What do we mean by ‘significant harm’?

 

Your starting point in care proceedings is section 31 of the Children Act 1989. You can find the whole Act here or read what Wikipedia says about it.  For more detail about this issue from the social worker’s perspective, please see this helpful article

Section 31 of the Children Act allows a Local Authority (LA) ‘or authorised person’ to apply to the court for an order which makes it lawful to to put a child in the care of a LA, or under the supervision of a LA. At the moment, the only other ‘authorised person’ is the NSPCC.

It is NOT the social worker who decides whether or not there should be a care or supervision order. This is a decision for the Judge or the magistrates. They are only allowed to make a care or supervision order if :

  • they are  satisfied there is evidence (‘threshold criteria’)
  • which proves on the balance of probabilities, that:
  • the child is suffering OR;
  • is likely to suffer significant harm in the future AND;
  • this significant harm will be a result of either ‘bad’ parenting – likely to be seen as the parents’ fault; OR
  • the child is beyond parental control – which may not necessarily be seen as the parents’ fault.

[For discussion about what is meant by ‘beyond parental control’ see the case of P (permission to withdraw care proceedings) [2016] EWFC B2.]

The ‘significant harm’ has got to relate to what the parents are doing or likely to do when they are caring for their child. The court will consider the standards of a ‘reasonable parent’: see Re A (A Child) [2015] EWFC 11 and  Re J (A Child) [2015] EWCA Civ 222.

The court will look at two different issues:

  • how is the parent looking after the child? Is the kind of care they are giving the kind you would expect from a ‘reasonable parent’? or
  • Is the child out of control? for example, not going to school or running away from the parents and getting into trouble?

There is already quite a lot to unpick here.

  • What does ‘harm’ mean?
  • What does ‘significant’ mean?
  • What happens when the court is worried about risk of future harm?

What do we mean by ‘harm’ ?

Section 31(9) of the Children Act tells us that harm means:

  • ‘ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another’.

This last part about being exposed to someone else being badly treated, was added by the Adoption and Children Act of 2002. It is intended to cover such circumstances as a child who witnesses or hears someone else being hurt, for example if the parents are fighting or shouting at one another at home.

Development means ‘physical, intellectual, emotional, social or behavioural development’

Health means ‘physical or mental health’

Ill-treatment‘ includes sexual abuse and other forms of bad treatment which are not physical. This includes ’emotional harm’. This is the category of harm which probably cases most concern for a lot of people; they are concerned about what kinds of behaviour get put into this category. We will look at the issue of ’emotional harm’ more closely in another post.

 

What do we mean by ‘significant’ ?

Section 31(9) tells us what is meant by ‘harm’. But it doesn’t give a definition of what is meant by ‘significant’. The original guidance to the Children Act 1989, issued by the Department of Health,  stated that:

Minor shortcomings in health care or minor deficits in physical, psychological or social development should not require compulsory intervention unless cumulatively they are  having or are likely to have, serious and lasting effects on the child.

We can get further guidance from looking at Article 8 of the European Convention on Human Rights. Article 8 exists to protect our rights to a family and a private life. Article 8 makes it clear that the State can only interfere in family life when to do so is lawful, necessary and proportionate.

Proportionality is a key concept in family law. A one off incident – unless extremely serious, such as a physical attack or sexual assault – is unlikely to justify the making of a care order as the court would be unlikely to agree that a single incident would have long lasting and serious impact on a child. But the same type of incident, repeated over time may well have very serious consequences for the child.

Read Article 8 here. For further discussion about what is meant by proportionality, see our post here. 

There are some useful law reports where ‘significant harm’ has been discussed. For example, Baroness Hale stated in B (Children) [2008] UKHL 35:

20. Taking a child away from her family is a momentous step, not only for her, but for her whole family, and for the local authority which does so. In a totalitarian society, uniformity and conformity are valued. Hence the totalitarian state tries to separate the child from her family and mould her to its own design. Families in all their subversive variety are the breeding ground of diversity and individuality. In a free and democratic society we value diversity and individuality. Hence the family is given special protection in all the modern human rights instruments including the European Convention on Human Rights (art 8), the International Covenant on Civil and Political Rights (art 23) and throughout the United Nations Convention on the Rights of the Child. As Justice McReynolds famously said in Pierce v Society of Sisters 268 US 510 (1925), at 535, “The child is not the mere creature of the State”.

21. That is why the Review of Child Care Law (Department of Health and Social Security, 1985)) and the white paper, The Law on Child Care and Family Services (Cm 62, 1987), which led up to the Children Act 1989, rejected the suggestion that a child could be taken from her family whenever it would be better for her than not doing so. As the Review put it, “Only where their children are put at unacceptable risk should it be possible compulsorily to intervene. Once such a risk of harm has been shown, however, [the child’s] interests must clearly predominate” (para 2.13).

In 2013 the now Lady Hale stated in Re B (A child) 2013 UKSC 33

Significant harm is harm which is “considerable, noteworthy or important”. The court should identify why and in what respects the harm is significant. Again, this may be particularly important where the harm in question is the impairment of intellectual, emotional, social or behavioural development which has not yet happened.

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. So once again, the court should identify the respects in which parental care is falling, or is likely to fall, short of what it would be reasonable to expect.

Sometimes, a lot of time is needed in care cases to argue about whether or not the harm in a particular case is serious enough to meet this statutory requirement. If the Judge decides there is no significant harm either being suffered now or likely to be suffered in the future, then he or she cannot make a care order or supervision order.

If he or she decides that there is enough evidence of significant harm, we move to the second stage of the necessary legal test – whether or not to make a care or supervision order is in the child’s best interests. This is called the ‘welfare stage’ of the test and we will examine this in another post.

 

Different types of abuse which can cause significant harm

In some cases it is very easy to see that a child has already suffered significant harm, for example when a child has been sexually abused or physically attacked. The court is likely to have clear and first hand evidence in the form of reports from doctors or the police who have examined or interviewed the child. The majority of people agree that being attacked or sexually abused is likely to be very harmful to children.

The more difficult cases involve issues of neglect and emotional abuse where it is hard to find one particular incident that makes people worried – rather it is the long term impact on the child of the same kind of harm continuing. These cases are particularly difficult when it is also clear that there are positives for the child in his or her family and the court has to decide whether the positive elements of family life are outweighed by the bad, or whether the family can make necessary changes quickly enough to meet the needs of the child.

For example, if on occasion you get angry with your child and shout at him or smack him it is highly unlikely your child would be considered at risk of significant harm if for the majority of the time you are loving and patient. But imagine a child who is shouted at and hit on a daily basis. It is not difficult to see how living in such an environment is likely to cause that child significant emotional or even physical harm.

See what the House of Commons Education Committee said about the child protection system in 2012.

Table 1: Children and young people subject to a Child Protection Plan, by category of abuse, years ending 31 March

Category of abuse

2006

2007

2008

2009

2010

2011

Neglect

11,800

12,500

13,400

15,800

17,200

18,590

Physical abuse

3,600

3,500

3,400

4,400

4,700

4,820

Sexual abuse

2,300

2,000

2,000

2,000

2,200

2,370

Emotional abuse

6,000

7,100

7,900

9,100

11,400

11,420

Multiple

2,700

2,700

2,500

2,900

3,400

5,490

Total

26,400

27,900

29,200

34,100

39,100

42,690

You can see from the Committee’s figures that the most common cause for concern about children in every year was the issue of neglect – but we can see a significant and consistent rise in number of cases of emotional abuse. The NSPCC confirmed that in 2015:

Neglect is the top reason why people contact the NSPCC Helpline with their concerns about a child’s safety or welfare – and this has been the case since 2006. In 2014–15 there were 17,602 contacts received by the NSPCC Helpline about neglect (3,019 advice calls and 14,583 referrals), an increase on the previous year13.

In 2012, the Education Committee examined the issue of neglect from paragraph 41 in their report and said:

41. Neglect is the most common form of child abuse in England. Yet it can be hard to pin down what is meant by the term. Professor Harriet Ward told us that, based on her research into what was known about neglect and emotional abuse, “we definitely have a problem with what constitutes neglect” and that “we need to know much more about what we actually mean when we say neglect”. Phillip Noyes of the NSPCC agreed that “There is a dilemma with professionals, and indeed the public, about what comprises neglect, what should be done and how we should do it”. He went on to explain his belief that: “at the heart of neglect […] is a lack or loss of empathy between the parent and child”.

42. There are two statutory definitions of neglect: one for criminal and one for civil purposes. Neglect is a criminal offence under the Children and Young Persons Act 1933 where it is defined as failure “to provide adequate food, clothing, medical aid or lodging for [a child], or if, having been unable otherwise to provide such food, clothing, medical aid or lodging, he has failed to take steps to procure it to be provided”. Action for Children has called for a review of this definition, declaring it “not fit for purpose” because of the focus on physical neglect rather than emotional or psychological maltreatment. Action for Children also believe that the definition leaves parents unclear about their responsibilities towards children and seeks only to punish parents after neglect has happened rather than trying to improve parenting.

[….]

The civil definition of neglect which is used in child and family law is set out in the Children Act 1989 as part of the test of ‘significant harm’ to a child. This is expanded upon in the previous Working Together statutory guidance which describes neglect as:

the persistent failure to meet a child’s basic physical and/or psychological needs, likely to result in the serious impairment of the child’s health or development. Neglect may occur during pregnancy as a result of maternal substance abuse. Once a child is born, neglect may involve a parent or carer failing to provide adequate food, clothing and shelter (including exclusion from home or abandonment); protect a child from physical and emotional harm or danger; ensure adequate supervision (including the use of inadequate care-givers); or ensure access to appropriate medical care or treatment. It may also include neglect of, or unresponsiveness to, a child’s basic emotional needs.

  • With regard to violence in the home between adults there is some useful information from the Royal College of Psychiatrists about the impact upon children of domestic violence here.
  • Read what we say about emotional abuse here.
  • Further information about the impact of neglect from research at Harvard University. 

 

Future risk of harm – what do we mean by ‘likely to suffer’ ?

Simply to state that there is a “risk” is not enough. The court has to be satisfied, by relevant and sufficient evidence, that the harm is likely

The most difficult cases of all are where a child hasn’t yet suffered any kind of harm but the court is very worried about the future risk of harm. It is this category which has caused most concern to those who worry about the child protection system as they feel strongly it is not fair to a parent to punish him or her by removing their child for something they haven’t yet done.

As Dr Claire Fenton-Glyn explained in her recent study on the law relating to child protection/adoption in the UK, presented to the European Parliament in June 2015:

A major problem with the law prior to 1989 was that it required proof of existing harm, based on the balance of probabilities. The local authority could not take a pre- emptive step to protect a child from apprehended harm, causing significant difficulties, in particular with newborn babies. As such, the inclusion in the Children Act of the future element of “is likely to suffer” was an important innovation, introduced to provide a remedy where the harm had not occurred but there were considerable future risks to the child. However, this has also been the cause of some controversy, as the answer as to whether a child will suffer harm in the future is necessarily an indeterminate and probabilistic one.

You can read about what the Supreme Court decided in a case like this in re B in 2013 where the court had to grapple with the issue of the risk to the child of future emotional harm.

Lady Hale said from para 193:

I agree entirely that it is the statute and the statute alone that the courts have to apply, and that judicial explanation or expansion is at best an imperfect guide. I agree also that parents, children and families are so infinitely various that the law must be flexible enough to cater for frailties as yet unimagined even by the most experienced family judge. Nevertheless, where the threshold is in dispute, courts might find it helpful to bear the following in mind:


(1) The court’s task is not to improve on nature or even to secure that every child has a happy and fulfilled life, but to be satisfied that the statutory threshold has been crossed.


(2) When deciding whether the threshold is crossed the court should identify, as precisely as possible, the nature of the harm which the child is suffering or is likely to suffer. 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.


(3) Significant harm is harm which is “considerable, noteworthy or important”. The court should identify why and in what respects the harm is significant. Again, this may be particularly important where the harm in question is the impairment of intellectual, emotional, social or behavioural development which has not yet happened.


(4) 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. So once again, the court should identify the respects in which parental care is falling, or is likely to fall, short of what it would be reasonable to expect.


(5) 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 court has to be satisfied, by relevant and sufficient evidence, that the harm is likely: see In re J [2013] 2 WLR 649.

Therefore, if the court is worried about things that happened in the past and wants to use those events as a guide to future risk of harm, it must be clear about what has actually happened in the past – you cannot find a risk of significant harm based on just ‘suspicions’ about what might have happened before.

See further the Supreme Court decision of Re S -B [2009].

Baker J commented in 2013:

In English law, the House of Lords has now concluded definitively that in order to determine whether an event has happened it has to be proved by the person making the allegation on the simple balance of probabilities. Where the law establishes a threshold based on likelihood, for example that a child is likely to suffer significant harm as a result of the care he or she would be likely to receive not being what it would be reasonable for a parent to give, the House of Lords has also concluded that such a likelihood, meaning a real possibility, can only be established on the basis of established facts proved on a balance of probabilities.

 

Please let us know if you think we should add something to this or if anything isn’t clear.

26 thoughts on “What do we mean by ‘significant harm’?

  1. Hilary Searing

    I share your interest in defining the key concept of ‘significant harm’ and have written an article on this subject What is Significant Harm? – a simple guide for social workers My intention was to help student social workers develop a deeper understanding of its meaning in practice and recognise the important role for social workers in preventing significant harm.

    Children’s social workers need better training in the law. Every day they are confronted with situations where they have to make fine judgements about risk. They need to develop a mindset more like that of a lawyer – so they do not act unlawfully.

    Reply
  2. phillimoresarah Post author

    Thanks Hilary, that is a good and very informative article – I agree. In fact, I will flag it up within the body of the post as it provides a lot more detail for those who need it.

    Reply
  3. C

    What is the legal position re: SC asking about risk of harm?

    A central complaint (among many) in our Stage 2 Terms of Reference was that the call handler who translated an anonymous request for advice into a referral, that was then made without informing or obtaining consent for information sharing with the parents, and without him asking whether this had been done, and if not why not, also did not ask whether or not the children were at risk of harm.

    As a result of the referral that was made, our doctor and the health practitioner were contacted for information, without our consent being obtained. The referral was faxed on to the police safeguarding team, with ‘Strategy required’ added by the call centre Social worker.

    Initially the Investigating Officer upheld this part of our complaint, commenting in her report that:

    The complainants say that it is good practice for the advisor to ask the caller if the
    children are at risk of harm. If it is agreed that there should be a s47 referral the
    object is to assess if there is or could be significant harm. The point of this
    complaint is to emphasise that the advisor and the caller did not have an explicit
    conversation about the nature of possible significant harm to one or both children.

    I agree that this was not discussed explicitly by the advisor and caller; there is an
    implicit assumption that this could be a concern about familial child sexual abuse.
    There is a discussion between the caller and advisor where she asks if the advisor
    considers this a matter for concern and in hindsight this would have been a good
    time for the advisor to have been direct and asked if this was a referral about
    possible sexual abuse…..

    …The complainants refer to some guidance that “before referring any child to Social
    Services you must seek permission from the parents”. This guidance is probably
    relevant to referral for s17 or child in need services. There are situations when
    there could be a discussion with parents before a s47 referral is made, but this is
    different from seeking permission from parents.

    (The implication here seems to be that our case was potentially a s47, but it doesn’t appear to have actually become one. We are unsure how to discover whether or not this is the case, and any way of confirming this would be appreciated.)

    However the Adjudicator, who had previously been the complaints manager, overturned this ‘ Complaint Upheld’ and persuaded the I.P. to change his report to agree with the Adjudicator. Here is what the I.P. commented, with the additions in his second final version highlighted in bold:

    Investigation outcome – I agree with the I.O. discussion and analysis of this complaint
    but I recommend to Adjudication that the complaint point should not be upheld.

    I.P. viewpoint – The advisor did not explicitly ask this question as worded
    in the TOR; the I.O. discusses that it would have been good practice to have done so and if this issue had been explored it could have further informed the decision making process regarding the judgement of the advisor to make a referral.
    Whilst the actual question as phrased in the T.O.R. was not asked this is a technical point as it is not a procedural requirement to do so, and the I.O. Is correct in concluding that it was implicit in the contact details and in the motivation for ….. placing the call.
    However, the key point in this complaint is the fact that a referral was made in order that an experienced social worker could make that assessment through the formal process of an Initial Assessment and a subsequent SC action also concluded that there should be a strategy with the police.

    * * * *

    It is not true that it was ‘implicit… in the motivation for …. placing the call. The call was to request anonymous advice. The Call handler insisted that it should be converted into a referral. Anyway…

    * * * *
    The Adjudication letter, disagreed with the findings of the I.O. only on this point: whether the call handler should have enquired about risk of harm.

    In his Adjudication letter, the Adjudicator said:

    It is not a matter of whether a complaint is factually correct
    The issue is whether the question should have been asked. In my opinion it was not an omission to fail to ask it. The nursery was consulting because they were not sure whether their information suggested that the children were at risk of harm. They clearly thought is possible otherwise they would not have phoned. Eliciting further opinion would have been pointless – it is clear they were worried but wondered if their worry was justified. It was for …/SC to decide that question by investigation.

    The cause for concern was soon found to be groundless. Once SC realised that we had been to the doctor over the same issue (nappy rash) a couple of weeks before, they decided N.F.A. relatively quickly. But as a result of the request for anonymous advice on how to inform the parents being translated into a referral, at the insistence of a call handler, our children have Social Service records for 21 years. And the police hold records for seven.
    Unfortunately much of the data in the referral is at least inaccurate and misleading, at worst pernicious and ungrounded assumption. Despite almost three years of protest, and many assurances from SC that data must be accurate, nothing has been corrected.
    We are ordinary parents, as opposed to professional child protection officers, as in the Haringey case, and so are uncertain of the legality of what the I.O., the I.P. and the Adjudicator are saying.
    We are very confused by the huge differences between our reading and interpretation of guidance, frameworks etc. and SC’s. Frequently they have not upheld a complaint while agreeing completely with every word within the complaint. They refused to include anything to do with ‘Working Together to Safeguard Children’ within our complaint purview, because we did not explicitly mention it in the T.O.R.; they appear to have breached ‘Getting the Best from Complaints’ in over 30 separate parts; they told us that their call centre has no child protection guidelines to follow, and make no mention of any in their reports.
    Most recently we have been bamboozled about who made the referral; they seem to claim that the nursery only made a contact; that although they specifically asked if they would have to give names, and were told they didn’t, if they were just wanting advice, and then in the next call were told that they would have to give names, they volunteered them. When the nursery was told this, they said they would have to go and get permission, then call back – and then they did not call back.
    However, according to SC, it seems the referral was not made by the nursery. ( which perhaps explains why they wrote nothing up…) It was made by the social worker in the call centre after she had read the inaccurate contact. Therefore they argue that the call handler, in the two hours between when he called to follow up the request for anonymous advice, and the second call that he made to discover whether the nursery worker had obtained permission ‘to go ahead’, did not need to inform his co-located S/W team that he had taken a child protection call – because he wasn’t taking a referral. (The words ‘strategy required. Information has been faxed to CAIT’ are the only difference between the call contact sheet and the referral.)
    We have gone to the I.C.O. who found that the data held was inaccurate. 14 demonstrable inaccuracies in 8 short paragraphs. We reckon over 2/3’s of the 300-odd words used are inaccurate and misleading. As a result of the ICO’s involvement, SC again said that they would make some corrections. On condition that we signed an agreement not to pursue the matter any further, and that the corrections were sight unseen by us, and non-negotiable. They also said that the only way that they could correct the information, since the file was closed, was by opening another child protection file on our children to sit alongside the first inaccurate one, the second pointing out the inaccuracies in the first. Inaccuracies that after two years, and a judgment by the ICO, they are still describing as “what you feel to be inaccuracies…”. We did not feel comfortable with any of this.
    We are anxious for our children not to be under threat from SC, and after progressing our complaint all the way to the LGO, without receiving satisfaction – or getting the record either removed or made accurate, feel we have little choice but to attempt what will be expensive legal action. But we are frightened of losing; after all, our concerns were scorned by the LGO,( who disregarded all the inaccuracies as not being their concern, as there was another public body that dealt with them, and said we were lucky that SC had not initiated a s.47). and, by our stage 3 complaints panel, who despite finding many elements that concerned them in the process, e.g. that the Adjudicator shouldn’t also be the Complaints manager, and shouldn’t be able to alter the I.P. report, etc. – only recommended changes in SC practice, and did nothing to help us.
    We have had an apology for ‘weaknesses in process’ from SC as a result of the Stage 3. In their report, the panel wrote that they ‘assumed’ that the data had been corrected and apologies already made. (They hadn’t, and two and a half years later, still haven’t.)

    Apologies for the length of this post. Any help/comments appreciated.

    Reply
  4. Sarah Phillimore

    I don’t want to think you are being ignored, but that is a long post and I don’t want to dive in and try to answer it without giving it proper thought. I will get back to you hopefully before end of weekend.

    Reply
  5. C

    Thanks for considering this – and once again apologies for the very long post. reading it back, I notice one part where I wrote a rather confusing chronology. To be clear: there were three calls: the first, requesting anonymous advice. The second, a call back, half an hour later – at the end of which the nursery said that they would need to get permission to make a referral; and the third, from the call handler to the nursery, asking if they were ok to go ahead. At the end of the 2nd call, he had said he would wait for their call. That was all on a Friday morning. We were informed by the nursery who said that they ‘had been bullied into making a referral’ on the Monday evening at pick-up. As a result of which, I called SC to discover what was going on – and was advised I need to go in for an I.A…. the Chronology created by SC and distributed to Stage 3 panel and the LGO persists in describing the nursery as ‘the caller’ and states that they made the third call to SC. It is clear from the recording that they didn’t. Plenty more misleading inaccuracies sprinkled through the Stage 2 report and the Chronology, which were called ‘accurate and comprehensive’ by the I.P., the Adjudicator and the Ombudsman… but I risk another lengthy post.

    Reply
  6. C

    Oh, one last thing: the nursery, who were never asked, and never wrote up their referral, responded to an email from us three days after the I.A., saying:

    I believe Social Services were wrong to insist we disclose your children’s names, despite our protestations. They did this on the basis that they had significant concerns.

    They then did not act upon these- but put the ball in our court in dealing with things in a more serious light!

    To put it bluntly- they took things forward and then left us to deal with the consequences.

    Including having the audacity to tell you that we rushed in too soon! They forced us too! Without asking the vital question ‘is the child in immediate danger?’ to which we would have replied ‘No’. Thus discounting the need to immediately disclose names- but be able to take professional advice on how we should communicate with yourselves in this delicate matter.

    I am fully satisfied that we followed correct procedures and acted correctly at every point. We did as we were told by social services, as professionals in these matters that is our legal duty.

    I will , in due course, be writing a letter to the relevant authorities outlining my concerns at their handling of this situation.

    When she wrote, we were already into our Stage 1 complaint – or so we thought … (we were later told by SC that we did not begin our complaint until two and a half months after the incident…) SC met with her without our knowledge and persuaded her to withdraw her complaint, they then told us that she had never made one.

    Reply
  7. Sarah Phillimore Post author

    I understand what you are saying to be this:
    1. A call handler decided that a request from your nursery for advice should be translated into a referral to SC despite not clarifying if this involved an issue of immediate risk to the children.
    2. a referral was then made, without informing you or obtaining your consent to share information
    3. Your GP and health practitioner were then contacted for information without your consent
    4. No further action has been taken as there were found to be no concerns but there are now records about you and your children with the LA and the police and these records contain serious inaccuracies which have not been corrected after some years.

    You have taken this complaint as far as the Local Government Ombudsman and although the substance of what you complain about has been accepted in some parts of the complaints process, your complaint itself has not been unpheld. You think that various guidelines have been ignored, including the ‘Working Together’ guidelines.

    But you have signed an agreement not to pursue this further?

    At first blush, this seems very similar to the Haringey case which we posted about here
    http://childprotectionresource.online/category/investigation-and-referrals/
    your data cannot be shared without your permission UNLESS a section 47 investigation is underway – there does not seem to be any evidence that this happened.

    As you have taken it as far as the Ombudsman, it doesn’t seem as if you have any other remedy so you could consider judicial review, which was successful in the Haringey case.

    their response about the inaccuracies in the information stored about your family is not satisfactory, but I confess I am not sure about the legal remedy for this or the implications of you signing an agreement not to pursue this. This isn’t my field of specialism so I am wary of trying to advise you about this in any more detail.

    I think you need to seek further advice from someone who specialises in this field of judicial review or malfeasance in public office; a public access barrister could provide an advice about your options for a reasonable fee. it may also be worth contacting @CelticknotTweet on twitter to see if they can advise anyone who could help.

    The Bar Council Public Access Directory is here http://www.barcouncil.org.uk/instructing-a-barrister/public-access/

    Good luck.

    Reply
  8. C

    Thank you so much for your response. Yes, I read the Haringey case, and agree that there are similarities. The main difference is that in our case SC went on to compound their original misfeasance with serial breaches of ‘Getting the Best from Complaints’, and by denying the existence of protocols that they knew we were asking for, and which we have since obtained via F.O.I.
    To clarify: we have not signed an agreement not to take the matter further. We refused to sign.

    Unfortunately, after the response from the LGO – we appealed their decision. We understood, perhaps erroneously, that we were required to do so, before we could progress to Judicial Review. The LGO then waited 91 days ( i.e. : one day over 3 months – the time limit for Judicial review) before responding that they had decided not to accept an appeal, and thus the original decision – now 91days old, would be the one we would have to take to Judicial Review.
    We spoke to Allan at Celtic Knot at the time, and his advice – as well as, ‘it is never a good idea to take the advice of your opponents…’ was that it was probably too late to undertake a Judicial Review, and that probably the best routes open now were misfeasance/malfeasance and the DPA. He also expressed the view that the LA barristers would probably attempt to bankrupt us… Do you think that it might cost us more than £20,000, to bring the SC to book?
    Allan’s advice made me think that perhaps the best way to defuse a strategy of bankrupting us would be to become a Litigant-in-person; although that option is daunting. The next possibility might be Direct Access, and I have investigated that – but was told by one barrister that the case was too complex for direct access and would require a team.
    Because I am relatively I.T. literate, I have prepared interactive navigable pages linking to many of the large quantity of documents, emails etc. – and a detailed chronology that sits alongside the SC one, containing excerpts of the background emails passing between the Adjudicator, the call centre and the I.P. etc.

    Reply
  9. Sarah Phillimore Post author

    Is a sensible compromise then to get some advice from a public access barrister about prospects of success/possiblity of costs order against you and then conduct the litigation yourself?

    It might be that you shake them into some better response if you show that you are prepared to take further action.

    Reply
  10. C

    Thank you again. That does sound like a possibility.

    In terms of receiving a better response – they know we plan to take things further, and I’m afraid that at this stage – after two and a half years of continuous complaint, I think it more likely that they would come round and kill our dog…except we don’t have one. I am sorry to say that our impression of Social Care within our county is that they are neither Social nor Careful; we have been lied to in writing frequently, all the way up to the Director. From reading your site, and from conversations with friends who work in the area of child protection, I am hopeful that this is not the norm…
    However, the profession in this county at least seems to be chronically sick.

    Do you think I should present my material separately to the hcpc, since it is obvious from it that many SC senior managers in this county do not meet their criteria? Or is it largely designed to support the system, ( as the LGO appears to be…?)

    Reply
  11. Sarah Phillimore Post author

    Sorry, I probably should know but what is hcpc?

    I hope it is not the norm. I wonder whether some things get ‘stuck’ and people dig themselves into holes and just keep digging when a simple acknowledgement and apology at an earlier stage would have made all the difference.

    But as a general rule I don’t think any public body should keep inaccurate information or disputed information without making it clear in the records that the credibility of that information is not accepted and the reasons why. I think you are right to be concerned about that. It can certainly muddy the waters for any future involvement/investigations.

    Reply
  12. C

    The Health & Care Professions Council. they are the standards body for Social Work – and run ‘Fitness to Practice’ hearings.

    http://www.hpc-uk.org/assets/documents/10003B6EStandardsofconduct,performanceandethics.pdf

    Their standards for social workers include:

    2 be able to practise within the legal and ethical
    boundaries of their profession

    2.1 understand current legislation applicable to the work of their
    profession

    2.2 understand the need to promote the best interests of service
    users and carers at all times

    2.8 recognise that relationships with service users and carers should
    be based on respect and honesty.
    3
    be able to maintain fitness to practise

    3.1 understand the need to maintain high standards of personal and
    professional conduct.

    8.3 understand the need to provide service users and carers with the
    information necessary to enable them to make informed decisions
    or to understand the decisions made.

    8.11 be able to prepare and present formal reports in line with
    applicable protocols and guidelines.

    ( I assume those guidelines include accuracy and honesty…)

    9.2 be able to work with service users and carers to enable them to
    assess and make informed decisions about their needs,
    circumstances, risks, preferred options and resources.

    10 be able to maintain records appropriately

    10.1 be able to keep accurate, comprehensive and comprehensible
    records in accordance with applicable legislation, protocols
    and guidelines

    10.2 recognise the need to manage records and all other information in
    accordance with applicable legislation, protocols and guidelines.

    11 be able to reflect on and review practice
    11.1 understand the value of critical reflection on practice and the need
    to record the outcome of such reflection appropriately.

    11.2 recognise the value of supervision, case reviews and other
    methods of reflection and review.

    12 be able to assure the quality of their practice

    12.1 be able to use supervision to support and enhance the quality of
    their social work practice.

    I estimate that SC fail on all of the above in their dealings with us. What I don’t know is whether the Health Care Professional Standards body is really going to be fair and treat our complaint any less abusively than SC have. And at this point, especially after our experience with the LGO, our level of trust is extremely low.
    For instance, the Ombudsman copied out inaccuracies that were maintained within the SC Stage 2 complaint report. We found this surreal. For example, in his provisional view, which took him four months to arrive at, inaccurate and misleading statements made first in the contact record and maintained in the Stage 2 complaint report, despite our protests were fed back to us. e.g. “…the mother when questioned about the mark was unable to provide an explanation which allayed the concerns of staff at nursery C.”

    There is no mention of the mother having been questioned, or asked to provide any explanation, in the call audio – and this has at last, been accepted by SC under pressure from the ICO.

    When we challenged the Ombudsman he admitted that he hadn’t listened to the calls, but said that:
    “The Ombudsman sets the parameters of his investigation.”

    With regard to significant harm – the Ombudsman’s view was:

    It was implicit during the course of the three telephone conversations that the caller
    was supplying information which related to a concern that children were being
    significantly harmed/were at risk of being significantly harmed. The call handler
    asking whether the call related to significant harm affecting a child was therefore
    unnecessary. I am also satisfied that it would have been unnecessary for the call
    handler to have asked whether the caller had notified the parents of her intention
    to make a referral since it was implicit in the details provided that she had not.

    We would like to point out a) the nursery weren’t the caller. Our understanding of WTSC framework is that if the decision is taken not to inform the parents, there should be an explicit reason why not. That might be increased risk of significant harm – but if no questions about risk are asked in the first place, how can this judgment properly be made?

    The Ombudsman appears to pretend that a S.47 had been initiated. He quote, under relevant law:
    Local authority children’s services have statutory duties and powers under section
    47 of the Children Act 1989 to protect children and young people. These duties
    include:
     To make (or cause to be made) such enquiries as they consider necessary
    to enable them to decide whether they should take any action to safeguard
    or promote the child’s welfare.
     When enquiries have been made, to take appropriate action, if necessary,
    to protect children and young people who have been abused or are at risk
    of abuse.

    …But the 2nd Ombudsman, who refused our appeal, said:

    It could be argued that the correct course for the Council to follow was to instigate a section 47 investigation rather than to close the case after an initial and rather more cursory investigation. This would of course have been more stressful and protracted for you, and so I cannot say that you have been caused injustice by the fact that the Council dealt with the referral less formally.

    Reply
  13. C

    Ooops – sorry. I don’t understand why the whole post went into bold. Perhaps I didn’t close a tag….

    Reply
  14. Sarah Phillimore

    That’s quite an interesting point – that you were better off because the LA chose NOT to follow its procedures?

    But also a very dangerous point. The comment CelticKnot made in his blog about the Haringey case was that procedures do matter because one of the obvious consequences of failure to follow them is a lack of trust between the parties – as has plainly happened here.

    You appear to have certainly identified a failure to adhere to paragraph 10.1.

    Thanks for that link – I think we should include it in our investigations and referrals post.

    Reply
  15. C

    Paragraph 10.1 of what? Working Together…?

    Certainly there has been a breakdown of trust. My partner is afraid to take the children to the doctor; she asked me not to accept an offer to do face painting at my older daughter’s school ( I’m/ I was an artist), etc. More significantly for us, though, is the fear that our children will be treated differently because of having a mark ( or two marks, if we had agreed to have the inaccuracies corrected with another child protection referral) against their names throughout school. We think that sort of insidious surveillance is psychologically damaging, and will tend to breed an unhealthy curiousity which may lead to another ‘concern’ being brought to SC.

    So our children are vulnerable, and we have learned during this process that SC are nothing if not vindictive. E.g. when we approached our councillor about the matter, and she spoke to them, she returned to us saying “Well, they do say there’s no smoke without fire,” and that she was told that by complaining as loudly as we have, “we fit the profile”. Which profile exactly wasn’t made clear. She would do nothing more to help us.

    Anyway…

    I’m sorry. I feel I have made great use of your resource, for which I thank you. I have a couple of other outstanding questions that I was never able to get SC to address.

    1. The nursery.

    They never wrote up their referral. Despite a ‘compliance unlikely’ ruling from the ICO dating back to Nov. 2011, they have never revealed to us the confidential source logs that they held on our children, which were the source of much of the misinformation. The SC, despite meeting with the nursery long before they ever met with us, always refused to look at them – and because the nursery is independent, SC ruled that they could not be included in the complaint.
    ‘ The complainants are concerned at the accuracy and nature of the information
    provided ….. by …. Nursery but this cannot be investigated as part of this complaint.’

    So no-one from nursery was ever invited to interview. This seems to us to breach Getting the Best 3.6., as well as undermining any fairness.
    I approached the Chair of the LSCB re: the nursery, who were told by SC that they had behaved ‘entirely appropriately’ – but she never replied, having been told by the Complaints manager, who is also the LSCB coordinator that there was “nothing for you here”. Isn’t it a conflict of interest that the Complaints manager is also LSCB Coordinator…?

    An assistant Area Manager and a social worker lied to the police, and then to the complaints officers, as a result of which I was almost arrested for ‘threatening to burn down the nursery’. This was not proven until Dec.2013, but has now via an independent police investigation which we initiated. When I presented this material to the SC, the Complaints manager/LSCB coordinator said that it ‘did not affect the outcome of their investigation’ and thus did not matter. But them telling the nursery that I was planning to burn it down caused the nursery owner great distress, and breached all effective contact between us and them, which hurt our children and obstructed resolution.

    2. Within the body of the third telephone call is a sentence which the nursery begin with – “Daddy said…” They then go on to list things I had said to them. It is quite clear, but was not heard by the call handler, who then attributed the list of statements as having been things expressed by our 18 month old. This makes them appear rather sinister. Despite the record being ‘checked’ by three ( at least) S/w’s prior to our I.A. no-one noticed that the paragraph of statements attributed to an 18 month old were remarkably sophisticated. Except us. Nor did anyone in either of the Stage 1 investigations, despite our continually telling them. Finally at Stage 2, the Investigating Officer accepted that “it was unlikely that an 18 month old could have said these things.” However, she could not resist maintaining the tendentious line. Neither she nor the I.P. would take on board our transcript of the call, ( I don’t if they even read it…) and obviously they were unable to listen for themselves. Because they cannot listen.
    So she included in her Stage 2 report, considered accurate and comprehensive by the I.P., the stage 3 panel and the LGO, the lines:
    “This controversy masks the discussion of a disclosure by the 4 year old.”
    (Our elder daughter.)
    And:
    “I have not discussed the implications of the 4 year old possibly saying these things)”.

    In her Overview to the Adjudicator, she says:

    “The caller said that the 18 month old provided clear verbal information and then said ‘they’ i.e. both children provided information.”

    Well, she wasn’t the caller, she didn’t say that the 18 month old provided any information and she didn’t then later attribute it to both girls… This brand of ‘comprehensive accuracy’ persists throughout the report, despite our relentlessly pointing it out. One more example: ( there are so many!!):

    The nursery describe the nappy rash as ” the only way to describe it is a rash 1″ in diameter”…
    This is transcribed by the call handler as “red marks 1″ in circumference.”

    This is not accepted as an inaccuracy as ” there is no material difference”.

    Trying telling that to an engineer. There is a 300% discrepancy in scale, and the comment has moved for singular to plural: in our view what was nappy rash has been transformed into possible stab marks.

    Another in our view serious, and persistent, inaccuracy: “When Mother was questioned she said she could not comment…” She wasn’t questioned, she wasn’t asked to comment. thanks to the ICO his inaccuracy along with 14 others has now been accepted, but not until our complaints process was considered complete.

    Doesn’t this kind of pernicious and misleading argument undermine any possibility of a sound adjudication?

    The line from SC, and the LGO, is that none of the inaccuracies, none of our arguments make any difference, because it would have had to have been referred anyway. We argue that if the nursery had been encouraged to share their concern with us, ( and they were calling to request advice on how to broach matters with the parents…”we won’t have to give names, will we?”, they say at the outset…) we would have told them that we had already taken her to the doctor two weeks before, and were applying cream, and our children wouldn’t have child protection records.

    We fully appreciate that the misleading information that was recorded as the contact – read in isolation, without verification – would lead anyone to consider that more investigation was required. We have never argued that it wouldn’t. ( This raises a separate issue: given the seriousness of the misinformation, shouldn’t there have been an exploration of immediate risk of harm; shouldn’t the SC have responded more quickly? We approached them 4 days after the referral was made…. )

    However… if it were accurately recorded, if proper procedures were followed, if we been approached about the issues ( some of which, according to the nursery were over a year old…), if we had been allowed the advocacy we kept asking for, if the I.O. and I.P weren’t too arrogant to read our transcript, if the Adjudicator… if… if… then the outcomes would have been very different, and our family would not have been made to endure a thoroughly unnecessary nightmare, that still continues. and which became worse the more the SC complaints process pretended to try and resolve it.

    This looks like systemic corruption to us…

    Reply
  16. Sarah Phillimore Post author

    It does indeed sound like a catalogue of incompetence and misery and a system that is not responding well or at all to complaints. But I don’t see how that becomes ‘systemic corruption’ as that to me implies a purpose. Sadly, I think it more likely that it is more likely incompetence and (over)reacting to problems, rather than trying to see that the problems don’t arise in the first place.

    I am afraid I don’t have anything helpful to say about the nursery; it seems very odd to me that they are able to hold information about you that you can’t see or challenge. All I can suggest is that you try to get some initial steer from a lawyer who specialises in this field, to see if it is worth taking it any further.

    Have you tried contacting your MP?

    Reply
  17. C

    Yes, I’m afraid our MP is a liberal democrat… He tried, but was anodyne.
    Everyone seems to be in fear of SC.

    Agree that their ineptness is not often purposeful, more like corruption in the way rust corrupts.
    Dogmatic fatigue, lack of education and training, lack of resources, all that.
    However there have been a couple of instances tending towards the malicious.

    I got into the whole “he threatened to burn down the nursery” thing because I quoted Lacan, and tried to say “Don’t you see how your behaviour is radicalising.. By so radically disempowering us you are creating the very problems you pretend you want to solve…” sort of stuff. The fetishistic surplus, etc. Definitely a mistake on my part to theorise. But I was threatening a thesis, not arson.

    I have contacted CelticKnot to ask if he can recommend any resources. Thanks so much for your time, help and advice. I am presently preparing stuff with a view to sending it to Doughty Street for an opinion.

    Reply
  18. Sarah Phillimore Post author

    One thing I have noticed which is common to many professionals is that they do not like to be challenged. In any respect. This is their problem and their weakness, but it can have horrible consequences.

    Happy to help but conscious that I haven’t been much help here; I will be very interested to follow your case if it does go to court.

    Reply
  19. C

    What irks in the end, is it is so trivial. It feels like nit-picking pedantry to dispute the accuracy of some files that may never be seen again. So not how I imagined the last three years of my life…
    But SC have proved demonstrably that they cannot be trusted, that they are deceitful and vindictive.
    So… if for any reason, a teacher’s assistant, for example, was to call them with a concern, no matter how trivial, all this misinformation will immediately become active again, and grotesque distortions from the contact record/referral like:
    ‘Last year the Father disclosed to the staff that Mother was locked out of the room when he and the 4 year old were playing.’
    and:
    ‘Father seems to provide all personal care away from the Mother in a seemingly purposeful way. Fathers lack of concern at the behaviour of his 4 year old and his willingness to describe it to a staff member without fear of consequence is also worrying.’

    [… In Feb. 2013, after we had received a judgement for the ICO, SC finally accepted that the word locked was inaccurate, and that there was no justification for having changed ‘room’ into ‘bedroom’ in the IA.

    They also conceded: re Paragraph 8:
    The Council concedes that the audiotape does not support this written statement.
    The Council concedes that the audiotape does not indicate any lack of concern on behalf of …Father… for his daughter’s welfare.

    – Which is particularly big of them, but doesn’t concede that the whole of Para. 8 – most of which is quoted above – is an absolutely unverified assumption based solely on the previously conceded inaccuracy.]

    Anyway in Feb .2013 we were optimistic that things might finally be brought to an end, and would not risk returning to distress our family. I still cannot comprehend why when these statements are not supported by the telephone record, it was not a simple matter to correct them. Why did they want so badly to hold onto misleading information – and there is still plenty of misleading stuff held in their reports that they are not prepared to address? …Is it really just so they didn’t have to say they got it wrong? They’ve (albeit begrudgingly, and over a year after the incident) apologised for ‘weaknesses’ ( non-specific).

    Throughout they kept saying that it is important that the information held is accurate.
    c.f: From Stage 2 Report April 2012:
    In his stage 1 response dated 12 October 2011 …X… accepted that these details were recorded inaccurately …. and agreed to arrange for them to be changed.

    However, in Stage 2 report (April 2012) the recommended course for redress of the inaccuracies, is:
    The recommended course of action is to ask the CSM to ‘re-open the case file.’

    We were told that doing this would re-set the date, thus meaning the records would be retained for even longer.

    Then:

    The feedback section of the referral form can be activated and the complainant can be offered the opportunity to provide a short summary correcting the mistakes and inaccuracies in the record.

    The feedback section of the initial assessment form complainant can be offered the opportunity to provide a short summary correcting the mistakes and inaccuracies in the record.

    …but that means that they didn’t accept the inaccuracies, they only accept that we claim things are inaccurate – and we know clearly that whatever we say counts for nothing.

    Thus these recommendations were unacceptable to us. We wanted them to correct the inaccuracies that they recorded. This they refused to do, until they received a judgment from the ICO. Then, as I’ve alluded to above, they agreed to place a document written by us onto the record on conditions:

    This is from the Director of SC:

    Once you have signed and returned the attached letter of agreement, I will ensure that the
    document of amendment, drawing directly on the wording agreed with the Information
    Commissioner’s Office, along with the PDF document you provided to … SC… entitled
    “Amends” are added to your children’s ….. record via a new child protection referral.
    Once this new referral is closed, the retention period of 21 years will begin.
    The timescale for your reply is pragmatic, not based in legislation, and is to try to bring this
    matter to close. I will now work on the basis that if I do not receive the attached letter within
    ten days of the date of this letter, you do not wish the County Council to take any further
    action.

    The letter we had to sign was to give permission for another child protection record to be opened on our children, and to promise no further action. The ICO said they had not agreed any wording, and that it was ‘unreasonable’ to expect us to accept corrections, sight unseen, and without the possibility of negotiation.
    So we didn’t sign. So the inaccuracies remain – and SC say ‘you had your chance. The case is closed.’

    ..At least we have all this documentation as some sort of proof – but we would like to bring their arrogance to book. Anyway, we believe it is unlawful to place conditions on changing inaccurate data, and to make it impossible for further changes to be requested, if it is found still to be inaccurate after they have placed yet another child protection record on our children’s names. This, I suppose is what must be tested in court.

    …With reference to your specialism, which paragraph 10.1 did you mean? I looked at both the children’s act, and WTSC – and it wasn’t clear to me.

    Reply
    1. Sarah Phillimore Post author

      Sorry, I meant para 10 of the HPCP standards of conduct – you must keep accurate records. I don’t know where ‘10.1’ came from – sorry for the confusion. A good lesson in the need for accuracy…

      Sounds like a good test case to explore what this duty really means and what LA should reasonably do.

      Reply
  20. C

    We didn’t sign. But we did write and inform them why.
    And asked them to confirm receipt. They didn’t.

    Reply
  21. C

    Just quick update to all on the basis of my subsequent experiences with the HCPC.
    Don’t waste your time with them.

    They pretend to care about standards but will only uphold them in the most egregious cases – if social workers lie, or mislead, or supply false evidence, it appears they won’t do anything. They investigated our case, and on the basis of their investigation, decided not to investigate, because the case had already been investigated by the LA. You what? That complaint investigation was what we were protesting to them about!

    Reply
    1. Sarah Phillimore Post author

      I am sorry to hear that. I shall look forward to your address at the Multi-Disciplinary Conference, as it certainly does not seem you will be short of material. What a shame they are so useless.

      Reply
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