Author Archives: Sarah Phillimore

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

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

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

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

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

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

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

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

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

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

My view of the law.

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

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

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

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

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

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

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

Section 12 does not prevent publication

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

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

Wilson J commented:

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

Munby J agreed with this observation and concluded:

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

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

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

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

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

Born into Care: Newborns in Care Proceedings In England

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

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

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

Numbers are on the rise

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

Regional variations

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

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

Subsequent Infants

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

Duration of care proceedings

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

Final Legal orders

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

Further questions

The report identifies the following areas requiring further consideration

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

Main themes emerging from discussion

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

https://twitter.com/SVPhillimore/status/1049593241341976576

https://twitter.com/SVPhillimore/status/1049644912575172608

https://twitter.com/SVPhillimore/status/1049648166075883520

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

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

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

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

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

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

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

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

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

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

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

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

James Hind describes AI in this way:

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

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

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

The history of predictive analytics in child protection – Allegheny County

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

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

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

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

What’s the problem?

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

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

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

Follow the money

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

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

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

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

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

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

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

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

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

Garbage In: Garbage Out

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

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

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

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

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

The authors comment:

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

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

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

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

James Hind puts it this way:

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

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

Conclusion

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

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

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

EDIT September 26th – further comments

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

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

EDIT NOVEMBER 17th 2019

Community Care report that Hackney have abandoned its venture into algorithms after it did ‘not realise the expected benefits’.

How do we judge standards of care for children?

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

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

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

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

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

Should I be able to ask for more?

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

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

…And by contrast

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

High standards are good but they are also problematic

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

What will be the legacy in years to come?

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

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

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

#CPConf2018 – putting ‘future emotional harm’ in context

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

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

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

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

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

FUTURE EMOTIONAL HARM – the SUPREME COURT PERSPECTIVE

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

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

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

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

25. Guidance on threshold from the Supreme Court.

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

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

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

https://twitter.com/SVPhillimore/status/1040841426194636800

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

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

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

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

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

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

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

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

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

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

The review of Shayla’s death.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Information withheld while the mother had PR

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

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

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

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

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

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

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

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

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

Shame

Thank you for this post to a parent who wishes to remain anonymous.

“I will be back on Monday, you see, I just need a loan to get a van on the road” I happened to be a spectator as a man vented his rage . I gathered that he had been ordered to attend a basic skills course as part of the jumping hoops that goes hand in hand with claiming job seekers allowance.

At one time I would have just dismissed this man as bad tempered and full of pride. Today I recognise the primary driver of his rage as shame. In part of his diatribe he announced he was a time served painter and decorator, he had plenty of work just waiting for him.

Shame is the brother of guilt and the two are often confused. Put simply guilt tells us that we have done something bad whereas shame informs us that we are bad. Guilt can be a positive emotion, it regulates our behaviour. Shame tends to escalate behaviour, rage, irrationality, increase of mental health problems, even suicidal thoughts can all arise out of shame.

We are all guilty of using shame to control others, it increases our power and diminishes theirs. It is also a useful short cut when we are lacking time or stressed ourselves. It is wrong though. Shame eats away at pride, self esteem and dignity of the victim. It isolates and makes any chance of a fruitful relationship almost impossible.

So back to our decorator, the trainer was a woman in her thirties, he was certainly nearer sixty. Of the generation when a school leaver could finish school without any formal qualifications on a Friday and walk into an apprenticeship on a Monday. He was now being faced with having his literacy and maths assessed after years of employment, he would have felt humilated. It was not the trainer’s fault, but nevertheless he reacted out of shame.

The Care Crisis Review https://childprotectionresource.online/care-crisis-review/identified a culture of blame and shame within child protection. Shame is dishonouring, it tells a person that they are less than, not good enough, it shatters self esteem and sets up a cycle of conflict.

It can be intentional, just as matter of unfortunate circumstances or it can be intentionally built into a system. I would suggest that in some Government schemes such as benefit sanctions shame is embedded into system. I can also see that within the child protection system ,children can exhibit shame based behaviours after intervention and family members certainly do.

Certainly some shaming is deliberate, it is one of the prime tools of bullying, as it gives power . When used personally , it is also a sign of immaturity, small children use it to regulate each others behaviour. Shaming is also widely used in social media, probably more so than in “real life”.

Families often come into child protection because of problems of domestic violence, addiction or mental health impairments; all of which are to some extent shame based. Domestic violence certainly can be fuelled by shame, a perpetrators need to control and shame their victim may arise out of their own feelings of inadequacy. The victim in turn, feels too ashamed to get help. Addiction and mental illness, which are often intertwined can often be traced back to childhood trauma, sometimes inter generational trauma, which is shame based.

Those of us who live with shame on a daily basis learn the shame game, we react rather than act. Interventions in our lives our perceived as personal threats whether they are or not and we defend ourselves, by shaming back and/ or avoidance. In other words the classic fight or flight response. Parents aggressively shame social workers and judges on social media and withdraw from working with professionals. There seems to be too much at stake as any intervention seems targeted at undermining the very person we perceive ourselves to be, making us feel small.

It’s ugly. What encourages me though it is certainly no more gross than the apartheid in South Africa which came peacefully to an end through reconciliation. To some extent , the regular contributors on this forum have demonstrated this willingness to listen and respect each others viewpoint and it has worked , we have found common ground despite our diverse backgrounds. We have said ” I hear you” , even if I don’t like what you do I will see you as a human being with something valuable to contribute to the debate. Not always, but for a very good percentage of the time.

As I said, it happened in South Africa, it was not about forgiveness, though that sometimes was the outcome, it was about having space and safety to have the injured parties story told. If you think I have gone off on a tangent , I haven’t; people were imprisoned , killed and segregated for being non white. They were shamed for being born the wrong colour. As Helen Sparkles says parents are mainly sad not bad, they may have been brought up in care themselves or have a combination of the problems already mentioned. They can be shamed through the system, for a variety of reasons, some of which relate to lack of resources. I am not saying they are all victims , but some are. The power imbalance is enormous and shaming is related to power.

When working with parents displaying shame based behaviours, I would suggest trying to build them up rather than taking them apart. Assertion training is excellent and gives woman in particular options other than passive /aggressive behaviour. She can then model these learned skills to her children. I am not being condescending, just writing from experience. When I was treated with respect by a social worker, I relaxed, he relaxed and we formed a working relationship. I do recognise that social workers themselves are often working in shame based environments, for instance is not disrespectful to expect them to hot desk, what does this actually say about what their employer thinks about them?

I would like all those involved in what ever capacity in the child protection system to consider the following:

Become aware of how and why you shame people in your relationships.
Notice your payback through shaming
Work through the implications of the damage that occurs to others and yourself through shaming.
If you do need to confront someone, try and accomplish this with respect.

This is a huge subject, I have in this blog post just tackled the tip of the iceberg. It is important as it is such a negative feeling, endemic on all sides in child protection and never leads to a positive outcome.

What happens when you abandon the rule of law?

On August 25th I attended the ByLine Festival which has as its tag the phrase ‘dance, discuss, laugh and change the world’. I can’t comment as to the first three as for at least two of them I am temperamentally or physically unsuited. However, ‘changing the world’ is a bold ambition and its worth unpicking what kind of ‘changes’ are meant within this.

That morning I ended up at ‘The New Age of Consent: What #MeToo means to Millennials’. This was by accident not design as it was late starting and the eventual line up I think was different to advertised. But I was glad I stopped by, if only because I think it is very important to understand what is happening and just how dangerous it is.

The panel was made up of three young women, who I think were all journalists but I will confess to not initially paying much attention. However, some comments made me sit up, stop playing Candy Crush and pay some very close attention.

There were some sensible and interesting points made, most particularly that we need an urgent change in attitudes about sex and how we talk about it – it is clear we are failing to educate our children and give them the tools they need to navigate sexual misconduct as they grow into sexually active adults. I assume this is because we are too embarrassed or afraid of tarnishing their ‘innocence’. Instead we are creating a generation of young adults raised on porn but without the confidence or knowledge to claim their own bodies and express out loud what their boundaries and preferences are. So I agree entirely with that point and would have liked to have heard more discussion about how we can achieve more open and healthy conversation about such a fundamental part of human existence.

The sense of that point however was overshadowed for me by something far, far darker. During the course of comments from the panelists, I heard the following:

https://twitter.com/SVPhillimore/status/1033292038618394624

https://twitter.com/SVPhillimore/status/1033292792200613889

https://twitter.com/SVPhillimore/status/1033293298545446913

https://twitter.com/SVPhillimore/status/1033294090417434624

These comments were justified primarily on the basis that

False allegations make up only 3% of cases – women just wouldn’t lie about this kind of thing
The ‘rule of law’ and due process is a ‘straw man’ (this comment, horrifyingly, from another journalist in the audience)

There are a number of things I would have liked to say but didn’t have the opportunity.

Explain your evidence base

Where does this 3% come from? I have a vague memory of being referred to this in other online debates but as no-one has ever bothered to explain the provenance of this statistic and I don’t have time to go digging, we are left with this figure of ‘3%’ floating about. I need to know a lot more about how that figure is determined. If it is a figure representative of just the number of women who end up convicted of perjury or perverting the course of justice, then that is as useless as relying on the low number of rape convictions to argue that rape isn’t a problem. The number of criminal convictions for an offence are a guide, no more, no less. And sometimes a very misleading guide. No one can realistically argue that the rate of conviction for rape, for e.g. is a reasonable reflection of the popularity of rape.

I am not at all sure that ‘false allegations’ from women about the bad behaviour of men are vanishingly rare. That very morning the Times reported, for e.g. on a woman who made a false allegation of being threatened with a shot gun by a man with whom she had been in a sexual relationship that went sour. She was found guilty of attempting to pervert the course of justice but escaped a jail term. Her victim had to spend 18 hours in custody until CCTV revealed the lie.

And even if they are ‘only’ at 3%, let me make a gloomy prediction. If we continue down this route of denial of due process and simply ‘believing’ any allegations at the moment they are made then that 3% is going to grow and grow.

Those who dismiss the rule of law also seem to struggle with the law of unintended consequences. It will give me no pleasure to be proved right about this but I am remarkably confident that I will be.

The Rule of Law is a ‘Straw Man’

I am not sure I even understand what is meant by ‘Straw Man’ – the now ubiquitous retort it seems to any attempt at dialogue that does not mirror your own preconceptions. It is defined on line as:

an intentionally misrepresented proposition that is set up because it is easier to defeat than an opponent’s real argument.

This is actually quite terrifying . What on earth was that speaker trying to achieve? Suggest that my wish to defend due process in fact masked my desire to allow as many men as possible to carry on sexually abusing without redress?

To hear the rule of law dismissed in this way by someone identifying as a journalist was truly disturbing. Even more so in a context where the panel themselves cheerfully admitted they hadn’t given any thought to how their calls for summarily dismissal of any man accused of sexual harassment would pan out, other than hey, it wasn’t really a problem as they weren’t asking them to be put in prison and ‘no system is perfect’.

No system is perfect

Of course no system is perfect. But this childish plea for perfection being used as excuse to simply jettison the current system is an astonishingly naive and stupid thing to hear from people who tell me they are journalists. I am often highly critical of journalists cut from the cloth of Sue Reid and Christopher Booker, for example – but I thought the best of journalism represented the best of humanity; fearless independence, analysis, critical thinking and speaking truth to power.

I have watched with mounting concern the same desire to diminish or disregard the rule of law in other professions, most notably social work. The rule of law is the protection of us all against the arbitrary imposition of state power or allowing us to be victims of an individual’s malicious grievance.

Woody Allen was referenced by the panel. They ‘couldn’t believe’ he was still in work after all the allegations made against him. But here’s the thing panel; those allegations of sexual abuse of his daughter didn’t go to a criminal trial. They were investigated within the civil proceedings relating to child custody and no findings were made. It is clear that Dylan Farrow, her mother and brother Ronan ‘believe’ with all their hearts something horrible happened. But it is equally clear that this is denied by Woody Allen AND their brother Moses who was also present during the time sexual abuse was alleged to have occurred.

To proceed on the basis of ‘I believe’ means you must also say ‘but I don’t believe YOU’. Why is Dylan Farrow afforded immediate ‘belief’ but Moses is not? Why would anyone call for the imprisonment or poverty of a man on the basis solely of another’s ‘belief’? If Harvey Weinstein is a brute, then who is Asia Argento? Presumably we all ‘believe’ what her alleged victim says?

These are only two examples out of many. But, in my view at least, they reveal the insanity of attempting to defend any kind of movement that seeks to remove one category of crime from the process of allegations, proof, investigation and determination at a court or tribunal hearing.

I wonder if the rule of law, like feminism, has done the heavy lifting for so long behind the scenes that we are all somewhat careless now of its efforts and achievements. Nothing else I can think of explains the casual dismissal by some of the importance of both.

I am both sad and angry by what I heard on Saturday. I certainly hoped and expected better from journalists, than the embrace of such dangerous platitudes based on no thought about the consequences for us all that would inevitably flow from their adoption.

Failure

I am grateful for this guest post from a parent.

Failure

Meaning -” lack of success, the neglect or omission of expected or required action.”

It is essential and right that the Care system exists. It represents a failure on very many fronts that it has to.

In most cases if a child enters care there will have been a catastrophic failure in one or more spheres – in a parent’s capacity to safely support their child at home for whatever reason, in services ability to support parents in their parenting role, in the State’s failure to invest in an environment where families (one of the key building blocks of society?) are supported. In most cases the care system is the safety net for children and young people when one or more of these failures have occurred.

In my case, by the time my son entered care I was at my wit’s end. I had tried everything I could to get help for him and the effort brought me closer to my breaking point that anything I’d experienced before or since. I felt as though I was fighting for his life largely unsupported. I’m sure there were those who believe I was too interventionist because of my own fears and those who believe if only I’d been a better mother that there would not have been these problems. What I would say to the people who feel I was too interventionist is “I did not make the decisions by and large. My son and the various professionals who became involved because of my interventions to try and make things better for him, did.”

I do not see my son now nor do I know how he lives, what he lives on, if his hayfever is affecting him at the moment, whether he eats, whether his clothes or shoes fit him, whether he has a dentist or a doctor and who he turns to when he needs help. I’m also aware that his former corporate parent is in the same position. Even if they did, as I was told again and again, they would feel their duties around confidentiality to him would mean that I could not be told anything about his wellbeing. In my dealings with professionals I only met one doctor who unambiguously crossed that ever present red line about sharing. I am very grateful to him for this because it often seemed to me that ‘not sharing’ with me was damaging for my son and needlessly turned into an exercise in inhumanity and cruelty to me.

Is that the price of failure? If so whose?

The thing that gives me comfort when I try to make sense of it all is knowing that I tried to do the right thing at the right time with the resources available to me in each and every situation. I do not have regrets on that front although I know I probably made some wrong moves along the way. I am hopeful that some of these may yet come right. No one knows what the future holds and life is nothing if not unpredictable. It is a better strategy to hope than worry when you cannot affect outcomes.

With my very mixed experiences, I always feel nervous when I hear the case being made, generally by people involved within it in one capacity or another, that the Care system is inherently good. Do we want anyone’s child to have to experience what my son did, what our family did and then call it a good outcome because the Care system was there for him? Do we want any child or young person to face such an uncertain future, essentially alone and unsupported, as he does now that he is a Care Leaver?

I want the best Care system possible for children like my son who enter it because whoever has failed or wherever failures have occurred, children affected pay the highest price and the failures are never theirs. They must never be failed further by a broken safety net nor a cut-price Care system.

It is essential and right that the Care system exists. It represents a failure on very many fronts that it has to.

My view of the law.

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

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

Further reading

Numbers are on the rise

Regional variations

Subsequent Infants

Duration of care proceedings

Final Legal orders

Further questions

Main themes emerging from discussion

Further reading

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

The history of predictive analytics in child protection – Allegheny County

What’s the problem?

Follow the money

Garbage In: Garbage Out

Conclusion

EDIT September 26th – further comments

EDIT NOVEMBER 17th 2019

Further reading

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

Should I be able to ask for more?

…And by contrast

High standards are good but they are also problematic

What will be the legacy in years to come?

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

FUTURE EMOTIONAL HARM – the SUPREME COURT PERSPECTIVE

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

25. Guidance on threshold from the Supreme Court.

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

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

The review of Shayla’s death.

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

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

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

Information withheld while the mother had PR

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

Explain your evidence base

The Rule of Law is a ‘Straw Man’

No system is perfect

Failure

Meaning -” lack of success, the neglect or omission of expected or required action.”

It is essential and right that the Care system exists. It represents a failure on very many fronts that it has to.

Is that the price of failure? If so whose?