in these proceedings unreliable?

 

  1. Dr Harper’s report is dated 11th April 2016, it is 70 pages in length. At its conclusion it contains the following, now standard, declarations:
  2. i) ‘I have exercised reasonable care and skill in order to be accurate and complete in preparing this report’;

ii) ‘I understand that this report will form the evidence to be given under oath or affirmation’;

iii) ‘I am likely to be the subject of public adverse criticism by the Judge if the Court concluded that I have not taken reasonable care in trying to meet the standards set out above’;

iv) ‘I confirm that I have acted in accordance with the Codes of Practice for Experts’.

  1. Finally, the ‘STATEMENT OF TRUTH’ appears at the very end of the report. Familiar though it is, it requires to be repeated here:
    1. “I confirm that the contents of this report are true to the best of my knowledge and that I make this report knowing that if it is tendered in evidence, I would be liable to prosecution if I have wilfully stated anything that I would know to be false or that I do not believe to be true”

 

Responding directly to the schedule of findings sought by mother’s team, Dr Harper said this

 

  1. Responding directly to the schedule Dr Harper makes this concession:
    1. 12. There are a number of occasions where I have referred to Mrs Mother as having said something by way of italicised text within double quotes. It is quite clear to me that anyone reading my report would have interpreted these as suggesting they were verbatim quotes. I did not, however, take verbatim notes and a number of sentences attributed to Mother are inaccurate.”

 

Yes, if I read a report from an expert that said

 

Mother said she was sorry for all the trouble she had caused

I would think that there was an apology along those lines but not that this represented a verbatim account but

 

Mother said “I’m sorry for all the trouble I’ve caused”

 

I would read as being, the expert is reporting the words that she used and is stating with confidence that she used those words.

So having remarks in quotation marks that mother did not actually say is a significant deficiency.

What did the Judge say about that?

  1. I have read this paragraph a number of times. It seems to me to do Dr Harper no credit at all. It is crafted in a way that seems designed to minimise the extent of the very significant failing it represents. When pursued in cross examination it was revealed that extensive parts of the report which purport, by the conventional grammatical use of quotation marks, to be direct quotations from the Mother, are in fact nothing of the kind. They are a collection of recollections and impressions compressed into phrases created by Dr Harper and attributed to the Mother. They convey to the reader of the report only one impression, namely that they represent the authentic voice of Mother herself. The quotations are also italicised and drafted in full sentences in the idiom of the Mother rather than in the formal argot of psychology which characterises the remainder of the report. Within the context of the evaluative exercise that the Court is involved in, during care proceedings, the accurately reported phrases and observations of the parties themselves are inevitably afforded much greater forensic weight than e.g. opinion evidence, hearsay or summary by a third party. It is very likely that a Judge reading such ‘quotations’ in the report of an experienced expert witness will at least start with the strong presumption that they have been accurately and fairly recorded. It is, to my mind inconceivable that a witness of Dr Harper’s experience, which I have taken care to set out in some detail above, would not have appreciated this. Indeed, it strikes me that it would be obvious to any lay party or member of the public. Moreover, I find the concession in the statement, where mention is made of ‘a number of sentences’ is a complete distortion of the reality of the document. The report is heavy with apparent reference to direct speech when, in truth, almost none of it is. Thus, the material supporting the ultimate conclusion appears much stronger than it actually is. Given the forensic experience of Dr Harper and his extremely impressive academic background I cannot accept that he would have failed to appreciate the profound consequences of such distorted reporting.
  2. In the course of the public law proceedings the Court authorised interviews between one of the children and Dr Harper. I very much regret to say that the purported quotations in that report i.e. presented as if they were the words of the child himself are also nothing of the kind. Dr Harper used the same approach there. They are in fact a jumble of phrases extracted from jottings and / or perceived recollection. Dr Harper voluntarily submitted his notes to scrutiny, they can properly be characterised as minimal. They prompted this submission on behalf of the children’s Guardian by Mr Cohen QC and Mr Edwards:
    1. “It is hard to know why Dr Harper has reported as he has. His methodology and minimal notes of the 3 meetings with the mother would have made it very difficult to accurately record what she had said. The court will form its own view as to his evidence. We do not suggest that he had an intent to mislead but he showed a carelessness which verged towards recklessness in making statements which he must or should have known were to be relied upon. His evidence may also have shown an overconfidence in his own professional judgment and ability that was indifferent to the correct assessment process.”

 

 

I am genuinely shocked by this. It undermines a lot of credibility of expert witnesses, if an expert attributes quotations to a parent and a child that they did not say, that were ‘impressions’ and that the note keeping was minimal.

 

As these ‘quotations’ were not present in the tape-recorded formal sessions, there was some consideration of whether they were instead conversations or discussions that took place at one meeting on 6th April, which appears to have been a contact session and two discussions on the way in and way out of the session

 

  1. Ms Lee and Ms Weir pitch the findings they seek very highly indeed, they are of the utmost gravity. It is for this reason that I required counsel to be very clear about the legal framework. Ms Lee has, in the proper presentation of her case, repeatedly impugned Dr Harper’s integrity and honesty during the course of her cross examination. It is alleged that he has fabricated the fact of the discussions between himself and the Mother and, says Ms Lee, where there is no written note of any topic of discussion it has been, in effect, invented by Dr Harper. There is no ambivalence in the way Ms Lee advances her case. In her closing written submission she asserts:
    1. “For the avoidance of doubt, it is submitted on behalf of the mother that Dr Harper’s account of the ‘discussions’ that took place on the 6 April is a lie. Likewise his handwritten note is a fabricated document (Finding 9) in which he has attempted to back-fill some of the gaps that he knew would come to light once he was alerted to the fact that the assessment sessions on the 15 and 23 March 2016 had been recorded; he of course being present at both sessions and knowing exactly what he discussed and what he did not. As such, it is submitted that his handwritten note can not be relied upon.”
  2. Given that the earlier meetings were recorded and transcribed it must follow that the purported quotations from the Mother not covered on those sessions must therefore have taken place at the meeting at the contact centre on the 6th April 2016. This inevitably therefore has been the focus of the dispute at this hearing. The first conflict of evidence is as to the length of the meeting. There were in fact two meetings, one before the children arrived for an observed contact session and a second later encounter in the car park at the conclusion of the session.
  3. The 6th April was a day on which plans went awry. The Mother had been led to believe that her meeting with Dr Harper was to provide her with advice on how best to manage the eldest child’s challenging behaviour. On Dr Harper’s account he had decided to change the agenda and look at what he has referred to as ‘the inconsistencies of the Mother’s various narrative accounts’. He had, to my mind, settled on the view, for reasons that I will come to below, that this was the key issue in this case. The undoubtedly discrepant histories of her own childhood and relationships recorded from the Mother are, as Ms Morris QC (on behalf of Dr Harper) describes them, ‘polar opposites’ and ‘at a 180 degrees to each other’. Essentially, there is both a light and benign version of these issues alongside a dark and abusive account. In any event what is clear is that the Mother finds discussion of both these areas to be highly unsettling and distressing. That she would do so was anticipated by Dr Harper but nonetheless so important was this issue to him that he forced it through in circumstances which were, in my judgement, insensitive to the Mother. Of course it follows from this comment that I have accepted his account of the 6th April, at least in part. In fairness I should record that Dr Harper offered the Mother a further appointment which she did not take up.
  4. In addition, building work was being undertaken at the contact centre and it was necessary to shorten the contact. This had not been communicated to the Mother, Dr Harper or I assume the children either. The conditions both in which to observe contact and to undertake important features of the assessment of the Mother were inimical to constructive and fair assessment. I am satisfied that the Mother was understandably upset and that Dr Harper’s account of her as agitated is an honest expression of his perception.
  5. The second meeting in the car park was cursory and ended peremptorily in the rain. The first meeting was, on either party’s view no longer than 15 minutes. It is not necessary for me to resolve the conflict as to the duration of the meeting, there is very little between the Mother’s recollection and Dr Harper’s. What is significant is that in this period Dr Harper contends that he dealt with somewhere between 13 and approximately 20 significant points of assessment.

 

 

[That does not sound terribly plausible]

 

  1. From his notes of assessment it is clear that some of the issues were discussed. The notes are silent on other issues. In his analysis Mr Cohen submits that Dr Harper ‘has produced no satisfactory explanation of the inconsistencies nor is his credit enhanced by what seems to us to be an unwillingness to recognise the effect of his wrongdoing’. This leads Mr Cohen further to submit:
    1. “We suggest that as a result of his admissions the burden should shift to him to show that he has accurately reported the gist of what the mother has said in interviews. In light of the above this is a difficult burden for him to satisfy and he has failed to do so.
  2. Ms Morris vigorously resists this approach, she contends that the burden of proof rests on the applicant and does not shift. I agree. Certainly Dr Harper’s admissions require him to explain his admitted misconduct but they do not cast upon him some additional burden of proving the accuracy of his notes of what he contends the Mother said to him in interview.
  3. I do not propose further to burden this judgment with a list of the various topics which Dr Harper contends were discussed on the 6th April. In response to Mr Cohen Dr Harper accepted that there were 13 topics. I simply fail to see how this range of challenging and difficult material could have been covered to the extent that Dr Harper purports in such a limited time. It would have involved rapid fire question and answer on each topic. Given the circumstances and the nature of the material, such a process would have also required a degree of brutality or at least gross insensitivity. The subject matters ranged across e.g. domestic abuse, childhood experiences, sexual issues. Having listened to Dr Harper in the witness box he does not strike me for a moment as a man capable of such crassness. His work has been widely respected. I do consider that there was an enthusiastic effort by him to cover some of the material that day. I entirely accept his evidence that his notes are genuine and not fabricated, as Ms Lee contends, but I find on the balance of probabilities that some, though not necessarily all, of the material which is not corroborated by the notes was most likely drawn from other sources and incorporated into the report again as if it were direct speech from the Mother to Dr Harper.

 

 

The Judge’s overall impression and his decision about whether Dr Harper’s report could be relied upon in the care proceedings :-

 

  1. The overall impression is of an expert who is overreaching his material, in the sense that whilst much of it is rooted in genuine reliable secure evidence, it is represented in such a way that it is designed to give it its maximum forensic impact. That involves a manipulation of material which is wholly unacceptable and, at very least, falls far below the standard that any Court is entitled to expect of any expert witness. It simply cannot be reconciled with those duties which I have pointedly set out above at para 10 and 11. Moreover, it is manifestly unfair to the Mother, who it should be emphasised is battling to achieve the care of her children whilst trying to manage life with diagnosed PTSD. Ipso facto this is a case of unique gravity and importance. Common law principles of fairness and justice demand, as do Articles 6 & 8 of the ECHR, a process in which both the children and the parents can properly participate in a real sense which respects their autonomy. Dr Harper’s professional failure here compromised the fairness of the process for both Mother and children. These are fundamental principles emphasised in Re B-S [2013] EWCA Civ 1146 and Re A [2015] EWFC 11.
  2. Mr Rowley, on behalf of the Local Authority, submits that Dr Harper’s central thesis is probably correct. He summarises it succinctly thus:
    1. “Dr Harper’s concern about the mother’s inability to provide a consistent narrative about her relationship history and childhood experiences is again objectively valid. It cannot be sensibly argued that the mother has done anything other than provide wildly divergent accounts of such experiences. Whether this is, indeed, impression management or the consequences of her PTSD it robs the psychological professional of a baseline for diagnosis and thus prognosis and treatment recommendations. This makes it, as Dr Harper concludes, difficult (to say the least) for measurement and management of risk.”
  3. Mr Rowley may very well be right. He goes on to suggest that notwithstanding the significant criticisms made of Dr Harper, his report should be allowed to stand, with the Judge who hears the case entitled to give it such weight, if any, as he thinks fit. I disagree. These are such fundamental failures of methodology that I do not consider any Judge could fairly rely on the conclusions. Furthermore, there is an inevitable risk that were I not to order that a new expert be instructed the Judge might at the conclusion of the hearing find a lacuna in the evidence in consequence of his being unable to rely on Dr Harper’s opinion. That would result in further delay for the children in a case where I have been told the final hearing is now unlikely to be effective in any event. The delay in this case in already unacceptable, the harm caused to the children because of it is the responsibility of the professionals not, I emphasise, the Mother.
  4. I should say that my conclusions here are predicated substantially on my evaluation of Dr Harper’s evidence and the available written material. I have found myself unable to place a great deal of weight on the Mother’s own evidence even where my findings are essentially in her favour. I agree with Ms Morris, who advances the point sensitively and elegantly, when she says that the issue in the Mother’s evidence is ‘reliability’ not ‘credibility’. Her reliability is sadly compromised by her inconsistent accounts which may well be, as Dr Harper has postulated, a facet of her psychological distress. I have in mind Re H-C ( Children) [2016] EWCA Civ 136 and R v Lucas [1981] QB 720.
  5. Finally, there has been much discussion at the Bar as to how I should characterise Dr Harper’s professional failings. Ultimately I have come to the conclusion that the language or nomenclature is irrelevant. What matters is the substance of my findings and their impact on these children.
  6. Ms Lee is right to emphasise the observations of Butler-Sloss (P) in Re U: Re B (serious injury;standard of proof) [2004] 2 FLR 263 at para 23iv:
    1. “The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour-propre is at stake, or the expert who has developed a scientific prejudice”
  7. I do not consider that Dr Harper has developed a scientific prejudice nor that he is jealous to guard his amour-propre but I do consider that his disregard for the conventional principles of professional method and analysis displays a zealotry which he should recognise as a danger to him as a professional and, more importantly, to those who I believe he is otherwise genuinely motivated to help and whom he plainly has much to offer.

 

 

[I’m not sure why the Courts have felt that amour-propre is an expression in common use, but basically ‘reputation’ would do the trick just as well – the self-esteem that comes from the opinion of others]

 

It is a bitterly ironic twist that part of the disputed attributed quotations were Dr Harper stating that the mother had been critical of other (past) experts, calling them liars.

 

This concept of an expert taking an impression but then attributing quotations to the mother that she did not say and that the notes could have given no indication of her having said is a truly shocking one.  As the Judge says, doing this gives the conclusions and recommendations of the report far more weight as it seems to come directly from mother, she condemning herself out of her own mouth, rather than the expert stating that he had the impression  (which of course can be cross-examined as to the forensic basis of this)

Let us be honest – if the mother simply asserted that she had not said this, and had not tape-recorded the sessions, who would have been believed? We have to be able to trust experts – they may genuinely form the wrong opinion, and may be shifted in cross-examination, but there has to be trust that if a report says  Mother said “X Y Z” that she actually said those things.  Future of children is at stake here.  We must demand higher standards from experts than we would of political journalists, surely.

 

(I’m reminded a little of the Overegging the Pudding case  https://suesspiciousminds.com/2014/11/28/over-egging-the-pudding/    though of course this goes still further, from cherry-picking only the negatives to flat out creation of quotations that the mother did not in fact say)

 

It is also an interesting comparison, given that both were Hayden J to the criticism he made of the ISW in the radicalisation case (which were about competence rather than integrity) and the fairer process here where the expert had the opportunity to be represented and respond to the criticisms – in both cases they could have a serious impact on livelihood of the experts, for whom reputation is a vital component in them obtaining future instructions.

Tape recording paying off

Prepare to be very shocked. And then very angry.

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

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

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

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

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

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

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

 

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

 

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

 

 

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

What happened in this case was truly extraordinary.

 

Firstly, the foster carers notes:-

 

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

 

 

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

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

 

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

 

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

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

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

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

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

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

 

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

 

I am afraid that it continues to get worse.

 

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

 

 

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

 

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

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

 

 

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

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

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