Author Archives: Sarah Phillimore

Speaking to student social workers about the Law – and some other stuff

 

On Monday 27th November 2017 I went to talk to some student social workers about the law around care proceedings  – how important it was for them to understand what the law demands. Without that understanding, social workers cannot analyse their cases effectively and they may not appreciate what kind of evidence they need to present to the court.

I have often wondered if it is lack of proper understanding of the burden and standard of proof which explains why so many care cases go off the rails. I spoke to the students for about an hour, largely exploring areas I discuss in this post about the importance of the rule of law and this post about achieving best evidence in Children Act cases.

“Whats the point in doing the job?”

But – for me at least – the most interesting part of the day was the discussion that followed afterwards. We spoke about the importance of discussion between the different professions to enable us to understand the parameters and limits of our different roles.

I spoke about how social media was still on balance a very positive force in my life as it had enabled me to meet and talk to people I would otherwise never have met. It also allows information to be widely shared.

I asked the students what their perception now was of the role of social worker. The answer was immediate and very sad:

We started the year excited but the constant social work bashing makes us think ‘what’s the point… there is no one who talks about us doing a ‘cracking job’.

The students explained that they were receiving negative messages from all sides – from the parents who visited the college to speak and even from representatives of their own profession.

Of particular note to the students was the way the profession was portrayed by Social Work Tutor. The students confirmed that the discussion on the Facebook groups could be really helpful but they were rightly wary and quite shocked by some of the discussion which involved revealing identifying details about families or encouraging a mocking attitude towards them.

This was a very timely discussion for me – only the previous evening I had engaged in lengthy discussion with a number of others on Twitter about our concerns about Social Work Tutor – which have been fairly and comprehensively assessed on Pink Tape here.

For those who haven’t been following the debate, there have been long standing concerns raised by many that Social Work Tutor promotes a message about the profession that is fundamentally unhelpful and really quite damaging – disseminating a view of social work as a dangerous and draining profession where parents are to be either feared or laughed at.

The alternative view is that SWT has provided a useful forum via his Facebook groups that allow aspiring social workers to exchange ideas and resources and that is reliance on humourous ‘memes’ was just typical officer worker banter.

The students were unanimous in their condemnation of use of ‘banter’ as a shield to poke fun at parents, pointing out that to the recipient of ‘banter’ it usually feels like abuse. There is a fine line between banter and bullying.

The students were also very concerned about the frequent use of memes to underscore just what a horrible job social work is – this was a very demoralising message for the students to receive. They also questioned why there couldn’t be more of a positive message about what social workers aspired to do, other than the ‘social worker as super hero’ message. The students recognised this as inherently unhelpful – not merely enforcing dividing lines between them and parents but as simply unrealistic in a culture of austerity and reduced resources.

This led to an interesting discussion about how difficult it is for the social work profession to celebrate their positive achievements, owing to various laws which prohibit dissemination of information about care cases. The recent Tower Hamlets Muslim foster carer row being one of the worst examples of this.

This was an interesting afternoon but also sad. What can we do to stop the initial excitement of these students draining away in the face of persistent negative messages about their profession? Social work is an essential profession in any civilised society and it is very sobering to think that the students did not feel they could be proud of wanting to be a part of this.

My only answer is that we continue to have honest, open conversations and we keep the bantering memes to a minimum.

 

Section 98 Children Act self incrimination warning

What is this? What does it mean?

If you are involved in a fact finding hearing in care proceedings, that is because the court needs to find out as clearly as possible ‘the truth’ in order to move on to the next stage which is making decisions about where a child should live and who should look after the child.

You can read more about the legal principles that apply in a finding of fact hearing in this post. 

The ‘truth’ in care proceedings is ascertained on the civil standard of proof – i.e. NOT beyond reasonable doubt but on the balance of probabilities.

Often, findings of fact hearings involve injuries to a child. This is also of interest to the police and CPS who need to consider whether criminal charges should be bought against any adult who harms a child. The criminal and family courts work at different speeds, deal with different principles and have very different ways of collecting evidence. So it is not at all unusual for a family fact finding to take place BEFORE a criminal trial or even any charging decision.

When that happens the court will need to give any adult in the care proceedings a ‘section 98 warning’.

The police may be very interested to know about the decision made by the family judge and the reasoning behind it, and will often ask for copies of any written judgment from the family court.

Section 98 reads

Self-incrimination.

(1)In any proceedings in which a court is hearing an application for an order under Part IV or V, no person shall be excused from—

(a) giving evidence on any matter; or

(b) answering any question put to him in the course of his giving evidence,

on the ground that doing so might incriminate him or his spouse [F1or civil partner] of an offence.

(2)A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse [F1or civil partner] in proceedings for an offence other than perjury.

Which is really no help at all, particularly as the impact of this part of the Children Act has been changed by legislation and cases that followed – see discussions in Lucy Reed’s article below in Pink Tape for more detail.

Attempt at Plain English Version

No guarantees of confidentiality can be given by the family court.

The judge should give a warning in the following terms when a parent is being questioned about causing harm to a child:

  • I need to explain a rule of law to you. Its important you understand this. Your lawyer can explain it further to you, it is their duty to do so.
  • allegations are made against you in these family proceedings. The family court is not involved in any decisions made in the criminal courts about whether you should be found guilty or acquitted of any criminal offence.
  • However, in these family proceedings, the court will have to decide whether or not the allegations made against you are true. If they are found to be true, this would mean you have done something which may also be a criminal offence.
  • in the family proceedings you aren’t allowed to refuse to answer questions or provide evidence in writing on the basis that your answers might show you or your spouse had done something criminally wrong.
  • If you do give evidence that suggests you have done something criminally wrong, this evidence is NOT allowed in any criminal proceedings against you UNLESS you are being prosecuted for perjury (i.e. you have lied on oath in the family court).
  • BUT you must understand that if the family court gives permission that ANYTHING you say or write down for these proceedings may be given to the police for them to use during their investigations into your conduct AND if you did end up in a criminal court, the prosecution might make an application for permission to ask you questions about anything you said in the family court.

Further reading

From Pink Tape – section 98, Bad or Just Misunderstood? 

 

H (A Child – Hair Strand Testing) [2017] EWFC 64

Note on: H (A Child – Hair Strand Testing) [2017] EWFC 64

I am grateful for this very helpful note from Sophie Smith Holland, currently a pupil at St Johns Chambers in Bristol. 
This judgment considers the science of hair-strand testing for cocaine and provides practitioners with a useful guide of the process. Further, it considers the way in which expert reports are presented and makes suggestions as to how things could be improved.

Background

The case concerns care proceedings issued in respect of “Holly”. M had a long history of drug misuse and her 3 older children had previously been removed from her care. Holly was removed from M at birth but was later returned. It was agreed that threshold was crossed but M had turned her life around such that she was capable of looking after Holly with support. The only question was whether this arrangement should be underpinned by a care order or a supervision order.

There was also an underlying factual issue: had M been using drugs, albeit at a low level, during the past two years? M accepted that up to July 2015 she had used cannabis daily and cocaine less frequently. She was adamant that she had not used drugs since and all the evidence supported her, except for hair strand tests taken over the two-year period which were showed low-level cocaine use for at least some of the time.

The HSTs were carried out by Alere Toxicology, Lextox and DNA Legal and they were all invited to intervene in the proceedings. Evidence was heard from each of them, an expert for M and a jointly instructed expert.

On 3 March it was ordered that Holly be returned to her mother’s care under an ISO. The issue about the validity of the HST results was transferred to the High Court.

Following Holly’s return, M was seen regularly by her drug support worker who gave her random drug/urine tests. These would detect significant (as opposed to slight) drug use in the previous 3 days or so. 57 tests were carried out between March and July and all were negative.

On 17 July all three testing organisations took a sample to cover a 6 month period. The results showed the presence of very small amounts of cocaine and low levels of BE. The LA argued that complete abstinence had not been achieved (which raised the level of risk that Holly would get caught up in future drug use) and that the results showed that M had not been telling the truth and consequently could not be fully trusted (their plan was for Holly to be placed for adoption but this was changed two days before the hearing(!) to a plan to return to with M under either a care or supervision order).

The Judge’s approach

Mr Justice Jackson started by saying: “Hair strand tests can provide important information, but in order for that to be of real use, the expert must (a) describe the process, (b) record the results, and (c) explain their possible significance, all in a way that can be clearly understood by those likely to rely on the information. If these important requirements are not met, there is a risk that the results will acquire a pseudo-certainty, particularly because they appear as numbers.” [para 25]

He then referred to several cases in which hair strand testing has been considered to assist him in approaching the issues in the case. In brief, the passages referred to say that:
• HST reports should present the analysis in clear language suitable for a lay person
• PD12B applies to hair strand test reports as they are opinion evidence despite being essentially factual
• HST results should be used only as part of the evidential picture. High levels might form a significant part of that picture but the tests should not be used to reach evidential conclusions by themselves in isolation of other evidence
• The science involved in hair strand testing for drug use is now well-established and not controversial, a positive identification of a drug at a quantity above the cut-off level is reliable as evidence that the donor has been exposed to the drug in question, sequential testing of sections is a good guide to the pattern of use revealed and the quantity of drug in any given section is not proof of the quantity actually used in that period but is a good guide to the relative level of use (low, medium, high) over time.

Next, he set out 12 propositions agreed between the expert witnesses, which provides a useful guide for practitioners to refer to:
1. Normal hair growth comprises a cycle of three stages: active growing (anagen), transition (catagen) and resting (telogen). In the telogen stage can remain on the scalp for 3-4 (or even 5 or 6) months before being shed. Approximately 15% of hair is not actively growing; this percentage can decrease during pregnancy.
2. Human head hair grows at a relatively constant rate, ranging as between individuals from 0.6 cm (or, in extreme cases, as low as 0.5 cm) to 1.4 cm (or, in extreme cases, up to 2.2 cm) per month. If the donor has a growth rate significantly quicker or slower than this, there is scope both for inaccuracy in the approximate dates attributed to each 1 cm sample and for confusion if overlaying supposedly corresponding samples harvested significant periods apart.
3. The hair follicle is located approximately 3-5 mm beneath the surface of the skin; hence it takes approximately 5-7 days for the growing hair to appear above the scalp and can take approximately 2-3 weeks to have grown sufficiently to be included in a cut hair sample.
4. After a drug enters the human body, it is metabolised into its derivative metabolites. The parent drug and the metabolites are present in the bloodstream, in sebaceous secretions and in sweat. These are thought to be three mechanisms whereby drugs and their metabolites are incorporated into human scalp.
5. The fact that a portion of the hair is in a telogen stage means that even after achieving abstinence, a donor’s hair may continue to test positive for drugs and/or their metabolites for a 3-6 month period thereafter.
6. Hair can become externally contaminated (e.g. through passive smoking or drug handling). Means of seeking to differentiate between drug ingestion and external contamination include:
(i) washing hair samples before testing to remove surface contamination
(ii) analysing the washes
(iii) testing for the presence of the relevant metabolites and establishing the ratio between the parent drug and the metabolite
(iv) setting threshold levels.
7. Decontamination can produce variable results as it depends upon the decontamination solvent used.
8. The Society of Hair Testing (SoHT) has set recommended cut-offs of cocaine and its metabolites in hair to identify use:
(i) cocaine: 0.5 ng/mg
(ii) metabolites BE, AEME, CE and NCOC: 0.05 ng/mg
9. Cocaine (COC) is metabolized into benzoylecgonine (BE or BZE), norcocaine (NCOC) and, if consumed, together with alcohol (ethanol), cocaethylene (CE). The presence of anydroecgonine methyl ester (AEME) in hair is indicative of the use of crack smoke cocaine.
10. Cocaine is quickly metabolised in the body: therefore, in the bloodstream the concentration of cocaine is usually lower than that of BE. However, cocaine is incorporated into hair to a greater degree than BE: therefore, the concentration of cocaine in the hair typically exceeds that of BE. Norcocaine is a minor metabolite and its concentration in both blood and hair is usually much lower than either cocaine or BE.
11. Some metabolites can be produced outside the human body. In particular, cocaine will hydrolyse to BE on exposure to moisture to variable degree, although high levels of BE as a proportion of cocaine would not be expected. It is very unlikely that NCOC will be found in the environment. The fact that cocaine metabolites can be produced outside the body raises the possibility that their presence is due to exposure: this is not the case with cannabis, whose metabolite is produced only inside the body.
12. Having washed the hair before testing, analysis of the wash sample can allow for comparison with the hair testing results. There have been various studies aimed at creating formulae to assist in differentiating between active use and external contamination. In particular:
(i) Tsanaclis et al. propose that if the ratio of cocaine in the washing to that in the hair is less than 1:10, this indicates drug use.
(ii) Schaffer proposed “correcting” the hair level for cocaine concentration by subtracting five times the level detected in the wash.
The underlying fundamentals are that if external contamination has occurred (and therefore a risk of migration into the hair giving results that would appear to be positive) this is likely to be apparent from the amount of cocaine identified in the wash relative to that extracted from the hair.

The test results

• The range of results obtained vary quite considerably. The DNA Legal results for 2016 were in some cases two or three times higher than those found by the other organisations. They reported findings in the low to medium range whereas the rest reported low findings.
• Direct comparison is confounded somewhat by the fact that hair was taken at different times, and that the assumed 1 cm growth rate may not be correct.
• Results may be affected by differences in laboratory equipment and differences in the way the hair is washed before analysis.
• Even when the hair was taken by each testing company at the same time, two labs showed a cocaine result relating to April which was well below the cut-off, whilst the DNA Legal result was just about the cut-off.

Variability of findings from HST doesn’t call into question the underlying science, but underlines the need to treat numerical data with proper caution. The test is only part of the evidence. A very high result may amount of compelling evidence, but in the lower range numerical information must be set alongside evidence of other kinds.

Test results are reported as being within a “range”; low, medium or high. The danger is that the report is too easily taken to be conclusive proof of high/medium/low use, when the actual level of use may be lower or higher than the description. There are physiological variables in relation to hair colour, race, hair condition, pregnancy and body size. There are also variables inherent in the testing process (e.g. different washing practices). Further, the testing companies set out their ranges differently:
Cocaine Low Medium High
DNA Legal 0.5 – 0.89 0.89 – 18.9 18.9<
Lextox 0.5 – 1.23 1.23 – 10.19 10.19<
Alere 0.5 – 1.69 1.69 – 6.14 6.14<

How should reports be written in future?

The Judge made 7 suggestions to help the nine accredited hair strand testing organisations working in the family law arena:
(1) Use of high/medium/low descriptor:
This is in my view useful, provided it is accompanied by:
• A numerical description of the boundaries between high/medium/low, with an explanation of the manner in which the boundaries are set should be stated.

• A clear statement that the description is of the level of substance found and not of the level of use, though there may a broad correlation.

• A reminder that the finding from the test must always be set alongside other sources of information, particularly where the results are in the low range.

(2) Reporting of data below the cut-off range:
There is currently inconsistency as between organisations on reporting substances detected between the lower limit of detection (LLoD) and the lower limit of quantification (LLoQ), and those between the LLoQ and the cut-off point.

I would suggest that reports record all findings, so that:
• a finding below the LLoQ is described as “detected, but so low that it is not quantifiable”

• A result falling below the cut-off level is given in numerical form
and that this data is accompanied by a clear explanation of the reason for the cut-off point and the need for particular caution in relation to data that falls below it.

(3) Terminology
Efforts to understand the significance of tests are hampered by the lack of a common vocabulary to describe results in the very low ranges, Descriptions such as “positive”, “negative”, “indicates that” and “not detected” can be used and understood vaguely or incorrectly. The creation of a common vocabulary across the industry could only be achieved by a body such as the SoHT. In the absence of uniformity, reporters should define their terms precisely so that they can be accurately understood.

(4) Expressions of probability:
The Family Court works on the civil standard of proof, namely the balance of probabilities. It would therefore help if opinions about testing results could be expressed in that way. For example:
“Taken in isolation, these findings are in my opinion more likely than not to indicate ingestion of [drug].”

“Taken in isolation, these findings are in my opinion more likely than not to indicate that [drug] has not been ingested because….”

“Taken in isolation, these findings are in my opinion more likely to indicate exposure to [drug] than ingestion.”

(5) Where there is reason to believe that environmental contamination may be an issue, this should be fully described, together with an analysis of any factors that may help the reader to distinguish between the possibilities.

(6) The FAQ sheet accompanying the report (which might better be described as “Essential Information”), might be tailored to give information relevant to the particular report, and thereby make it easier to assimilate.

(7) When it is known that testing has been carried out by more than one organisation, the report should explain that the findings may be variable as between organisations.
Judge’s conclusion

The latter part of 2015 and during 2016

M used cocaine at relatively low and infrequent level and has therefore not told the truth. Although there is evidence of M’s attempts to rid herself of drugs, the almost continuous array of results significantly above the threshold cannot adequately be explained by inadvertent exposure. The pattern is much more consistent with use, although exposure could have been a contributor. Also, the results were not too dissimilar to those from August 2015 when M admitted using drugs.

The period after Holly’s birth

There was weaker scientific evidence in relation to the period after Holly’s birth and given the finding in relation to earlier use, the possibility that M is not telling the truth about the later period cannot be discounted. There have been very regular urine testing and continuous face-to-face contact with professionals and no one has noticed the slightest suggestion of drug use and the interpretations of the toxicologists vary. Taking the evidence as a whole, I am not satisfied that it has made out its case in relation to recent use of cocaine and on balance I am prepared to accept M’s evidence that she has been free of drugs since Holly’s birth.
Holly remained with M, under a supervision order.

Children Across the Justice Systems

 

 

Thanks to our regular contributor Looked After Child for her thought provoking comment about policies and who pays, following the President’s recent speech. Fragmentation of services is causing increasing harm and inefficiency. Whatever your view of the market, don’t we still need good governance?

This post takes as its starting point Sir James Mumby, President of the Family Division’s speech on 30 October 2017:- Children Across the Justice Systems, The 2017 Parmoor Lecture

Sir James discusses seven serious problems preventing the courts working effectively to make the best decisions possible for children when called upon to do so. This post focuses on the fifth identified problem – The division of responsibilities across Whitehall between different Departments and Ministers in matters affecting families and children

Thanks to the Howard League for Penal Reform for organising this lecture series as part of its wide ranging, essential work with and for children in the Secure Estate.

Magic Money Tree

There is no ‘magic money tree’ apparently. Even with my very superficial acquaintance with economics I’m not sure economics students would entirely agree with that statement (Remember Quantitative Easing and Keynesian economics?) but let’s take it at face value.

There is no magic money tree so we have to figure out how to use the resources we have to best effect. Our government and the Treasury seems to think this entails Government Departments giving ever smaller, sometimes one-off, pots of money to agencies and organisations with the mantra ‘Spend it well and show how spending this money will save money in other areas that our Department has responsibility for’.

No one is really sure who should be prioritised when it comes to spending money – should it be the most in-need or the most powerful or the most important to policymakers if they are to retain their policy-making powers or…?

There are a number of advantages and disadvantages of this approach.

What are the advantages of this approach to policymakers?

We end up with a small government with a policy-making role in the main. Agencies can go out to a market of ‘providers’ with their pot of money and buy in the services they need showing ‘best value’. They compete with each other for services and using various mechanisms the Government creates the environment where the market is encouraged to flourish. People with money can buy in their own services if they choose to so reducing the burden on the taxpayer.

Policymakers can make policy without having responsibility for delivery so policy can in itself ‘have a kind face’. Charities can be included as ‘suppliers of services’ so the market has as wide a supplier base as possible. Peer-to-peer learning can be encouraged as can self-certification so we need few expensive ‘compliance checkers’ – Health and Safety Officers, Building Control Officers, School Inspectors etc. Where these are needed then whoever has need of the service should pay so where possible even compliance checking contracts can be marketed and have revenue generating potential.

 

What are the disadvantages of this approach to everyone?

I have a son with vulnerabilities so it matters to me more than most that because of these policies people in need are in many cases being left behind often in dreadful circumstances. The vulnerable including children are also often painted as the agents of their own misfortunes to justify the inhumanity that those that need services are often treated with. Many have rights, enshrined from a kinder age, that are seen as optional extras or something that unfunded charities, such as the Howard League for Penal Reform, should meet.

Good health of the market becomes the driver for policy. Regulation is seen as a ‘drag on the market’, just ‘red tape’. The Grenfell Tower fire is likely to show where this can ultimately lead – hollowed out enforcement services for out-of-date regulations. Self-certification that ticked a box but did’ent meet a need. It is also worth pointing out that 18- year old building apprentices would still be shoveling asbestos if left to the construction industry to figure out what it should be doing in response to the extreme dangers posed by asbestos fibres. The market clearly needs direction and regulation and government has a role beyond that of ensuring the health of the market. It has a role in ensuring the health of the people and of communities. It has a role in ensuring we live in a just and fair society.

There are also issues of sustainability. As a country we own less year-on-year in terms of our national assets and we often have no real idea of who is actually carrying out contracted-out services, how well they are trained, what they are doing at a ‘fine grain level’ and what the implications are for our ‘tax take’ or the loss to individual communities in terms of employment security and nett wealth of individuals within those communities. Surely this cannot be sustainable long term?

There is also a danger of disconnect of policymakers from policy delivery. ‘Teflon coated’ policymakers may point to one or two good things happening somewhere in their particular area of influence and then say ‘our policy is working’ even though it is clear that there is systemic failures of whatever kind – around fragmentation, resources being used to address complexity rather than meeting need, underfunding, gaps in provision, inadequate data collection, analysis and reporting as just some examples. At what point does this become unethical misdirection, eroding belief in Government itself?

Fragmentation is highly inefficient if not unworkable. Take one example – our son’s school is in one LA, his doctor another, we live in a third. He needed specialist medical support in a fourth, was discharged from the hospital to a fifth so who is responsible for the package of social care support that he needs, particularly if our LA was not even aware that he had difficulties? If that were not crazy enough geographic footprints for LAs do not match geographic footprints for clinical commissioning groups for healthcare.

Footprints for specialist services may be at semi-regional level, footprints for other services at a local level. All are so busy looking after their own budgets that there is a disconnect between “making sure you can justify spending the money from this budget” with “what needs to happen to provide an effective service?” It is hard to explain how byzantine this is to negotiate on the ground and no-one seems to be logging un-met need just tightening the criteria to access their service. We are encouraged to accept injustice on the grounds of pragmatism. ”There is no magic money tree”.

I don’t believe in markets in the ways policymakers seem to. You can have any number of people employed trying to procure services but if you have no service providers there is no service but there is still a cost. Suppliers cherry pick lucrative work and have no values other than to make profit. I have no idea why anyone would think it could be otherwise when dealing in a marketplace.

 

What needs to change?

The service landscape resembles nothing as much as the parish council system of the 1840’s before the great reforms of public health and services that gathered momentum in the 1950’s. I for one never signed up for this.

If indeed there is no magic money tree then we need consensus on how we prioritise where we spend money. The views of people who have need of services should be central to that debate. Should we be locking children up if they are less safe in our prisons than in their community? Should we be taking children into Care when we are now seeing grandmothers who were in Care lose their grandchildren to the Care system and we don’t know why? What kind of society are we? Do we choose to blame, punish or help those who need services? If we help, do we only do so in a punitive way to deter people from asking for help? How much help is enough and how should that help be provided? Policymakers may not like some of the answers to these questions but they really have to engage – that is the job of Government.

Government Departments need to change from being provider focussed to service user led.

If you need a school or children’s services’ input into your (child’s) care, the Department for Education currently has responsibility for putting in place polices for delivery of education and for children’s social care. They do not control all policies relating to children including when children get health support or if they go to prison. The policies that apply and costs associated come from different Department’s budgets. There are bizarre situations where the Department for Culture, Media and Sport for example have responsibility for Drug and Alcohol courts (possibly because gaming can lead to addiction???).

The territorial nature of Departmental remits matters to us all because we need our services to work seamlessly. Instead Departments each look to different experts to give direction on policy, have different initiatives that run over different timescales, different cultures (imagine how co-production of services now widely promoted by the Department of Health would impact the Care system?) and each work largely in silos.

I think Departments might be better defined by user groups – Department for Families, Department for the Third Age etc so that each department knows who they are delivering services for and produce coordinated policy for their user group. As an example a new Department for Families could have as its focus health, education, care and justice for children/young people, parenting support where needed, poverty reduction, secure housing for families.

 

What happens if we keep going as we are?

It isn’t working on so many levels that many people just want a ‘reset button’. Brexit is a symptom of this.

Talk about ‘the magic money tree’ should not blind people to the fact that we need good government. It is essential particularly when money is tight. Bad government has consequences for us all and these consequences are sometimes neither foreseeable nor controllable. Good governance is in all our interests.

Happy Families – The conversations we are not having about adoption – Feedback from London Event

 

On Saturday October 28th 2017 we gathered again, this time in London, for the ‘oral installation performance’ about adoption and the problems caused by lack of honest and open conversation about its meaning and consequences.

The main questions Pamela and I hoped to pose were these:

  • 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?

Again, I was really pleased that the audience seemed keen to talk and the conversation was lively and wide ranging. It was also great to finally meet in person some of those I have been ‘talking’ to on line for some time now. 

I hope that the conversations we started in Bristol on September 23rd and in London on October 28th can carry on elsewhere. If anyone reading this would like us to come and perform in your area, let me or Pamela know!

Themes emerging

A member of the audience recorded the following as those issues which attracted her attention:

  • Is there another side to the issue? The talk seemed to imply that adoption is negative, but if so, what’s the alternative?
  • Who is going to do the research into outcomes? How is it to be funded?
  • Adoption seems to involve ideological judgement and even social engineering, and is used as a solution to problems within the care system generally. Why isn’t there conversation about all the possible consequences, good and bad, short and long-term, for everyone involved?
  • Why isn’t there legal and financial help for, say, the parents of split siblings, to enable a sense of family to persist?
  • Social media has raised the profile and voice of adopters, but again, it is usually the articulate middle classes who benefit. How can this be made more of a level platform?
  • How successful is the assessment process at preparing adopters to be parents?
  • Are support services adequate in the era of austerity, particularly in view of the needs that may arise in adopted children from different backgrounds?
  • What qualifies a parent for serious intervention such as psychotherapy? There is no clinical criteria, and the distribution of these resources seems to depend on how wealthy and/or how vocal you are.
  • Is the problem that research may be carried out but is unheeded by policy makers? If so, is it because of (lack of) money? Or prevailing ideology? Or lack of belief in public discourse by the general public?
  • The UK concept of ‘childhood’ is adult-led, which is behind the times compared to much European thinking. Should the UK widen its perspective?I]
  • Is it worth saying that you can’t prevent the death of every child deemed to be at risk, regardless of any external circumstances? There would and will always be cases like Baby P, leading to knee-jerk reactions by the media, and potentially causing as much harm as good.
  • How do you counteract false narratives that are propagated by sections of the media for political ends?
  • Should there be a set timeline for adoption or not? If yes, what should it be? If no, how do you set parameters?
  • Is there a wider question about the way society undervalues diversity and views disadvantage?
  • How can we stop money being wasted by the government on high-profile, ‘scattergun’ interventions which are often shown to have achieved nothing when they are evaluated by practitioners?
  • How big a problem is trafficking of children? Can we believe the narratives in the media?

Comments from the audience

I have just started my MA in Social Work and this has made me aware of some disturbing elephants in the room and what sort of actions I need to think about supporting.

I found the method of presentation simple, powerful, effective. I thought Your performance Sarah was excellent. It was gripping. I think you didn’t need to try and answer the q’s ( except the first that was framed firmly as a q to you).

It didn’t make me think afresh about adoption as i already do but it was good to be able to ‘come out’ on those views in a public debate. My sense is that there has been a big shift in recent years to voices accepted as credible (rather than othered as disgruntled or extremists – some of course, being actually so) being able to question current adoption policy & practice.

I think you could have done even more to engage w evidence in support of adoption & eg the idea that it was precisely because Jobs was removed & adopted that he developed capacity & opportunity to have such an impact. Tho u said u had no views the choices about what material used & ansa’s given suggested u had strong views that much is broken & dysfunctional, just not on how to achieve change & what good wld like.

Abuse on line: What are we going to do about it?

In April 2017  I wrote at length about my experiences of being harassed on-line. How my photograph was repeatedly published, how accusations were made about my intelligence, my appearance, my sexuality. All of this designed to terrifying me into shutting up.  I sought help from a number of agencies and received very little. For some reason, this kind of behaviour is still shrugged off as childish or inconsequential.

It isn’t.

I have more than usual resilience and an atypically combative nature. Even I have been shocked and frightened by what has been aimed at me. Particularly when my child is targeted.

I foolishly stated in April that this would be my ‘last word’ on the topic. I was fed up of so much of my time and energy being distracted by contemplating the ugly behaviour of some very disturbed people.

But they didn’t stop. They started publishing my address. They started to try and use outside agencies such as the Information Commissioners Office, as a vehicle for their harassment. They continued to make bogus and malicious complaints to my Chambers (it seems in the mistaken belief that I am employed by my Chambers and could thus be sacked).

I kept hearing more and more accounts of people -usually women – forced off social medial because of persistent and malicious abuse directed at them.

I made nearly 50 reports to Twitter about the people who were violating its terms of service; Twitter responded to agree that yes they had! then did nothing. The abuse continues.

On my Twitter feed this morning I see the following post from another woman driven off social media by intimidation and others publishing her private details.

 

 

Enough surely is enough?

If Twitter won’t act – maybe we can.  I am fed up of moaning about this, of nothing ever changing, of almost every day finding that I had to deal with insults, abuse and attempts at intimidation. This is particularly depressing when the main offender is a member of a regulated and protected profession – yet the profession takes an entirely relaxed approach to what has been persistently disgraceful and public behaviour for well over a year now.

So I have started this crowd funding project. How do you eat an elephant? One mouthful at a time. Lets start at the beginning. Lets get the groundwork  sorted for a clear legal challenge to either the failure of platforms such as Twitter to enforce their own terms of Service or against the individuals who so blatantly abuse the freedoms, privileges and responsibilities of having a voice.

Please donate if you can. But please do it anonymously – or you will run the risk of being targeted if seen to support this campaign.

 

Myths and Monsters of Child Protection

 

On Monday October 16th I attended the conference organised by the charity The Open Nest at the Foundling Museum in London, which had invited a group of speakers to investigate the ‘myths and monsters’ around child protection.

For more of the discussion on the day, follow the Twitter hashtags #NAW2017 and #mythsandmonsters.

The speakers were:

  • Lemn Sissay: Poet, writer, speaker, actor.
  • Professor Brigid Featherstone: Author of The Adoption Enquiry BASW
  • Professor Anna Gupta: Author of The Adoption Enquiry BASW
  • Footsteps Group: Birth Mums peer support group, Leeds
  • Catt Peace: Social enterprise manager, advocate, blogger, adopted person
  • Anneghem Wall: Therapist, writer, adopted person
  • Rebekah Ubuntu: Musician, multi media performance artist, care leaver.
  • Dr Sue Robson: Special Guardian, community development practitioner.
  • Fran Proctor: Life coach, writer, adopted person
  • Ali Redford: Author, Adoptive parent
  • Amanda Boorman: Founder of The Open Nest Charity, adoptive parent.
  • Georgia Cooper: Therapist, artist, charity professional.
  • Lizzie Coombes: Photographer, community arts.

A key theme of the conference was how in general the reporting about child protection issues had become divorced from the realities – in particular the danger of the opinion that hardens into ‘fact’, recorded in professional records that then becomes the story of a child for the rest of their lives.  As the organisers commented:

Without due care and attention the information given and held on file about a families history can give a ‘fake news’ version of the bigger picture around events that caused child protection interventions. This in turn may hamper an individual’s human rights to accurate life story, individual and family identity and the maintaining of important connections and relationships.

Many speakers showed the importance of poetry in delivering a message far more effectively and powerfully than can ever be achieved by a dry lecture and a powerpoint. Those who illuminated their own childhood experiences echoed the uncomfortable discussions at the recent Nagalro conference ‘What about the children’, which highlighted the invisibility of children in the child protection system, even when it is ostensibly designed for their benefit.

Professor Bridgid Featherstone acknowledged the importance of stories and how we needed to now be taking control of the narrative – sadly, merely holding out ‘facts’ for inspection has historically made little impact.  Both she and Anna Gupta are concerned by what research reveals about the impact of poverty and social inequality on decisions made in child protection, although this is rarely acknowledged as a reason children are taken into care.  Hopefully the conclusions of their recent Inquiry into Adoption will be released shortly and will make for interesting and probably sobering reading.

Again, the importance of siblings was emphasised. This is the problem with a system of child protection that focuses on the rescue of the individual child and thus sees them in isolation from their families and communities.

Siblings become the ‘collateral damage’ of the child protection process. Fran Proctor spoke about being removed from her mother but her sister was returned and was killed. She was made to feel a ‘nuisance’ for wanting to know about her sister, for wanting to know her own story.

 

Both adopted children and adoptive parents spoke of one of the most pernicious myths of the whole system – that a ‘loving family’ is all that is needed to heal the trauma of a troubled child.

Sue Robson – now the Special Guardian of her grandson – praised the work of The Open Nest in providing a therapeutic space to heal her family’s trauma and loss which had lain there for 25 years. She felt that asking for help from Social Services had been one of the worst decisions she had ever made. There was nothing she could do to prove she wasn’t a ‘bad mother’ – if she was compliant she was deemed passive, if she was assertive, she was deemed aggressive.

 

Another theme was the need for professionals to remember that they are human beings, to talk to parents and children and recognise their humanity.  I have considered the dangers of jargon and cliche in a previous post here.

Lemn Sissay reminded us that the first thing he needed when he went into care, was the last thing he got – ‘a hug’. Children need to be touched. To ban touching out of fear that adults would sexually abuse children, Lemn Sissay reminded us, is a complete nonsense. Abusers will abuse anyway – that is what they do, they break the rules. To deprive a child of human touch is a terrible thing and he reminded us just how resilient children in care have to be to endure this.

 

But not only is the child deprived of physical comfort, they are denied the truth of their own history. The importance of family is that we share memories or we argue over who is right! Lemn Sissay realised when he left care that he now knew nobody who had known him for more than a year. The name he had grown up with was a lie, so to the story that his mother hadn’t cared. He finally got to read the letters she had written when he was a child and knew that he had been loved.

 

But the speakers also recognised that some children do need to be ‘rescued’ from their birth families. And for some, being adopted will indeed be the best thing that happened, But the theme running through the conference was a plea for truth  – even painful truths can be comforting, once we are allowed to know and tell our own stories.

I was very grateful to Amanda Boorman for letting me speak for 5 minutes about my performance on October 28th. The themes of that performance are echoed so strongly by what the speakers said at this conference. There is never anything dangerous or unsatisfying about being closer to the truth.

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.