Responses to Commentators

Article 3 ECHR and Care Proceedings

This is a post by Sarah Phillimore

No one shall be subjected to torture or inhuman or degrading treatment or punishment.

A number of commenters on the CPR site were recently discussing how Article 3 could or should apply to care proceedings. Family practitioners generally focus on Articles 6 and 8  of the ECHR – right to a fair trial and right to respect to family and private life. To a lesser extent Article 5 (right to liberty) may come into play when discussing for e.g. secure accommodation. 

One reader commented:

Are Social Workers sub-human? Does the System treat Children worse than Animals?
It says above that the most relevant articles of the Human Rights Act relating to child-protection are 6 and 8. Parents may believe the main causes for complaint would be under Article 3. I certainly do!
Local Authority actions are inhumane and in contravention of Article 3 of the ECHR convention relating to torture and inhuman or degrading treatment of both children and families as a whole. The Local Authority is effectively causing inestimable, permanent, emotional and physical harm the full effects of which it is impossible to predict to the children and adults by mental torture, anguish and degradation.


– See more at: http://childprotectionresource.online/human-rights-act-1998/#comments

Are we lawyers missing a rather important trick in not looking more closely at what Article 3 demands and whether or not it applies to care proceedings?

Article 3 of the ECHR reads very simply

No one shall be subjected to torture or inhuman or degrading treatment or punishment.

There is no exception or qualification to this right. It is absolute.

 

But what does ‘torture’ or ‘inhuman or degrading treatment’ mean?

Article 3 is directed primarily to protect the physical integrity of a person but it has been found to apply to acts that cause severe mental suffering. Article 3 is ‘absolute’ so it applies regardless of either the conduct or circumstances of the victim or the threat he poses to the security of the State – so for e.g. Article 3 forbids torturing terrorists.

Article 1 of the 1984 UN Convention against Torture provides this definition of torture:

For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

I hope very much that it is vanishingly unlikely that ‘torture’ as so defined will ever play a role in care proceedings. So we need to focus on ‘inhuman or degrading treatment’. This ill treatment must meet a certain level of seriousness before Article 3 is engaged. See further the Manual for Lawyers produced by Interights, (an international legal human rights NGO which was established in 1982 but sadly closed down in 2014 due to lack of funding).

Ireland v United Kingdom (1978) found that ill-treatment must attain a minimum level of severity. The assessment of this minimum will depend on the circumstances of the particular case, such as how long the ill treatment lasted, what physical/mental effects did it have, the sex, age, and state of health of the victim of the ill treatment.

 

So what kinds of ill treatment meet the minimum standard?

Given all the relevant factors that need to be considered, it is not going to be easy to set out clear criteria to say if X or Y happens, then the necessary minimum standards will be met to show Article 3 is engaged.

Some cases will be very clear. For example, in Aydin v Turkey (1997), the applicant was a seventeen year old girl who was raped repeatedly by State officials. This was found to be a particularly abhorrent form of ill treatment.

Others will be less clear cut. For example, in Costello-Roberts v the UK  (1993),  minimum standards of ill treatment were not met by hitting a 7 year old three times on the buttocks with a gym shoe. But In Toteva v Bulgaria (2004), the applicant was 67 years old when she was detained and injured by police. Given her age, the court thought the injuries were serious enough to meet the required threshold for ‘ill treatment’ under Article 3.

As Interrights comment:

The Court is clear that the individual circumstances of the case, and especially factors pertaining to the victim, and sometimes his or her near relatives, must be taken into account. The question as to how much weight to attribute to such factors appears to depend on the nature of the allegations and other surrounding circumstances. Thus, a domestic court is bound to take all relevant factors into account, and engage in a delicate balancing act, in considering whether a person has been subjected to torture or one of the other prohibited forms of ill-treatment.

Children suffering inhuman and degrading treatment

There is no doubt that children have been able to successfully rely on Article 3 when complaining about LA action or inaction.

See  Z and Others v the UK (2001). This case involved children who sued a LA for not removing them from their parents quickly enough, and this illustrates just how serious the ill treament must be to come within Article 3. At para 40 of their judgment the Court described the children’s circumstances thus:

All the applicants were seen by Dr Dora Black, a consultant child psychiatrist, in January 1993. Dr Black stated that the three older children were all showing signs of psychological disturbance. Z was exhibiting signs of serious depressive illness and had assumed responsibility for her family and for its breakdown. Her mother’s behaviour towards her was described as cruel and emotionally abusive. A and B, who suffered from nightmares, were both identified as showing signs of post-traumatic stress disorder and A was also chronically under-attached. Dr Black noted that all children had been deprived of affection and physical care. She described their experiences as “to put it bluntly, horrific”, and added that the case was the worst case of neglect and emotional abuse that she had seen in her professional career. In her opinion, social services had “leaned over backwards to avoid putting these children on the Child Protection Register and had delayed too long, leaving at least three of the children with serious psychological disturbance as a result”.

The Court were able to conclude at para 73 of their judgment, without hesitation, that the children’s Article 3 rights had been breached:

73. The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment. The obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals (see A. v. the United Kingdom, judgment of 23 September 1998, Reports of Judgments and Decisions 1998‑VI, p. 2699, § 22). These measures should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (see, mutatis mutandis, Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII,
pp. 3159-60, § 116).
74. There is no dispute in the present case that the neglect and abuse suffered by the four applicant children reached the threshold of inhuman and degrading treatment (as recounted in paragraphs 11-36 above). This treatment was brought to the local authority’s attention, at the earliest in October 1987. It was under a statutory duty to protect the children and had a range of powers available to them, including the removal of the children from their home. These were, however, only taken into emergency care, at the insistence of the mother, on 30 April 1992. Over the intervening period of four and a half years, they had been subjected in their home to what the consultant child psychiatrist who examined them referred as horrific experiences (see paragraph 40 above). The Criminal Injuries Compensation Board had also found that the children had been subject to appalling neglect over an extended period and suffered physical and psychological injury directly attributable to a crime of violence (see paragraph 49 above). The Court acknowledges the difficult and sensitive decisions facing social services and the important countervailing principle of respecting and preserving family life. The present case, however, leaves no doubt as to the failure of the system to protect these applicant children from serious, long-term neglect and abuse.

EDIT – I am grateful to Suesspiciousminds for reminding me of the case of A & S (Children) v Lancashire County Council [2012] and for his confirmation that he isn’t aware of any case where Article 3 has been relied on with respect to parents.

In this case, the court found breaches of Articles 6, 8 and 3 by the LA and the IRO in the following 10 respects:

(1) Failed to provide A and S with a proper opportunity of securing a permanent adoptive placement and a settled and secure home life. (Art. 8)

(2) Failed to seek revocation of the orders freeing A and S for adoption, made on the 19 March 2001 pursuant to Section 18(1) Adoption Act 1976, which effectively deprived them of:

(a) The protection afforded to children under the Children Act 1989;

(b) Contact with their mother and/or other members of their family;

(c) Access to the Court and the procedural protection of a Guardian.
(Arts. 6 & 8)
(3) Permitted A and S to be subjected to degrading treatment and physical assault and failed adequately to protect their physical and sexual safety and their psychological health (Arts. 3 and 8).

(4) Failed to provide accurate information concerning A and S’s legal status to the Independent Reviewing Officers. (Art. 8)

(5) Failed to ensure that there were sufficient procedures in place to give effect to the recommendations of the Looked After Child Reviews. (Art 8.)

(6) Failed to promote the rights of A and S to independent legal advice. (Art. 6)

(7) Specifically, failed to act as the ‘responsible body’ to enable A and S to pursue any potential claims for criminal injuries compensation, tortious liability and/or breach of Human Rights arising from their treatment by their mother, or by the Hs or by Mrs B. (Art. 6)

The IRO:
(8) Failed to identify that A and S’s Human Rights had been and were being infringed. (Arts. 6 & 8)

(9) Failed to take effective action to ensure that LCC acted upon the recommendations of Looked After Child Reviews. (Art. 8)

(10) Failed to refer the circumstances of A and S to CAFCASS Legal. (Art. 8)

 

But what of parents in care proceedings?

I am not aware of Article 3 being relied upon by parents in any action against a LA for initiating or botching care proceedings, and would be very interested to hear if anyone knows differently.

The anguish and misery felt by many parents when their children are removed have been described eloquently and painfully on this blog and on others. If that anguish and misery is compounded for parents, not only by the loss of their child, but by indifference, rudeness or even worse from the professionals involved in that process, can we argue that Article 3 is engaged?

I suspect the difficulty here will be the surrounding circumstances which have lead to the parents feeling such anguish. LAs are under a legal obligation to protect children in their area. Their investigations and any subsequent removal of children sanctioned by the court are likely to be very distressing to parents but these are lawful acts carried out to achieve an aim of general public good; to protect children.

For example, in Kudla v Poland (2000) the applicant was detained in custody before his trial. He was found to be suffering from mental illness and transferred to a prison hospital. The Court examined the circumstances of his detention and held that to find a violation of  Article 3, the suffering and humiliation involved must go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.

 

But what if an LA is acting outside the law?

An interesting consideration arises if the actions of an LA bring about separation of a parent and child and the LA had in fact no lawful basis to intervene. Worrying examples of this can be seen in how section 20 has been misused over the years. The State could therefore not rely on any argument that the parents’ distress was simply the unfortunate by product of legitimate state action.

The courts have certainly seemed more keen recently to recognise and condemn LA for acting in breach of parents’ Article 6 and 8 rights and award them damages under the Human Rights Act 1998.

Is it possible that the State could be found to breach Article 3 if a parent suffers serious mental anguish as a result of care proceedings that should never have been started or were conducted improperly? I can’t think of any logical reason why not, but I would assume that the level of distress suffered would have to be very high and the failures of the State agents particularly egregious.

Conclusions

I find it frustrating when parent campaigners speak in terms of social workers being ‘Nazis’ or ‘like Stalin’ as it is difficult to see where any sensible discussion can go once it is hijacked by such unhelpful hyperbole. There can be no useful comparison between a system of child protection in a functioning democratic state and a totalitarian regime that led to the deaths of millions. I don’t want to waste my time going down that particular rabbit hole.

BUT. The one thing I never really thought about or engaged with much before becoming involved with the Child Protection Resource was the pain and misery of the parents. And it is real. And it provokes some legitimate questions about how the State should be operating to protect the most vulnerable members of society – and this group must be wider than just the children, but must include their parents too.

So I am not convinced that Article 3 is applicable to the vast majority of care proceedings, but I think there is certainly an argument to be made that it might be. And that is not something I would have even considered a year ago.

So I must give thanks to the commentators on this site for opening my eyes – we may not always agree with one another but hopefully if we can continue a constructive dialogue, we can continue to help each other develop insight and understanding into such a profoundly important process.

Response to Commentators #4

Don’t sacrifice justice on the altar of speed

This is written by Sarah Phillimore, a family law barrister in response to a comment from FASSIT who said:

I recollect this site lambasting our group for the following comment: Fassit are finding that social workers are removing hundreds of children from innocent parents each year through sheer incompetence and organisational failure what could best be described as blatant discrepancies between the evidence presented at Court by expert witnesses (social services; health; education etc.) and the actual events or material facts of the case..”
Well now you can lambast the High Court Judges as well who said today that Judges and social workers have been conspiring to remove children unjustly from their parents.
Read more: From the Daily Mail

This Daily Mail article is a response to the recent decision on appeal in the case of Re NL (A Child) heard on 28th January 2014 by Mrs Justice Pauffley in the High Court. 

The Daily Mail appear to share the view of FASSIT and John Hemming that this is yet more evidence of a network of corruption that taints the entire system.

The President of the Family Division has made it clear that all care practitioners should read this judgment. It is clearly an important case. But does it support any of the conspiracy theories?

 What happened?

This case involved a mother who gave birth to her eighth child in October 2013. She had a very sad and troubled background over 14 years, involving drink, drugs and violence. She had seven older children and she was not able to care for any of them.

In August the mother went to a specialist unit, which offers a therapeutic community to parents who have become dependent on drugs and alcohol. The unit’s aim is to try and keep families together.

The mother did well in her first few weeks in the unit and successfully completed a detox. When her baby was born he did not show any signs that he was affected by his mother’s previous drug use. The hospital where the mother gave birth had no concerns about her parenting.

In October the LA issued an application for a care order. It was clear they were relying on the mother’s very difficult past and their allegation that she had addressed her drug problems very late in the day.

The case came for its first hearing in the Magistrates court on 1st November 2013. The Magistrates made an interim care order and the baby went to foster care. Unsurprisingly, the mother objected to this and another hearing was listed on November 7th where more evidence could be available.

At that hearing the Magistrates heard evidence over the phone from a Dr. Van Rooyen, a chartered clinical psychologist, who was very negative about the mother and her ability to make and sustain changes to her lifestyle.

The Magistrates did not agree to reunite mother and baby and she appealed, arguing essentially that the decision was disproportionate – her baby would be safe with her at the unit while she continued to engage with work that might make her able to parent her son in the community at some point.

The LA and the Guardian did not agree that there had been any procedural or other irregularity and the Magistrates had carried out a proper balancing exercise and made a proportionate decision.

The Role of the Magistrates

Some further explanation of the role of the Magistrates will be useful at this point. Magistrates are volunteers; they do not have legal qualifications, they get some training and are assisted by legal advisers in court. Unlike other judges in family proceedings they therefore have to provide written ‘facts and reasons’ to support decisions they make about children. Sometimes this can take a long time – I have been at Magistrates courts until 8 or 9pm on numerous occasions – and a practice has developed whereby the Magistrates ask the lawyers to help them and speed up the process by writing a document which can be used as agreed ‘facts and reasons’.

As long as everyone has input into this document and it is agreed, this can be a sensible approach to limit the amount of time parents have to spend waiting at court.

Revised Guidance to the Magistrates

N.B. After some debate amongst practitioners as to whether or not this case applied to ALL hearings before the magistrates or only those where the parties wanted to argue about what order was the right one, the President of the Family Division confirmed on March 3rd 2014 that there are NO circumstances where is is permissible for the parties to contribute to the writing of facts and reasons.

This revised guidance was issued and approved by the President of the Family Division

A) Public Law

  • Under no circumstances should the local authority or any other party to the proceedings be involved in drafting Justices’ written Reasons. This prohibition applies irrespective of whether orders are said to be agreed or ‘not opposed.’
  • Henceforth, the court should never ask any party to supply draft Reasons or suggest that a draft be circulated amongst or consulted upon by the parties.
  • The practice of inviting parties to submit their own position statements in which they may set out analyses of the facts as well as their contentions in relation to resulting orders is unobjectionable.
  • It is entirely permissible for Justices’ Reasons to include references to documents filed by the parties – for example position statements, case summaries and chronologies. As appropriate, parts may be adopted e.g. ‘The background facts of the case are as set out in the case summary supplied by Miss A on behalf of X County Council’.
  • In all cases, as part of the case management process, the parties should provide written details of the agreed issues as well as those which are in dispute. It is acceptable and often helpful to record that information in the Justices’ Reasons.
  • Templates and / or pro forma Facts and Reasons documents may be used so long as they are created by the Justices in consultation with their Legal Adviser. If a template or pro forma is employed, the Justices must ensure that (a) case specific detail is incorporated to explain the key aspects of their decision and (b) they alone determine the content. Examples of key decisions recorded upon a template will be, how, if at all, the threshold criteria are established; and whether upon consideration of a child’s welfare interests, he should remain with or be separated from his parents at any stage of the proceedings.
  • The detail and length of the Reasons document will vary according to the complexity of the case; the stage reached in the proceedings and whether any of the facts, or the order sought, are disputed.  Where all or some aspects of the case are contested, the competing arguments and the reasons for preferring a particular course should be given.
  • In every case, even where the order is said to be agreed or where there is no active opposition, there is still a judicial task to perform. Justices must ensure not only that justice is done but also that it is seen to be done.

 

 

The Appeal hearing on 28th January 2014

There were obviously very serious problems in this case that led to Mrs. Justice Pauffley allowing the mother’s appeal and reuniting her with her son in the unit:

  • An expert being asked to prepare crucial report in very tight timeframe and without meeting the mother
  • Sending documents to the court without input from the other parties
  • Magistrates relying on ‘facts and reasons’ drafted by someone else
  • It took almost three months before the mother’s appeal against the orders in November could be heard

Lets look at these in turn.

Experts who report too quickly and don’t meet the parents.

The Judge said:

It simply cannot be right, fair or reasonable to commission an expert to provide what may turn out to be the pivotal evidence justifying separation of a neonate from his mother in the way that happened here.

It surprises and alarms me that Dr. van Rooyen was asked, and was prepared, to provide a report during the course of a single working day, a terrifyingly tight timeframe, and on the basis of papers supplemented by a telephone conversation with a LA professional who had never met the mother. I struggle to understand how Dr. van Rooyen’s apparently firm opinions, adverse to the mother, could have been formed given the complete absence of any kind of discussion with her or, indeed, any communication with [the unit – who were positive about the mother].

Sending documents to the court and not the other parties

The court relying on facts and reasons they didn’t draft.

With regard to the first hearing on 1st November, the LA lawyer wrote and emailed the ‘facts and reasons’ document before the hearing. The mother’s lawyer had no input into this document and was simply given a hard copy outside court on the morning of the hearing.

The document was then amended and included a reference to the expert’s report, which had been obtained only the day before and is discussed above. However, it did not contain any reference to the relevant law applying to removal at an interim stage

See our post about interim removal – what does it mean and how does it happen?

The Judge was told that this was ‘local practice’ and the Magistrates court expected every LA to provide draft ‘Facts and Reasons’ for every hearing in care proceedings. These documents were not routinely circulated to other parties.

Breach of Article 6 ECHR

The Judge was clear that this was an unacceptable breach of Article 6 of the ECHR, which provides for the right to a fair trial.

She said at paragraph 65:

Whilst I might be able to understand why such methods may have been developed, I am profoundly alarmed by their existence. Informal inquiries reveal, anecdotally, that the practices I have described are not confined to this are but are widespread across the country.

And further at paragraph 67:

Seemingly, there were process failures in this case, which significantly interfered with the most basic requirements for openness and transparency. There was, apparently, an established but largely clandestine arrangement between the LA and the court, which, to my mind, has considerable repercussions for justice and, equally importantly, the perception that justice will be done. It is fundamental that nothing is sent to the judge by one party unless it is copied simultaneously to ever other party

Equally and just as importantly, it is difficult to view the Justices as having been independent and impartial if, as happened here, they simply adopted the LA’s analysis of what their Findings and Reasons might comprise.

Lengthy delay in listing the appeal.

The Judge said at paragraph 81:

Three things should be emphasized. Firstly, appeals from interim care orders where separation has been sanctioned are amongst the most urgent of all public law hearings; time is of the essence and the court must do its utmost to list such appeals as a matter of urgency. By that I mean within days or at most a very few weeks. Second, that listing for the convenience of Counsel, whilst desirable, should not be a factor leading to a hearing date later than the court can accommodate. Third that the guardian’s ability to attend in person at the appeal hearing is of minor significance when weighed against the requirement for an early hearing’

Conclusions

This case went badly wrong and the Judge’s criticisms are well deserved. The removal of the mother’s baby on November 1st then became solidified as the ‘right thing’ by the second hearing on November 7th, the Magistrates even going so far as to say the baby might suffer disruption being removed from foster carers where he had lived for just one week!

The Judge commented at paragraph 55 of her judgment:

This case provides a good example of how once separation has occurred there can be a certain inevitability that it will be perpetuated. It is often and rightly said that the decisions taken about placement at the outset of public law proceedings are amongst the most significant. They can be and often are the most difficult. All the ore reason, I would say, for immense trouble to be taken so as to ensure those decisions are based upon good evidence and fully justified. Anything less would be to ignore that a child, as the result of what occurs at the beginning of proceedings, may be denied the opportunity, ultimately, of remaining within his natural family.

It was clear that the LA had ‘given up’ on the mother by August 2013 in light of her bleak previous history and had probably decided by then that they would seek removal of the baby once he was born.

But is this further example of systemic corruption in the family court system? I don’t think so. It is a horrible example of sloppy practice and a vivid illustration of something that often happens in these cases – professionals make a reasonable decision about the ‘likely outcome’ of a case but in so doing then lose sight of the need to constantly respect and observe due process.

Or, in other words, just because you are now dealing with the 8th child of a mother with very serious problems who has had all previous children removed from her care, you cannot for this reason alone fail to respect and apply due process and the requirements of the law.

There is a need in ALL cases to act openly and fairly at all times and to remember the positive obligations imposed on the State by Article 8 and to consider how to support the family to remain together.

Underpinning this jettison of good practice was clearly a fear that unless people acted speedily, the case would fall outside the very strict 26-week timetable which now operates in care proceedings.

Mrs. Justice Pauflley rejected this, loud and clear, stating that ‘Justice must never be sacrificed on the altar of speed’.

She cited Re B-S (Children) [2013] EWCA Civ 1146 at paragraph 38 of her judgment.

‘Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the LA’s plan envisages adoption. If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied’.

I do not think this case ‘proves’ that systemic corruption and state sanctioned baby stealing exist. It is unfortunate that once again the Daily Mail chooses to report matters of such importance in such a ham fisted and hysterical way.

It is however a very sobering reminder of how professionals must always be on guard not to slip into sloppy thinking and over reliance on past history, however bleak it may seem.

If FASSIT and others reject this analysis I hope they will at least accept that the clear and uncompromising words of Mrs. Justice Pauffley show that the tentacles of corruption have yet to reach the judiciary of the High Court.

What further debate could we be having?

We do need to stop wasting time over allegations of systemic corruption and look at the real issues these cases throw up. If we didn’t have the Magistrates as volunteer Judges who don’t require a big fat salary or even bigger judicial pension, the whole family justice system would grind to a halt. But the responsibility of decison making in these kind of cases is massive – are we giving our Magistrates enough support? Are we expecting too much of them?

The clarification on 3rd March 2014 from the President that there are NO circumstances in which any party to proceedings may assist in drafting the Facts and Reasons, even where everyone is agreed and happy to do this,  is a departure from what has been usual practice for many years. We will have to wait and see what the consequences of this will be.

Why does it take so long to list further hearings, particularly appeals? Is there really no money in the pot for more judges and more available court time so we can react with speed and urgency when it’s needed?

Response to Commentators #3

A question from one of our readers ‘Justice for children’.

How are you going to prevent paedophiles from working in your new and improved organization?

All traditional insitutions are already tainted and they have lost credability in the public’s eye. It’s safer to keep children at home so that parents can be assured of their children’s lives not being destroyed, hence they demand actions instead of words.

How do you guarantee that you don’t have rotten apples inside your organization who get free access to vulnerable children?

Our reply

We don’t have any access to any children. This is a site set up to offer information about the child protection system.

Nor do we accept that it is always ‘safer’ to keep children at home. Most young children who are killed, are killed at the hands of their parents or carers. At home.

We do want to have a debate. But we are clear that we don’t accept the majority of the conspiracy theories and it sounds like you might be a proponent of one.

 

@justiceforchildren

How are you preventing paedophiles to work in school and nurseries?
Not possible. Therefore… Are you keeping children at home all time?

Second question:
How are you preventing parent to abuse children?
Not possible…..

I think you asked a very silly question in your post. Sorry but there is not any intelligent answer to that.

Edit

Response to Commentators #2

You are apologists for a multi billion pound industry

This is a response by Sarah Phillimore, a family law barrister

I confess that I did not think the post Establishing Good Relationships would provoke much by way of comment either good or bad. But ‘Outraged’ lived up to his or her name.

Outraged said:

This doesn’t mean that either the parent or the social worker has to be 100% well behaved 100% of the time; this probably isn’t possible.”
Twaddle…absolute twaddle…a social worker is supposed to be a “professional”, they have standards and codes of practice to adhere to, which includes the social worker being professional, not being “well behaved” completely contravenes that. In that instance any social worker who does not behave well 100% for 100% of the time is in contravention of their professional ethics. Hence they should be hauled in front of the HCPC “fitness to practice” hearing and if serious enough prosecuted for Misconduct or Misfeasance in Public Office. The fact that this is happening, Social workers ARE being struck off and being prosecuted undermines the whole toadying drivel written on this website.

The point of this post was NOT to suggest that we ought to expect social workers to behave badly to the point that they fail to adhere to professional standards and ethical codes. The point being made was that the social work/parent relationship is one between two humans, working in often stressful and difficult situations.

It is not difficult to see how both participants in that relationship might at times be guilty of failing to listen carefully or failing to respond authentically. What is important is that people can recognize when they are behaving in ways that don’t promote healthy working relationships and take active steps to improve the situation.

I accept that I probably need to change the wording of this post because if anyone is reading thinks we advocate anything less than professionalism from social workers, this is not our intent at all and I am sorry if my post was clumsily worded.

The simple point I was trying to make is that social workers are human too. And respect and good working relationships are a two way street. But of course if you think you have been badly treated or a social worker has acted unprofessionally you must complain and take action as this is not acceptable.

The issue of standards of professional conduct and proper routes of complaint is an important one and hopefully we will soon be able to provide more detailed information about this in another post. [Edit – this has now been done, see our post on making a complaint]

For now I will edit the Relationships post to reflect Outrage’s concern.

Anyone who thinks this site is ‘toadying drivel’ either hasn’t read it or has a very different definition of ‘toadying drivel’ than most.

 

This site should be taken down instantly, you are disinformation agents, there is a mass of evidence out there for the abuse of parents and children by the social services of this country, illegal actions by social workers, solicitors, the courts. There are no conspiracy theories here, the Social Services are stealing children, it is a multi-billion pound industry that cares little for child protection and is focused on profits.

Again, a comment that refers to the ‘mass of evidence out there’ but strangely, refers or links to none of it.  We would particularly like to see evidence that the child protection system is a ‘multi billion pound industry’ that is ‘focused on profits’. The evidence we have found – see our Mythbusters section – does not support this assertion.

 

What I feel is irrelevant, as clearly shown in your response, what would be interesting is for you to actually respond to the points raised…do you seriously believe it is ok for Social workers not to be “well-behaved” 100% of the time?

I think I have answered that point above. Of course professonals with professional training should reflect that in their behavior and dealings with others. But it is also important to recognize that social workers are still humans and if their clients are persistently rude or aggressive, then it may be that the social worker responds in a less than patient and calm manner

 

Do you deny that the Child protection fiction is a multi-billion pound industry?

I am not sure what is meant by this. Do I agree that vast sums of money are spent in investigating harm done to children? In trying to work to keep families together? To pay for experts and foster care and lawyers at final hearings? Well yes of course.

But do I agree that it is an ‘industry’ make ‘mulit-billion’ pounds worth of profits? Absolutely not. I would like to see some evidence about this. I have been asking for a number of years now and I am still waiting. But of course it is easier to make astonishing claims than it is to prove them.

 

Have no social workers been struck off, prosecuted or had their fitness to practice questioned?
How does your line “This doesn’t mean that either the parent or the social worker has to be 100% well behaved 100% of the time; this probably isn’t possible.” fit in with the codes of conduct and professionalism social workers have to adhere to?

Yes social workers have been struck off for misconduct. So too have barristers, doctors, solicitors – in fact any professional body that operates according to a code of conduct will have had to act against some of its members some of the time.

 

If you are genuinely anything other than a disinformation agent would you have not entered into the debate rather than simply telling me to take my leave? I don’t wish to take my leave as I would happily enjoy commenting on every aspect of the disinformation you have all over this site and provide evidence that contradicts your fairy tale of social services in this country. Of course I know that would not happen as you “moderate” ie censor comments and replies to your site, not something that an objective, balanced and genuinely “resource” site would have to do. The site reads like propaganda, and clearly comes from an “authority” perspective. It’s not a resource site, it is a poorly hidden agent for the child stealers.

I hope that by entering into the debate I can reassure ‘Outraged’ that we are not ‘disinformation agents’ and nor do we censor or moderate with a heavy hand.

But to enter into and continue a debate requires that the participants are prepared to treat each other and their arguments with a basic level of courtesy and respect and to keep the number of sensationalized and unsupported allegations to a minimum.

If Outraged truly believes we are  a ‘poorly hidden agent for child stealers’ then by this comment alone he/she puts himself very firmly in the Conspiracy Theory camp and I doubt that any further engagement is going to produce anything positive.

But as ever, I will be delighted to be proved wrong.

 

Response to Commentators #1

Our aims as a site

We want not only to provide useful and credible information to ALL those involved in the child protection system, but also to be part of the debate about what we can do to make our child protection system the best it can be.

That means we don’t want anyone to feel shut out of the debate or that we will censor or ignore their contributions.

However, we worry that for far too long, constructive debate has become hostage to a number of people who put forward extreme and unsupported allegations about the ‘evil’ and ‘corruption’ of an entire system.

We are going to try to strike a balance between welcoming debate and views that may not chime with our own and not becoming overwhelmed or overrun by hyperbolic conspiracy theorists.

It may take a while to see if we have that balance right. But in the spirit of welcoming debate we here provide a response to a number of points raised by commentator ‘Winston Smith’.

We are having discussions at the moment about the best way to deal with comments here that we feel are not helping: we agree with this very helpful article from Urban 75 about the kind of commentators we don’t want to encourage.

We think we will probably delete comments to various posts which we think are obvious trolling or attempts to push unsupported theories.

However, we will continue to collect them in Mythbusting and try to answer them. In that way, we can’t be accused or ignoring or censoring, but equally our attempts to debate and inform won’t be derailed by malice, ignorance or wild accusations made without any evidence in support.

This response is provided by Sarah Phillimore, a family barrister since 1999. If she has got anything wrong or there is anything you would like to add, please let us know.

I am going to respond to some of the recent comments of a Mr Winston Smith. Mr. Smith asserts:

Adoption targets

Unfortunately a major scandal erupted in 2008 when it was finally proved that Central Government were paying generous grants to each LA. to increase the numbers of children Forced Adopted each year. In many LA’s bonuses were also being paid to SW’s to secure Forced Adoptions.
I have the printout showing the sums paid, including the £1,025,000 paid to “Blogshire Council” , my own, and with which Elected Members still deny was happening and go white when I hold it under their noses.

They were known as Public Service Agreements and if you failed to meet your target by the end of the year you were financially penalised, not only on this, but across the board on the other 11 PSA’s.
So you had every incentive to prioritise the adoption of babies.

This appears to be the familiar territory of ‘adoption targets’ where the wish of successive governments to increase the number of children adopted from the care system led to targets and performance incentives to encourage LA to find permanent homes for children who may have spent many years in the care system.

This is of course very different from a system which sets ‘targets’ for the removal of babies because they are easier to adopt.

We don’t deny that most adopters would prefer to adopt a child who is as young as possible – hopefully the younger a child the less trauma he has already suffered and the more easily he  will become part of the adopter’s family.

But does this translate into LA taking babies for no good reason, because babies will be more easily adopted and this in turn will enable them to meet their ‘adoption targets’ ?

I don’t agree.  We have already dealt with this issue in our Mythbusters section but I think I should repeat the salient points here

  • Even though local authorities have targets to match children in their care with adoptive parents faster than before, in England the average age at adoption was three years and eight months at 31 March 2013.  Just 2% of children adopted in England in the year ending 31 March 2013 were under one year old
  • Only 6% of Looked After Children in England were under one year old at 31 March 2013.
  • It usually takes at least three months for adoptive parents to be matched with a child after they have been approved to be adopters (see column A12 in the Underlying Data spread sheet)

Although the amounts of money paid to local authorities who meet their targets for placing children in their care and for assessing adoptive parents can be large (see this official Written Answer from 3 September 2007 towards the bottom of this page) they do not exceed the cost of the proceedings.  For example, the largest payments in this table were made to Kent County Council, who received £2,156,583 over three years.  Information on the numbers of children placed for adoption by Kent County Council in 2005-2007 is not readily available, but more recent information suggests that the average number is 205 children per year (see the adoption scorecard for 2008-11 here).  Dividing £2,156,586 by 205 would give an average payment of £10,519.93 per child placed for adoption.  Even without details for the costs of all social workers involved in a case, plus legal representatives at court – usually for both the local authority and the family involved – plus court time, plus foster carers, it is clear that any money paid in the form of a bonus does not come close to covering the cost of removing a child from their family and placing them for adoption.

 

 

Since then subsidies have returned on a more indirect basis.

There has been TWO MSBP/FII/AIB Relaunches since, on a very similar basis to your site.

This has always been the focus of all of this.

Sadly I cannot respond to this as I don’t understand what it means, so I will need Mr. Smith to clarify.

 

 

Since the mothers are accused of “Munching” the kids and won’t “confess” they if under 5 are likely to end up being Forced Adopted as they cannot be returned home.

We agree that if a child is subject to care proceedings and is aged 5 or under, then adoption is much more likely to be considered as part of the final care plan than if the child was older. Simply, adoptions are less likely to succeed the older a child gets and once a child is over 7 it is unlikely that adoption will be a realistic option.

However, here Mr Smith appears to ignore all the other options that are routinely before the court in care proceedings such as Residence Orders or Special Guardian Orders to family members. The LA is under a statutory obligation to undertake kinship assessment.

Presumably Mr Smith must have access to some clear statistics to be able to assert confidently that those under 5 are ‘likely’ to be subject to ‘forced adoption’ and we would be grateful if he could share this information with us so we can consider it.

 

Since peoples’ “professional” theories are involved they have just gone on behaving in the same way and continued to try and prove their theories.

Ruralsocialworker, the last thing we need is yet another campaign which denies everything, of which there have been a number over the years.

I think this comment shows Mr. Smith has misunderstood the aims of this resource. We do not say and have never said that the system is perfect and that no mistakes are ever made. What we do say is that we do not accept that professionals routinely lie and collude to ensure that children are removed from loving homes for the purposes of meeting adoption targets.

We are keen to discuss new and better ways of operating, the only rule which we insist upon is that serious assertions require serious evidence.

If Mr. Smith truly believes we wish to be ‘another campaign which denies everything’ then he needs to have another look at the site and what we are trying to do. Hopefully then he will accept this criticism is untrue and unfair.

 

Meanwhile anew campaign has been created by the adoption agencies and members of the government ,also appointing Martin Nairey as Adoption ,and include bringing in the American “Fost-Adopt” system and reducing times to6 months. So we are back where we started.

Mr. Smith appears to be referring here to attempts to speed up adoption times for children in care and to make it less traumatic for children by encouraging their foster carers to adopt them. I think both are very good ideas. I do not see how this fits into an allegation that the State steals children for adoption. Rather they are examples of how the State is attempting, quite rightly, to improve outcomes for children already in the care system.

 

Children are taken into Care for silly reasons and in breach of procedures. Once there they will not be returned and dubious or provably inaccurate evidence concocted as the LA does not wish to be proved wrong.

I cannot and do not deny that mistakes are made and mistakes in this field can have very serious consequences. But none of us here, from a variety of perspectives within the system, accept such mistakes are routine or are made deliberately and maliciously in furtherance of some State plot to steal babies.

It is emphatically NOT my experience that children are taken into care for ‘silly reasons’. Again, assuming Mr. Smith has some statistical information to back up this assertion, we would like to see it. As far as we know, serious reasons are needed before a child can be taken away from his home – which is entirely as it should be.

I refer Mr. Smith to the legal section of our site and in particular our discussions of what is meant by ‘significant harm’. I  can find nothing ‘silly’ there.

I reject the assertion that evidence is routinely ‘concocted’ and again would request that Mr. Smith provide his evidence for this extremely serious assertion so that we can consider it.

In 15 years I have never come across deliberate concoction of evidence. Yes, I have seen sloppy evidence gathering and reporting, misunderstandings that became hardened into believed ‘facts’ and people making assumptions where they shouldn’t. It is my job to challenge that.

But deliberate falsification of evidence? Never. So either I am a stooge of the system and too stupid to notice when this is happening under my nose OR it doesn’t actually happen very often or at all.

 

The greatest area of corruption is the Expert Witness, in view of the huge sums being paid, and they repeatedly give diagnoses NHS or private clinic experts say do not exist.

Mr. Smith seems unaware of recent changes to public funding of expert witnesses. The sums paid on legal aid rates are very far from ‘huge’ and in fact the prevailing concern is now that we will lose the services of valuable expert witnesses as they won’t agree to be instructed on the new low rates.

I would urge Mr. Smith to read what the Legal Aid Agency are now saying about the remuneration of experts.

I don’t understand what he means by ‘repeatedly give diagnosis NHS or private clinic experts say do not exist’ and again I think that such a serious allegation requires some serious proof.

 

There is an almost 100% “Guilty” verdict in the Family Court

I accept that if care proceedings are brought, the most likely outcome is that a court will make a care or supervision order. Two conclusions can be reached from this:

  • Care proceedings are a farce and the conclusion is a rubber stamp; OR
  • Care proceedings are not bought lightly given the enormous expense and time they involve for cash strapped LA and only the most serous cases will go to court.

I support the latter conclusion.  Mainly because this fits exactly with my own experience over many years.  In fact, when I am critical of the way a LA has conducted a case, I can think of only a handful of cases where I felt they acted too quickly; the majority of my complaints are that they waited far too long before taking decisive action.

 

Basically we are into the same scenario as Cleveland, Satanic Abuse, Constructive Memory, MSBP, those cosmic megascandals all those years ago, where groups of true believers continued to doggedly defend them, even though disproved.

Here Mr. Smith refers to a number of ‘megascandals’ and appears to lump our site in with those ‘true believers’ who continue to doggedly defend the indefensible, even in the face of evidence.

I am  not quite sure what he means here and again, suspect he has misjudged or misunderstood the aims of this site.

I think this artice from Slate is interesting about the hysteria which surrounded the issue of child satanic abuse. It is a good example of the danger of proceeding to reach conclusions about extremely serious matters when your evidence is weak or even non existent.

 

However, regarding KinCarers , this statutary duty is regularly ignored by LA’s.

Admittedly grandparents maybe too old but other relatives are ignored.

Regularly aunties or sisters are advised to file for Residence Orders or SGO’s themselves. Uproar round at LAQ legal offices.

LA will go for Forced Adoption and only after a bitter battle with numerous court hearings agree to an SGO.

This isn’t my experience. Every case I do, when a family member puts themselves forward they are assessed – they have to be. It is the law. If the LA assessment is negative, the family member can come to court and argue their case or even seek permission for a further assessment. I was involved in a very recent case where the court agreed the maternal grandparents hadn’t been properly assessed and ordered a further report from an Independent Social Worker.

 

This includes busting the Placement Order in the CoA on Appeal.

I would like to respond to this but I don’t understand Mr Smith’s point.

 

These are usually either with the foster carer or a remote relative with either no contact or once every six months.

Again, I am going to need some statistics to back this up as it is very far from my own experience of the orders courts will make and the contact parents are likely to have.

 

LA’s and FD judges will move heaven and earth to prevent any child’s witness statements, prevent the Wishes and Feelings Pact being done, and prevent them being called as witnesses in violation of Practice Direction on Child Witnesses Dec 2010.

The children are kept isolated to prevent their view a being known and the are routinely obstructed from instructing their own solicitors if Gillick Competent.

Again, evidence please. This isn’t my experience. Courts are rightly worried about the impact of children becoming directly involved in court proceedings, particularly if it involves them giving evidence about the abuse they have suffered but to say ‘heaven and earth’ is moved to prevent them is nonsense.

I invite Mr. Smith to read the case of Re W in 2010 about the court’s approach to children giving evidence, which may assist his understanding.