Author Archives: Sarah Phillimore

‘Consent’ and its importance

I am grateful for this post written by a parent about the practical and emotions impacts on parents around the issue of consent. This is particularly relevant in the context of much of the concern arising over use of section 20 accommodation under the Children Act 1989. For more detailed discussion about the impact of section 20, see this post.  

noun

permission for something to happen or agreement to do something.

“no change may be made without the consent of all the partners”

synonyms: agreement, assent, concurrence, accord; More

verb

give permission for something to happen.

“he consented to a search by a detective”

synonyms: agree to, assent to, allow, give permission for, sanction, accept, approve, acquiesce in, go along with, accede to, concede to, yield to, give in to, submit to, comply with, abide by, concur with, conform to

“all the patients consented to surgery”

 

Pretty clear isn’t it, yet speaking as one of any number of parents who have been duped by having their children removed under S20 , the term consent does not seem that easy to understand by all social workers.
This  short post is not about the legal implications, I am not a lawyer, but the practical and emotional effect on parents by dispensing with their consent. Consent is important , it is normally needed when someone or something could invade your privacy or potentially cause you harm. For instance we all have to consent to cookies on various website’s which store our browsing history, more seriously all sex must be between consenting adults if not it is a crime. Having you child removed from you without your consent is a violation, it feels as emotionally harmful as rape and that is no exaggeration. You are completely powerless, nobody will listen and you are as frightened as hell. You don’t know were to turn  and you believe the social worker because they sound knowledgeable. It is the power imbalance at its worst.
If you then find out your child has been removed unlawfully, you ricochet into the grief cycle starting with anger, which plays straight into the hands of the local authority who will deem you as mentally unstable and /or non compliant. You will feel guilt for not knowing that what happened was wrong and that you have let your children down. Closely followed by shame that you were taken in. Night terrors , can become the norm from the resulting PTSD.
Practically , parents are encouraged to break the law with regard to the benefits system . I remember asking whether I should still receive child benefit and was told to do so. Yet if a child lives elsewhere for more than 8 weeks the parent is supposed to stop claiming https://www.gov.uk/child-benefit-child-lives-with-someone-else .
Many parents actually then up in debt , on top of their other problems whilst they are having to downsize. They may be unlawfully placed on supervised contact, so on top of their grief, their life has to revolve around getting to contact. Jobs and other commitments  are disrupted leading to added strain.  Local Authorities may pay out of pocket expenses for travel to contact , but these are normally  a  minimum and paid late.  Plus most parents will have no say as contact is  gradually whittled down. Contact may very well be supervised despite being unlawful. All of this is likely to have occurred without the benefit of legal advice.
Could you imagine going for an operation without the possible implications explained to you or even buy a car on a loan and you signing to say you understood. Consent matters, especially in removal of something more precious to you than anything in the world. Lack of consent leaves open wounds for years after, I know mine are still festering, that’s why I had to write this post. I hope it helps to stop the coercion of parents happening.

Financial remedies if mistakes are made in proceedings involving children

This is the text of a seminar delivered at St Johns Chambers in Bristol on March 21st 2018

Financial Remedies in Children Proceedings

1. What we will examine this evening are possible routes down which might enable you to get a financial remedy for a child who has suffered harm or loss. A typical example is a child who has been through care proceedings which have not been conducted well, or has been left drifting in section 20 accommodation without the local authority making any application to the court. There is evidence that the child has been harmed by this, possibly left traumatised and needing further therapeutic support, which a local authority may be reluctant to pay for. What are the options in such cases?
2. I will look at three possible avenues – the Criminal Injuries Compensation Board, actions in negligence and actions under the Human Rights Act 1998. Spoiler alert – I am going to conclude that when comparing negligence and the HRA it is the latter that is likely to be the remedy of choice. Asha will then take you through the ‘nuts and bolts’ of making such an application as the courts have now clarified the strict procedural requirements and the likely impact for the legally aided that the LAA will attempt to claw back costs.

General points

3. The law in these areas can be complicated. It is not difficult to understand why as they invariably involve payment of money. The only compensation possible in many cases is money – years of childhood cannot be restored.
4. Getting financial compensation may have to involve bringing legal action against people or agencies who did not directly cause the harm, because they have ‘deeper pockets’ i.e. greater access to money via department budgets or insurance schemes. Insurance companies are usually very keen to avoid paying out. Thus such cases are often fought very hard.
5. This has proved a particularly fraught arena when dealing with harm done to children or families by the actions or failure to act of a local authority. Harm is most likely to be caused by individuals such as social workers or foster carers who are unlikely to be rich enough to be worth suing as individuals. The focus then falls on the local authority and to what standards they could reasonably be held. But when local authorities are under a statutory duty to try and protect children, there are significant public policy arguments against imposing financial liabilities owing to fears that this may lead to defensive practices and unwillingness to work with families. It is also often difficult to establish causation when many different agencies and people contribute to decision making.

Criminal Injuries Compensation Board

6. The CICB deals with compensation claims from people who have been physically or mentally injured because they were the victim of a violent crime in England, Scotland or Wales. The Criminal Injuries Compensation Scheme 2012 sets out the critieria for eligibility and compensation rates. Annex B to the scheme confirms that a crime of violence includes a sexual assault. I won’t go into detail here but will just remind you of paragraph 9 (which I had overlooked):
A person may be eligible for an award under this Scheme whether or not the incident giving rise to the criminal injury to which their application relates has resulted in the conviction of an assailant in any part of the United Kingdom or elsewhere.

Negligence

7. In essence, to establish negligence you need to show that you were owed a ‘duty of care’ which was breached. In many cases the courts have refused to find that such a duty of care existed, relying on public policy grounds. However, those who argue against the refusal to extend liability point out that negligence is more than just ‘carelessness’ – it has to be behaviour that falls far below what you would expect from others in this field. Why shouldn’t children and families be protected from such serious failings?
8. The common law around negligence is continually evolving, reflecting the constant shifts in societal attitudes towards notions of vulnerability and harm. For example, we can see the clear evolution of the court’s willingness to find local authorities liable for harm caused to children by abusive foster carers. As recently as 2015 the Court of Appeal decided a local authority could not be held ‘vicariously liable’ for the actions of its foster carers; however, the decision was over-turned in part when the case reached the Supreme Court in Armes v Nottinghamshire County Council [2017] which decided that whilst there was not a non-delegable duty to take reasonable care, it was possible for such vicarious liability to exist.
9. I stress at the outset that negligence is a complicated area of law and I do not claim particular expertise. Anyone contemplating an action in negligence will need to get proper advice from a specialist practitioner. But I hope what follows can be a useful overview of some of the likely considerations, to at least help you decide if you do need to take that next step.

CN v Poole Borough Council

10. An interesting recent case that provides a framework for this discussion was the decision by the Court of Appeal on December 21st 2017; CN v Poole Borough Council [2017] EWCA civ 2185. This was reported at the time as a decision that prevented victims of abuse claiming compensation from local authorities, including victims of such scandals as Rotherham – see for example reports in The Times and the Daily Mirror on the 1st January 2018.

Facts of this case

11. A mother ‘Mrs N’ had two sons, CN (aged 9) and GN (aged 7). CN had serious disabilities, requiring a high level of care and supervision. In May 2006, the family moved into accommodation on a housing estate in Poole. The local authority arranged this as the local housing authority and the accommodation was rented from the Poole Housing Partnership Limited (“PHP”). Sadly, over the next few years, Mrs N and her sons were the victims of serious anti social behaviour from a neighbouring family. Mrs N reported this to various agencies – the police, the local authority and the PHP. She had to complain further to local politicians about the lack of effective response from these agencies. This led to the Home Office being involved who carried out an independent case review in 2010 that criticised the agencies’ responses. However, the anti social behaviour continued and the family were finally re-housed in December 2011.

Litigation from 2012

12. Litigation then commenced. In December 2012 the family claimed against the council, the police and the PHP alleging breach of the Human Rights Act 1998 and negligence. The essence of the claim was that all three agencies had failed to take appropriate steps to protect the family from abuse and this was a breach of their rights under Articles 3 and 8 of the ECHR. However, the family did not provide particular details of their claim, they asked more time to provide these details in August 2013, but in December 2013 that application was dismissed. A year later a second set of proceedings was issued and this time only the council was a defendant and the claim was now based solely in negligence (previous case law having established that no duty of care was owed by either the police or the housing departments in such circumstances).
13. A second claim was also made on behalf of the children that the council had failed to comply with its duties under the Children Act 1989 to safeguard them and promote their welfare. The local authority wanted the court to strike out that second claim as having no foundation in law. However, In October 2015 the court dismissed both elements of the family’s claim, finding that there was no basis to hold that a local authority owed a duty of care to protect against the anti social behaviour of others and that there was no legal foundation to hold that the Children Act 1989 created any additional duty of care with regard to the children.
14. The children then appealed with regard to the argument that a duty of care flowed from the local authority’s obligations under the Children Act. The court were reminded of the Court of Appeal decision in JD & Ors v East Berkshire Community Health & Ors [2003] EWCA Civ 1151 (31 July 2003) which found at para 87: where consideration is being given to whether the suspicion of child abuse justifies taking proceedings to remove a child from the parents, while a duty of care can be owed to the child, no common law duty of care is owed to the parents.
15. The claim then became about the local authority’s failure to remove the children from their mother. The appeal was heard in February 2016 and Slade J agreed that it was wrong to strike out the children’s claims based on the local authorities social services functions. The children’s case was then put on this basis, arguing that the local authority should be liable for the following failures:

  • Failed to assess the ability of the Claimants’ mother to protect her children from the level of abuse and violence they were subjected to. The Defendant did not carry out any timely or competent risk assessment and such assessments as were carried out were flawed and delayed ….
  • Failed to assess that the Claimants’ mother’s ability to protect the Claimants from abuse …. Further failed to assess that the mother was unable to meet the Claimants needs whilst she lived …. with them.

16. The council were then given permission to appeal and they succeeded. The Court of Appeal found the argument that the children should have been removed from their mother’s care as a means of dealing with anti social behaviour as “rather startling” and “highly artificial” (paragraph 41). In essence, the claim had nothing to do with any social services functions but was “in fact a criticism of the housing functions of the local authority” (paragraph 104).
17. The Court of Appeal in Poole considered at para 55 the implications of the earlier ruling in JD v East Berkshire that a duty of care could be owed to a child when considering the child’s removal from his parents: The Court was considering the decision whether to leave a child in a family where abuse was in question. For the purposes of such a decision there exists no true “third” party, in the usual sense. The actual or potential wrongdoing by those who would retain (or gain) custody of a child is central to the decision being taken. It is the mainspring of the relevant decision. That is a significant distinction from the current case.
18. There were two fundamental aspects to these proceedings which argued against making the council liable

  • the danger of encouraging defensive decision-making; and
  • the general absence of liability for the wrong-doing of others (paragraph 94). It is simply unfair for the local social services authority to be held liable, when the housing department, the landlord and the police could not. (paragraphs 95-98)

19. Although the court accepted that society placed a high emphasis on protecting vulnerable people, it was neither effective nor just to do so by singling out one agency of the State for tortious liability as against the others.
20. The Court of Appeal confirmed that the Court of Appeal decision in JD v East Berkshire relating to a possible duty of care to children when decisions were made about removing them from their parents, was inconsistent with the subsequent decisions of higher authority and should no longer be followed (paragraphs 99-101).
21. King LJ, an experienced family judge, was further critical of the argument that the courts would grant a care order in the circumstances of this case, re-stating the high threshold for the making of a care order with a plan for interim removal. Davis LJ stated that care proceedings to protect the children by removing them from their mother would have been “utterly heartless” and “utterly wrong” (paragraph 118).
22. There were suggestions that this might be going to the Supreme Court but so far I have not heard anything.

Consequences of this decision

23. It appears that the result of the CN judgments is that a common law claim in negligence for a negligent act or omission in a failure to investigate / failure to protect case before a care order will now fail; or at least will certainly be very hard fought by a local authority who will argue that any action in negligence against a Children’s Services Department is only now possible post a formal assumption of responsibility via a statutory decision to intervene.
24. This is a major judicial U-turn, which sets the law back 27 years by reinstating the largely discredited public policy reasons set out by Lord Browne-Wilkinson in X (Minors) v Bedfordshire CC [1995] 2 AC 633. Irwin LJ who delivered the main judgment has declared that the Court of Appeal decision in JD v East Berkshire [2004] QB 558 should no longer be followed. It was Lord Phillips in JD who declared that X (Beds) should not be followed as the policy objections said to point away from the imposition of a duty of care (defensiveness, resources, delicate and multi-disciplinary decision making to name but three) could not survive the Human Rights Act 1998 as local authorities were exposed to just those dangers under the Human Right Act.

Human Rights Act 1998

25. So if you are considering harm done to children because a care order was NOT made, it looks as if the only avenue will be that which flows from breach of the Human Rights Act 1998. For example, note the decision of the European Court in Z and Others v UK [2001]. This examined the refusal of the House of Lords in X v Bedfordshire in 1995 to find a duty of care existed to remove children from abusive home circumstances and thus denied them financial compensation for the significant harm they suffered. The European Court found the children’s Article 3 rights had been breached, so serious was the harm they suffered, and awarded damages.
26. These cases need very careful consideration about the legal mechanism identified for bringing a claim. Bringing a claim in negligence has different requirements than bringing a claim under the Human Rights Act.
27. Recent case law has also made an application under the HRA less attractive, as Asha will explain. I will give just a general overview here. First thing to note is that it seems unlikely that you will be making much reference to Article 3, which protects against torture and inhuman treatment. Much more likely is a claim under Article 8 whereby you argue that a local authority did not show sufficient or any respect to the child’s and family’s right to a family life, or Article 6 when you argue that the proceedings were not fair. This can be clearly shown in any section 20 ‘drift’ case, particularly if this narrows the eventual options for the child’s permanence.
28. Also you need to be alert at the outset to the operation of the statutory charge on any damages awarded if you are acting under a publicly funded certificate.

The Basics

29. The Human Rights Act (HRA) was passed to give direct effect to the Articles of the European Convention into domestic law. Prior to the HRA, if you wanted to claim that your human rights had been breached you had to take out an action in the European Court of Human Rights in Strasbourg. Now, it is unlawful for any public body – including the courts and local authorities – to act in a way which is incompatible with a Convention right, unless they have no choice because they have to obey current statute law.
30. However, applicants who are receiving legal aid will need to consider carefully the implications of the statutory charge on any award of damages – this is discussed below. It seems likely that in most cases, pursuing an HRA application is simply not commercially viable. However, there are some avenues worth exploring and these are discussed below.

What is an unlawful act and what is a public authority?

31. ‘Unlawful Act’ is defined under section 6 (1) of the HRA. It is unlawful for a public authority to act in a way incompatible with a ECHR right UNLESS it doesn’t have a choice because of the way the domestic law is written.
32. A ‘public authority’ includes a court/tribunal or any person who carries out functions of a ‘public nature’ BUT it excludes the Houses of Parliament.

Who can make an application under the HRA?

33. Section 7 provides that a person can bring proceedings if they are, or would be a ‘victim’ of the unlawful act. There is a distinction between a ‘free standing’ application [section 7(1)(a)] and relying on your Convention rights in existing proceedings [section 7(1)(b)].
34. It is now clear that the court will expect formal applications made according to the Civil Procedure Rules NOT the FPR and this will have consequences for many issues, not least the role of the children’s guardian. For a clear analysis of the necessary procedural requirements, it is worth reading carefully the judgment of Cobb J in SW & TW (Children : Human Rights Claim: Procedure) (Rev 1) [2017] EWHC 450 (Fam) (08 March 2017). Asha will cover this in more detail. The biggest shock to those of us who enjoyed a few years of free standing applications made by Guardians was that the court pointed out this isn’t actually lawful under section Section 12 of the Criminal Justice and Court Services Act 2000 –cannot be authorised to act as litigation friends to child claimants although they may give advice about the appropriateness of a child making a HRA 1998 claim.
35. The full costs regime in Part 44 CPR 1998 also applies, including (in contrast to the position in family proceedings) the general rule that ‘costs follow the event’ (CPR, Part 44.2(2)(a): “(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party”; see also CZ v Kirklees MBC [2017] EWFC 11 at [61]));

What remedy can you get?

36. Section 8 of the HRA gives the court a discretion to remedy the breach of your human rights; the remedy must be ‘just and appropriate’.
37. This can include damages, if the court is satisfied this is necessary ‘to afford just satisfaction’. The court must take into account the principles applied by the European Court about awards of damages – but the problem with this is that the jurisprudence from the ECtHR is deliberately opaque about what makes the quantum of damages ‘just satisfaction’. Each case will depend on its own facts.

Article 41 of the ECHR

38. This sets out the requirement for ‘just satisfaction’ on violation of a ECHR right. For useful discussion about the application of Article 41, see paragraph 143 onwards of the judgment of the European Court in the case of P, C and S v UK [2002].
39. A clear causal link must be established between the damage claimed and the violation alleged. The Court will not be satisfied by a merely tenuous connection between the alleged violation and the damage, nor by mere speculation as to what might have been.
40. Compensation for damage can be awarded in so far as the damage is the result of a violation found. No award can be made for damage caused by events or situations that have not been found to constitute a violation of the Convention, or for damage related to complaints declared inadmissible at an earlier stage of the proceedings.
41. The purpose of the Court’s award in respect of damage is to compensate the applicant for the actual harmful consequences of a violation. It is not intended to punish the Contracting State responsible. The Court has therefore, until now, considered it inappropriate to accept claims for damages with labels such as “punitive”, “aggravated” or “exemplary”.

How have the courts approached damages under the HRA 1998?

42. The first case to consider damages under the HRA 1998 was Anufrijeva v London Borough of Southwark in 2003. At para 49 the court noted the conclusions of the Law Commission in its report on Damages under the Human Rights Act 1998 which suggested that the obvious analogy for a claim for damages under the HRA is a claim against a public authority in tort, such as negligence. But this analogy cannot be drawn too strictly as there are distinctions between the purpose behind an award of damages in tort and under the HRA.
a) damages are recoverable ‘as of right’ in a negligence claim (tort), but are at the court’s discretion in a HRA claim;
b) the purpose behind the damages claim is different; in negligence this is to put the claimant back in the position he would have been in without the negligent act, whereas in HRA claims the purpose is to provide ‘just satisfaction’;
c) That ‘just satisfaction’ may be provided by dealing with the HR breach, not necessarily compensating someone with money. The European Court has often found that in cases where there was a procedural, rather than substantive breach, a simple declaration that the claimant’s human rights were breached is in fact sufficient ‘just satisfaction’.
43. In the case of H (A Child – Breach of Convention Rights: Damages) [2014] the court was very clear that in the circumstances of this case ‘just satisfaction’ would NOT be achieved by a simple declaration that the parents’ rights had been breached. See paragraph 82.
It was not until June 2014 that these parents eventually managed to secure the return of their daughter to their care, exactly a year after she was placed with Mr and Mrs B. Whilst it is true that during that year the parents were having regular contact, supervised contact at a local authority contact centre is far removed from the joys of fulltime, unsupervised care of one’s own child. The residential assessment which began in June 2014 could have begun a year earlier. The cognitive assessment of the parents, not finally obtained until May 2014, could have been obtained months earlier. Unlike the parents in the Coventry case, these parents’ have suffered a loss of time with their daughter which was both unnecessarily lengthy and deeply distressing.

How should damages be assessed? And what is an appropriate award?

44. The difficulty is in situations where the harm suffered by the claimant is not one that can easily be measured in money – for example, loss of earnings is a lot easier to measure than being very upset or anxious about something. There is little guidance from the European authorities, save that the court tends to look at the nature and seriousness of the breach complained about, and the claimant’s own behaviour.
45. The European Court has also recognised ‘loss of relationship’ as another form of intangible injury – that is the loss of love and companionship which occurs when a family relationship is disrupted by breach of Article 8.
46. This is a clear difference between the kinds of damages that may be awarded for breach of contract or tort in the domestic courts, which may not recognise many of these types of loss or would require much stricter proof to be satisfied they had occurred. Some types of loss are going to be much more easily quantified than others.
47. The court in H (A Child) noted that there was not much assistance from previous cases in determining what amount should be awarded. In this case, each parent was awarded £6,000. See para 87:
48. Whilst the authorities referred to are of some small assistance, there are too few to be able to be confident that they indicate the broad parameters for making an assessment. In any event, it must, of course, be remembered that every case is different. Every case turns on its own facts. The assessment of damages in these cases is highly fact sensitive.
49. The court in X, Y. & Z re (Damages: Inordinate delay in issuing proceedings) [2016] approved the identification of the relevant issues by HHJ Lazarus in the Medway case [2015]:
a) The length of the proceedings
b) The length of the breach
c) The severity of the breach
d) Distress caused
e) Insufficient involvement of the parent or child in the decision making process
f) Other procedural failures.
50. WARNING: It is likely that the Court of Appeal decision in London Borough of Hackney v Williams & Anor [2017] is a clear attempt to row back from what appears to be ever increasing amounts awarded in damages for HRA claims. The Court decided that there had been no breach in this case so no damages fell to be awarded – BUT if they had, the Court of Appeal were clear that the £10K awarded at first instance was simply too high.

Damages awarded in other cases

51. P, C, S v the UK [2002] the European court awarded each parent €12,000 for breaches of their Article 8 and 6 rights in a case which involved removal of a baby at birth. This case also has some useful commentary as to how damages should be assessed.
52. Northamptonshire CC v AS [2015] – damages £16K.
53. Ferrari v Romania in the European Court of Human Rights in April 2015 where a father was awarded €7,500 after the state failed to properly engage with Hague Convention proceedings and caused delay.
54. In re A (A Child) in August 2015, the mother was awarded £3,000 for unlawful removal of her child.
55. Medway Council v M and T October [2015] awarded £20K to both mother and child for unlawful use of section 20 accommodation under Children Act 1989.
56. B (A Child) [2016] EWFC B10 January 2016 – £5K awarded for 3 year delay in revoking placement order that meant B lost out on developing a relationship with his siblings.
57. Case Soares de Melo c. Portugal (Application No 72850/14) [Feb 2016] award of €15,000 for decision to have children adopted without offering family sufficient support.
58. X, Y & Z re (Damages: Inordinate Delay in Issuing Proceedings) [2016] EWFC B44 (23 February 2016) – £45K awarded, (£20K for each child and £5K for the mother) highest level of damages known to date for misuse of section 20, and particular criticism of the failure of two IROs to act.
59. BB (A Child) [2016] 27th June EWFC B53 £7,500 awarded for misuse of section 20.
60. GD & BD (Children) [2016] 10-18 October 2016 EWCH 3312 – example of very poor police, LA and legal practice, described by Suesspiciousminds as ‘the worst case of the year’. £10,000 awarded to the mother and £5,000 to each child.
61. London Borough of Hackney v Williams and Anor [2017] – Court of Appeal sound the warning that £10K awarded at first instance was too high (in the event the court did not find a breach of statutory duty so no damages were awarded at all)
62. CZ (Human Rights Claim: Costs) [2017] EWFC 11 – £3,750 to each parent and child for unjustified removal at birth for about 3 weeks. However, costs likely to be completely absorbed by the statutory charge – publicly funded costs in region of £100K.

Opening up a closed system: The Second Bridget Lindley Memorial Lecture.

EDIT March 29th – you can now read a transcript and listen to the podcast here.

I was very pleased to be in the audience for Louise Tickle’s lecture on March 13th in Birmingham, organised by the Family Justice Council and with an impressive panel of Andrew Pack (AKA Suesspiciousminds), Dr John Simmonds of Coram/BAAF, Mr Justice Keehan and of course the President. The FJC will publish a transcript of the debate and to follow discussions on  Twitter, see #fjcdebate.

Since I first met Louise at CPConf2015 she has been an enthusiastic and tireless campaigner for prizing open the closed doors of the family court to shine some light on what goes on, in all our names. This has had an interesting impact – it does seem that more and more, those in the family justice system are realising that intelligent outsiders can actually help us do better, by showing us how practices and procedures that have become solidified and ‘the norm’ for us, appear bizarre and even frightening to those on the outside.

Louise was examining the game changer that is social media – no longer a niche hobby for ‘sad losers’ but something that is changing not just the way we communicate but the things we communicate about – personal, raw stories of human grief can be published by anyone, travel anywhere and be accessed at anytime. Louise began with a powerful story from her own childhood, where she was forced to confront at the age of 8 the ‘implacable authority’ of the adults around her to impose their choices. This left her feeling anguished and powerless. She has never forgot this feeling and it has driven her professional work.

What Louise has noticed is the rise in the number of people who contact her about their perceived experiences of injustice in the system. She cannot comment on whether or not these are based in ‘truth’ but to any journalist, this sounds as a warning bell – something is wrong if so many people feel so strongly about it.

We have to recognise this and we have to deal with it. There are enormous positives to social media – it allows people to communicate with others that they might never have met and find support. Louise was very appreciative of ‘legal Twitter’ – which was ‘awesome’ and commented about how useful it had been to allow journalists to ‘live tweet’ various proceedings.

Letting the light shine into proceedings will increase understanding and hopefully trust, which all appeared to agree was currently at dangerously low levels. The particular issue of recording interactions with professionals was raised and Louise was curt – ‘get over yourselves’. Parents want to record because they don’t trust professionals and they don’t have any power. It hurts not to be trusted but we need to be more open to considering the benefits that could flow from recorded transactions – particularly when there ARE examples of professionals behaving deplorably and making stuff up.

Louise also considered the impact on relationships of trust between parents and professionals by what appears to be the promotion of increased ‘surveillance’ of social media output as a way to gather evidence for assessments. Of course we don’t want to miss information that would inform us that a child is in danger, but given that we have finite resources of both time and emotional energy, do we really want to be directing both to increased surveillance, rather than building up relationships of trust? Perhaps the saddest comment of the night, for me, came from Dr Simmonds who remarked sadly that what underpinned his training as a social worker – the creation of relationships with others – seemed now so difficult to achieve.

Louise concluded by considering the ambit of Article 10. It appears that lawyers often overlook its essential component – freedom of expression includes the freedom to complain! She was horrified by the ‘arrogance’ of some local authorities who appeared to think that their work in child protection gave them immunity from scrutiny. Reporting on family cases was the hardest work she had ever done, as the fears of being held in contempt of court were very real. It was only with pro bono help from lawyers such as Lucy Reed of The Transparency Project that she was able to get permission from the court to tell ‘Annie’s’ story.

Louise was stark in her assessment. No other kind of proceedings, save those involved in issues of national security, permitted the kind of lack of scrutiny that is seen day in, day out in the family courts. It is an outrage.

We then turned to the Panel for comment. All agreed with Louise’s assessment that the State should be held to account – but how to do it? That’s the problem. The discussion ranged from worry about identification of children and the stigma that might then follow, the problems in expecting an overworked judiciary to anonymise and publish judgments and whether or not we should consider further accreditation for journalists who wish to report on family proceedings.

As Lucy Reed commented, there are enormous benefits to letting people in – to allow us to benefit from their fresh insights. The President agreed.

 

So, as ever, more questions than answers were raised. But without asking the questions, we will never find the answers and for too long the family justice system has been allowed to proceed on a secretive and inside track which has allowed bad practice to harden unchallenged. I was impressed by the quality of the conversation and its refreshing openness and honesty.  That we are even having this discussion is testament not just to the hard work of journalists like Louise but also the lawyers and legal bloggers who take the time to communicate their unease. And at the helm of course is the President.

I was very sad to be told I could not live tweet the location of the lecture due to security concerns for the President.  I struggle to understand how anyone would wish to interfere with his central and now long repeated message – we need to shine a light on bad practice and we do that by talking more, not less.  It will be interesting to see where our new President takes us, once Sir James Munby steps down in April.

I leave you with the words of one tweeter

 

Stereotypes

 

I am grateful for this guest post from a parent who wishes to remain anonymous. She considers  the dangers inherent in a stereotyped ‘one size fits all’ package of ‘intervention’ to meet the needs of ‘troubled families. They give a sense that difficulties are being addressed when in fact, they may not even be understood. Presenting service users as crude stereotypes gets in the way of ‘good’ working with families which requires engagement and relationship building. 

When my son entered Care it sometimes felt as though we have got him on the last transport out of a very dangerous city in a time of war. We, the adults, had been left behind to face a regime focussed on our ‘re-education’ while he had been rescued to a place where we could never go.

One of the most surreal moments I experienced during my re-education (Troubled Families Parenting Programme – 30 hours plus etc.) was sitting facing a panel of police officers while they explained the concept of ‘joint enterprise’. I was surrounded by parents of babies, tots, school refusing adolescents, young men beyond parental control and young women with extremely poor mental health. My peers appeared to be reasonable parents although we all had difficulties – mostly around poor mental health and violence if I had to guess. I’m not sure if telling us about one of the dangers of ‘gang’ membership could ever do anything more than frighten us and we were all frightened enough already.
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I can only imagine that someone had an idea in their head of what our families needed and had developed a ‘one size fits all’ programme to address these stereotypical needs.

Presumably someone had decided it would be good for us to attend this session on the basis that we were all parents in need of social care who lived in an urban mixed ethnicity area. On our parenting course no one ever talked about the impact of poor mental health, poverty or domestic violence – all problems that were discussed were framed in terms of poor parenting/relationship skills and failure to take our place in and contribute to our communities. These omissions were not explained and no one seemed to consider this a lost opportunity or that courses such as these could even be harmful if they gave all a sense that difficulties were being addressed when, for many, they had not been understood. This is not to denigrate these courses but to use an analogy It was as if before the doctor in a NHS hospital would see us we were prescribed antibiotics and measured for a shroud by a private company with a contract to measure for shrouds and prescribe antibiotics only.

The reality is that families may have any number of difficulties that cause a rift between parent and child and indeed children may enter Care for lots of reasons including death of a parent, abuse, risks that adults in their lives pose, violence or addiction in the home, illness of parent or child and lack of resources to address difficulties. This lack of resources puts parents in poverty at most risk of losing their children although for each child and family there are likely to be a unique set of circumstances that can lead to the same outcome.

Working with Families

Good social work I believe, although I’m not a social worker, involves engaging families with an open mind, responding to all as individuals and engaging with the reality of their needs and circumstances. By contrast popular culture presents service users as crude stereotypes – feckless, drawn to crime, poorly educated, brutal and above all ‘less’. It is if all believe that it is not ‘morally acceptable’ to need services in and off themselves. The Victorians took the same stance. They gave the destitute ‘moral instruction’ via the pulpit. Church attendance was required if anyone needed to access parish relief. Parish councils gave way to local government. Eventually the welfare state was born. Those involved in its birth were incredibly proud of their achievement. Those now dismantling it seem very pleased with themselves too.

Children that enter Care

When a child enters Care it is almost inevitable they will experience difficulties within Care and beyond as a result of their experiences although with good support, the effect may be minimised and the child may thrive. That is what all hope for and should be working towards. Any way to help carers and others to understand why life might be difficult for a child in/from Care and how to help them has to be positive. There are ethical ways of presenting personal narratives to educate others about the impact of action/inaction, abuse, neglect using first person narratives possibly illustrated in cartoon form. Similarly if an abused child enters Care and in turn loses her own child to the State she too could give a first person narrative of how her abuse affected her and how her own corporate parent could have helped and prepared her for parenthood. If an adoptive parent wishes to give an account of how their previously abused child is struggling coming to terms with what happened to them and how it negatively impacts family life, than that is a first person account that can be taken at face value. These are all powerful, ethical ways to explain the impact of abuse and neglect and life experiences.

Why would we need to paint anyone as a demon before we can care about their child – even though that is the job all take on?

I have heard looked after children speak about foster carers in the most positive terms possible – about love and care given and received well into adulthood and beyond. It is good that all are prepared to understand children who enter Care who may not be able to name their complex emotions particularly if they have been badly neglected, physically or sexually abused.

Unfortunately some information provided to social workers, foster carers and adopters portrays a picture of birth families as universally neglectful and abusive and in the most extreme terms. One company in the business of selling their services promote what is described as ‘virtual reality’ to explain the impact of poor early caregiving on a child including virtual reality from the perspective of a fetus.

This material does not make clear what are beliefs, what is known and what is disputed. This is one of the worst portrayals of families who have need of services that I’ve seen but I’ve seen lots more that come from the same perspective much of it from big players in the market like the NSPCC. These are crude exercises in selling services and raising income and there appear to be no critical examination of their extremist nature and the harm they cause in and of themselves.

So what is the harm in material like this?

Simplistic portrayals of people who have need of children’s services, packaged as ‘virtual reality’ are not in anyone’s interest particularly a child’s. I question if suitable carers and adopters should need to be told birth parents are stereotypically abusive, emotionally detached and poor before they can understand how to love a child and try to reach a child irrespective of how unlovable they may first appear because they are hurting so much.

It is also questionable whether social workers who have considerable power to intervene in families are helped to view each situation on its own merits when exposed to material such as this. Shared parental responsibility when it applies, is hard for all and takes commitment to work through in a child’s best interest. Any carer or social worker is very unlikely to show any commitment to it after being exposed to educational material that presents parents as universally dangerous and neglectful .

The most disturbing aspect of material that reduces people to crude stereotypes is not that it is out there being used by local authorities day in, day out but that few people seem to question why this might be a problem even though if it were produced about any other group, much of it or so I believe, would be a hate crime. Is this an almost inevitable consequence of the ‘privitisation’ of care and adoption where many of the big players are slaves to their balance sheet – No examination of methods, no checks, no balances, no scrutiny, no control and hate packaged as love.

Stereotypes,  are used to avoid genuine engagement with social and economic problems and to justify widening inequality. The construction of neglect in contemporary discourse needs to be seen in the context of increasing public and media discourse fuelled by political ideology that stigmatises and demonises people living in poverty and holds them responsible for their children’s neglect because of their behaviour and poor choices.

Anna Gupta (2017) Poverty and child neglect – the elephant in the room?
Royal Holloway, University of London,

 

Mind your language – whats the problem with ‘disclosure’?

There has been a great deal of talk recently about police investigations which start from a premise of ‘believing’ the ‘victim’ and a great deal of reasonable concern about what happens to those investigations if they begin from the premise that the ‘victim’ is telling the truth.

See for example the independent review carried out by Sir Richard Henriques in October 2016 of the Met’s investigations into ‘non-recent sexual abuse allegations against persons of public prominence’ . He is clear that use of the word ‘victim’ to describe a complainant at the outset of an investigation should cease. This terminology arose out of the stated policy of the College of Policing in 2016 that when someone makes an allegation of crime, “the police should believe the account given”.

As the review makes clear – this is a nonsense. To begin an investigation from a starting point of ‘belief’ is to corrupt the investigative process itself. How can any investigation that follows a commitment to ‘believe’ a ‘victim’ be carried out fearlessly and impartially? A botched investigation into serious allegations has very significant consequences for not merely the alleged victim and the alleged perpetrator but for society as a whole.

The impact of ‘I believe’ on family cases

It is clear the the culture of ‘I believe’ is not confined to criminal investigations but still operating in family cases. The consequences here are no less severe, as while family cases may not involve a loss of liberty they often involve what many would perceive as a far worse punishment – the loss of one’s children.

An interesting Twitter conversation was started by David Burrows on February 1st 2018, responding to a request to complete a survey for the NSCPCC to ‘inform a new resource to help professionals deal with disclosure’. David pointed out that it was shame the word ‘disclosure’ was used in this context, given the lessons we all should have learned by now from history.

Paragraph 33 of the judgment in AS v TH (False Allegations of Abuse) (Rev 1) [2016] EWHC 532 (Fam) (11 March 2016) says this:

  I have in this case heard extensive evidence from those professionals to whom the children made allegations and from those professionals who subsequently assessed the children and/or investigated those allegations (I pause to note that despite the fact that the use of the term “disclosure” to describe a statement or allegation of abuse made by a child has been deprecated since the Cleveland Report due to it precluding the notion that the abuse might not have occurred (see para 12.34(1)), every professional who gave evidence in this case (except the Children’s Guardian) used the term “disclosure” to describe what the children had said to them).

Those of us old enough to dimly remember the Cleveland and Orkneys scandals of 1987 and 1991 respectively, can remember the horrible consequences of pursuing allegations of sexual abuse from a starting point of ‘well, they MUST be true” – children sobbing in interviews, being told they would be allowed to go ‘when you tell us what daddy did to you’.

But the twitter conversation was a sobering reminder for me that I am a lot older than I care to remember – these events are now nearly 30 years old and for the new generation of social workers are now part of history. We weren’t even sure if it now formed part of the social work training

This is concerning on so many levels. What does ‘disclosure’ mean?  It is ‘the act of making new or secret information known’ . To call allegations or comments by a child ‘disclosure’ means you start the investigation from a perspective of ‘belief’ – exactly the position decried in the Henriques report.

And are children any safer because of this? Quite the reverse. Botched investigations in family cases risk allowing dangerous adults remaining as carers for vulnerable children and/or innocent adults being found as a matter of fact on the balance of probabilities. that they are a child abuser.  Either way, the truth of a child’s experience becomes obscured when interviews of a child become no more than a forum for getting the child to repeat ‘the truth’,  rather than an opportunity to test the credibility of what is alleged. Children, just like adults, can be subject to outside pressure, can get confused, make mistakes, exaggerate  – or even outright lie. Children are more susceptible than most adults to pressure from an interviewer and often have more of a desire to ‘please’ their interrogator by saying what they believe the adult wants to hear. See for example with regard to children’s suggestibility,  the work of Professor Ceci.

It seems that use of ‘disclosure’ to describe allegations is a persistent and serious problem.

I considered further the judgment in AS v TH:

David throws down the gauntlet – time to grapple with this issue?

All of us who are involved in investigations of abuse against children will have horror stories to tell of the botched ABE interview, the assumptions that were made at the very outset of investigations that set the course of proceedings very badly awry. It is high time that we tackled firmly any approach to any investigation that commences on a subjective assessment of ‘belief’. Because – if your investigator can ‘believe’ you – they can also ‘disbelieve’ you. The dangers are apparent. Children rely on us to keep them safe. And to be kept safe they need efficient and effective investigation into the behaviour of adults who have hurt them.

As Judi Evans put it

Families who need support and the language of ‘casual disrespect’

 

I WANT TO SPEAK

Thanks for this guest post from a parent who is concerned about the priorities for those making  high-level decisions about funding around healthcare, and the impact this may have on families who need support in the age of austerity. She also raises important questions about the language we use; for example how does it feel to be called a ‘challenging family’ in the context of support that might be offered? Her central point is stark – the only fixed point in a shifting landscape of support provision is to see the families who need it as ‘incompetent’ and requiring ‘intervention’. 

I had a strange day recently. I left work at lunchtime to attend a NHS Transforming Care meeting where transfer of funds ( ‘dowries’ ) from the NHS, accompanying people with learning disabilities transferred from secure accommodation to homes within the local community arranged by and paid for by local area Clinical Commissioning Groups, was discussed.

There were a number of ‘Experts by Experience’ present. One tabled a list of acronyms that he asked not be used during the meeting. This list included ‘spec. com’ (short for ‘Specialised Commissioning’). He also asked that those speaking refer to ‘people’ not ‘patients’. His request was assented to by all before the meeting started.

During the meeting as people around the table made presentations, a person from NHS Specialised Commissioning repeatedly referred to ‘spec. com’ and ‘patients’ throughout his presentation. The Transforming Care programme will succeed or fail in large part depending on whether funding follows people. If I understood the presentation correctly, it appears that except in very limited circumstances it won’t. It is hard to know how to react to this in the context of a meeting when none of the decision-makers are present.

It seems as though the impact of the Winterbourne View scandal is fading and there are new priorities for those making high-level funding decisions around healthcare. I know that for many local Clinical Commissioning Group commissioners charged with delivering the Transforming Care programme, who will have to compete for funding at a local level to deliver a programme that will incur considerable additional costs for local areas if delivered, it is very difficult to accept. For people with learning disabilities in long stay institutions (over five years) and for people whose cause of death can be listed as ‘Leaning Disability’ on their death certificate when they die of constipation it will be felt in ways, you and I cannot even begin to imagine.

What hope to deliver a programme for systemic change as complex as the Transforming Care one is, if professionals cannot even keep to rules they agreed to about the use of language that respects the wishes of those they hope to help?

It really was a strange day because I then went on to another meeting where the great and the good and the well-intentioned were listening to care experienced young people sharing their thoughts about the system they spent many of their childhood years within, some with no clear idea why or where their siblings that had been adopted, were.

Social workers also spoke about being asked to ‘do much more with much less’ and how it was impossible to deliver a service where everything from what services are provided by what agency to the social work workforce itself is in flux. Teachers also reported that they were now doing social work in schools, well beyond their capability and training. It was summed up as ‘Challenging Families were being passed between services without getting the early intervention they needed’.

The language of ‘casual disrespect’

I have to say this was a depressingly familiar story to me, so again I chose to reflect on language. Would anyone have thought it OK to refer to my family in a one-to-one conversation with me as a ‘challenging family’ needing ‘Intervention’ and if most would not, then why is it OK to refer families like mine, in this casually disrespectful way? Is it OK because parents of children in need of services are not meant to be listening into this intense conversation or is it that our opinions just do not matter or that we are not expected to have anything of value to contribute unlike the great and the good and the well-intentioned? Or is it that people are afraid of what we might say? Are we that much of a challenge and to whom and what exactly? The only fixed point in this shifting landscape of service provision seems to be to regard families in need of services as, at best, incompetent and in need of an ‘intervention’.

If I’ve understood correctly then what chance do families ( those groups of people – not systems – that in normal circumstances, nurture children and prepare them well for adulthood because of bonds of love ) have of ever being heard when asking for help, not intervention, when we ask for it for ourselves or our children and indeed what chance have the great and the good and the well-intentioned of improving the life chances of young people like my son, without respectful engagement with us, their family members?

The Role of the Social Worker in Adoption

 

The social work profession has shown itself willing to grapple with the issues of concern arising out of current practices around adoption and its consequences.

The British Association of Social Workers launched the results of its Enquiry into the role of the social worker in Adoption on January 18th 2018.

BASW set the parameters of its enquiry in this way:

  • As the professional association representing social work and social workers it is incumbent on us to ask how should our professional values and ethics guide us in this work? How should our understanding of the unique and equal worth and human rights of everyone involved in an adoption guide us in working in an area where rights are contested and perhaps in conflict?
  • This enquiry will examine the role of the social worker in adoption, with a particular focus on how ethical issues and human rights legislation are understood and inform practice, and how these relate to pursuing good long-term outcomes for children and their families. It will gather evidence from families and young people involved in the adoption process, social workers and managers, family justice professionals, policy makers and academics using a variety of methods.
  • The enquiry is about ensuring the best outcomes and experiences for children in care and their families, not just today, but for generations to come.

 

The findings of the Enquiry were presented by Professor Brid Featherstone and Anna Gupta followed by a response from Ruth Allen of BASW and Martha Cover of Coram Chambers. A panel discussion followed including representatives from parents, adopters and adoptive children. Have a look at the hashtags #adoptionEnquiry and #adoption to see some of the discussions on Twitter that night.

The Enquiry made 6 recommendations

  • The use of adoption needs to be located and discussed in the context of wider social policies relating to poverty and inequality
  • UK Governments should collect and publish data on the economic and social circumstances of families affected by adoption
  • The current model of adoption should be reviewed and the potential for a more open approach considered
  • There needs to be further debate about the status of adoption and its relation to other permanence options
  • BASW should develop further work on the role of the social worker in adoption and human rights and the ethics involved.

In essence, the Enquiry noted that although it was clear social workers tried to operate within an ethical framework, there was a question mark over whether or not they had the time and space to do so. Codes of Ethics that sit on a bookshelf are little use; ethics must be incorporated into a day to day value system of ‘ethical literacy’. However, many elements of the current system were operating to impede this – the ‘runaway train’ of care proceedings where adoption considered the best outcome at an early stage; the fixing of the child protection social worker as ‘here for the child’, thus losing sight of the fact that children are located in families.

Martha Cover reflected on her 25 years of practice and found much that resonated with her. She gave probably the most well received comment of the night when asking herself if she had a magic wand – what would she do? Give social workers their job back. Give them the time, space and support to do what they want to do – which is help people.

There were powerful contributions from birth parents, adopted parents and an adult adopted child. The issue of contact came up repeatedly. The adopted child posed the question – would it be ethical to suddenly remove from any of us in the audience, everyone we had ever known? Why do we support this sudden and stark severance of the child from his or her past? Why couldn’t she still write to her foster carers and why couldn’t they tell her they loved her?

She worried that there was a feeling that by controlling the words that could be used to a child, this would mean the child’s thinking and understanding could be similarly controlled – which is of course a nonsense. The child is left alone and confused – along with the adults.

The tweet below was probably the key point of the night. Adoption is a massive issue, with life long consequences for all involved. It was sobering to hear again that social workers are not supported or encouraged to attend events like this – those who do come often have to take annual leave and fund their own transport. The culture of ‘blame and shame’ around social work that has arisen over the years seems to have only entrenched more hunkering down into silo working and not being able to engage openly with the necessary debate.

I hope that the BASW Enquiry can shine more light on these very important issues which have been obscured for far too long.

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.