Author Archives: Sarah Phillimore

Abuse and ‘neglect’ – how is this identified? And what support is offered?

 

I am grateful to this post from one of CPR’s readers, who is parent to an autistic child. She writes about her difficulties in getting help and support for her son and the problems families experience in a system which does not seem set up to identify difficulties and offer support. What happens when children with difficulties arising out of their undiagnosed disabilities are mis-identified as children suffering from parental neglect or abuse?

As she comments:
As it stands, the Child Protection system is a blunt and sometimes cruel instrument often used without much prospect of bringing about positive change because it can only ever work as one part of a system of support for families, and this system of support is largely absent.

Not having met a social worker in our local authority until the day my son with an Asperger Syndrome diagnosis entered Care under section 20 of the Children’s Act 1989, I began to read anything I could find about children with his profile who enter Care. That was the day I accepted that having tried everything else, Care was the only option available to get an integrated package of support for him, something we and he had needed by any measure for some time. He was not going to be someone ‘who didn’t fit within our services’ remit’ nor just another statistic of a disabled young person living rough with poor mental health or worse, something that seemed almost inevitable at that time, without trying everything including Care.

As part of my coping mechanism for the immense grief and desolation I was experiencing, I read report after report to learn about the Care system. Eventually, to cut down on my reading, I’d open reports and papers in pdf format and search within the document with the search facility using terms like ‘disabled, disability, autism, neuro-developmental, ASD, ASC’ and might get one ‘hit’. What I did notice was that if I carried out the same search using ‘neglect’ as a search term I’d get scores of ‘hits’ within the same document. I concluded that for social workers ‘neglect’ was ‘sexy’ and disability anything but. Children like mine, with an autism diagnosis but without an obvious learning disability were a bit of a side show while all the action in Child Protection was around ‘abuse and neglect’ and that didn’t seem to be up for discussion. There were a few reports like the excellent ‘Unprotected, Overprotected’  that made links between disability and core child protection issues but generally these reports were few and far between.

If one looked a little wider to the family unit with an autistic or learning disabled family member there seemed to be almost nothing in terms of research into how to support families with complex difficulties around neuro-disability including poor mental health, different ways of thinking and processing information, mental inflexibility and the need for extreme control to manage anxiety as just some examples.

I came to loathe the word ‘neglect’, surely the reasons why children enter care are multi-faceted yet this word is so un-nuanced and brings with it a mountain of stigma, shame and blame for parents.

One of the things that also became apparent to me, was that there seemed to be a lot of children with extreme difficulties within Care. When I asked why our son hadn’t a social worker from The Children with Disabilities Team I was told they only took on cases of children with multiple and complex disabilities and they had a very full caseload. Similarly when I asked why his case did not have clinical oversight, (something that eventually did come) I was told ‘’All our children have the same kinds of difficulties’. My response was ‘’well, are they being given autism assessments?’’ The answer to that question ( yet more reading..) was that ‘no, children who enter Care are not assessed or even screened for autism – all their difficulties (they are most commonly described as having developmental delay not disability and/or traumatised with poor mental health) unquestionably stem from ‘’neglect and/or abuse by parents prior to entering Care’’. Well that is not my experience so..?

I eventually came to the conclusion that assessments and healthcare for children in Care are not remotely up to the task of meeting the needs of a sizable number of children who are in Care, many with undiagnosed hidden disabilities. There is almost no data collected on children in Care with disabilities and we do not know how many are diagnosed as being autistic before they enter Care or within Care although we know from 2017 Freedom of Information requests there is considerable local variation in their numbers from 0% (Calderdale) -to 12.7% (Walsall). Surely this is Corporate Neglect and why were Child Protection professionals / CQC / Ofsted not making that point? Obviously some types of neglect are more ’sexy’ for professionals working in Child Protection than others.

There are some other troublesome issues around ‘neglect’

I’ve recently being made aware of this project. Identifying and Understanding Inequalities in Child Welfare Intervention Rates. It is worth watching the You tube video associated with the link as it identifies that in a poor neighbourhood within a wealthy borough there are a lot more children on child protection plans than in a poor neighbourhood in a poor borough. Surely ‘abuse is abuse’ and ‘neglect is neglect’ so how to explain this? Assuming ‘abuse’ is an absolute, maybe the concept of ‘neglect’ is a relative one, so one person’s/team’s idea of neglect is not another’s? I’ve a working lifetime of experience where I’ve learned to never ask anyone in a local authority whether they would like to be involved in decision making unless it falls within their strictly defined statutory remit and I check that myself first rather than asking. This is because I have found that many are tempted to try and control things they have no statutory remit for and ‘it is best not to invite trouble’. This is certainly not unique to people who work in Local Authorities just that when asked for our opinions, most of us have difficulties not telling people what they should be doing based on our own likes/dislikes/perspectives. When it comes to Child Protection, where there is a huge power imbalance and a very diffuse remit, I think this can enter some really dangerous territory.

Take this situation where there are concerns about abuse and neglect by parents of their autistic children :-
‘’ Some families may feel that they accept their child for who they are and allow them to withdraw from the world. Is that neglect? Many people with autism need to have structure and routine in their lives to cope with an unpredictable world. Some parents may allow this to take over and dictate the lives of the whole family, others may rally against it, believing it’s in the child’s best interest for them not to give way to the structure. Is this abuse?

There are many different therapies and interventions available which claim to cure autism. Some of these practices can in themselves ‘appear’ abusive. Some parents pursue these out of desperation and when the claims for some of these therapies and interventions are far from clear, it can be difficult for parents to know what to believe’’

http://www.autismeurope.org/activities/projects/speak-up-publications/guide-for-the-protection-of-children-and-young-people-with-autism-from-violence-and-abuse.html

If social workers working with children have little training about autism, are they really able to make decisions about what constitutes ‘neglect’ when it comes to this group? What if an autistic child doesn’t t have a diagnosis because clinicians do not have resources to carry out specialist assessments? If they do not have very good multi-disciplinary working arrangements that can quickly identify the reasons for a child’s difficulties and help build the child’s capacity, ,not just focus on questions about the parent’s fitness to parent, are they likely to get this right?
Where is the discussion about this in Child Protection circles and if decision-making is wrong why is that not abuse? It is absolutely foreseeable and mostly preventable with good training and good multi-disciplinary working arrangements around diagnosis.

Which brings me to ‘Edge of Care’ support for autistic children.

Autism is a spectrum condition and a child’s difficulties can present in many ways. One of the most difficult to explain is that a child who is very bright and no trouble in school can have extreme difficulties in processing what is happening around them and may develop very poor mental health particularly around anxiety. See this National Autism Society video  explaining how autistic children who have acute difficulties such as these, may end up in secure or forensic settings.

The tone is very much ” Their parents never taught them and because of this..” My response to that would be ”Give parents the tools to help their autistic children and most will.” Autistic children need an autism diagnosis (my son got his at 16 in the most horrendous circumstances) and parents need support (we got none). I also believe billions of pounds of cuts are purposefully being made to Children’s Services, legal aid and the NHS with an unspoken acceptance that naive carers/parents in desperate circumstances will find it almost impossible to access support for themselves and their children. Many pathways to support exist in name only, are supposed to be provided by the market via brokerage or self-funding or unfunded charities, are initiatives or time limited programmes that quietly disappear, unlike the fanfare around their introduction. Services where they exist are understaffed and complaints/appeals processes so difficult to negotiate that only the most committed, resourceful and able persist. All, including professionals who have to somehow work in this environment whilst retaining their own humanity, understand this, so is this the ‘neglect and abuse’ that Child Protection Professionals are concerned about? Maybe.

I could go on and on..

As you will have gathered my own ‘special interest’ is around children who are autistic. See this piece http://www.bbc.co.uk/news/health-41345647
”About 20,000 children have been harmed by valproate medicines in the UK since the 1970s. The medicines regulator said the drug had been kept under constant review. Babies exposed to the drug in the womb have a 40% risk of developing autism, low IQ and learning disabilities.” —Almost 70% of women surveyed about a powerful epilepsy drug have not received new safety warnings about the dangers of taking it during pregnancy.”

Anyone interested in the law may already know that a number of years ago, legal aid was withdrawn to families trying to take a case against the drug’s manufacturer and it could not proceed. Since then children continued to be born with abnormalities and some died, as a result of their mothers taking this drug without being aware of the risks, causing unimaginable and completely preventable suffering to children. Is that ‘neglect’ by the State? Can it get any more serious if so?

Or is this the kind of ‘neglect and abuse’ that the United Nations has called for action on, United Nations criticises treatment of disabled children in the UK  that concerns Child Protection professionals?

These are rhetorical questions in the main because although Child Protection professionals refer to preventing ‘abuse’ and ‘neglect’ of children what they really mean is intervening in families that are experiencing difficulties with the mind-set that children’s difficulties stem from neglectful or abusive parenting. The reality is that it isn’t possible for parents or professionals to nurture children particularly children with high needs, without the State taking an active role in supporting and protecting families.

As it stands, the Child Protection system is a blunt and sometimes cruel instrument often used without much prospect of bringing about positive change because it can only ever work as one part of a system of support for families, and this system of support is largely absent. I think families are a huge resource – painting us as incompetent, neglectful, not to be trusted, ignorant etc. is just so damaging for our children. My son didn’t need rescuing. We needed to be listened to and we needed help. That our son had to enter Care to get it is my idea of what constitutes ‘neglect’.

 

Further Reading

NHS (2017) Developing Support and Services for Children and Young People with a learning disability, autism or both  ”The Department for Education supports the development of the work undertaken in the Transforming Care Partnership Boards and encourages local authorities to pay regard to this guidance”

Tizard, Challenging Behaviour Foundation (2017) Developing Better Commissioning for Individuals with behaviour that challenges services – A scoping exercise.
The Children Act 1989 – deeply flawed legislation?

PRACTICE DIRECTION 12J – CHILD ARRANGEMENTS AND CONTACT ORDERS: DOMESTIC ABUSE AND HARM

This Practice Direction supplements FPR Part 12, and incorporates and supersedes the President’s Guidance in Relation to Split Hearings (May 2010) as it applies to proceedings for child arrangements orders.

This is the updated PD12J from 2017. For a more general discussion of issues around violence in family proceedings see this post “Reporting Domestic Violence” Comments from the President of the Family Division about what the amended PD hopes to achieve are set out below in his ‘circular’ of September 2017. 

Summary

1. This Practice Direction applies to any family proceedings in the Family Court or the High Court under the relevant parts of the Children Act 1989 or the relevant parts of the Adoption and Children Act 2002 in which an application is made for a child arrangements order, or in which any question arises about where a child should live, or about contact between a child and a parent or other family member, where the court considers that an order should be made.
2. The purpose of this Practice Direction is to set out what the Family Court or the High Court is required to do in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic abuse perpetrated by another party or that there is a risk of such abuse.
3. For the purpose of this Practice Direction –
“domestic abuse” includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment;
“abandonment” refers to the practice whereby a husband, in England and Wales, deliberately abandons or “strands” his foreign national wife abroad, usually without financial resources, in order to prevent her from asserting matrimonial and/or residence rights in England and Wales. It may involve children who are either abandoned with, or separated from, their mother;
“coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim;
“controlling behaviour” means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour;
“development” means physical, intellectual, emotional, social or behavioural development;
“harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another, by domestic abuse or otherwise;
“health” means physical or mental health;
“ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical; and
“judge” includes salaried and fee-paid judges and lay justices sitting in the Family Court and, where the context permits, can include a justices’ clerk or assistant to a justices’ clerk in the Family Court.

General principles

4. Domestic abuse is harmful to children, and/or puts children at risk of harm, whether they are subjected to domestic abuse, or witness one of their parents being violent or abusive to the other parent, or live in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with domestic abuse, and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both of their parents.
5. The court must, at all stages of the proceedings, and specifically at the First Hearing Dispute Resolution Appointment (‘FHDRA’), consider whether domestic abuse is raised as an issue, either by the parties or by Cafcass or CAFCASS Cymru or otherwise, and if so must –
• identify at the earliest opportunity (usually at the FHDRA) the factual and welfare issues involved;
• consider the nature of any allegation, admission or evidence of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms;
• give directions to enable contested relevant factual and welfare issues to be tried as soon as possible and fairly;
• ensure that where domestic abuse is admitted or proven, any child arrangements order in place protects the safety and wellbeing of the child and the parent with whom the child is living, and does not expose either of them to the risk of further harm; and
• ensure that any interim child arrangements order (i.e. considered by the court before determination of the facts, and in the absence of admission) is only made having followed the guidance in paragraphs 25–27 below.
In particular, the court must be satisfied that any contact ordered with a parent who has perpetrated domestic abuse does not expose the child and/or other parent to the risk of harm and is in the best interests of the child.
6. In all cases it is for the court to decide whether a child arrangements order accords with Section 1(1) of the Children Act 1989; any proposed child arrangements order, whether to be made by agreement between the parties or otherwise must be carefully scrutinised by the court accordingly. The court must not make a child arrangements order by consent or give permission for an application for a child arrangements order to be withdrawn, unless the parties are present in court, all initial safeguarding checks have been obtained by the court, and an officer of Cafcass or CAFCASS Cymru has spoken to the parties separately, except where it is satisfied that there is no risk of harm to the child and/or the other parent in so doing.
7. In proceedings relating to a child arrangements order, the court presumes that the involvement of a parent in a child’s life will further the child’s welfare, unless there is evidence to the contrary. The court must in every case consider carefully whether the statutory presumption applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm.
8. In considering, on an application for a child arrangements order by consent, whether there is any risk of harm to the child, the court must consider all the evidence and information available. The court may direct a report under Section 7 of the Children Act 1989 to be provided either orally or in writing, before it makes its decision; in such a case, the court must ask for information about any advice given by the officer preparing the report to the parties and whether they, or the child, have been referred to any other agency, including local authority children’s services. If the report is not in writing, the court must make a note of its substance on the court file and a summary of the same shall be set out in a Schedule to the relevant order.

Before the FHDRA

9. Where any information provided to the court before the FHDRA or other first hearing (whether as a result of initial safeguarding enquiries by Cafcass or CAFCASS Cymru or on form C1A or otherwise) indicates that there are issues of domestic abuse which may be relevant to the court’s determination, the court must ensure that the issues are addressed at the hearing, and that the parties are not expected to engage in conciliation or other forms of dispute resolution which are not suitable and/or safe.
10. If at any stage the court is advised by any party (in the application form, or otherwise), by Cafcass or CAFCASS Cymru or otherwise that there is a need for special arrangements to protect the party or child attending any hearing, the court must ensure so far as practicable that appropriate arrangements are made for the hearing (including the waiting arrangements at court prior to the hearing, and arrangements for entering and exiting the court building) and for all subsequent hearings in the case, unless it is advised and considers that these are no longer necessary. Where practicable, the court should enquire of the alleged victim of domestic abuse how best she/he wishes to participate.

First hearing / FHDRA

11. At the FHDRA, if the parties have not been provided with the safeguarding letter/report by Cafcass/CAFCASS Cymru, the court must inform the parties of the content of any safeguarding letter or report or other information which has been provided by Cafcass or CAFCASS Cymru, unless it considers that to do so would create a risk of harm to a party or the child.
12. Where the results of Cafcass or CAFCASS Cymru safeguarding checks are not available at the FHDRA, and no other reliable safeguarding information is available, the court must adjourn the FHDRA until the results of safeguarding checks are available. The court must not generally make an interim child arrangements order, or orders for contact, in the absence of safeguarding information, unless it is to protect the safety of the child, and/or safeguard the child from harm (see further paragraphs 25-27 below).
13. There is a continuing duty on the Cafcass Officer/Welsh FPO which requires them to provide a risk assessment for the court under section 16A Children Act 1989 if they are given cause to suspect that the child concerned is at risk of harm. Specific provision about service of a risk assessment under section 16A of the 1989 Act is made by rule 12.34 of the FPR 2010.
14. The court must ascertain at the earliest opportunity, and record on the face of its order, whether domestic abuse is raised as an issue which is likely to be relevant to any decision of the court relating to the welfare of the child, and specifically whether the child and/or parent would be at risk of harm in the making of any child arrangements order.

Admissions

15. Where at any hearing an admission of domestic abuse toward another person or the child is made by a party, the admission must be recorded in writing by the judge and set out as a Schedule to the relevant order. The court office must arrange for a copy of any order containing a record of admissions to be made available as soon as possible to any Cafcass officer or officer of CAFCASS Cymru or local authority officer preparing a report under section 7 of the Children Act 1989.

Directions for a fact-finding hearing

16. The court should determine as soon as possible whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegation of domestic abuse –
(a) in order to provide a factual basis for any welfare report or for assessment of the factors set out in paragraphs 36 and 37 below;
(b) in order to provide a basis for an accurate assessment of risk;
(c) before it can consider any final welfare-based order(s) in relation to child arrangements; or
(d) before it considers the need for a domestic abuse-related Activity (such as a Domestic Violence Perpetrator Programme (DVPP)).
17. In determining whether it is necessary to conduct a fact-finding hearing, the court should consider –
(a) the views of the parties and of Cafcass or CAFCASS Cymru;
(b) whether there are admissions by a party which provide a sufficient factual basis on which to proceed;
(c) if a party is in receipt of legal aid, whether the evidence required to be provided to obtain legal aid provides a sufficient factual basis on which to proceed;
(d) whether there is other evidence available to the court that provides a sufficient factual basis on which to proceed;
(e) whether the factors set out in paragraphs 36 and 37 below can be determined without a fact-finding hearing;
(f) the nature of the evidence required to resolve disputed allegations;
(g) whether the nature and extent of the allegations, if proved, would be relevant to the issue before the court; and
(h) whether a separate fact-finding hearing would be necessary and proportionate in all the circumstances of the case.
18. Where the court determines that a finding of fact hearing is not necessary, the order must record the reasons for that decision.
19. Where the court considers that a fact-finding hearing is necessary, it must give directions as to how the proceedings are to be conducted to ensure that the matters in issue are determined as soon as possible, fairly and proportionately, and within the capabilities of the parties. In particular it should consider –
(a) what are the key facts in dispute;
(b) whether it is necessary for the fact-finding to take place at a separate (and earlier) hearing than the welfare hearing;
(c) whether the key facts in dispute can be contained in a schedule or a table (known as a Scott Schedule) which sets out what the applicant complains of or alleges, what the respondent says in relation to each individual allegation or complaint; the allegations in the schedule should be focused on the factual issues to be tried; and if so, whether it is practicable for this schedule to be completed at the first hearing, with the assistance of the judge;
(d) what evidence is required in order to determine the existence of coercive, controlling or threatening behaviour, or of any other form of domestic abuse;
(e) directing the parties to file written statements giving details of such behaviour and of any response;
(f) whether documents are required from third parties such as the police, health services or domestic abuse support services and giving directions for those documents to be obtained;
(g) whether oral evidence may be required from third parties and if so, giving directions for the filing of written statements from such third parties;
(h) where (for example in cases of abandonment) third parties from whom documents are to be obtained are abroad, how to obtain those documents in good time for the hearing, and who should be responsible for the costs of obtaining those documents;
(i) whether any other evidence is required to enable the court to decide the key issues and giving directions for that evidence to be provided;
(j) what evidence the alleged victim of domestic abuse is able to give and what support the alleged victim may require at the fact-finding hearing in order to give that evidence;
(k) in cases where the alleged victim of domestic abuse is unable for reasons beyond their control to be present at the hearing (for example, abandonment cases where the abandoned spouse remains abroad), what measures should be taken to ensure that that person’s best evidence can be put before the court. Where video-link is not available, the court should consider alternative technological or other methods which may be utilised to allow that person to participate in the proceedings;
(l) what support the alleged perpetrator may need in order to have a reasonable opportunity to challenge the evidence; and
(m) whether a pre-hearing review would be useful prior to the fact-finding hearing to ensure directions have been complied with and all the required evidence is available.
20. Where the court fixes a fact-finding hearing, it must at the same time fix a Dispute Resolution Appointment to follow. Subject to the exception in paragraph 31 below, the hearings should be arranged in such a way that they are conducted by the same judge or, wherever possible, by the same panel of lay justices; where it is not possible to assemble the same panel of justices, the resumed hearing should be listed before at least the same chairperson of the lay justices. Judicial continuity is important.

Reports under Section 7

21. In any case where a risk of harm to a child resulting from domestic abuse is raised as an issue, the court should consider directing that a report on the question of contact, or any other matters relating to the welfare of the child, be prepared under section 7 of the Children Act 1989 by an Officer of Cafcass or a Welsh family proceedings officer (or local authority officer if appropriate), unless the court is satisfied that it is not necessary to do so in order to safeguard the child’s interests.
22. If the court directs that there shall be a fact-finding hearing on the issue of domestic abuse, the court will not usually request a section 7 report until after that hearing. In that event, the court should direct that any judgment is provided to Cafcass/CAFCASS Cymru; if there is no transcribed judgment, an agreed list of findings should be provided, as set out at paragraph 29.
23. Any request for a section 7 report should set out clearly the matters the court considers need to be addressed.

Representation of the child

24. Subject to the seriousness of the allegations made and the difficulty of the case, the court must consider whether it is appropriate for the child who is the subject of the application to be made a party to the proceedings and be separately represented. If the court considers that the child should be so represented, it must review the allocation decision so that it is satisfied that the case proceeds before the correct level of judge in the Family Court or High Court.

Interim orders before determination of relevant facts

25. Where the court gives directions for a fact-finding hearing, or where disputed allegations of domestic abuse are otherwise undetermined, the court should not make an interim child arrangements order unless it is satisfied that it is in the interests of the child to do so and that the order would not expose the child or the other parent to an unmanageable risk of harm (bearing in mind the impact which domestic abuse against a parent can have on the emotional well-being of the child, the safety of the other parent and the need to protect against domestic abuse including controlling or coercive behaviour).
26. In deciding any interim child arrangements question the court should–
(a) take into account the matters set out in section 1(3) of the Children Act 1989 or section 1(4) of the Adoption and Children Act 2002 (‘the welfare check-list’), as appropriate; and
(b) give particular consideration to the likely effect on the child, and on the care given to the child by the parent who has made the allegation of domestic abuse, of any contact and any risk of harm, whether physical, emotional or psychological, which the child and that parent is likely to suffer as a consequence of making or declining to make an order.
27. Where the court is considering whether to make an order for interim contact, it should in addition consider –
(a) the arrangements required to ensure, as far as possible, that any risk of harm to the child and the parent who is at any time caring for the child is minimised and that the safety of the child and the parties is secured; and in particular:
(i) whether the contact should be supervised or supported, and if so, where and by whom; and
(ii) the availability of appropriate facilities for that purpose;
(b) if direct contact is not appropriate, whether it is in the best interests of the child to make an order for indirect contact; and
(c) whether contact will be beneficial for the child.
The fact-finding hearing or other hearing of the facts where domestic abuse is alleged
28. While ensuring that the allegations are properly put and responded to, the fact-finding hearing or other hearing can be an inquisitorial (or investigative) process, which at all times must protect the interests of all involved. At the fact-finding hearing or other hearing –
• each party can be asked to identify what questions they wish to ask of the other party, and to set out or confirm in sworn evidence their version of the disputed key facts; and
• the judge should be prepared where necessary and appropriate to conduct the questioning of the witnesses on behalf of the parties, focusing on the key issues in the case.
29. The court should, wherever practicable, make findings of fact as to the nature and degree of any domestic abuse which is established and its effect on the child, the child’s parents and any other relevant person. The court must record its findings in writing in a Schedule to the relevant order, and the court office must serve a copy of this order on the parties. A copy of any record of findings of fact or of admissions must be sent by the court office to any officer preparing a report under Section 7 of the 1989 Act.
30. At the conclusion of any fact-finding hearing, the court must consider, notwithstanding any earlier direction for a section 7 report, whether it is in the best interests of the child for the court to give further directions about the preparation or scope of any report under section 7; where necessary, it may adjourn the proceedings for a brief period to enable the officer to make representations about the preparation or scope of any further enquiries. Any section 7 report should address the factors set out in paragraphs 36 and 37 below, unless the court directs otherwise.
31. Where the court has made findings of fact on disputed allegations, any subsequent hearing in the proceedings should be conducted by the same judge or by at least the same chairperson of the justices. Exceptions may be made only where observing this requirement would result in delay to the planned timetable and the judge or chairperson is satisfied, for reasons which must be recorded in writing, that the detriment to the welfare of the child would outweigh the detriment to the fair trial of the proceedings.

 

In all cases where domestic abuse has occurred

32. The court should take steps to obtain (or direct the parties or an Officer of Cafcass or a Welsh family proceedings officer to obtain) information about the facilities available locally (to include local domestic abuse support services) to assist any party or the child in cases where domestic abuse has occurred.
33. Following any determination of the nature and extent of domestic abuse, whether or not following a fact-finding hearing, the court must, if considering any form of contact or involvement of the parent in the child’s life, consider-
(a) whether it would be assisted by any social work, psychiatric, psychological or other assessment (including an expert safety and risk assessment) of any party or the child and if so (subject to any necessary consent) make directions for such assessment to be undertaken and for the filing of any consequent report. Any such report should address the factors set out in paragraphs 36 and 37 below, unless the court directs otherwise;
(b) whether any party should seek advice, treatment or other intervention as a precondition to any child arrangements order being made, and may (with the consent of that party) give directions for such attendance.
34. Further or as an alternative to the advice, treatment or other intervention referred to in paragraph 33(b) above, the court may make an Activity Direction under section 11A and 11B Children Act 1989. Any intervention directed pursuant to this provision should be one commissioned and approved by Cafcass. It is acknowledged that acceptance on a DVPP is subject to a suitability assessment by the service provider, and that completion of a DVPP will take time in order to achieve the aim of risk-reduction for the long-term benefit of the child and the parent with whom the child is living.

Factors to be taken into account when determining whether to make child arrangements orders in all cases where domestic abuse has occurred

35. When deciding the issue of child arrangements the court should ensure that any order for contact will not expose the child to an unmanageable risk of harm and will be in the best interests of the child.
36. In the light of any findings of fact or admissions or where domestic abuse is otherwise established, the court should apply the individual matters in the welfare checklist with reference to the domestic abuse which has occurred and any expert risk assessment obtained. In particular, the court should in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that domestic abuse, and any harm which the child and the parent with whom the child is living is at risk of suffering, if a child arrangements order is made. The court should make an order for contact only if it is satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent.
37. In every case where a finding or admission of domestic abuse is made, or where domestic abuse is otherwise established, the court should consider the conduct of both parents towards each other and towards the child and the impact of the same. In particular, the court should consider –
(a) the effect of the domestic abuse on the child and on the arrangements for where the child is living;
(b) the effect of the domestic abuse on the child and its effect on the child’s relationship with the parents;
(c) whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent;
(d) the likely behaviour during contact of the parent against whom findings are made and its effect on the child; and
(e) the capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse.

Directions as to how contact is to proceed

38. Where any domestic abuse has occurred but the court, having considered any expert risk assessment and having applied the welfare checklist, nonetheless considers that direct contact is safe and beneficial for the child, the court should consider what, if any, directions or conditions are required to enable the order to be carried into effect and in particular should consider –
(a) whether or not contact should be supervised, and if so, where and by whom;
(b) whether to impose any conditions to be complied with by the party in whose favour the order for contact has been made and if so, the nature of those conditions, for example by way of seeking intervention (subject to any necessary consent);
(c) whether such contact should be for a specified period or should contain provisions which are to have effect for a specified period; and
(d) whether it will be necessary, in the child’s best interests, to review the operation of the order; if so the court should set a date for the review consistent with the timetable for the child, and must give directions to ensure that at the review the court has full information about the operation of the order.

Where a risk assessment has concluded that a parent poses a risk to a child or to the other parent, contact via a supported contact centre, or contact supported by a parent or relative, is not appropriate.

39. Where the court does not consider direct contact to be appropriate, it must consider whether it is safe and beneficial for the child to make an order for indirect contact.

The reasons of the court

40. In its judgment or reasons the court should always make clear how its findings on the issue of domestic abuse have influenced its decision on the issue of arrangements for the child. In particular, where the court has found domestic abuse proved but nonetheless makes an order which results in the child having future contact with the perpetrator of domestic abuse, the court must always explain, whether by way of reference to the welfare check-list, the factors in paragraphs 36 and 37 or otherwise, why it takes the view that the order which it has made will not expose the child to the risk of harm and is beneficial for the child.

 

PRESIDENT’S CIRCULAR : 14 September 2017
DOMESTIC ABUSE : PD12J

In the summer of 2016 I asked Mr Justice Cobb, who had chaired the Working Group which drew up the Child Arrangements Programme in 2014, to review Practice Direction 12J, to examine whether further amendment was needed in the light of the recommendations made by the All Party Parliamentary Group on Domestic Violence in its briefing dated 29 April 2016 and by Women’s Aid Federation of England (WAFE) in its ‘Nineteen Child Homicides’ report published in February 2016, and to produce recommendations. His Report, accompanied by a draft amended PD12J, was dated 18 November 2016. I published it in January 2017: [2017] Fam Law 225. At the same time, in my 16th View from the Presidents Chambers, [2017] Fam Law 151, 160-161, I indicated that, with one important exception, I accepted all his recommendations.

As I had hoped, the publication of the draft amended PD12J generated comments and helpful suggestions, including from Families Need Fathers and, following a presentation they gave at the President’s Conference in May 2017, from Southall Black Sisters.

Although final responsibility for any amendment to PD12J rests with me as President of the Family Division, I thought it appropriate to consult both the Family Justice Council and the Family Procedure Rule Committee. The draft amended PD12J has accordingly been considered by the Family Justice Council and, at a number of its meetings when various iterations of the draft were considered, by the Family Procedure Rule Committee, most recently on 10 July 2017. Following this, a final revised draft amended PD12 was prepared by officials, for whose assistance I am grateful, incorporating the various amendments agreed by me and by the Committee and helpfully identifying a few additional issues (none of major significance) for my consideration. I should add that, throughout this process, I have benefited greatly from Mr Justice Cobb’s continuing advice, for which I am most grateful.

On 7 September 2017 I made the new PD12J, annexed to this Circular. It has since been approved by the Minister of State and will come into force on 2 October 2017. It applies (see paras 1, 3) to all judges, including lay justices, whether sitting in the Family Court or in the High Court.

PD12J will require further adjustment if and when the proposed legislation restricting cross-examination of alleged victims by alleged perpetrators is enacted. We cannot await that. Hence my decision to proceed without further delay.

The new PD12J contains numerous amendments, many of important substance. Here, I highlight only two:
1 There is (see para 3) a new and much expanded definition of what is now referred to as “domestic abuse”, rather than, as before, “domestic violence”.
2 There are mandatory requirements (see paras 8, 14, 15, 18, 22, 29) for inclusion of certain specified matters in the court’s order. I appreciate the additional burden that this may impose on judges and court staff, but there is good reason for making these requirements mandatory and they must be complied with.

There have been recurring complaints in Parliament and elsewhere of inadequate compliance with PD12J. I am unable to assess to what extent, if at all, such complaints are justified. However, I urge all judges to familiarise themselves with the new PD12J and to do everything possible to ensure that it is properly complied with on every occasion and without fail by everyone to whom it applies.

The Judicial College plays a vitally important role in providing appropriate training on the new PD12J to all family judges. As I have said previously, “I would expect the judiciary to receive high quality and up-to-date training in domestic violence and it is the responsibility of the Judicial College to deliver this.” The Judicial College has risen to the challenge, as many judges will already have experienced, and I am confident that it will continue to do so.
Domestic abuse in all its many forms, and whether directed at women, at men, or at children, continues, more than forty years after the enactment of the Domestic Violence and Matrimonial Proceedings Act 1976, to be a scourge on our society. Judges and everyone else in the family system need to be alert to the problems and appropriately focused on the available remedies. PD12J plays a vital part.

James Munby, President of the Family Division
14 September 2017

We have to talk about adoption – Feedback from the Bristol Performance

 

 

The first performance took place on 28th September at the Arnolfini in Bristol and the second will be taking place in London on 28th October 2017 – see here for further details and how to register for tickets. 

I have written before about the process of preparing for the performance and want to take some time to consider the feedback from the Arnolfini – did we meet our objectives of ‘having an intimate conversation’ with the audience, did we succeed in showing the audience another perspective on an area they might not have thought much about before? Were we able to empower others to take this conversation into other areas of their lives and to continue this very necessary discussion?

 

 

My feedback

I wanted to ask the following questions – because I don’t know the answers and I don’t think we are collectively having open and honest discussions about these issues:

  • Can we make happy families?
  • Can we impose identity on a child?
  • Do we need to ‘rescue’ children or should we be trying to support unhappy families?
  • What is really at the heart of our child protection system and adoption and why aren’t we talking about this?

I was surprised how nervous I felt during the dress rehearsal – it was the first time using the actual space where the performance would take place.  However, I was pleasantly surprised by how that anxiety diminished once the audience were actually there and even more pleasantly surprised by how the conversation developed afterwards.

Now, instead of dreading the London performance, I am in fact looking forward to it and to have a further arena for discussions. Because, and rather obviously, we will never get answers to questions if we don’t ask them.

 

Pamela Neil on stage during dress rehearsal

Feedback from others

After the performance, Pamela Neil,the artist I collaborated with to create the performance, contacted those who had attended for feedback. We are very grateful for all the thoughtful comments and will give some thought to how best to respond and incorporate any changes into the London performance.

The following are some of questions posed and the text in bold are some of the responses.

  1. What did you enjoy? the chance to hear some familiar concepts developed at a pace that i could absorb differently to their normal context (when sarah and I are cross and ranting to one another about the situation)
  2. Are your ideas about adoption different now, following the performance? actually yes, pushed slightly further along the spectrum than i was from enthusiastic to worried
  3. Has the performance inspired you to engage with the problem discussed? yes. i am already engaged with it, as i suspect were most of the audience, but it was helpful to look at things from a new angle. I found the analogies helpful.
  4. If you could suggest one change to enhance future performances, what would it be? to let the audience know what was expected in terms of questions and participation at the end. I think only those who knew sarah felt empowered to participate. I don’t know how you could better manage that and the fact that some were quite pushy in terms of ensuring that the conversation is with new people not just those who are already part of it – other than by explicit invitation.

One attendee echoed that last concern about how people can be empowered to join in the conversations:

I was hoping for a conversation about the possibility of co-parenting and whether FDACs were a good model to follow but the after-show conversation felt exclusive and I didn’t say anything. I didn’t know who was speaking, what the issues were, nor the previous history between Sarah and the speakers, although I could feel the tension. I think it would have been helpful if speakers had been invited to introduce themselves and the organisations they were representing. I was watching people’s body language during the performance and saw lots of discomfort – I hoped social workers, if there were any there, would speak out at the end and perhaps they did but I left when I felt it was a private conversation that was re-hashing old arguments rather than discussing a way forward.

We clearly need to give some thought as to how to avoid any impression that what is happening is a ‘private conversation’ – this may be an inevitable consequence of holding the first event in Bristol where the audience were more likely to know me. Hopefully a London audience can be more diverse and conversations can be less about historic tensions and more about fresh perspectives.

However, this commentator did find the performance valuable:

There was lots of food for thought and I wanted to thank Sarah; it is good to hear other perspectives – our focus can become too narrow. I hope it will encourage the different systems to work together more closely and explore alternative ways of looking after children perhaps based on evidence from other countries.

I hope that the conversations can continue in London on October 28th.

 

Multi Agency Response to children living with domestic abuse

Regular contributor @DVHurts writes about the recent report investigating the multi agency response to children living with domestic abuse. Some good practice is noted but also criticism of practices that do not keep children safe, such as written agreements that do not focus on the perpetrator as the source of the abuse and therefore the risk. 

I am highlighting a recent joint inspection report by OFSTEAD, HMICFRS, Care Quality Commission and HM Inspectors of Probation, into the multi agency response to children living with domestic abuse. You can read the whole report here.

This report is about the second joint targeted area inspection programme, which
began in September 2016 and which examined ‘the multi-agency response to
children living with domestic abuse’. The findings in this report consider the extent to
which, in the six local authorities inspected, children’s social care, health
professionals, the police and probation officers were effective in safeguarding
children who live with domestic abuse. The report calls for a national public service
initiative to raise awareness of domestic abuse and violence. It also calls for a
greater focus on perpetrators and better strategies for the prevention of domestic
abuse.

It raises the question whether a public health campaign similar to drink driving or drug awareness should be rolled out considering the enormous human and financial cost of domestic violence:

There needs to be a public service message aimed at reducing the prevalence of
domestic abuse as part of a long-term strategy. The focus of this public service
message needs to be on those perpetrators who have offended or might offend, and
to communicate a better understanding of the behaviour and attitudes of those
perpetrating abuse.

Once again firefighting by services, rather than prevention is highlighted:

Work with families that we saw on inspection was often in reaction to
individual crises. Agencies can be overwhelmed by the frequency of
serious incidents, particularly higher risk ones. However, keeping children
safe over time needs long-term solutions.

There was criticism on the concentration on the victim, rather than the perpetrator by services:

A pattern emerged that suggests agencies focus on the victim as the only solution.
In the worst cases, agencies placed an inappropriate attribution of responsibility on
the mother to protect her children. The end of an abusive relationship was
considered to reduce the risk to children, when in fact research tells us that
separation can escalate risk.
Most agencies did not focus on the perpetrator of the abuse enough. Instead, they
focused on removing the family from the perpetrator, leaving them to move on to
another family and, potentially, a repeated pattern of abuse.

On a more positive note, the inspectors highlighted several areas of good practice , including midwifery, in particular staff who are not frightened to ask the awkward questions:

In Hounslow, for example, inspectors praised the ‘One Stop Shop’ service
for parents who are subject to domestic abuse. The service is open one
morning a week. Parents can access a range of services, advice and
support from various professionals including legal advice, support from an
independent domestic violence adviser (IDVA), children’s social care, the
police, housing, substance misuse support, a refuge worker and an
independent sexual violence adviser. Inspectors noted that:
‘parents are gaining an understanding of the impact of living with
domestic abuse, leading to their being better able to meet the needs of
their children and keeping them safe’.

On the other hand there was criticism of practice that was highly unlikely to keep children safe:

Some of the thinking and practice we saw with victims in contexts of coercive
control were clearly inappropriate. This included the use of written agreements
that placed responsibility for managing the risk to children with the victim.
Written agreements are similar to written contracts, where social workers and
parents agree a set of terms that the parents sign. The terms may include
things like, the victim will not continue a relationship with her abusive partner,
she will not allow him into the house, she will not be in contact with him, and
so on.

The use of written agreements in two of the six local authorities was
widespread. However, we saw no evidence that they are effective. Given that
the focus of written agreements is often not the perpetrator who is the source
of the abuse and therefore the risk, it is unsurprising that they are ineffective.

Then something that a number of woman will relate to, and is often the subject of comments on this blog( not just from me):

 

Some of the women we spoke to in our focus groups described how their abusers used their distress as evidence that they were unstable. Often the women believed they were regarded as having mental health conditions or of being emotionally incapable of caring for their children. In one case, this resulted in a mother being evicted from her home and her partner being given sole custody of her children, whom she did not see for several months. Eventually her abuser, who had a severe alcohol addiction, was evicted and custody returned to the mother

Untangling this web and being consistent in identifying who needs to be held
responsible, and for what, will always be challenges for professionals. We found
instances of language being used that incorrectly held victims responsible for
the risk of domestic abuse. For example, we saw reports that described an
abusive situation as a ‘lifestyle choice’ and reports stating that victims had
learnt to ‘make better relationship choices’. We also found instances of
the multi-agency response to children living with domestic abuse
inappropriate practice, including a police log that had been updated to state
that a safeguarding visit would not be completed because both parties were ‘as
bad as one another’.

A lack of focus on perpetrators can lead to a short-term view of risks. We saw examples of swift action being taken to secure the immediate safety of the
victim and children, without any action being taken to address the root causes
of the perpetrator’s behaviour. In temporarily resolving the immediate incident,professionals can lose sight of the greater risks posed in future.

One survivor of domestic abuse told us:
‘I called the police on him multiple times and they just kind of patted him
on the back and said ‘calm down son’. And I’m like, ‘he’s just thrown me
down the goddamn stairs’.

It is a comprehensive, readable report and has been reported on elsewhere: http://www.communitycare.co.uk/2017/09/21/written-agreements-still-common-part-child-protection-practice/

http://www.telegraph.co.uk/education/2017/09/19/domestic-abuse-victims-ignored-police-officers-see-lifestyle/Mul

The conversations we need to have about adoption – London performance.

From Bristol to London  –  28th October 2017

 

 

 

 

 

 

Performing, Truth and Talking

On 23rd September 2017 at the Arnolfini in Bristol I will be performing for the very first time a unique ‘ oral performance installation’ that doesn’t involve dry law lectures or angry ranting on Twitter. Neither activity has done much to promote wider and better conversations about the child protection system.

To my sorrow the recent furore over The Times reporting about the Christian child and the Muslim foster carers demonstrates just how dry the well of public debate has become about such important issues.

I am really pleased to say we now have a full house for the performance on on September 23rd – and I am even more pleased to note the majority are NOT my friends or family so presumably they are drawn to the subject matter itself and think that this is worth an hour or two of their lives.

We are also performing the same piece in London on 28th October at The Depot on Upper Clapton Road – again, its free to come but you will need to register for tickets. Please scroll to the end of this post to find all the links for tickets etc.

We have to talk

As I wrote in my first blog about this the aim of the performance was to explore with artist Pamela Neil how we communicate some of the thought and ideas I have around adoption, to reach a wider group of people and starting conversations I think we should be having.

Attempts to broaden debate and understanding often falter because when the debate pushes so many emotional buttons, attempts to make a particular argument often seem to end up being a barrier to communication rather than opening a door to greater understanding and awareness – its not so much the FACTS that win hearts and minds but the FEELINGS they create.
Is it possible therefore to come at this from another angle? Not the dry legal approach which has informed my training and professional life – but trying to shine a light on the issues in another way?
One of the most important benefits of any performance or work of art must be how powerfully complex thoughts and ideas can be communicated to an audience; straight to the heart, rather than draining our interest in a dull legal lecture and PowerPoint.

When I wrote that back in June I had simply no idea how this would work or what I would have to do. I came into the exercise without any preconceptions about what was needed from me. That has proved both a blessing and problem. I simply had no idea just how hard it was to find the story I wanted to tell: to share the thoughts and ideas that were important to me with others, in a way that that provided access to the audience.

I had to free myself from assumptions that OF COURSE my listener understood what I was saying. While I am comfortable with writing, I was naive about what it meant to share thoughts and ideas in an oral form.

Its been a long and hard process – first drawing out what I wanted to say, then turning that into a form of expression that could be communicated orally in a way to engage an audience of people who may not be familiar with the topic.

I think we have now identified what it is I want to say. We now move onto the next phase, finding a way to say it that both works for me and engages the audience, giving them access to my thoughts and ideas, but on their terms.

A frankly terrifying prospect.

Pamela has born this process with remarkable patience, explaining that I can never assume that others know or understand what I am saying – I need to take her by the hand and walk her over to where I want her to stand so she can see what it is that I see. If I am advocating for a change in the way we view adoption by having open, honest and transparent conversations, I need to show her what an open and honest conversation looks like and what changes it can bring.

She has explained that we are creating a unique oral art installation – not a lecture or a speech.

I hope that come September 23rd Pamela and I will have created something that is worth hearing, something that will leave the audience with no doubt that we have to talk.

But whatever happens at either performance, good, bad or indifferent, I know that this has been a profoundly useful process for me and explained a lot about why it is so difficult to communicate, to make others see what you want them to see.

We tend not to take people by the hand either metaphorically or literally. We talk AT them, we talk OVER them we talk ABOUT them. Nobody ever changed their mind by being patronised, belittled or shouted at. It’s easy to forget that each member of an audience will have a different view about what they hear, and therefore what they take away.

We urgently need to start talking about the things that matter and I hope this is going to be a good starting point that may plant some seeds for change in the minds of the audience.

Everything planted is likely to grow.

 

WHEN              28th October 2017 6.30 – 8.30
WHERE            The Depot, Upper Clapton Street London E5 8BQ
HOW                 Register for tickets here at Eventbrite
MORE INFO?   Download brochure here

 

 

 

 

 

PICTURE OF SCAREY REHEARSAL SPACE

The Karpman Drama Triangle – What is it?

Everywhere I’ve turned somebody has wanted to sacrifice me for my own good—only /they/ were the ones who benefited. And now we start on the old sacrificial merry-go-round. At what point do we stop?

Ralph Ellison

I am grateful for this guest post from a long time contributor and supporter of this site. She tweets as @DVHurts and has her own blog which you should visit. She writes here about the Karpman Drama Triangle

The drama triangle is a social model of human interaction – the triangle maps a type of destructive interaction that can occur between people in conflict. The drama triangle model is a tool used in psychotherapy, specifically transactional analysis.

 

Conflict, power and the roles we play

I am a parent who has been through care proceedings and I want to talk about something that was an eye opener for me, with apologies to those who are less of a nerd. My specialist subject today is the Karpman Drama Triangle and how it applies to interactions with professionals. The what?!

Basically ,there was this bloke, Stephen Karpman M.D. American of course, who as a student constructed a theory of social interaction encompassing conflict , power and the shifting roles people play. Why I first became interested in it was as a domestic violence victim , I could not understand how professionals did not see past the perpetrators immediate morphing into the victim every time the police were called. That victim status got him sympathy and belief that he was the injured party.

The Drama Triangle consists of three roles; two at the top of an inverted triangle, the persecutor and the rescuer at the top and one at the bottom is the victim. Although the roles are not static , people often have a natural leaning towards one of them initially in a relationship whether personal or professional. These are learnt roles from childhood.

I am a natural rescuer, though of course I have played of three roles at times. The reason why, is I had too much responsibility as a child and so learnt that my worth is consistent with how much I can help someone. Many caring professionals are also rescuers, but a significant minority can also spend some of their time as persecutors and victims. One such was my children’s social worker. I hope I am now not turning into the persecutor but rather pointing out bad social work practice. I will not name her, lets call her Susan.

Susan was actually a little bit younger than me, she had like many come to social work late in her late 30’s . I got to know her well, too well, as she used to slot me in as the last visit of the day and sit and talk about herself. She told me about her strained relationship with her mum, the split with her ex, all the jobs she had prior to becoming a social worker,her son, a difficult removal of a new born baby, her problems with her job….. I listened. What I didn’t realise at the time was that she was playing the victim and I was playing the rescuer, when in fact I was an actual victim whose needs she should have been attempting to find resources for. For instance we were supposed to have a family group conference and I should have had a carer’s assessment. When my situation worsened she of course then shifted roles again to be the persecutor.

We all get payback from the roles we play. Susan initially got me to confirm her victim status, she sat on the pity pot and I said the appropriate responses. Remember on the whole I am a rescuer and it was a role I was very familiar with. It was extremely unhelpful to the situation though, by rescuing , I could stay in denial about my problems and by Susan maintaining her victim status she was telling me that she was helpless to make changes to her life let alone enable me to make changes to mine. We were both trapped on the merry go round.

Act 2
Whilst Susan continued to play out her victim role , the situation worsened and our positions on the triangle shifted. She became the rescuer of my children and my ex, plus my persecutor. I then felt like a victim, when no one would acknowledge that, I in turn became her persecutor , if she had done her job properly would we have reached crisis?

Social Work in particular

I have every empathy for social workers, heavy case loads, working conditions and the undoubted trauma they face every day. However, and you knew there had to be a however, they are not victims. They are middle class , from social classification, and have far more choice and advantages than their clients. Including the ability to move jobs, if they really cannot stand the position they are in.

Their client group, if it involves child protection or mental health has multiple disadvantages. Yes some of clients problems are inter generational, but you can’t actually be blamed for your parents. Clients live very different lives,with very few options; some days just living is a miracle.

 

What is in it for me?

This is the single most helpful tool I have found in breaking the drama triangle. Not being over analytical, but simply working out what payback that both you and the person you are in any relationship with are getting. Is one helping the other , giving too much time , money, sympathy without any return.

Do you know absolutely nothing about your friend but they know your complete history? Healthy relationships benefit both parties, I’m alright, your alright. that includes relationships with professionals as well.

Costs of Experts in Care Proceedings – what happens when parents dispense with their lawyers?

 

The decision in J (A Child: Care Proceedings: Apportionment of Expert’s fees) [2017] EWFC B49 is mainly concerned with how to ensure the court gets help from expert witnesses now that their fees are subject to pretty stringent caps by the Legal Aid Agency (LAA -formerly Legal Services Commission or LSC)

I set out the discussion about hourly rates and apportionment of fees below; its pretty dry stuff but horribly necessary. It is clear that we live in a society now where a decision by the court that an expert’s opinion is ‘necessary’ is a decision that can be thwarted by a branch of the government that has set the level of acceptable rates for expert pay. It is possible to argue that your expert should be paid more but only in ‘exceptional circumstances’.

Matters were complicated here by both parents refusing to instruct lawyers and thus take advantage of the non means non merits tested public funding they would get.

If all the parties had lawyers the costs would probably be split 4 ways – in this case the court had to split them between the LA and the guardian. This does in fact reduce the burden on the LAA as it faces only 50% of the bill rather than 75% had costs been split four ways and the LA was the only party not with a legal aid certificate. So hopefully it won’t be a problem in this case. But what if it is? What if there are problems for the guardian on his publicly funded certificate? Best case scenario is further delay while arguments are had with LAA. Worst case scenario  is the court doesn’t get the evidence it needs and more experts are put off appearing in family courts over concerns they may not get paid for the work they do.

The discussion and clarification about issues of apportionment of expert fees are very relevant for lawyers, which is why I deal with it below. But the real worry for me about this case is WHY are the parents not accepting lawyers? I accept from some Twitter discussions about this, it could just be that they are distrustful of lawyers having had previous bad experiences.

But I worry – and have plenty of evidence to support my worry – that whispering in their ears will be the voices of those such as Hemming. That they have been told not to trust ‘legal aid losers’ and thus they will try and fight their corner alone. Their baby has a serious head injury and they are in the pool of perpetrators. One of the options before the court is adoption. To attempt to participate in these proceedings without a lawyer is sheer madness. But to end up paying money to some dodgy McKenzie Friends would make it a tragedy.

I remain shocked, sad and baffled that the activities of some self styled McKenzie friends appear to attract so little attention or concern in the wider world. I hope these parents do not come to regret the choice they made here.

For more details about my concerns about Hemming and his organisation JFF, see the posts set out here. 

Summary of the decision in Re J concerning experts’ fees

  • There is no ‘normal rule’ that costs are apportioned equally between all parties. The court retains discretion.
  • Hourly rates are matter for the LAA to determine but apportionment of fees a mater for the court – probably…
  • Guidance re applying for prior authority is inconsistent but to avoid delay it should be done quickly
  • The LAA should give reasons for its refusal

Fixed rates paid to experts when parties are legally aided.

1. Para 1 of Schedule 5 to the Civil Legal Aid (Remuneration) Regulations 2013 provides that subject to paragraph 2, the Lord Chancellor must pay remuneration to the provider for the expert service at the fixed fees or at rates not exceeding the rates set out in the Table. The Table that follows sets out a list of different categories of expert and the permitted maximum hourly rate for that expert.
2. It is possible to get paid more than these rates. This is set out at paragraph 2 of Schedule 5, if the circumstances are ‘exceptional’. This is defined as meaning the expert evidence must be ‘key’ to the client’s case AND either the material is so complex an expert with high level of seniority is required OR the material is so ‘specialised and unusual’ that only very few experts could deal with it.
3. If parties want to get their expert paid by the Lord Chancellor via the Legal Aid Agency, beyond the rates set in the Table because of exceptional circumstances, they have to apply to the LAA for ‘prior authority’ , i.e. permission to go over the fixed rates. If they don’t get this permission, the solicitors could end up with the bill as they have now a contractual relationship with the expert to pay for his or her services. They are not expected to take this risk and can’t be compelled to take it.
4. The application for prior authority is via a prescribed form. If refused there is no right of appeal. The solicitor can ask the LAA to reconsider but only challenge to refusal is by way of judicial review. The LAA suggest that they take 9 days to process an application but in reality it appears it will take much longer than that. This is potentially a cause for delay in Children Act cases.

Is equal apportionment of fees the ‘normal order’ where there is no issue over resources? ANSWER NO

5. This was the first question posed in Re J. With regard to the issue of apportioning fees the court examined the decision of the Court of Appeal in Re JG (A Child) [2014] EWCA Civ 656. The Lord Chancellor asserted it was the ‘normal’ rule that costs should be apportioned equally between the parties and any departure from this ‘normal’ rule that increases a burden on a publicly funded party should be confined to only ‘exceptional circumstances’. The court rejected the idea that such a ‘normal rule’ existed and said ‘it all depends on the particular circumstances of the case’ (para 16).
6. Instead the court looked to the decision in Calderdale MBC v S and the LSC [2005] 1 FLR 751. All parties were publicly funded except the LA. The parties jointly appointed an expert. The LSC persuaded the court to apportion 50% of the costs to the LA. On appeal Bodey J apportioned costs equally between all parties – so the LA paid 25%.
7. Bodey J was clear this was a matter for the court’s discretion. In the exercise of its discretion the court must consider all circumstances but in particular:
a. The adequacy of the work done by the LA itself
b. Where the report is directed at threshold or welfare issues
c. The need for each party to have confidence in the integrity of the forensic process.
8. The court in Re J considered two other authorities and concluded it was clear that the court has discretion as to what order is made as to the costs of instructing experts in family proceedings.

The Family Procedure Rules 2010

9. The impact of Rule 25.12(6) FPR mirrors Rule 35.9(5) CPR and provides:
Unless the court directs otherwise, the relevant parties are jointly and severally liable for the payment of the expert’s fees and expenses
10. The court conceded this is an odd provision as it appears to be concerning itself with the contractual relationship between the parties and the expert. However, the court decided that when reading it alongside Rule 2512(4)(a) – the court may give directions about experts fees and expenses – it is not intended to be prescriptive and simply establishes a ‘default’ position in the absence of any other court directions. This does not however set up a ‘normal rule’ that costs are to be apportioned equally.

What happens when one party has no money?

11. In re J neither parent was able to pay anything as they had very limited means and they had refused to instruct lawyers even though they would have attracted non means and non merits tested legal aid. If the parents had been legally aided the court had no doubt it would have ordered the expert fees to be shared equally between all parties. Black LJ in re JG was very clear that ‘equality is not the norm’ and the impecuniosity of a party may justify the unequal apportionment of an expert’s fees between the parties’.
12. The court therefore concluded at para 18 of the judgment that it had to accept this was a case ‘in which fairness and common sense dictate that an order requiring an equal sharing of the experts’ fees is wholly inappropriate’. The fees should be paid equally by the guardian and the LA.
13. However, the court still needed to consider the Guidance published by the LAA, which was updated in September 2014. Para 1.6 of the Guidance headed ‘Joint instructions and apportionment generally’ advises that it is normal practice for an application to be made for prior authority wherever a party’s legal representative or the expert are unwilling to take a risk as to assessment of expert fees’
14. There is also Guidance published in 2013 on Remuneration of Expert Witnesses which was updated in April 2015. Section 4 of that guidance appears to contradict para 1.6 of the 2014 guidance as it makes application for prior authority mandatory – ‘you MUST always apply for prior authority where you seek to incur costs of an expert service at higher rates than those set out in the Remuneration Regulations…’
15. Para 4.5 of the 2013 Guidance also recognises that unequal apportionment of costs will not always be unusual in care proceedings – for e.g. one party may be an intervenor and it wouldn’t be appropriate for them to bear an equal share of an expert report going to an issue which is not relevant to their intervention.

So what happened in Re J about splitting costs between LA and Guardian?

16. The court approved the instruction of two experts and determined their fees should be split 50/50 between the LA and the Guardian. The court asked – why is prior authority needed before a letter of instruction can be sent? And if an application is made for prior authority for an unequal apportionment of an expert’s fees ordered by the court, is it open to the LAA to refuse that application?
17. Sir Nicholas Wall P in A local authority v S and others [2012] EWHC 1442 (Fam) was clear that the LSC has power conferred on it by Parliament to refuse to fund an instruction or fund in part only. The only remedy is by judicial review. BUT that was a case dealing with the hourly rate paid to experts. How payment of that hourly rate is to be shared between the parties is NOT subject to any regulations. ‘The issue of apportionment is at large’ (para 24).
18. The court was doubtful that the LAA could interfere with the decision of the court about apportionment, but this was a question for another court on another day. However, the guardian’s solicitor thought it prudent to apply for prior authority in any event and court agreed this was sensible.

The hourly rates of the expert in Re J

19. The excess requested by the expert was £432. Dividing this between the LA and the guardian means that the guardian would have to pay £216 more than could be claimed by the LAA. Even if the guardian was only paying 25% that represents £108 more than could be claimed back. The court agreed that the guardian must seek prior authority to instruct the expert at an hourly rate in excess of the standard rates.
20. The application for prior authority should be made without delay and the LAA, if it refused the application should give reasons for its decision as fairness dictates that the parties are able to understand why it has refused to allow what the court has considered necessary – and if appropriate, challenge can be made speedily.

What are the nature of and limits to parents’ rights?

This is a post by Sarah Phillimore

Parents versus the state

The question of ‘parents rights’ has been bought into very stark focus by the court hearings around Charlie Gard. There has been an enormous wealth of comment, blogs and articles which demonstrates the strong emotional reactions of many to these proceedings; a stark illustration of the tensions around balancing completing ‘rights’ and interests of parent and child – particularly when the child is an unconscious baby.

A thoughtful article in the Independent summarised the key issues well – decisions over Charlie Gard’s future encapsulated a clash between medical opinion and parental instinct. The law is clear; where doctors and parents disagree over what treatment is in the ‘best interests’ of a child, neither parents nor doctors are able to demand or veto certain treatment. Any dispute must come before a court where a Judge will decide. The court had to operate on the fundamental principle of the Children Act 1989; that Charlie’s welfare would be the ‘paramount’ consideration.

Parents versus parents

Parents ‘rights’ when they argue between themselves about what is best for their child, are utterly subsumed into the idea of the ‘welfare of the child’. This principle was firmly and clearly restated by the Supreme Court in B (A Child) [2009] UKSC. See the judgment of  Lord Kerr at para 37 :

… All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s best interests. This is the paramount consideration. It is only as a contributor to the child’s welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim.

There is an immediate and obvious distinction between public law (cases involving the local authority and parents) and private law (cases involving disputes between family members). Where the state wishes to intervene in the sanctity of family life, it has to satisfy the test under section 31 of the Children Act 1989 and show the child is suffering or at risk of suffering significant harm. Nothing less will justify state intervention and this high threshold will mean that some children grow up in less than ideal situations. The risks and impracticality of any policy of deliberate ‘social engineering’ determine this outcome.

But in private law cases, it is different. The focus there is on which parent or which place would promote the child’s best interests and ‘parents’ rights’ are clearly subsumed as relevant only insofar as the parents claim a right to promote those best interests.

There are some who are critical of this approach and worry that the pendulum may have swung too far away from considering ‘parents rights’ or the rights of the family as a whole.

However, the emphasis on the welfare of the child is explained by the problems that arise when individual family members have very different views about what constitutes a child’s best interests. A stark example is found in the case of Gibbs v Gibbs in 2017 where the mother was eventually sent to prison for refusing to end her campaign to publicise the father as abusive towards their children. To attempt to resolve a dispute about a child by identifying, analysing and weighing in the balance the ‘rights’ of all adult disputants would take time and energy away from identifying what the child needs.

Some areas of concern

Why does the test to over rule a parents’ rights differ according to who or what wants to prevail? 

The question for the court, in deciding a clash between parents and a state agency that happened to be a hospital was not whether Charlie Gard would suffer ‘significant harm’ if further treatment was carried out. The issue was whether or not the treatment was in his ‘best interests’ – his welfare was paramount. 

Some commentators expressed concern about this. If social workers decide that a child should be removed from his or her parents’ care, they have to bring this to a court and satisfy the test under section 31 of the Children Act 1989. That children would ‘do better’ in another environment is never a justification – as Baroness Hale commented in Re B (Children) [2008] UKHL 35

In a totalitarian society, uniformity and conformity are valued. Hence the totalitarian state tries to separate the child from her family and mould her to its own design. Families in all their subversive variety are the breeding ground of diversity and individuality. In a free and democratic society we value diversity and individuality. Hence the family is given special protection in all the modern human rights instruments…

Already, it isn’t clear what weight is afforded to the views of parents who clash with the decisions preferred by a state agency. Why should a decision whether or not to end medical treatment for a child be subject to a different test to the decision whether or not to remove a child from the parents’ care?

No one has doubted that Charlie Gard’s parents were acting out of anything other than love for their son and wish to secure him the best possible treatment. If there was no evidence before the court that their decisions risked causing him significant harm, why should the court interfere? No doubt, Charlie Gard’s parents have found the process by which their wish to make decisions for their son was overruled by the courts, similar to the misery and bafflement of a parent who faces the adoption of their child, without their consent.

If there is no legal aid, what are the implications for access to justice?

A further anomaly is the automatic availability of legal aid to parents in care cases – but not parents facing applications by an NHS trust, or wishing to argue against an adoption order, or parents arguing between themselves – unless one can show evidence of domestic violence.

Charlie Gard’s parents did not have legal aid and could not afford to pay for a lawyer. They were fortunate to find lawyers prepared to act for nothing. Francis J commented at para 17 of his judgment:

it does seem to me that when Parliament changed the law in relation to legal aid and significantly restricted the availability of legal aid, yet continued to make legal aid available in care cases where the state is seeking orders against parents, it cannot have intended that parents in the position that these parents have been in should have no access to legal advice or representation. To most like-minded people, a National Health Service trust is as much an arm of the state as is a local authority. I can think of few more profound cases than ones where a trust is applying to the court for a declaration that a life- support machine should be switched off in respect of a child.

‘Rights’ which cannot be enforced in court because the parents can’t afford legal representation and don’t understand complicated law, are no rights at all.

The adversarial system and the standard of proof

An enormous problem – and one which I think firmly underpins most of the criticism and distrust of the family law system – is that an adversarial process which relies on oral evidence and cross examination may work tolerably well in circumstances where the disputed facts are often backed up by contemporaneous written documents. But it is often very difficult to test ‘evidence’ that is no more than the assertions of two people. Particularly when these people are giving an account of their relationship, built up over many years and which may have been experienced/witnessed by only them.

In cases where parents make allegations against each other of sexual or violent abuse, it is my view that waters have been seriously and dangerously muddied by the requirement that police forces were to commence investigations into sexual assaults on the basis that they ‘believe’ the complainant (who is usually described as the ‘victim’ ).To have as a ‘starting point’ a belief that one person is telling the truth fundamentally poisons the integrity of any investigative process. See the 2016 report of Sir Richard Henriques into the failures of the investigations of the Metropolitan police in ‘Operation Midland’.

Parents in care proceedings have raised serious criticisms about the standard of proof in care cases being on the ‘balance of probabilities’ – pointing out that removing a child from an unwilling parent is every bit as horrible as sentencing a parent to a prison sentence and the standard of proof should therefore meet the criminal standard of ‘beyond reasonable doubt’.

What are rights worth if they can be discarded by the state on a low standard of proof?

Enforcement of established rights

However even a ‘blameless’ parent who is vindicated at the conclusion of a finding of fact may not find that their ‘rights’ translate into any kind of action by the courts, because of the likely impact of such action on the emotional well being of the child.

This is often the argument used against removing a child from an adoptive placement to return to birth parents – but the UK has been criticised for failing to give sufficient recognition to the child’s right to be brought up by his or her birth parents.

What are ‘rights’ worth if they are not even considered, because ‘paramount’ is interpreted as ‘exclusive’ or ‘overwhelming’ ?

 

How do we establish what is in a child’s best interest if parents don’t have the ‘right’ to determine this?

This brief discussion above about the limits of parental autonomy to determine outcomes for their children highlights that as a society we have agreed that parents do not have the right to subject their children to whatever indignity they wish in the name of ‘family life’ or ‘respect for parents’.  The court will therefore have to hear evidence and make a decision based on the evidence before it.  The court is faced with a truly difficult job when before it come two parents who argue from entirely different perspectives about the fitness of the other to parent.

I have always supported the need for the state to intervene to protect the most vulnerable members of its society. Children are not the chattels of their parents; some children do need to be ‘rescued’.

But the state and its officers have to tread carefully around the ‘family’ and how they chose to intervene in its structures. The emotion and interest in the ‘rights’ of parents in the aftermath of proceedings around Charlie Gard demonstrate a clear need for further discussion and exploration of the nature and extent of parents rights. A system that appears to horrify a large proportion of the population subject to it, has either not been well explained or should not be defended.

 

Autistic Children In Care – uninformed decision making leading to poor outcomes.

This is a guest post from a parent. She is concerned about the high numbers of children with autism entering the care system and considers what the explanation is for this. Are the professionals working in the CP system as well informed as they need to be? Does the failure to identify autistic children in care lead to bad decisions being made for them?

My son entered Care in his teens during a deep crisis when he was given an autism (ASD/ASC) diagnosis. When he entered Care it was devastating for our family but I was comforted that ‘the experts’ were now supporting him. It took a while to realise that, when trying to help him, experienced and committed social workers had very little to fall back on in terms of training about understanding what it means to be autistic.

It may seem unreasonable that I expected hard-pressed professionals to take account of his needs in their practice but if my son were to make decisions about where to live or what to do with his life post-18, how could he be expected to make informed decisions without professionals meeting his communication needs and understanding how to adjust their practice to address the core features of autism? I was shocked that there seemed little appreciation that an autistic person without a learning disability is likely to have these needs, irrespective of the number of words in his/her vocabulary or ability to repeat the words of professionals to other professionals. Their practice also needed to take account of ‘theory of mind’ difficulties and very high anxiety levels when faced with uncertainty (eg delayed decision making about placements etc) or attempts to ‘control’ rather than ‘agree’.

I began to read widely about the Care system and eventually concluded based on what we know about the difficulties of children in care around behaviour and poor mental health that there are likely to be much higher numbers of autistic children in Care than generally acknowledged and that these children are largely invisible in policy or research into the Care system. There are well known links between being in Care and entering prison and having a learning disability. Young people entering prison are also screened for traumatic brain injuries and cognitive difference, unlike children entering Care who are only screened for ‘emotional and behavioural problems’. Training or continuing practice development for social workers, independent reviewing officers, solicitors, CAFCASS officials around disabilities is minimal.

Evidence for much higher numbers of children in Care with autism than in their equivalent non looked after cohort of peers has begun to emerge. A recent study has identified variance between local authorities in the numbers of children in Care with an autism diagnosis from 0% to 12% of its looked after children. Recent clinical studies of adoptive children have also identified high numbers of adopted children with undiagnosed autism. 27% of the sample group were assessed as autistic (10%) or having significant autistic traits (17%)

Possible reasons for high numbers of autistic children in/from Care, many without diagnosis?

These are some thoughts: –

• Acknowledged difficulties accessing appropriate support where children have a diagnosis may lead to extreme crises within families particularly as a child reaches adolescence and unsupported autistic children may develop poor mental health.

• Children with behavioural difficulties (anti-social, unsafe and violent) may come to the notice of social care and other professionals and these behaviours can overshadow a undiagnosed child’s difficulties. Problems with multi-agency working means there are few routes to ‘late diagnosis’ for the child.

• On entering Care, guidance for clinicians carrying out looked-after-children’s health checks promotes an approach where disabilities including autism are seen in the context of educational need so autistic children who do not have learning disabilities are not systematically ‘picked up’ and diagnoses for non-school age children are not identified because a toddler has no educational need. The list of conditions that health professionals should be alert to does not include autism. 

Autistic parents have an increased probability of having autistic children and may have high levels of vulnerability and inadequate support to enable them to an increase their parenting capacity leading to their children entering Care as a result of neglect.

Autistic mums of autistic children’s have a natural inclination to ‘tell truth to power’ and other traits that could easily be misunderstood as non-engagement with professionals. “I understand that my autism makes me a difficult person to deal with: I don’t know when to back off when I know I’m right. Maybe I can’t always look people in the eye, so perhaps I come over as being shifty. Autistic people do hyper-focus, but they mistook my obsession as a sign I was unstable.’’

• Many professionals have training in child-development that focuses almost exclusively on attachment theory. Attachment theory is ‘normative’. It does not acknowledge that a child’s development may deviate from the norm for many reasons including genetic inheritance, pre and post-natal substance and medicine exposure, post birth accident or illness for example. Linked to this, experts have identified a phenomenon of over-diagnosis of attachment difficulties as a result of the ‘allure of diagnosis of rare disorders in maltreated children’.

Professionals may see vulnerability/ difference of autistic child or parent and worry about the child. When it comes to working with ‘autism families’ they do not have any context to’ fit this worry within’ unless they have very close links with experienced clinical support. .

Professionals are likely to be short of time and resources and risk-averse so may ‘err on the safe side’ by removing autistic children.

Should professionals involved in Child Protection be concerned?

At the very least a failure to identify autistic children within Care points to uninformed decision-making about children at the edge of and within Care and this uninformed decision making is likely to be a considerable factor in poor outcomes for many children who enter Care.

Evidence of under-identification of autistic children within Care is also a damming indictment of health care provision for looked-after-children.

It also raises the possibility that some children with both diagnosed and undiagnosed autism have been removed from loving families who with earlier diagnosis, more understanding and targeted help could have delivered better outcomes for their children without needing the State to intervene within a family in the most draconian way imaginable.

 

What needs to change?

The implications for the Care system are profound.
It is likely to impact:

and raises many questions including:-

What does good support look like for autistic children in Care given their greatest need is likely to be around ‘placement’ stability rather than around education as would be the case for most other autistic children?

 

‘Adoption by Stealth’ – the dangers of rhetoric and the law of unintended consequences

 

On July 10th the Family Rights Group launched their report ‘Co-operation or Coercion? Children coming into the care system under voluntary arrangements’ .

I wrote a brief summary of the speakers’ contributions and the report’s recommendations for The Transparency Project.

I commented that this was a very important report, with very sobering findings and it demanded an immediate call to action. It was very clear that parents were finding themselves subject to ‘soft coercion’ when agreeing to have their children accommodated under section 20; that no one took the time to explain to them what was going on and they didn’t realise that they kept their parental responsibility and could remove their children at any time.

This is a particular problem when looking at ‘foster to adopt’ placements. The aim of such placements is to ensure that more children are placed with their permanent carers as soon as possible on a fostering basis while the LA seeks a placement order from the courts.  This is a key example of the tensions inherent in protecting both parents’ and children’s rights.

Parents have a ‘right’ to a fair hearing under both Articles 6 and 8 of the ECHR; an opportunity to make their case and show evidence to the court that they can parent their child. But children have a ‘right’ not to suffer the harm that almost inevitably follows frequent placement between parents, foster carers and adoptive parents.

How do we balance those rights? I agree, to ask parents to ‘give up’ their babies via section 20 into a foster to adopt placement means they are signing up for something very significant, at a time when they are very vulnerable and without any scrutiny from the court or any real access to legal help. It may well be very difficult to ‘unpick’ such a placement as the months go by.

Parents who are involved in care proceedings have autotmatic access to fully funded legal representation, regardless of their wealth or the perceived merits of their case – which is absolutely how it should be. Parents whose children are accommodated under section 20 however, are most likely to only get independent legal advice if they can afford to pay for it, or if they can access help from a charity such as the Family Rights Group. Sometimes a LA can be prevailed upon to pay for a few hours chat with a solicitor but its easy to see how this could be insufficient as a real help to parents. The courts have been quick to condemn what they see as abuse and bad practice around use of section 20 as it removes decisions about where children live from any kind of court scrutiny.

Thus, the lack of understanding about section 20 is clearly a real and significant problem, as detailed by the report’s findings. Articles published in the Guardian on the day of the launch categorised this as ‘adoption by stealth’ and that parents were ‘tricked’ into handing over their children.

I understand that this is the reality of the problem as many parents will see it. I appreciate that journalists have to write in compelling and punchy language to engage their readers. But this rhetoric around such a sensitive issue troubles me.

What is the law about making an adoption order?

The articles did not make any mention of section 21 of the Adoption and Children Act 2002 which sets out clearly that ‘adoption by stealth’ is not a creature known to our law.  A child cannot be placed for adoption unless a placement order is made. There must be court scrutiny of this process and the parents will be involved in this court scrutiny.

The court cannot make a placement order unless:

  • the child is subject to a care order OR
  • the court is satisfied that the conditions in section 31(2) of the Children Act 1989 are met OR
  • the child has no parent or guardian

The conditions set out in section 31(2) are those required to exist before a court can make a care or supervision order:

  • that the child concerned is suffering, or is likely to suffer, significant harm; and
  • that the harm, or likelihood of harm, is attributable to—
    • the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
    • the child’s being beyond parental control.

This is a high threshold – for obvious reasons. Taking children away from their families is recognised as the most serious interference with people’s family and private lives; it has life long consequences for all concerned.

Section 22 of the Adoption and Children Act sets out that a local authority must apply to the court for a placement order in respect of a child if:

  • the child is placed for adoption by them or is being provided with accommodation by them,
  • no adoption agency is authorised to place the child for adoption,
  • the child has no parent or guardian or the authority consider that the conditions in section 31(2) of the 1989 Act are met, and
  • the authority are satisfied that the child ought to be placed for adoption.

EDIT 13/07/17 – I am grateful for the contributions of Tom Perkins, via Twitter

And its not just the ACA that operates as a fetter to arbitrary State interference or ‘stealthy’ social workers. As Tom points out, the SW profession itself is very alive to these issues of concern :

I feel the FRG review was a missed opportunity to promote the growing movement toward ‘Co Design + Co Production with young people and their parents … I was disappointed there was no reference in the FRG report to the DFE funded Guidance produced by BAAF in June 2013 which provides a very clear and easy to understand guide to the entire Foster to Adopt process. For example, compare P 9 of the FRG report and P8 of the BAAF guidance…..there is a world of difference. 

Tom points out that there is now a ‘very high level’ of scrutiny around section 20 which makes it very difficult for social workers to act ‘dishonestly’. Not only have individual Judges issued guidance on these of section 20 in their areas (see for e.g HHJ Bellamy and HHJ Wildblood QC) some have gone even further and have requested information about the LA’s section 20 population. Tom comments:

[The Judges] demanded and have been given access to the entire S20 population and demanded the following: Details of all new S20 admissions; what are the LA plans at 6 weeks? A detailed report from the LA if there is not a plan to come to Court. A detailed plan for each child who has been S20 longer than 6 weeks. 

This has forced those LAs to look hard and long at their S20 population and the reasons for the original admission. It would be hard to imagine that all aspects of the S20 admission – placement – assessment – outcome – long term plan – parental involvement / agreement / permissions etc., have not been scrutinised. Similarly, a number of LA’s have been revoking PO’s that have reached 12 months and the child not placed for adoption. The Care Plan has been changed to CO + LTF. Similarly, OFSTED routinely examine the S20 population during their monitoring visits / inspections. There is no mention within OFSTED reports of any concerns about parents not knowing / not signing S20 agreements….

For further discussion about the law and practice around adoption see these posts about when adoption is considered necessary. 

Why do I worry?

It would have been reassuring to have had at least some recognition of and discussion of this legal framework in both the Guardian articles and in discussions at the launch of the FRG report. Because without it, and resorting to such phrases as ‘adoption by stealth’ and ‘tricked’, there is a risk that the very dangerous narrative promoted by John Hemming and others gains traction and parents continue to be vulnerable to the bad (and expensive) advice they offer.

Hemming and his acolytes routinely dismiss family lawyers as ‘legal aid losers’ or ‘in the pocket of the LA’ and parents are advised (quite literally) to ‘flee’ the country rather than engage, thus ensuring they are denied access to help and representation that could keep their families intact.

The Family Rights Group is to be applauded for the work they have done and continue to do for parents and children. However, they cannot take the place – and I imagine would never suggest they could – of fully instructed, fully funded lawyers for whom the court arena is a second home.

I am glad that such issues are being discussed, that a brighter light is being shone on bad practice and historic failings. I hope to encourage these kind of discussions with the performance on September 23rd at the Arnolfini in Bristol ‘Happy Families – the conversations we are not having about adoption’

But it would be an enormous shame if one unintended consequence of this debate was to create even deeper distrust and fear of the legal system which remains the only true safeguard against the arbitrary interference of the State.

As Sir James Munby commented at the launch of the report on July 10th