Author Archives: Sarah Phillimore

The futility of opposing adoption orders

Parents are going to stop trying to break the cycle if there is no chance of of opposing adoptions or having contact with an adopted child.

This is a post from a parent who talks about the adoption of her children and her attempts to either oppose the adoption or get a post adoption contact order. She asks the important question – what is the point of a law existing when parents never seem able to succeed? Even if parents are granted leave to oppose an adoption order on the basis of a change of circumstances, all seem to fall at the the second stage of the test which asks what is in the child’s best interests.

I can think of only one case since the Adoption and Children Act 2002 where the court refused to make an adoption order and the child went to live with a paternal aunt – but even this case was based on the presumption of placement in a birth family which has been rejected by subsequent authorities. I do not agree with the poster that the court never grants leave to oppose – I have successfully applied for leave. However, I am not aware of a single case where a birth parent succeeded on the second limb of the test and successfully opposed the making of an adoption order. I would be grateful to know if there are any out there!

With regard to post adoption contact I first discussed this in 2014 and the need for shift in position; nothing seems to have changed. 

 

I am a 37 year old mum. I have 8 delightful children. 4 girls, 4 boys.

The girls are D 17, S 16, L 11 and G 10.

The boys are R 15,  J 14, E 7 and P 4.

My mum was in care. I was in care. The local authority tried to take my eldest at birth. We kept her at home.

I walked out on my marriage to A in December 2002. I was pregnant with R. I stayed with a friend (SG) Gave birth to R and fell pregnant with J. I left (way too late) in March 2006 due to it being a violent relationship.

I then met a great man (M) and had L and G. We stated together until February 2010. I ended the relationship to restart the relationship with my ex husband. (A) We had my 7th child E a year later.

A year (2012) after he walked out with our 3 eldest children (D,L and R) and failed to return them. My eldest returned the same night. My 4th child J went to stay with my (abusive) ex (SG) for 3 months and failed to return him. Then ex (M) took our daughters and social services insisted he returned them.

I got into a relationship with an old friend (GM) and had baby P in 2014 and my eldest moved back to her father.

My children had been subject to numerous child protection plans and at this point only the eldest 3 were subject to plan. We were in court for child arrangement orders. My eldest 3 lived with A. Youngest 4 stayed with me.

A few weeks later A and his uncle hurt R and my 3 returned home.

Suddenly my partner (SG) started drinking. He didn’t want my eldest 3 at home and threatened to take our child (P) and tell social services I couldn’t cope. The children moved to paternal grand mother. The eldest returned a few months later and my partner threatened to take baby P if I let her stay. My daughter moved in with a friend.

Then S and R returned.

R went into care in March 2015.

L went into care in October 2015.

SG was being abusive. I kicked him out. Returned hours later to find out he had broken in and was refusing to leave. He said if I made him leave he would break into the house and take baby P from his cot. He had ultimate control. He wouldn’t engage with the local authority. Blamed me when they wanted him to work with them saying I wanted it not them.

then late Jan 2016 he was violent. I called the police. He was arrested. Then I failed my children AGAIN.

I made an additional statement. His bail was dropped and he came to the house to visit our child. The next day the local authority started care proceedings.

SG said he wanted to take me to the doctors to get me help because “I was mental”. If I didn’t let him come home then the children would go into care and it would be my fault.

An ICO was granted for D (stayed with father) L and R. I agreed L and G could live with M and they went that weekend on a supervision order

E and P were put on a supervision order to at home with me.

then D was removed from her father.

twice more the local authority requested ICO and removal of E and P. Twice more the judge refused. The last time she said if the psychological report was similar to the social report then she would agree adoption. If not then the LA should close the case.

On the final day of proceedings E and P were made subject to full care orders and placement orders and removed the same night.

I tried to revoke in August but the local authority placed them the same day. On advice from CAFCASS the judge did not grant leave to revoke. However the judge said she wanted to see me back before December 2017 to oppose the adoption.

The paperwork arrived in July and we went to court in August. I was granted legal aid in the changes I have made. The LA were doing a new assessment.

Now the adoption hearing is upon us with a final decision next week.

the LA and guardian believe I have not made enough of the RIGHT changes. They believe I have a man visiting or living with me. They want adoption.

The LA were given 28 weeks to place E for adoption or he would go into long term foster care. The LA extended this deadline on their own back WITHOUT having it RATIFIED by a judge.

I met my barrister who told me opposing is a 2 stage test. Is there changes? Yes there is.

With that in mind would the judge grant leave to oppose. My barrister said NO. the point is a lot of parents make changes. However this is never enough to “open the door” to grant leave. To grant leave the judge has to believe that the parent has a solid change of opposing the order. They have to keep in mind the welfare of the children. Their welfare is paramount.

On this basis parents always fail. Judges do NOT give leave to oppose.

So I have to question this.

Why is it written into law that parents can oppose if the Judge refuses permission EVERY TIME.

It either needs to be taken out of law as a null point or judges need to start granting leave to oppose.

As it stands parents can show significant change and still not be granted leave.

Either uphold the law and grant parents leave or remove it. This law is dangled in front of parents as a possibility and then snatched away by the court. Same as contact with an adopted child. The law states it can happen then refuses parents who apply for it.

Parents are going to stop trying to break the cycle if there is no chance of of opposing adoptions or having contact with an adopted child.

Why its time to open up the Family Courts

On Saturday 3rd November I attended a workshop at UWE organised by journalist Louise Tickle as part of her project to investigate opening up the family courts and recalibrate the balance between privacy and scrutiny. Disclaimer: both Louise and I are members of  The Transparency Project, so our interest in and commitment to further openness of the family courts is obvious and I make no secret of my bias in favour of this happening as soon as possible.

I have undergone an evolution in my views since 2011, when I first took up any kind of campaigning role. Whilst I initially parroted the phrase ‘private not secret’ and worried about the impact on children of increased scrutiny, my exposure over the years to obvious examples of where the system was failing has changed my views.

This blog post is an attempt to outline what I think are the most important reasons for opening up the family courts and what we can do about the real and serious fears of many that we are simply encouraging a salacious and irresponsible Press to make free with a family’s misery.

Have a look at the Twitter hashtag #openfamilycourt for some contemporaneous tweeting about what happened at the workshop.

Justice must be seen to be done

This is the simple, basic and big one.  As David Burrows has pointed out (see ‘Further Reading’ below), family lawyers look through the wrong end of the telescope, assuming that family cases must be held in private from the outset when in fact it is the ‘open court principle’ that is the default position.  Issues of permissible privacy and statutory limitation, especially regarding children can be discussed from that starting point.

As far as is possible we should strive to make sure that the public can access the courts and understand the system of justice that operates in their name.  It is the fundamental principle underpinning our entire system of justice and for too long the family court system has been allowed to develop along tracks which lead it far away.

 

Lack of scrutiny can have terrible consequences.

It is very clear to me – not just from this workshop, but from attempts to engage with a wide range of people over many years – that most of us are just stuck on broadcast when it comes to issues that cause us particular pain. Our view of the situation narrows to encompass only that which has hurt us. This is entirely understandable and I don’t criticise anyone for it unless and until they demonstrate to me that their minds are closed to any possibility that their views may sensibly be challenged.

This single issue focus is often a massive block to any sensible discussion about how we move forward and it is made far worse by the obstacles the current family justice system puts in the way of understanding and scrutiny. I don’t pretend that opening the courts would be a miracle cure for the single issue campaigner – but it would allow me more authority when I say that their perception or their understanding is wrong; THIS is what happened.

I have often wondered why the lawyers are so absent from the parents’ narratives on social media. I am now beginning to understand exactly why. What was telling from many of the parents at the workshop was that the lack of public scrutiny meant that no one really understood the system they were entering, they felt powerless to engage with or even challenge their own lawyer and the power imbalance was thus magnified.  A system of parent advocates could be a way forward. 

 

Lack of scrutiny allows stale cliche to become unchallenged truth

There are stock phrases and belief systems that influence the family justice system. Many – in my view – are based on imperfect understanding of existing research, wishful thinking or used as a quick get away from any attempt to actually think and worry about a situation that may actually be incapable of resolution, so lets just get rid of it quickly. Lack of scrutiny or outside challenge means they have been allowed to harden over the years into inescapable ‘truth’.

We are doing this in the child’s best interests, which are paramount.

The most stale and dangerous of them all. It needs unpicking. First how do we find out what is in the child’s best interests and what does ‘paramountcy’ actually mean in the context of the family and wider community?

Children in my cases roughly fall into two camps. They are very young and they can’t speak. We thus find their ‘wishes and feelings’ reported as ‘If Baby X could speak I am sure he would say he would like a warm loving home!’. Or they are frightened and angry teenagers who are desperate for an adult to take control and keep them safe, but find instead that the adults tip toe around them ‘respecting’ their autonomy – until of course the teenager says or does something the adult doesn’t like, in which case all that Gillick competence dries up and blows away.

I am fed up of being involved in cases where children are separately represented but who won’t meet with their lawyers and give instructions. Not only is this a massive drain on the public purse but it also means we aren’t listening to what these children are telling us loud and clear. Be the adult. Make decisions to keep me safe.  There is a limit to the extent that children’s views can inform us of their best interests.  They lack perspective and understanding about how their choices today can impact their lives down the line. And most of them, on some level, understand that – and crave an adult who cares enough to take that burden of responsibility away.

What is in a ‘child’s best interests’ is then perhaps more accurately rendered as ‘what do I the adult, with my preconceptions, bias, or dangerously high workload, think I can get away with recommending on the basis that its in the child’s best interests?’

Even more perniciously, is the fact that a child’s ‘best interests’ has become narrowed to seeing that child entire and alone in the universe – divorced from family, friends, community etc. The fact that it might be in a the child’s long term best interests to remain links with his family is overshadowed by the immediate ‘best interests’ to be removed from a potentially harmful situation. We see this in the cry of the social worker ‘I am not here for you! I am here for YOUR CHILD’. We see this in the words of the court – Lord Kerr in B (A Child) [2009]

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

i think this is wrong, is going too far, is using section 1 of the CA as a vehicle to drive us far away from what is actually in the best interests of children – to have a safe, permanent home and good relationships with those who love them and who share their identity. Children are not born as a blank slate to be easily picked up and dropped into a new adopted family.

I could be entirely wrong about all of this. But we are not able to talk about it, openly and honestly.  It is worth noting that all those at the workshop echoed the concerns expressed by the (now) President of the Family Division in 2017 – that there is no feedback loop in the system. Judges aren’t routinely told about outcomes for children. Greater scrutiny and openness can only improve this dire state of affairs.

 

But what about the risks to children of increased openness?

I accept that this is a real and serious fear and was certainly recognised by those at the workshop. What I don’t accept however is that debate stops at mere recitation of this risk. If reliance is placed on any assumption that open family courts will harm children then I am going to need to see a lot more research that goes beyond a small and self selecting group. The 2014 report from NYAS/ALC involved only 11 children, for example. Earlier research in 2010 asked only 51 children.

I am going to demand actual analysis of the harm that will befall a child if family proceedings are reported but the name of the child is kept out of it.

It seems to me that the reality is that those in the child’s locality will already be well aware that there have been some sort of legal proceedings; those outside the child’s locality won’t care. So long as the child’s name is kept out of it, so no digital footprint is created that might lead to unpleasant shocks in years to come, what actually is the harm that is caused? If the only harm that is identified is some degree of embarrassment, can that always and automatically be enough to over turn the fundamental principle of open justice?

Maybe I am wrong about this too. But whatever your interpretation of current research, there is never any excuse for Judges and lawyers then to fail to apply the relevant law and to carry out the necessary balancing act between Articles 8 and 10. The recent difficulties faced by Louise Tickle in attempting to persuade a Judge to relax a reporting restrictions order is a clear example of this.

 

Conclusions

So what do I think the next steps should be? If my pious arguments about legal principle and open justice don’t move you, maybe this will. The practical reality is – now that every one is a micro publisher, with an audience of potentially millions around the world – that the genie is already out of the bottle with regard to information circulating on social media and we either take control of this or we let it drown us. What do I think the next steps should be?

  • Louise continues with her investigations
  • Some one commissions fresh research into the likely impact of open courts on children, with a sample size greater than 11.
  • Proper analysis and investigation of what other jurisidictions are doing and how they protect children – see article below in Further Reading where I set out what is being done in some US states
  • Proper backing and funding to a system for parent advocates – to help parents bridge the gap of understanding and enable them to engage better with their lawyers.
  • A form of accreditation for journalists who wish to report on family cases so we reduce the risk of the current salacious and irresponsible ‘cherry picking’ only the ‘sexy’ information to report,  which causes such justifiable distrust in journalism as a profession.

 

Further Reading

The recent debate about opening up the Family Courts Sarah Phillimore December 2014 (includes discussion of what happens in some US States).

Transparency: What can I talk about? Who can I talk to? Sarah Phillimore 2014

Family proceedings: ‘the open court principle’ David Burrows December 2014

Opening up a closed system; the second Bridget Lindley Memorial Lecture Louise Tickle March 2018

Legal Blogging: a dry run in the Court of Protection Lucy Reed Pink Tape August 2018

Parent Advocates – a necessary bridge between the parent and the professional

I am grateful for this guest post from @DVHurts who discussed the notion of ‘parent advocates’ explored at the recent conference on 29th October 2018 organised by the Family Rights Group. This is something I have long thought would be a very useful addition to the system; such thoughts were cemented by discussions on November 3rd at a workshop organised by journalist Louise Tickle about opening up the family court – again what is repeated by parents is that they need help to understand the process and to get the best out of their lawyers. 

 

My position was clear and inflexible.  I didn’t want counsellors working out the personal problems on my payroll.  I wanted at least five years of sobriety, regardless of how much education they had.  They had to have been no breach of sobriety to grasp the spiritual nature of recovery and to ensure that the focus would stay on the client and not shift to themselves                                                                                                                                            

For a little light reading over the last week I have been browsing through Slaying the Dragon, The History of Addiction Treatment and Recovery in America, by William L .White. By grace, I do not have addiction problems myself , but I am interested in the treatment of addiction. The above quote originated from one of the addiction counsellors in the treatment centre, he was himself an alcoholic in good recovery. He was employed by the facility , alongside others in recovery and paid the same as other staff members in similar grades of work. The care team is described as inter-disciplinary not multi disciplinary.

 Also this week I attended this week Your Family Your Voice Alliance conference: Tackling the care crisis-Families Driving Reform run by the Family Rights Group  I came away with hope in my heart, that change is not only possible but will happen. the conference outlined one of the catalysts for change should be the training and  employment of parent advocates. Just as a recovered alcoholic has been shown by research to be the most effective person to lead another into sobriety, a parent who has been through the system, will as an expert through experience, be able to come alongside a parent and guide them through.

The conference was opened by the Your Family Your Voice Co- Chair and a Family Rights Group trustee Angela Frazer -Wicks, who like me is a  birth parent.  She has campaigned and worked with local authorities and is an excellent example of how a  dedicated parent can work within the system.

There  were a number of topics covered in the conference, but in this post I am just want to concentrate on parent advocacy. I am birth parent and this therefore is a personal view. A large part of my journey and recovery into wellness has been due to peer support and so I am an enthusiast. One of the primary factors was not realising that I was not the only person in the universe ploughing through the muck.The other has been my situation is not hopeless, there are tools to use , that others have done so in the past and I wanted what they had and I could get it when I had put the work in. They were willing to get down into the hole I found myself and show me the way out. During this process of change I also had help  on a 1:1 basis and having the ability to call on someone who understood the situation from their own experience has been key. By putting in the work, which includes looking into how your family ended up in the situation in the first place , which absolutely must not be a shaming exercise,  (shame is negative as I explored here) but a realistic evaluation, combined with solutions.

 What is an advocate? 

The dictionary definition relates more to a lawyer, one who puts your case in a court of law. So normally a well educated professional. Yet peer advocates who are now widely used within mental health services do not fulfil this role. They are more a bridge between the service user and the professional, when the service user does not have the capacity to understand , whether through mental health problems or simply fear.                               

There is another word paraclete, which originates from late Greek, which also means advocate and mediator. I understand lawyers can be both, however I think I am trying to look at a different role, with boundaries that are there but less rigid than between a lawyer and a client. It actually is more helpful as a definition, as it explains that a paraclete is one who is a comforter as well as speaking on you behalf. In Christianity the Holy Spirit is referred as the paraclete, the one who speaks to God on your behalf when you don’t know what to say and signposts you in the right direction.  He is always there to call on and if you listen, you will  be looked after. It is a personalised “service”.I  understand, that some won’t  like the religious illustration, but it is most effective way, I can personally explain what I see the role of the advocate to be.

Parent advocates, alongside other measures instigated by parents in New York City have reduced children in out of home placements by 82% since 1992. There are still approximately 100 parent advocates in New York today.  David Tobias, Ph.D. who as Executive director of the Child Welfare Fund, was at the coalface of the change to parents being seen as partners in the child protection system.In his address to conference , he stressed that not every parent could become an advocate and there was extensive training before they were accredited as advocates. This goes back to the quote at the top of this post. Parent advocates , would have to be selected from those that have the necessary maturity and qualities that can act as that bridge. They would not be a disruptive force, sure they would have their own bias, as we all do but would have worked through that , in order to put the family they are supporting first. They would need regular supervision, just as counsellors do.

When questioned, David said we need to get a curriculum together to train advocates. That sounds easy enough as it could draw from mental health advocacy training. So what else is stopping us? Money basically and to a lesser extent geography, as of course we are talking about a country not a city.

The other problem that arose in addiction centres is the professionals accepting the recovered addicts as equals in a team, the hierarchy being flattened was not universally popular, though these problems ironed over time.

We have been discussing this a number of years now, it needs to become a reality, the evidence is there, that parent advocacy works and the system is sinking from all perspectives, care figures rocketing ,parents broken, courts over stretched, social workers stressed and leaving the profession.

Last but not least the system is failing children. It could be started,  it could be evaluated,what  financial cost would there be of a number of parent advocates per area in relation to the millions spent on proceedings and looked after care at the moment?

There has been a discussion on Twitter and I think this is an excellent suggestion:

 

I fought the law – what are the implications of section 12 of the Administration of Justice Act?

I was asked by the journalist Louise Tickle to consider whether or not she would be in contempt of court if she published a blog post detailing her frustrations with the way the family court had dealt with a recent application made by a number of journalists.

In brief, the journalists attended a final hearing which had come about due to a decision made by the Court of Appeal that has already been reported and is in the pubic domain. That judgement names the relevant LA and social worker and provides personal detail about the mother, including her ethnicity and the date of birth of her child. What the journalists wanted to do was to report on the final hearing but also link in their reporting to this published judgment as otherwise it was difficult to understand how the case had taken the shape it had.

The Judge at the final hearing was not minded to permit publication of anything that might identify the ethnicity of the mother nor the identities of any professional parties – which poses the immediate problem that no reference could then be made to the prior judgment already published which contained that information.

Louise was unhappy with this outcome and I had to agree it was deeply unsatisfactory. I have not held back criticising journalists who refuse to link to judgments or even read them and end up publishing something partial and inaccurate. Therefore I am troubled to be told that journalists who wished to report by reference to the actual facts already in the public domain were being told that they may not – and even worse, that their right to freedom of expression from Article 10 of the ECHR, did not appear to be given any proper consideration by the Judge or the other advocates.

I read Louise’s proposed blog post and ran this past my understanding of the consequences that followed from applying section 12 of the Administration of Justice Act. My analysis of the law follows below.

I don’t think Louise is going to be hauled before a Judge and found in contempt of court for publishing her blog. But I didn’t feel that I could offer robustly confident advice that she would not. It is clear that each case will turn on its own facts and thus there is very little guidance for the lay person or lawyer who doesn’t deal with such matters on a regular basis – which I imagine is all of us.

For so long the family court have operated without public scrutiny that I do not think it is common place for Judges to be asked to consider relaxing the requirements of section12 AJA in general run of the mill family cases.

I hope I am right about all this. But I am not sure. It seems a rather unsatisfactory state of affairs that public comment about the family justice system should operate under such a climate of fear. Being found in contempt of court is a serious business; one possible punishment is the loss of your liberty. When facing serious consequences, the law that imposes them needs to be clear and it needs to be accessible. Lawyers need to understand and apply the necessary balancing exercise between Articles 8 and 10. How many do?

I do not think that our law about reporting matters in the family court is clear, accessible or consistently applied and .I will follow developments here with interest. Louise has launched a crowdfunder to raise the costs of her proposed appeal.

My view of the law.

Section 12 of the Administration of Justice Act 1960 forbids the publication of information relating to proceedings under the Children Act 1989 or the Adoption Act 2002. There is no time limit so the prohibition operates even after proceedings end.

Sub section (2) of the AJA exempts ‘the publication of the text or a summary of the whole or part of an order made by a court sitting in private’ UNLESS the court expressly prohibits the publication. There is no other exemption or explanation of terms offered by the statute.
We therefore need to look to case law and other general principles to understand what is meant by ‘information’.

With regard to publication, something is ‘published’ whenever it would be considered published according to the law of defamation UNLESS someone is communicating information to a professional in order to protect a child. A blog post published on the internet would thus clearly meet the definition of publication and by publishing a general blog, Ms Tickle could not avail herself of the defence that she is communicating to a professional.

Publication of “the nature of the dispute”, which is permissible, and publication of even summaries of the evidence, which is not.

What is meant by ‘information’? Munby J (as he then was) considered this in Re: B (A Child) (Disclosure) [2004] 2 FLR 142. He identified classes of information falling into this category as likely to be [para 66] :

  • accounts of what has gone on in front of the judge sitting in private
  • documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings,
  • Transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment. (I emphasise that this list is not necessarily exhaustive.)… likewise…extracts or quotations from such documents…also the publication of summaries

The identity of witnesses in care proceedings is not protected by section 12 and if any witness does want to remain anonymous they will have to convince the court that their need for anonymity was more important than the need for openness.

Section 12 does not prevent publication

  • of the fact that proceedings are happening, or
  • Identification of the parties or even of the ward himself. EDIT BUT PLEASE NOTE THAT s97 of the Children Act forbids naming children in current care proceedings.
  • or the comings and goings of the parties and witnesses,
  • or incidents taking place outside the court or indeed within the precincts of the court but outside the room in which the judge is conducting the proceedings.

However. at para 77 Munby J poses his final question ‘the extent to which section 12 prohibits discussion of the details of a case’. It is likely to be this question that is of most interest to Ms Tickle. He found he was assisted by Wilson J’s analysis in X v Dempster. There the question (see at p 896) was whether there was a breach of section 12 by publishing the words:
“Says a friend of [the mother]: “She has been portrayed as a bad mother who is unfit to look after her children. Nothing could be further from the truth. She is wonderful to [them] and they love her. She wants custody of [them] and we will see what happens in court”.”

Wilson J commented:

I am satisfied that the reference to the portrayal of the mother in the proceedings as a bad mother went far beyond a description of the nature of the dispute and reached deeply into the substance of the matters which the court has closed its doors to consider. If the reference could successfully be finessed as a legitimate identification of the nature of the dispute, the privacy of the proceedings in the interests of the child would be not just appropriately circumscribed but gravely invaded.

Munby J agreed with this observation and concluded:

Every case will, in the final analysis, turn on its own particular facts. The circumstances of the human condition, and thus of litigation, being infinitely various, it is quite impossible to define in abstract or purely formal terms where precisely the line is to be drawn. Wilson J’s discussion in X v Dempster, if I may respectfully say so, comes as close as anyone is likely to be able to illuminating the essential distinction between publication of “the nature of the dispute”, which is permissible, and publication of even summaries of the evidence, which is not.

Consideration of the case law when applied to Ms Tickle’s proposed blog

For a lawyer asked to give advice, the heart sinks upon encountering the phrase ‘every case will, in the final analysis, turn on its own particular facts’. This clearly makes it difficult to offer firm advice.

It is my view that the thrust of the blog post is very clearly to highlight Ms Tickle’s understandable frustration with what seems like a wholly inadequate approach by the court to the necessary balancing exercise of ECHR Articles 8 and 10. I do not think that anything she proposes to publish will fall foul of the distinction identified in X v Dempster. The ‘dispute’ which she wishes to highlight is in fact removed from the actual facts of the care/placement proceedings before the court and is a dispute about an ancillary matter; the relaxation or otherwise of reporting restrictions given that risk (I assume) of jigsaw identification once any reporting of this matter is linked to an earlier Appeal Court decision already in the public domain.

I must stress to Ms Tickle that in offering my opinion as I do, cannot be seen as any kind of guarantee that she would NOT face proceedings for contempt arising out of her blog post. It may be that my opinion is not shared by a Judge hearing this matter. However, I reflect upon the fact that she has clearly taken great care to strip any identifying details from the blog. In my view it is unlikely that any such proceedings would be bought; I would consider them wholly disproportionate in all the circumstances. In my view, the LA is the only party likely to consider such action and I would hope they have better things on which to spend their time and money.

 

Further reading

The opposite of transparency – an appeal against a reporting restrictions order Louise Tickle’s post on the Open Family Court website.

For a more general discussion of the principles around transparency in the family court see this post 

Or visit The Transparency Project website. 

Born into Care: Newborns in Care Proceedings In England

On 9th October 2018 I attended the launch of the Summary Report of ‘Born into care: Newborns in care proceedings in England’ from the Nuffield Family Justice Observatory for England and Wales.

The Nuffield Family Justice Observatory aims to support the best possible decisions for children by improving the use of data and research evidence in the family justice system. The main report will be online as of 10th October; this post deals with a summary and overview of its main findings.

The focus of the report is new borns subject to care proceedings, ‘new born’ being defined as an infant less than 7 days old. ‘An infant’ is a child less than 12 months old. The study used CAFCASS data from 2007 to 2017 to provide the first estimate of what proportion of care proceedings for infants are issued for newborns.

Numbers are on the rise

In the decade covered by the study, 173,002 children were involved in care proceedings and 47,172 (27%) were infants. At the outset, 32% of care proceedings were for newborns – by the end that had increased to 42%. Newborn cases also increased in volume over time; at the outset 1,039 cases were issued involving newborns; at the end 2,447. Thus the likelihood of newborns in the general population become subject to care proceedings has more than doubled. 

Regional variations

An alarming finding was the marked difference between the regions. The North West had the highest rates at 30 newborn cases per 10,000 live births in general population. Contrast this to London which had only 18 newborn cases per 10,000 live births.  A minority of LAs departed significantly from the expected average – the range for such outliers in 2016 was between 55 and 159 newborns per 10,000 live births. This is clearly troubling, and we need to investigate more closely the reasons behind such regional disparity.

The report suggests that differences are most likely attributable ‘to an interaction between professional practice and socio-demographic factors’. Of particular interest to me was the suggestion that we should investigate the influence of the local Designated Family Judges.  As it is a matter of some annoyance to me that different courts are developing divergent ‘local practice’  with regard to primarily administrative matters, it is not a great leap to think that a particular culture or approach may start to take root under the leadership of a particular Judge.

Subsequent Infants

This refers to newborns who had already had an older sibling appearing in care proceedings. In 2012/3 and 2016/7 this represented 47% of newborns. Without the experiences of an older sibling to inform the court, this raises issues about how the claim of ‘significant harm’ is going to be proved to the court – pregnancy provides only a very short window for an assessment of parenting capacity and support for change.

Duration of care proceedings

In 2012/13 only 28% of care proceedings completed within 26 weeks – in 2016/7 this increased to 61%. More research is needed to understand what is happening and what is different about the 39% of cases that do not complete within 26 weeks.

Final Legal orders

The total percentage of newborns subject to final care and placement orders was 47%. 21% were placed with extended family. 13% were placed with family. This requires further investigation – we need to know more about the circumstances behind those percentages.

Further questions

The report identifies the following areas requiring further consideration

  • Is increasing financial hardship for families a factor in the rising rates of newborns in care proceedings?
  • What is the impact of the reduction in preventative services on rates of newborns coming before the courts?
  • Does a defensive risk averse culture mean that professionals are less likely to want to work with the family without the security of a court order?
  • What accounts for fluctuations in the volume of newborn cases over time and place?

 

Main themes emerging from discussion

  • Loss of empathy in the system. What’s going wrong when people in the system want to do their best. ‘The arms that we used to put around families – which are no longer there’.
  • Development of ‘best practice’ in the maternity setting  – how to make the whole experience of removal less brutal for mothers (and fathers). A lot of this would be fairly simple to adopt and wouldn’t cost a huge amount – so why aren’t we doing it?
  • A need for better knowledge about what is done elsewhere – how do jurisdictions beyond England protect newborns, whilst also ensuring the rights of parents and wider family.
  • We have the numbers – now we need to drill down and look at reasons WHY such care proceedings are initiated.
  • And what happens AFTER proceedings? Are there groups of children who should be followed up?

 

Further reading

Care Crisis Review – report from the Family Rights Group

A little less conversation a little more action 

Myths and Monsters of Child Protection 

I have mainly stopped screaming; the imbalance between support and intervention.

Thanks to this guest post from a parent who wishes to remain anonymous.

I have mainly stopped screaming, I screamed a lot at first at the injustice of it all and the pain of separation. Today though I am suppressing an internal scream, the anguish now being punched out onto my keyboard.

I answered a strange mobile number this afternoon, I don’t normally but is just as well, because my son had borrowed his neighbours phone, to contact me. Could he have some money please a fiver would do? In truth I had been waiting for this call and this is why:

Over a month ago a letter was opened and ignored by him, it was telling him he had to apply for universal credit as income support had finished. He is at college, and has been offered a job and is just waiting to start it, for anyone who wishes to judge. My son has a communication disorder, so severe that he reached the criteria for a special school and he had been statemented at 7 years old. He is a care leaver and through circumstances he was placed into a flat by himself on leaving care.  Except he was not supposed to be on his own, his EHCP stated that his was to receive 20 hours of support a week, via employing support workers . It hasn’t happened, not one single solitary hour , and because he is over 18 it is apparently none of my business.  He does have some limited help from the pathway team and I am not criticising individuals. I spent hours in meetings before he left care making sure there was a workable transition plan in place. For what?

To apply for Universal Credit or to use any Government on line service you first have prove your identity. Now I have tried this very recently and nearly threw my laptop out of the window. Despite having input 3 bank cards and my driving licence, Government Verify via the Post Office still refused to recognise me and I am signed up to the electoral register, get post etc. In fact Verify has a failure rate of over 50% https://www.bbc.co.uk/news/uk-politics-41642044. So what chance does a care leaver , let alone one with learning difficulties actually have of managing this transition onto universal credit by themselves.

My son also did not understand that if a standing order bounces , you quickly rack up overdraft charges. So before long having no money actually turns into mounting debt. To some small extent he is lucky, we still have a relationship and I know how to cope. Before this change to universal credit he was actually managing money very well, as I told him to set himself a weekly budget and only use cash. Many care leavers lose their links to family members and if no one teaches them about financial matters how are they supposed to know?

The child protection system to me is like a three humped camel (bear with me) , the first hump consists of pre proceedings, this hump is too little and can be non functional, the third hump is after the young person leaves proceedings, this is much the same as the first. The middle hump, is enormous and bloated , it consumes all the nourishment that should be in the other humps. It shouldn’t be there as it unbalances the camel and makes it topple over. We know that the system is teetering, someone please listen, for the sake of the young people like my son who are being failed by a gross imbalance between support and intervention.

 

 

 

Garbage In: Garbage Out? The use of predictive algorithms in decisions about child protection

Machine learning is becoming a methodological substrate for knowledge and action. But machine learning is not ethically neutral. It is skewed by data and obfuscated by nature…

Dan McQuillan ‘People’s Councils for Ethical Machine Learning’

The use of Artificial Intelligence (‘AI’) and relying on algorithms to determine what children are at risk of harm have been in the news of late. The word ‘algorithm’ is an old word; imported into English from the name of a ninth century mathematician called al-Khwarizmi. Originally it meant simply what is now called the ‘Arabic’ system of numbers (as opposed to Roman numerals’) but later it took on a more particular meaning and is now defined as ‘a process or set of rules to be followed in calculations or other problem-solving operations, especially by a computer’.

James Hind describes AI in this way:

It’s the great fashion in recent years that everyone gets into AI, which usually means either they have something that automates a system, or it is a pattern recognition tool that pulls conclusions out of big data fed to a network, which acts on the conclusion….There is an obsession with big data, which always has to be cleaned up by low paid humans in places like India to be useable in a pattern recognition system.  These pattern recognition systems such as neural networks operate according to hundreds and thousands of data points, building up through statistics a model upon which conclusions and decisions are made. These models and processes are so complex that not even the designers know how they come to their conclusions, what is called a black box situation.

A positive case is made for better and more efficient identification of children who are most at need as early as possible. In the context of austerity and reduced spending on services such early identification is necessary in order to prevent harm to children’s development. Early identification could also help children avoid more intensive and intrusive child protection services – the end result of which may be removal from their families. There is also a view that decisions about child protection can be too subjective – it can only be a good thing to have some more ‘objective science’ about such important and often life changing decisions.

But there are many who have voiced serious concerns about the efficacy and assumed benign consequences of using artificial intelligence to determine if children are at risk.

The history of predictive analytics in child protection – Allegheny County

Discussions about child protection have long centred on the debate about what is better – removing children quickly from risk or trying to support families manage better?  This discussion has gradually enlarged to consider how we can best identify families which are most at risk and make sure that increasingly scarce services are targeted effectively.

A ‘predictive analytics algorithm’ is basically a sophisticated kind of pattern recognition, commonly used in credit reports and automated buying and selling in financial markets. Its application to decisions about risk in child protection services is not a ‘new thing’ but its applications to date have been fairly limited.

The social scientists, Emily Putnam-Hornstein, of the University of Southern California, and Rhema Vaithianathan, of Auckland University of Technology in New Zealand were asked to help investigate how predictive analytics could improve the handling of maltreatment allegations in the USA. 

Allegheny County in  the southwest of the U.S. state of Pennsylvania (with a population of 1,225,365 in 2016) experienced a tragic series of children dying after being ‘screened out’ as low risk by human call handlers dealing with telephone referrals about children who the caller worried were being mistreated. In 2016 Allegheny County became the first jurisdiction anywhere in the world to attempt to use a ‘predictive-analytics algorithm’ to try and do a better job of identifying families most in need of intervention.  76,964 allegations of maltreatment made between April 2010 and April 2014 were used as the basis of the algorithm.

 

What’s the problem?

The New York Times commented that the use of the algorithm appeared to be  having a positive impact on child protection in Allegheny County:

In December, 16 months after the Allegheny Family Screening Tool was first used, Cherna’s team shared preliminary data with me on how the predictive-analytics program was affecting screening decisions. So far, they had found that black and white families were being treated more consistently, based on their risk scores, than they were before the program’s introduction. And the percentage of low-risk cases being recommended for investigation had dropped — from nearly half, in the years before the program began, to around one-third. That meant caseworkers were spending less time investigating well-functioning families, who in turn were not being hassled by an intrusive government agency. At the same time, high-risk calls were being screened in more often. Not by much — just a few percentage points. But in the world of child welfare, that represented progress.

However It is important to note that the algorithm used in Allegheny County was to help to decide who got a home visit –  NOT to make far more intrusive decisions about removing a child.

Follow the money

Another important and positive distinction is that the workings of the algorithm in Allegheny County are public and transparent; the local community are involved and able to ask questions. Dan McQuillan commented in May 2018 about the repercussions of imposing ‘machine based learning’ and possible ways of challenging it via ‘People’s Councils’:

Unconstrained machine learning enables and delimits our knowledge of the world in particular ways: the abstractions and operations of machine learning produce a “view from above” whose consequences for both ethics and legality parallel the dilemmas of drone warfare. The family of machine learning methods is not somehow inherently bad or dangerous, nor does implementing them signal any intent to cause harm. Nevertheless, the machine learning assemblage produces a targeting gaze whose algorithms obfuscate the legality of its judgments, and whose iterations threaten to create both specific injustices and broader states of exception. Given the urgent need to provide some kind of balance before machine learning becomes embedded everywhere, this article proposes people’s councils as a way to contest machinic judgments and reassert openness and discourse.

 

When matters are not discussed openly and transparently, the concerns increase. As the New York Times commented, secrecy around algorithms marketed and guarded by private profit making firms raise very serious questions:

That’s a chief objection lodged against two Florida companies: Eckerd Connects, a nonprofit, and its for-profit partner, MindShare Technology. Their predictive-analytics package, called Rapid Safety Feedback, is now being used, the companies say, by child-welfare agencies in Connecticut, Louisiana, Maine, Oklahoma and Tennessee. Early last month, the Illinois Department of Children and Family Services announced that it would stop using the program, for which it had already been billed $366,000 — in part because Eckerd and MindShare refused to reveal details about what goes into their formula, even after the deaths of children whose cases had not been flagged as high risk.

It is very disturbing to read that Hackney rejected a recent FOI request about its screening profile on this basis:

London Borough of Hackney is working with Xantura as a development
partner. Because of this, we believe that it would be damaging to
Xantura’s commercial interests to have the financial details of our
agreement made public. We believe that the public benefit of knowing the
financial details is in this case outweighed by the need to protect their
interests and, by extension, those of Hackney in developing the project.
We therefore exempt this part of your request under Section 43 of the
Freedom of Information Act.

 

It is not simply concerns about where the money goes. There are serious worries about how data is collected and analysed and what the repercussions could be in taking predictive analytics into fields far beyond simply call screening.

Political scientist and technologist Virginia Eubanks argues that automated decision making has far reaching consequences, particularly for the  poor. Louise Russell-Prywata commented on reviewing Eubanks work:

The story of Indiana’s welfare reform contains all the key elements of an automation bogeyman: an explicit aim to reduce costs and move people off benefits; a whiff of dodginess about the award process for a $1.3 billion contract to privatise a state service; widespread tech failure upon implementation; the inability to effectively hold the corporate contractor to account for this failure; the removal of human connections; and pressure on community services such as food banks to deal with the consequences.

Garbage In: Garbage Out

Emily Keddell and Tony Stanley discussed the concerns about predicative algorithms used by certain local authorities such as Hackney, in an article for Community care in March 2018 

They identify a number of concerns. Some are easy for me to understand. For example, how is consent obtained to use people’s data to inform these systems? There are serious worries about the actual accuracy of such tools and the risks of false positives are high – one tool developed in New Zealand was just 25% accurate at the top decile of risk over five years – meaning there were no findings of actual harm for 75% of those identified by the tool as high risk.

Some concerns however reveal the depth of my ignorance about how such systems work. Which is a worry. If I don’t understand it, how can I – a lawyer often acting for parents – ever hope to challenge it? The authors comment in the following terms:

The source and quality of the predictive variables, the quality of data linkage, the type of statistical methods used, the outcome the algorithm is trained on and the accuracy of the algorithm all require examination.

I think this translates to the famous phrase ‘Garbage In: Garbage out’ i.e. systems that manipulate data to produce likely outcomes, are only as good as the data they are fed. What happens if someone makes a false allegation about you? Is that ‘data’ that will be recorded to inform your future risk? How do you know what ‘data’ is stored about you and how do you challenge it?

The authors comment:

The big problem in an algorithm drawing on administrative data is that it will contain bias relating to poverty and deprivation. Where council housing data is used, for example, those who don’t need council housing will be absent. Those caught up in criminal justice systems and social services of any kind lead to an oversampling of the poor.

Big datasets such as these make some people invisible, while others become super visible, caught in the glare of the many data points that the council or government holds about them. Where such processes occur under the veil of commercial sensitivity, even the most basic of ethical or data checks are difficult to undertake.

Dr Patrick Brown, Associate professor, Amsterdam Institute of Social Science Research, University of Amsterdam; editor, Health, Risk and Society commented in a letter to the Guardian on September 19th 2018:

Our own research into child protection notes a weak evidence base for interventions, with social workers falling back on crude assumptions. Stereotypes discriminate against some families and lead to the overlooking of risk in other cases, yet may become entrenched and legitimised when incorporated into technology. Research is needed into whether these technologies enhance decision-making or whether they become uncritically relied on by pressured professionals with burgeoning caseloads. Enticed by software-driven solutions, our overstretched and decentralised child-protection system may lack the capacity for a robust ethical and evidence-based reflection on these technologies.

James Hind puts it this way:

If the reader has coded anything, they will learn that bad code and inputs result in bad outputs.  For example, if I dumped into an AI system voting intentions of a large sample of voters in Clacton UK, and used this to predict how the UK will vote in an overall general election, it might suggest UKIP would form the next government, but when the prediction is tested in real life, UKIP will if they are lucky only have control of the Clacton seat in Parliament. In a rising number of cases it has been discovered that the models built on big data are faulty, biased against certain groups, and are unable to handle unique situations.  People are forced to conform to a narrow set of categories to access services or be on the good side of a statistical artificial computer model that has no relation to reality.

It is a tragedy that for reasons of money, faith in a flawed technology, and a lack of trust of the wisdom and knowledge of human beings with decades of experience in their fields, the AI has replaced the human with tragic consequences for individuals and society.  Families wrongly suffer their children being taken into care, or being imprisoned because the computer judged according to its model this was the right outcome, and nobody can challenge the system data model, because nobody understands how it came to the conclusion.

Conclusion

Even from my brief investigation and reading, there are clearly a number of issues of serious ethical and practical concerns that make it worrying that use of AI to identify children at risk appears to be something that is being enthusiastically touted by senior figures in the social work profession. I was glad to see Professor Lauren Devine of the University of the West of England tweeting today (September 24th) that she is concerned about the use of AI and will commence research funded by the Economic and Research Council in 2019 into the ‘risk of risk’. I will be very interested in her findings.

I will leave the last word to Tina Shaw who also commented in a letter to the Guardian:

Why are cash-strapped councils wasting money on predictive software telling us what we already know? It’s not rocket science. Poverty, addictions, poor health, school exclusions etc, have always been predictors of potential difficulties for children. They should be spending what little money there is on preventive services, Sure Start nurseries, youth clubs and teaching assistants.

EDIT September 26th – further comments

Some interesting discussion followed on Twitter. I have added additional resources to the list of further reading below and note the key concerns raised by those commenting:

  • Sophie Ayres emphasised the issue of legality of sharing information to feed the algorithm without the consent of the data subject: ‘how does a Children Services team have the right to information such as school attendance. Usually at the start of a social work assessment – consent forms are signed by parents to say sw can contact other agencies. If parents to not consent at CIN stage – SW cannot seek info’.
  • Lack of accountability concerned Professor Devine:  ‘also the content of their algorithm? These things are cheap to put together, unaccountable and sold for huge profit’.
  • SocialWhatNow echoed the concern about lack of accountability and wanted to know what the SWs using these systems thought about them: ‘Clarity needed. Some data not used in final models. Problem is it’s all under the radar. Embedded w/out consultation or discussion w/ the public or those who use it. Which leads me to ask, what do the social workers who use these systems think? Where are they?’
  • Dan McQuillan touched on the far reaching consequences of use of AI: ‘that’s symbolic of two other qualities of ai that affect services as well; the fragility of the algorithm and the thoughtlessness it can produce. the systemic effects may not be so obvious but are likely to be more far reaching’

Further reading

London councils are using data analytics to predict which children are at risk for neglect and abuse, 18th September 2017 Jack Graham Apolitical

Automating Inequality: How High-Tech Tools Profile, Police and Punish the PoorVirginia Eubanks 2018

Can an Algorithm tell when kids are in danger? The New York Times 2nd January 2018

A Child Abuse Prediction Model Fails Poor Families 15th January 2018 Wired

21 Fairness Definitions and their politics 1st March 2018 Arvind Narayanan. Computer scientists and statisticians have devised numerous mathematical criteria to define what it means for a classifier or a model to be fair. The proliferation of these definitions represents an attempt to make technical sense of the complex, shifting social understanding of fairness.

Artificial intelligence in children’s services: the ethical and practical issues Community Care March 29th 2018

People’s Council for Ethical Machine Learning 2nd May 2018 Dan McQuillan

Councils use 377,000 people’s data in efforts to predict child abuse 16th September 2018 The Guardian

Don’t trust algorithms to predict child-abuse risk: Letters to the Guardian 19th September 2018

Government, Big Data and Child Protection 20th September 2018 Researching Reform.

New Algorithms perpetuate old biases in child protection cases Elizabeth Brico 20th September 2018

Documents relating to the Children’s Safeguarding Profiling System – Freedom of Information request made to Hackney – request refused as damaging to commercial interests.

Social Workers and AI 25th September 2018 Jo Fox

How do we judge standards of care for children?

I am grateful for this guest post from a parent who wishes to remain anonymous. She is worried about the way parents are judged on their ability to care for their child without being seen in context of the family’s particular circumstances. Why do parents appear to be held to higher standards than professionals, even though the latter are paid? She asks this question to those who work in this system – What kind of legacy will there be in years to come from what is happening here and now in the name of child protection?

Meaning: ‘a level of quality or attainment. Something used as a measure, norm, or model in comparative evaluations’

‘I’ve done the best I can for him. I’ve gotten the most resources I can for him.’ my son’s social worker said to me in what we both understood would be our last conversation together. I believed her and I appreciated her frankness as she went on to explain ‘You should be prepared for at least one crisis before he reaches twenty-one and you will need to be careful about what happens at that point – his package of support may tail off and you will may have a fight on your hands if so.’

She also explained to me that she had a close family member with his profile of strengths and difficulties and I knew she came from a country with a very different cultural approach to working with families to the one we found ourselves in. She was and probably still is, a good social worker working in a very flawed system in a very flawed world.

I thanked her for all her very committed work on my son’s behalf and her kindness and honesty to me.

Should I be able to ask for more?

As it happens the social worker’s predictions were 100% accurate. There was a truly horrible crisis that occurred as a direct result of poor local authority decision-making and yes, ‘his case’ was closed at 21. Good things happened too and I met more good people working in the system. I have to ask though – should I, as a committed parent who went looking for help from services for my son, be able to ask for more for him? Why is it acceptable that a system that sets itself up as ‘rescuing children’ can normalise young ‘rescued’ people experiencing extreme crises and being largely divested of support when they reach 21?

I suspect that Corporate Parenting Principles were articulated in the Children and Social Work Act 2017 in recognition of the low bar of what is and should not be acceptable. I also believe that there are many good people in the system like my son’s then social worker, who will do the best they can for the children and young people in their care and yet in many cases they will fail – corporate parenting principles or not. They will fail because not everything is fixable or the timescales are wrong – what is fixed may come unstuck, what is broken may be mended over time – or for a myriad of other reasons to do with complexity and resources.

…And by contrast

Just ask yourself – What parent who has need of social care help keeping their child safe could say ‘I’ve done the best I can for him’ and not expect to be challenged about why they haven’t ‘done x or y, engaged with a or b, sought help from c or d and tried m or n method of parenting.’ This is a completely different and much higher standard than the one parents can hold professionals to even though professional are paid to deliver, while parents are not.

High standards are good but they are also problematic

High standards are good but they are also problematic if they are based on poor understanding or inability to acknowledge underlying difficulties preventing standards being met. They are also problematic when they give a ‘get out of jail free card’ to one ‘side’ and ‘throw the book ‘at the other. These kind of ‘standards’ are of little value to anyone. Good people will still try and do good things and bad people will still keep doing bad things. Sometimes even good people will do bad things working in bad systems with bad cultures.

What will be the legacy in years to come?

Where the general public are affected by or come up against professionals with a ‘professional’ understanding of abuse and neglect (most often con-joined together as in this very problematic Health and Social Care NICE standard) who are told to suspect that anything that causes a child distress or to ‘malfunction’ could be seen as an indicator of bad parenting or frames every parent without enough material resources as deficient – people question what is happening. As Louise Tickle, a Guardian columnist, noted at the CPConf2018, they are at first confused and then outraged. I know I am and I also know there are risks around that outrage too – risks around professionals doing good work on behalf of abused and severely neglected children becoming thoroughly discredited in the eyes of the public.

My question to professionals who work in this system is one around ‘legacy’ -What kind of legacy will there be in years to come from what is happening here and now in the name of child protection? What will our children’s children judgement be of the standards used that for example ignore context including disastrous welfare policy, particularly affecting the disabled and poor and frame those affected by these policies as ‘abusive and neglectful of their children’? Will the response ‘We tried our best’ be enough?

I very much doubt it. Standards can and are likely to change. I think their question would be ‘How could you have been part of this and not fought against it? How come you saw it happen, knew it was happening and just went about your business as usual? How come you were not part of the solution, only part of the problem’.

#CPConf2018 – putting ‘future emotional harm’ in context

On Saturday 15th September The Transparency Project supported the third Child Protection Conference and Bath Publishing kindly sponsored, thus ensuring those attending had some biscuits and some reading materials. 

I will publish here below my presentation at the conference and will shortly publish a summary of what was said by all the speakers and the audience. As ever, thanks go to those who came to speak and also those who were prepared to listen. In honour of Lady Hale – the one dissenting voice in the Supreme Court in judgement of Re B – I wore her face on my chest for the day. 

The aim of #CPConf2018 was not only to launch The Transparency Project’s Guidance note on the use of experts in family proceedings, but to begin the discussion on what would be needed for a further Guidance Note about how risk assessments are carried out, and how we can best understand them and challenge them if needed. 

 

The Children Act 1989 and the introduction of ‘risk of future emotional harm’.

1. The 1989 Act was born following:
(1) a review by the Law Commission of England and Wales of the private law relating to the guardianship and upbringing of children (culminating in Law Com No 172, [1988] EWLC 172, Review of Child Law: Guardianship and Custody, 1988) and
(2) an interdepartmental review, led by the Department of Health and Social Security, into the public law relating to child care and children’s services (Review of Child Care Law: Report to ministers of an interdepartmental working party, 1985, HMSO).
2. The aim was to replace the existing ‘complicated and incoherent system’ with “a simplified and coherent body of law comprehensible not only to those operating it but also to those affected by its operation” (Second Report, Session 1983-84, Children in Care, HC 360).
3. It was considered to be a benefit to the new legislation that it was prepared to look to the future and protect children against a serious risk that they would suffer future harm, rather than waiting until actual harm had occurred until taking action.
4. However, it is clear we still have serious problems;
(1) identifying emotional harm,
(2) agreeing how serious it is and
(3) assessing the risk of it happening in the future.
5. There is no doubt that ‘emotional harm’ has been found to have really serious impact on children as they grow. Note for e.g. N. Hickey, E. Vizard, E. McCrory et al., Links between juvenile sexually abusive behaviour and emerging severe personality disorder traits in childhood, (Home Office, Department of Health and National Offender Management Service, 2006).
6. However, there are infinite number of variables about people’s behaviour and their reactions to it. We can agree that somethings are generally bad all of the time – for example, hitting or shouting at a child on a day to day basis. But some children grow up ok, possibly due to having other safeguards in place, supportive school or grandparents etc. It is simply not possible to provide a catch all definition of ‘Emotional harm’ and predict with much certainty what impact will be born by each individual child.
7. the concept of emotional harm, let alone future emotional harm, seems to cause a lot of people unease and disquiet. Either they don’t understand it or they think it misused – I suspect both. I recall the French documentary makers of ‘England’s Stolen Children’ were utterly horrified by it, calling it a concept ‘unknown’ to legislation elsewhere.
8. To me this is the crucial point – law must exist to serve the people, not impose shadowy misunderstood and misapplied concepts upon them. Professor Devine and many others make the point that our current system of child protection is seen through a lens of risk which clearly impacts on how social workers will assess the situation before them. There is abundant evidence that the language we use impacts on the way we think about a situation – note the work of Professor Kelly at the Harvard Medical School who experimented with two different descriptions of someone addicted to drugs. One was “substance abuser,” the other described as having “substance use disorder. When testing these phrases with both doctors and the general public, both groups displayed much more punitive attitudes towards to the ‘substance abuser’.
9. I also note that ‘emotional abuse’ of children is NOT currently covered in the criminal law, for example. See Children and Young Person’s Act 1933. There were calls for reform in 2013 stating this law was not fit for purpose as based on historic and outdated understanding – see ‘The criminal law and child neglect, independent analysis and proposals for reform’ Action for Children 2013. But I don’t know what if anything is happening – I suspect not.
10. The amount of care cases involving emotional harm is clearly growing so there is an urgent need to be clear about how it is identified and how we make decisions about how serious it is or could be. NSPCC statistics show neglect cases rising from 17,930 in 2013 to 24,590 in 2017; emotional abuse from 13,640 to 17,280.
11. All of this I hope we can discuss today. I would like to touch briefly on what happened in the Supreme Court decision of Re B in 2013 as this is such an important decision that sets the scene for the current law and practice. Lucy Reed is going to discuss further the lawyer’s perspective about how the current law is operating.

FUTURE EMOTIONAL HARM – the SUPREME COURT PERSPECTIVE

12. Guidance from Re B 2013 UKSC
13. ‘Amelia’ was born in April 2010 and immediately removed from her parents’ care. This case is described by Julie Doughty (rightly) as:
‘A remarkable case where a child is to be adopted although she has not suffered any harm attributable to her parents, both of whom have established and maintained positive contact with her for more than 2 years since she was removed at birth’.
Julie Doughty (2013) Re B (A Child) (Care Order) (2013) UKSC 33, Journal of Social Welfare and Family Law
14. The concerns about the parents and particularly the mother were based on their past behaviours. The mother had been involved in a dysfunctional relationship with her domineering step-father who started having sex with her when she was only 15, resulting in 6 abortions and one child, who was also taken into care in 2011. She had several criminal convictions for offences of dishonesty. She had been diagnosed as having somatisation disorder, a psychiatric illness in which the sufferer makes multiple complaints to medical professionals for which no physical explanation can be found. She was found to be a ‘pathological liar’ and continued making serious false allegations against a variety of people even when no longer under the malign influence of her step father.
15. The father had 52 criminal convictions dating from when he was 13 and was very unwilling to co-operate. For example, rather than agreeing to take a drugs test in 2010, he told the LA to ‘kiss my arse’ until eventually agreeing in July 2011 – thus contributing to a year’s delay for decisions about his daughter. (This could not happen now of course – the 26 week timetable would have meant the final care order being made no later than October 2010!).
16. The court decided in 2012 after a 15 day hearing, with evidence from a variety of experts, that Amelia should be adopted. This was on the basis that although Amelia had suffered no actual harm in care of her parents and they had been able to maintain a positive and loving relationship with her over 2 years of supervised contact, if she went to live with them, there was a serious risk that neither parent could create and maintain a safe environment for her as she was growing up.
17. There are obvious worries about this case – any case that gets to the Supreme Court is raising clear and serious issues of general public importance. Although the Court of Appeal upheld the decision of the first judge on the basis that his judgment was ‘long, detailed and careful’, they found the case ‘troubling’ as an example of state intervention regarding a ‘much loved child’ in the subjective area of moral and emotional risk, rather than physical abuse. The famous statement of Hedley J is relevant again; Re L (Care Threshold Conditions) [2007] 1 FLR 2050 para 50
Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent… it is not the provenance of the state to spare children all the consequences of defective parenting’.
18. So the case continued to the Supreme Court. The appeal was dismissed but it is important to note both that this was not unanimous and the dissenting Judge was Lady Hale. She agreed, with some reluctance that threshold was crossed but regretted that the first Judge had not explicitly identified what exactly tipped this case over the threshold. It has to be something of character or significance to justify the compulsory intervention of the state.

This case raises squarely the problem of how should courts assess risks that are ‘conditional’ or unrealised?

19. There is a clear worry here that not enough attention was paid to the impact on the parents of the system itself on what worried the judges most about them – their unwillingness or inability to co-operate with professionals.
20. As Julie Doughty comments, Lady Hale was the only judge to refer to facts that made the parents anxieties about Amelia’s health and their distrust of professionals less irrational. For example, that Ameila was born prematurely at 32 weeks and was initially cared for in intensive care. The parents received no ‘pre proceedings letter’ . The mother in particular had escaped a horrifically abusive relationship with her own step father.
21. Lady Hale did not accept that Amelia being adopted was a ‘proportionate’ response to the risk of harm identified. She was concerned that the most drastic option for a child (closed adoption) was the choice in a case where even the first Judge had not found threshold crossed ‘in the most extreme way’.
22. What is also interesting is that the commentary on this case on the Supreme Court’s own website is critical. I note:
As Lady Hale highlighted in her dissenting opinion, this case brings into stark relief another difficult question. When should the state take away a child, not because physical abuse or neglect is feared, but because the character of the parents is such that they cannot help but be deficient parents? What was remarkable about this case is that, though the parents clearly had significant problems, their care of their daughter was held to be highly satisfactory. As parents, they appeared to be competent; as people, apparently less so.
The decision made here is problematic for two reasons.
Firstly, it is based wholly on future harm. The risks identified may never materialise. Further, it is enough that such harm is “possible”; it need not even be “probable”. It is not a perfect comparison, because the one deals with the past whilst the other deals with the future, but it is worth noting that we do not convict people of crimes unless we are “certain so that we are sure” that they have committed them: in contrast, we will take children away from their parents on the basis of a “real possibility”.
Secondly, even if the harm identified does materialise, is it enough? We have decided as a society that, as a general rule, it is more important for children to be brought up in their own families than to be brought up in “better” families. Does the effect of the parents’ dishonesty and mother’s psychiatric illnesses justify removing Amelia permanently from their care? As Hedley J observed in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, 2063: “Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent”.

23. I am not confident that one can so neatly make a distinction between who we are as ‘people’ and how we are as ‘parents’ – if we are rude, impatient or violent as ‘people’ we are highly likely to display similar traits when wearing our parent hats. ‘How you do anything is how you do everything’
24. However, if more cases are going to be determined on the basis of a risk of something that hasn’t happened yet, and that something is as potentially nebulous as ‘emotional harm’ then we do need to take more seriously the fact that parents appear to be increasingly alienated and confused by care proceedings. This problem is compounded by the very bad advice I have often seen on line about refusing to co-operate. The likely consequences of that refusal is to increase concerns and escalate the probability of serious action being taken, or pessimism about the parents’ abilities to change. Lucy Reed will look at this problem in more detail.

25. Guidance on threshold from the Supreme Court.

(1) Court’s task is not to secure for every child a happy and fulfilled life but to be satisfied the statutory threshold are crossed
(2) This requires the court to identify as precisely as possible the nature of the harm which the child is suffering or is likely to suffer.
(3) This is particularly important where the child has not yet suffered any, or any significant, harm and where the harm which is feared is the impairment of intellectual, emotional, social or behavioural development.
(4) Significant harm is harm which is “considerable, noteworthy or important”. The court should identify why and in what respects the harm is significant.
(5) The harm has to be attributable to a lack, or likely lack, of reasonable parental care, not simply to the characters and personalities of both the child and her parents.
(6) Finally, where harm has not yet been suffered, the court must consider the degree of likelihood that it will be suffered in the future. This will entail considering the degree of likelihood that the parents’ future behaviour will amount to a lack of reasonable parental care. It will also entail considering the relationship between the significance of the harmed feared and the likelihood that it will occur. Simply to state that there is a “risk” is not enough, the harm must be ‘likely’.

Further guidance S & H-S (Children), Re [2018] EWCA Civ 1282 (06 June 2018)

(7) It is good practice to distil findings into one or two short and carefully structured paragraphs which spell out the court’s finding on threshold identifying whether the finding is that the child ‘is suffering’ and/or ‘is likely to suffer’ significant harm, specifying the category of harm and the basic finding(s) as to causation.
(8) When making a finding of harm, it is important to identify whether the finding is of ‘significant harm’ or simply ‘harm’.
(9) A finding that the child ‘has suffered significant harm’ is not a relevant finding for s 31, which looks to the ‘relevant date’ and the need to determine whether the child ‘is suffering’ or ‘is likely to suffer’ significant harm.
(10) Where findings have been made in previous proceedings, a judgment in subsequent proceedings should make reference to any relevant earlier findings and identify which, if any, are specifically relied upon in support of a finding that the threshold criteria are satisfied in the later proceedings as at the ‘relevant date’.
(11) At the conclusion of the hearing, after judgment has been given, there is a duty on counsel for the local authority and for the child, together with the judge, to ensure that any findings as to the threshold criteria are sufficiently clear.
(12) The court order that records the making of a care order should include within it, or have annexed to it, a clear statement of the basis upon which the s 31 threshold criteria have been established.

If a parent has parental responsibility and no one cares, what remedies do they have?

 

I am very grateful to the mother of Shayla for giving me permission to post this. I shall call the child murdered by Matthew Scully Hicks (MSH) by the name her mother gave to her at birth. It is one of the sad and poignant features of many in this case that at the time of her death Shayla was known by at least four different names, which made it difficult to find relevant records about her short life. Page 15 of the Review notes that ‘at the point of her death it was difficult to get the information about when she had seen medical professionals. This was due in part to a number of different IT systems and that S was known by four different combinations of her birth and adopted name.’

Another more poignant issue is her mother’s belief that, had she been told of Shayla’s injuries when in the care of MSH before the making of the adoption order and when she still had parental responsibility, her baby would still be alive. The mother may or may not be right in that belief. But now, sadly, we shall never know. 

What rights do parents have to know their child has been hurt? Even if the parent isn’t caring for their child? Even if there is no chance the parent ever will?

In brief, S was injured on several occasions in the care of MSH before the adoption order was made. Shortly after the adoption order was made he assaulted her again and this time she died. The mother was never told about any of these injuries despite retaining parental responsibility until it was extinguished by the making of an adoption order. She remains of the belief that had she known, there would have been something she could have done to stop her daughter’s death.

Other parents have told me online, and in person, that the same thing has happened to them. That their children suffered sometimes really serious injuries whilst in foster care but they were never told. Just what is going on here? Why is parental responsibility apparently so carelessly ignored when children are looked after? The clue is found in the Review at page 15:

the child while still legally a child looked after, was considered an adopted child and so this shaped the way professionals shared information.’

I suspect what we are seeing here is the logical conclusion of the mantra that ‘adoption is best’ and that ‘children need to be rescued’.  If a child is seen entirely in isolation from his or her parents, if those parents are seen as unsuitable or undesirable then it is hardly surprising that their legal rights are not seen as something worthy of much attention. But this is wrong. It hurts both parents and children.

Even if parents cannot care for their children, by reason of circumstances within or without their control, it is rare to find a parent who doesn’t care about them, who doesn’t have knowledge about their child. Even the very ‘worst’ ‘monster parent’ still has something to offer, even if it is only some sense of identity or history.

I do not think what appears to be widespread negation of parental responsibility when children are looked after is acceptable and it says profoundly ugly things about our society.

 

The review of Shayla’s death.

The only written document I have seen relating to these proceedings is the Extended Child Practice Review C&V CPR 04/2016 (‘the Review’) which was commissioned by the Cardiff and Vale of Glamorgan Regional Safeguarding Board on the recommendation of the Child and Adult Practice Review Subgroup in accordance with the Social Services and Well Being (Wales) Act 2014 Part 7.

What happened between September 2014 and S’s death in 2016.

At page 4 the Review sets out what it is has done and who has been seen in order to complete the work. I note that both the mother and the maternal grandmother were interviewed and the Review explicitly recognises how difficult and emotional it has been for both.

S was placed in foster care in November 2014. A care and placement order were made in May 2015 and S was placed with MSH and his husband in September 2015. The adoption order was made in May 2016 and she died shortly afterwards. MSH was convicted of her murder in November 2017.

The Review sets out the care planning for S at page 6 and concludes it was appropriate; all the evidence suggested that adoption would be in S’s best interests.

MSH and his husband were first approved as adoptive parents in August 2013 and had their first child placed with them in October 2013. The first child was adopted by them in April 2014. They were assessed again in February 2015 and approved in July 2015. In September 2015 the Agency Decision Maker approved the match between S and the adoptive parents and she moved to live with them.

The Review sets out at page 7 that they had access to key documents about this assessment process and considered it was ‘robust, detailed and comprehensive’. All the evidence suggested this would be a positive outcome for the child. There is no mention here of any member of the assessment process or any social worker being related to MSH’s husband. If this is true, I would expect comment.

The Review then considers S’s placement with the adopters. In November 2015 she is taken to the GP by one parent, it is not clear which (reference is made to ‘dad’ or ‘father’ rather than ‘primary carer’ which would have clearly identified MSH) and found to have a fracture to the bone at the end of her left leg. However she is seen only by a Registrar who was not overseen by a consultant; in fact she had two fractures of two different bones in her left leg and this was not discovered until after her death. The doctors, unaware of the second fracture, find the parents’ description of what happened to fit with the injuries found and a cast was put on S’s leg.

In December 2015 MSH texts the Adoption SW to say S has a large bruise on her forehead. The Adoption Review makes no reference to that bruise. Five days later a health professional notes (presumably) another bruise to her forehead and eye. The health professional does not tell anyone else.

In March 2016 MSH telephones 999 to say S has fallen though the stair gate at the top of the stairs, does not lose consciousness but vomits. S goes to hospital for 4 days. Medical professionals accept MSH’s explanation. S is then seen by a GP for a ‘unilateral squint’. A referral is made but she dies before this can take place.

In May 2016 S is seen by consultant neonatologist for routine follow up and no concerns identified. Later than month MSH calls 999 to say S is limp, floppy and unresponsive. He gives different explanations about what happened. S never regains consciousness and died in hospital with bleeding on her brain. The police arrest MSH.

The Review does identify some serious flaws in these procedures:
a. The bruise(s) to S was not recorded and not considered at the Adoption Review
b. S was not taken to the GP until 5 days after the ‘accident’ that led to the fracture of her left leg and in fact a second fracture to the top of her left leg was identified after she died. It was considered highly unlikely for any child to break two separate bones in one accident and had the second fracture been found at the time, ‘concerns would have undoubtedly been raised and child protection procedures instigated’.

The Review notes that immediate organisational changes were made.. I note at page 15 the Review comments ‘the child while still legally a child looked after, was considered an adopted child and so this shaped the way professionals shared information.’

The Review comments on the mother’s views in the following terms:

The Birth Mother shared her concern that it was several months before she was informed of her child’s death. She indicated that she would have preferred to have been informed of her child’s death by somebody that was known to her. Following being informed, she felt she received information from several sources in an ad hoc fashion. Understandably the emotional impact of the child’s death on the birth family has been very significant.’

However the Review does not appear to make any substantive comment on these issues and how they could be dealt with better in the future. I would have liked to see at least some discussion of that.

At page 12 the Review identifies what they have learned from S’s death. A key point appears to be that although MSH, his husband and some of the extended family knew that MSH was under stress caring for two children, this information wasn’t shared with any professionals and only became clear in the criminal proceedings. The Review notes that ‘the overall presentation to the agencies was one of a happy and united family’.

It is clear that MSH was viewed through a ‘positive’ lens and there was nothing throughout the adoption assessment process that could have indicated MSH would injure and kill S. However, as the Review concedes, this ‘positive lens’ led to a minimisation of concerns about S’s injuries, 2 incidences of delay in getting medical treatment to her and MSH informing the HV he had sought GP advice about a bruise when he had not. The Review comments that ‘… with the benefit of hindsight, the monitoring and review of children placed for adoption can be strengthened by ensuring that safeguarding responsibilities are given due emphasis’.

The mother would have liked to have been part of that process to ensure that S was safe. But she was never given any opportunity.

The ‘Key Learning’ identified is set out at pages 14-15 – no discussion of failure to provide information to those who hold PR

  • When children are seen at hospital, Paediatricians are key professionals in recognising the possibility of injuries being caused deliberately
  • Professional judgements should be based upon consideration of all the evidence available rather than individual events
  • Professionals need to ensure the details of a child’s injuries are recorded as significant events.
  • Each agency has a professional responsibility to ensure that they are aware of all the significant events in a child’s life. – no one agency or worker held all the relevant information about S.
  • Adoption reviews should provide opportunities for robust professional scrutiny and challenge – a holistic understanding of the child’s story was not gained
  • The recording and retention of information received via text and other messaging services are an increasingly important source of information.
  • Learning after S’s death – this was made more difficult by the fact that it was difficult to gather all the relevant information due to different IT systems in use and S being known by up to four different names.

 

I note again a failure to refer to the lack of provision of information to those who have PR.

The overall conclusion of the Review is that some systems and practices should be improved but that there was no information during the assessment stages of the parents that could or would have predicted what happened to this child.

This is true but rather skates over the concerns in the body of the Review that the significance of some of this information was missed; either because it was unknown (the second fracture) or because it was not seen in its proper context – serious bruising and delays in taking S to the GP for example. The reason for this is given as that the adoptive parents would inevitably be seen through a positive lens, as adoption is inevitably seen as a positive thing for a child. Thus as the Review concedes there was a ‘lack of professional curiosity’ regarding S’s experiences.

I am concerned about this.  There were two categories of information that were not given to the mother.
a. information that S had been injured and suffered a fractured leg in the care of the adoptive parents prior to the making of an adoption order and while the mother still had parental responsibility (PR).
b. Information about S’s death which occurred after the making of the adoption order, thus extinguishing the mother’s PR.

Information withheld while the mother had PR

The mother was never told about her daughter’s injuries. The failure to inform her was a breach of her continuing Article 8 rights as a holder of parental responsibility. The local authority may argue that this breach would be seen as proportionate and lawful given regulation 45 of the Adoption Agency Regulations 2005, which disapplies section 22 of the Children Act 1989 and thus removes the local authority’s duties to ascertain the wishes and feelings of the parent and take them into account when coming to any decision about the child who is subject to a placement order. However, asking about wishes and feelings is not the same as providing information.

I do have to accept that it is likely that even if the mother had been told about S’s fractured leg, I do not think this would have made any difference to the LA approach as the significance of that injury was that there were in fact two fractures and the second was not found until after S died. I can speculate that if the mother had been told about the bruising and raised complaint, this might have pushed the various agencies into looking more closely at the overall picture painted by the bruising and late presentation to the GP. However, I suspect that absent any information that MSH was struggling to cope – which was not shared by MSH or his husband with any agency – that the mother’s intervention would have made little difference as there was no evidence before the LA to challenged the ‘positive lens’ though which the adoptive family were seen.

However, whether or not the mother could have ‘done’ anything with the information, I do not think is the relevant point here. She still had PR. She should have been told. Parents in this situation should have a remedy pursuant to the Human Rights Act for ‘just satisfaction’.

Is Article 8 ECHR extinguished after adoption? I don’t think so

After S’s adoption, the convention wisdom of the family courts is that all Article 8 rights fall away and thus the mother was no longer seen as anyone with any relevant interest in S’s life or death. This may be the current view of the courts –see Seddon v Oldham MBC (Adoption Human Rights) [2015] EWHC 2609 (Fam) but in my view it is based on a misunderstanding of what is actually protected by Article 8 – protection of family and private life encompasses protection of psychological integrity.

A sound mental state is an important factor for the possibility to enjoy the right to private life (Bensaid v UK para 47). Measures which affect the physical integrity or mental health have to reach a certain degree of severity to qualify as an interference with the right to private life under Article 8 (Ben-said v UK, para 46).

I imagine that the mother’s distress arising out the circumstances of her daughter’s death and the failure of other agencies to provide her with any timely information, would bring this case into the necessary degree of severity of harm.  An adoption order did not change the fact that S was the mother’s daughter and at some point in the future, had she lived, may have sought her out. The pull of biology is recognised as strong and important for most and is reflected in such initiatives as life story work and the Adoption Contact Register.

If the law does says that the mother had no right to learn of her daughter’s death because an adoption order ‘wiped out’ her Article 8 rights, then in my view the law is wrong and should be challenged.

It is my very firm view that no law should be permitted to stand that is capable of imposing such a cruel situation upon any parent, no matter their previous failings and no matter that their child has been adopted. I suspect the problem here is what was identified by the Review at page 15:  ‘the child while still legally a child looked after, was considered an adopted child and so this shaped the way professionals shared information.’