Author Archives: Sarah Phillimore

A.H. and Others v the Russian Federation

A case about adoption and the best interests of children.

Application no. 6033/13

Judgment in this case was circulated on 17th January 2017. It involved 16 applications against the Russian Federation by 45 US citizens and involved 27 children. The claimants had all been in the final process of adopting Russian children when in 2013 the Russian Federation imposed an unexpected and swift ban on any adoption by US Citizens.

The case ended with the ECtHR agreeing that US parents had been discriminated against and awarding a small amount of damages as ‘just satisfaction’. The arguments about the rights and wrongs of the ban on adoption by US citizens were wide ranging and illustrate, yet again, that the rights of individual children are very often lost in the competing political and social arguments made by adults. 

The saddest part of the judgment is where the court notes that the peremptory ban on adoption lead to many of the children remaining in orphanages for months, even years. Some remain in orphanages still. 

Background to the claim

The death of Dima Yakovlev in 2008 had led to an outcry in Russia and concern over ill-treatment of other Russian children who had been adopted by American citizens. Dima died after being left in a car for 9 hours by his American adoptive father, who was later acquitted of involuntary manslaughter. On 1st January 2013 the Russian Federation introduced a law prohibiting any further adoption by US nationals of Russian children.  The US parents argued that preventing them from completing their adoption applications because of their nationality was unlawful discrimination and claimed breach of Article 14 of the ECHR in conjunction with Article 8. They also made a claim arguing breach of Article 3 because the children, many of whom had disabilities, had been deprived of medical treatment in the US.

At the time of the ban, the US State Department issued a statement highlighting its regret, pointing out that some children who had already formed bonds with their potential new families would now not be able to live with them. There was further serious criticism from various human rights agencies such as Amnesty international, who said it was politically motivated and not in the best interests of the children concerned.

Judge Dedov had the following view of the political background to the ban:

Obviously, the impugned Law was a reaction to the political pressure constantly exercised by the US authorities in relation to Russia since 2002, when the Russian authorities started taking steps to reinforce the independence and sovereignty of the country. Finally, in 2015 Russia was officially declared to be one of the most serious threats (together with ISIS and Ebola) to the USA. The US strategy was implemented through political and economic sanctions, cultural isolation, intensive political propaganda demonising the so-called “political regime” in Russia and establishment of military bases surrounding Russian territory.

Inter-country adoption is recognised as a mechanism to promote the welfare of children who cannot otherwise remain with their birth family by Art 21 of the 1989 UN Convention of the Rights of the Child, which was ratified by Russia in 1990. In 2013 the OSCE Parliamentary Assembly adopted a Resolution on Inter Country Adoptions (see jmt para 301) which recognised that ‘a bond forms rapidly between the child and prospective adopters during the adoption process but before legal parent-child relationship has been effected’ and urged participating States to resolve its disputes about inter-country adoption in a way that did not harm the best interests of the child or damage this ‘nascent family’.

Article 8 and the right to a family and private life/ Article 14 prohibition on discrimination

All parties agreed that Article 8 right to a family life did not protect a mere wish to start a family (see para 376); it presupposes the existence of a family thus does not support a ‘right’ to adopt. The US applicants had initiated the inter-country adoption processes in 2010-12 so most of them had met the child they were seeking to adopt, had spent time with him or her, and had either submitted the adoption application to a Russian court or had their file ready for submission. They were all therefore in the ‘final stages’ of the adoption procedure (para 422).

Some applicants were clearly further down the road to establish ‘familial ties’ with the children  – for example, one family had already adopted the sibling of one of the children and thus had a clear argument on both right to family life and right to a private life.

The court noted at para 383 that the US applicants had a genuine intention to become parents by applying for inter country adoption when it was still lawful in Russia. Therefore the issue was their decision to become parents and ‘their personal development through the role of parents that they wished to assume’. This fell within the scope of ‘private life’ protected by Article 8. 

The Court therefore agreed that Article 14 and Article 8 applied and dismissed the arguments of the Russian Federation to the contrary. However, Article 14 could only apply to the US potential parents, who were discriminated against on the grounds of nationality. It could not apply to the children.

Russian Government – ban on adoption by US nationals was ‘measure of last resort’ to protect children

The Russian Government argued that the ban on the adoption of Russian children by US nationals was not discriminatory but based on objective and reasonable grounds and the children’s best interests (See para 392). The US citizens could still adopt from elsewhere and other countries had implemented similar blanket bans – for example the UK banned adoption from Cambodia in 2005. Other countries permit inter-country adoption only in exceptional circumstances or subject to strict requirements.

There was also concern that parents in the US had failed to provide reports about the wellbeing of 653 Russian children over the past 3 years and the Russian Government further relied upon reports from NGOs and the US Department of Health and Human Services, of a hidden ‘epidemic of violence’ against children in the USA, citing 5 children who died every day because of abuse or negligence perpetrated by adults (in 80% of cases being biological or adoptive parents). The Russian Government were concerned that at least 20 children adopted from Russia had been killed by American adoptive parents, although they did not have precise statistics to support this figure (para 396).

Thus a ban on adoption of Russian children by US nationals was not discrimination but a measure of last resort, prompted not only by instances of death, injury and sexual abuse of Russian adopted children but also by the lack of co-operation by the US to help ensure their safety and psychological well being (para 398).  Also cited was the desire to increase adoptions by Russian nationals.

US parents response – no objective justification for ban

The claimants responded (para 403) that death and serious injury to Russian adoptive children comprised on a tiny proportion of the overall number of Russian children so adopted and that the Russian Government had not provided any information that the situation was any better for Russian children in any other country, or indeed in Russian orphanages. The claimants rejected the argument that one of the aims behind the ban was to encourage adoption by Russian families as adoption by foreign nationals was only permitted when it was ‘impossible’ to find a Russian family willing to adopt. The claimants argued that the Russian response was disproportionate and excluded an entire category of potentially loving parents for children for whom no adoptive family could be found in Russia (para 405).

The Decision of the Court – in imposing ban on adoption, no consideration given to the interests of the children

The Court agreed that American nationals were being treated differently. Did that have an objective and reasonable justification (para 412)? The Court noted that the ban on adoption came only two months after the introduction of the Bilateral Agreement on Adoption between Russia and the US which was aimed at providing stronger legal safeguards for such inter-country adoptions. Most of the concerning incidents involving Russian children in the US had occurred before the entry into force of that Bilateral Agreement. Thus it was doubtful that the ban on adoption had a reasonable justification (para 420).

The claimants were all in the final stages of the adoption process and their proceedings were brought to an abrupt end because of the automatic ineligibility provided by the ban on adoption that unexpectedly came into force over ten days.

The Court found at para 425:

‘No consideration was given to the interests of the children concerned, and those of them who were eventually placed in a different adoptive or foster family were obliged to stay in the orphanage for additional periods ranging from several months to several years. At the date of this judgment, some of them are still in orphanages.

The Russian Government had thus failed to show that there were compelling reasons to justify a blanket ban applied retroactively and indiscriminately to all prospective adoptive parents from the US (para 426). The difference in treatment was thus discriminatory in breach of Article 14, in conjunction with Article 8. There was thus no need to examine a separate complaint under Article 8.

The Article 3 breach

The claimants further alleged that most of the children concerned needed specialist medical care that was only available in the US and depriving them of that treatment was a breach of their Article 3 rights, which protects against inhuman or degrading treatment. The Court considered this at para 432 onwards. The Russian Government provided evidence about medical treatment available and conditions in Russian orphanages and rejected the argument that the Russian state could not provide suitable medical care for the children. The claimants relied upon expert statements and academic works concerning the general situation in Russia as the medical files relating to the children were in the Russian Government’s possession.

Submissions of third party intervenors about the importance of early permanence for children.

At para 440 onwards the Court heard argument from the intervenors. The Harvard Law School’s Child Advocacy Program (CAP) and the Bucharest Early Intervention Project (BEIP) argued that extensive research over many years demonstrated the importance of placing children in permanent adoptive homes as early as possible. Nurturing parenting in child’s early months and years is vital to normal physical, emotional and intellectual development. CAP cited particular concerns about Russian orphanages, saying ‘95% of Russian children who grow up in orphanages end up on the streets… and are likely to die shortly after their 18th birthday’. As the world became more global, the idea ‘that children belonged in some essentialist sense with their racial or national groups of origin was outdated’ (para 443).

The Russian Government countered that Article 8 of the UN Convention on the Rights of the Child protected the child’s right to preservation of his or her identity, including nationality. They rejected the arguments about dire outcomes for children in Russian orphanages as ‘unsubstantiated and untrue’ (para 446).

The Court ruled that the complaint based on Article 3 was inadmissible as manifestly ill founded. The information provided by the claimants was largely of a general nature and the evidence from the Russian Government showed that these particular children received adequate medical care in Russia.

Damages

The Court awarded the applicants EUR 3,000 in respect of non-pecuniary damage and around $600 dollars for costs and expenses of the court proceedings.

The Partly Concurring Opinion of Judge Dedov

This raises a sad and salient point:

There is a more serious problem in Russia. The Russian Government informed the Court that there were still more than 66,000 children abandoned by their parents and subsequently placed in orphanages. The total number of such children who have been accommodated in orphanages during the last 25 years may be close to 300,000. Obviously this is the result of a structural social problem caused by the deterioration of values and lack of social responsibility. This problem cannot be resolved either by inter-country adoption or by political pressure’.

 

A Response to Maggie Mellon

This exchange began after I read a press release for the documentary The Stolen Children of England (Les Enfants Voles D’Angleterre), that was shown on French TV Canal 5 on 15 November 2016. I commented about how uneasy that made me here. 

I was then sent a English language version of the documentary which I transcribed here and made more detailed and critical comments. In brief, I was alarmed by the number of serious misrepresentations and distortions of reality which were permitted unchallenged air time. It was clear that the majority of the contributors had strong and existing links with a number of extreme campaigners against ‘forced adoption’. I have written about my serious concerns about the two most prolific,  John Hemming and Ian Josephs, on numerous occasions over many years.

What was interesting however was the appearance of Maggie Mellon, a former senior social worker of many  years experience who was introduced as a member of the British Association of Social Workers. I agreed with much of what Maggie said in the documentary but I was concerned that her appearance alongside the other more extreme campaigners could be interpreted by some as providing legitimacy for what they were saying.

I challenged Maggie about this via Twitter and was initially dismayed by her response – which was in effect that I should just ‘get over it’. So I am relieved that she chose to respond at greater length. Her response has been published on the Transparency Project.

I make my response here because I think the issues now being ventilated are going beyond the remit of the Transparency Project which does not exist to toe any particular line about adoption in particular, but to promote clarity and understanding about the family justice system in general.

Enjoy the Silence

I will set out at the end of this post my particular comments on Maggie’s response. Some of which I agreed with and some I did not. I am glad she took the time to respond. I think this is a very serious and important area and the quality of debate so far has been really poor. Vulnerable people are told things which are frightening and untrue and they are encouraged to disengage from both social workers and lawyers.

So what was most interesting for me were the things that Maggie didn’t say.  She diminishes the very serious complaints I make about the misrepresentations of Hemming  and Josephs and answers none of them.  I think the time is long overdue for some collective, considered response from both the social work and the legal profession about the activities of these campaigners and the damage they do. Failure to act is a choice in itself and silence invites complicity.

Towards the end she says:

Until such time as I can make a programme that allows me editorial control of content then I will accept invitations that allow me to offer a challenge to what I believe is a collective failure to protect and promote human rights.

And I reply:

I applaud Maggie’s passion and commitment to speak out against a failure to protect and promote human rights. I remain dismayed and alarmed that she thinks this documentary is a vehicle for either noble ambition. I would ask her again to consider the story of Colin and Clare. Who went into their final hearing unrepresented, save for the ‘advice’ of Ian Josephs. How did they end up in such a parlous position? Who did they listen to and why? Who preyed on their vulnerability and to what end? There are serious problems with the child protection system and we need to deal with them. But this is not the way. If Maggie wishes to continue to sup with the devil, I hope her spoon is long enough.

Maggie Mellon’s response and my comments (in bold and in brackets)

I appeared on this programme on the request of the documentary makers. They had read an article that I had written in 2014 in Professional Social Work, the monthly magazine of the British Association of Social Workers. In this article, I had expressed strong concerns about current policy and practice on adoption, and asked if, in future, this would be recognised as a scandal of the same magnitude as removal of children from care to Australia, Canada, New Zealand in the previous century.

These removals have now been acknowledged by the government, and by the charities who carried them out, to have been very wrong. My plea was for us not to wait forty or fifty years to ask if the current policy and practice on adoption is right. In my view, this is a crucial issue for social work. BASW has now mounted an enquiry into the social work role in adoption which will report in 2017. You can read about this here (https://www.basw.co.uk/adoption-enquiry)

In November Sarah posted up a strong condemnation of the documentary, prior to having watched it. After watching the programme Sarah has now enlarged on this condemnation in a detailed piece on her blog (the Transparency Project is NOT ‘my blog’ – I am simply one of many members of the Transparency Project. We do not necessarily speak with one collective voice) which contests some of the editorial commentary, throws doubt upon the validity of the families’ cases, and generally asserts that it composes a nasty campaign to discredit English courts, and to frighten people unnecessarily. (I don’t simply ‘assert’ and I don’t ‘throw doubt’ – I have provided clear evidence for my criticisms. It is beyond doubt that very important information about some of the people interviewed was simply not shared. Which is a great shame, as that information was very relevant to the arguments being made. Failure to share this information was dishonest and seriously detracts from the credibility of this documentary). 

Sarah has asked me to respond to her blog, and whilst she may be disappointed, I am not going to offer a point-by-point commentary on all of the issues that she raises about the documentary’s content. I am instead going to focus on the key issues. (Fair enough. I can’t compel anyone to answer my questions. I can only hope when I raise such serious issues as I do here that people who wish to be a credible voice in this debate will want to respond.)

The documentary had the legitimate aim of exposing what the makers considered to be serious breaches of human rights in the UK, with a particular focus on the number of mothers travelling to France to avoid having their babies taken at birth. (this is asserting that the ‘aim’ of the documentary makers was ‘legitimate’ because they had declared it to be so. The problem with this is that the ‘aim’ was decidedly NOT legitimate as it was based on false or partial information. There was no attempt to provide the missing information, which would have cast an entirely different light on both the mothers who ‘fled’ and the men who facilitated this ‘fleeing’.)

The aim was to draw attention to the policy and practice of forced adoption by UK social services and courts, a practise which is almost unique in Europe, and certainly nowhere so prevalent as in the UK. (I don’t quibble that it is legitimate to raise serious questions about why were are so unique in Europe – not for having a mechanism for non consensual adoption, as every European country has such mechanisms – BUT that we resort to it so often. However, the context in which this documentary chose to raise these questions was on a decided and false assumption about the degree of deliberate corruption in the English system.)

I don’t believe that it is necessary to endorse all the claims or concerns expressed in the documentary in order to believe that it is good that it was made and broadcast.  (Maybe not. But you certainly do have to grapple with my central accusation – that much of it was dangerously and deliberately false – before determining that it was a good thing it was broadcast.)

The nature of a documentary is that it features a number of interviews of people with relevant knowledge, points of view and experiences. I do not feel it necessary to defend the nature of independent documentary filmmaking, which is what Sarah seems to be inviting me to do. ( I am not inviting general discourse on ‘independent documentaries’ I am asking for comment on this particular documentary, relying on it does on so many unreliable and dangerous sources.)

I did not make the documentary, so I am neither obliged, nor interested in debating incidental issues such as the programme makers’ assertion that Thatcherism was responsible, or whether case A may not be properly explained, or that person B may have less than pure motives and the other criticisms and allegations that Sarah makes (Fair enough. But the issues of substance I raise about the honesty and credibility of this documentary as a whole are NOT ‘incidental’ and they cannot be simply brushed aside in this way). 

The issue for me is whether the programme had legitimate aims and whether it carried these out. This comes down to two crucial criticisms which Sarah seems to hold about the very premises of the documentary’s aim.

One is her belief that the family courts are mostly to be trusted in arriving at their judgements on this issue. (I do indeed hold that belief. It is based on 17 years in practice. That does not mean I am blind to examples of bad practice. I simply don’t accept they are common place. But I fully accept they exist, they have serious consequences and that we need to do as much as we can to stop them occurring. I have written about this many times in many different places. Here is one example).

The other is that forced or non-consensual adoption is a reasonable policy for the UK to have adopted. From everything that Sarah writes, neither of these beliefs was liable to be shaken by any evidence to the contrary that the documentary might present (I do believe that for some children, adoption is the best option. I also believe – and have said so, many times and in many different places – that the ‘push’ for adoption by successive Governments is wrong and unprincipled and risks offence to the rule of law. Sadly, I have also had cause to doubt what respect Maggie’s own profession has for the rule of law in his field. And I agree that the documentary is hardly likely to ‘shake’ any beliefs I hold – because my ‘beliefs’ are forged on experience and on evidence and thus are not liable to any ‘shaking’ from a documentary based on distortion and misrepresentation). 

First of all – belief in the family courts:

Here is an exchange between ‘Stacey’ and Sarah in the comments following her initial blog criticising the (then yet unseen) programme:

Stacey “What is going to happen when future generations of children who have had a bad experience in foster care or adoption want answers to why they were removed from their families?”

Sarah “If a child wants answers about why they were removed, they can access all the documents that went before the Judge.”

This is not an acceptable answer to the question. It rests on an assumption that there is a level playing field for families in the courts, and that the wheels of British justice ground slow and smooth. Ultimately Sarah believes that transparency would reveal the worthiness of the British legal system, and that children who have been removed from their parents will be sufficiently comforted and reassured when they are grown, by her confirmation that the process was carried out properly (Maggie reads an awful lot into a short comment. I was not trying to suggest that being able to access papers in the future is the ‘answer’ to any real or perceived inadequacies or injustice in the system. I was simply pointing out that it is not right to suggest that children ‘never’ get the opportunity to find out what happened to them – as was strongly asserted in the documentary. I have commented in many places about what happens when the system goes wrong. I don’t believe transparency will reveal ‘worthiness’ – I believe it will reveal reality. Cases do go wrong and people do make mistakes, but most people try hard and do their best. )

For me, there are a number of flaws in this position. One is that it assumes that if the court made the right decision based on whatever information it was presented to it, then that is just fine and dandy. But it’s not. We know that the civil courts decide on the balance of probability, not beyond reasonable doubt. Sarah herself, in a post on another issue, protests that this test means that ‘truth’ only needs to be 51% probable. The balance of probability is not an objective test, and must often necessarily be decided by what a judge finds the most probable assertion between two competing claims. Is there a level playing field in the struggle to assert what is ‘probable’, if the case is contested between a group of professional social workers, and an understandably distraught and ill-resourced family? (I agree with Maggie that the weight that is placed on the balance of probabilities should make us uneasy. I agree there is debate worth having about the standard of proof in care proceedings and what it is sometimes asked to achieve.) 

Social services and the courts are not immune to the prejudices and injustices of the wider world that sustains their existence. This directly challenges any assumption that the best interests of children is as sound a guide for decision making as those who use it to justify their actions and decisions would have us believe. Just because the law and the courts embrace the principle of the best interests of the child, it does not follow that these may be reasonably decided in court. In practice the test of ‘the best interests of children’ is open to many interpretations, and to flagrant abuse. It can be used to justify the ‘rescue’ of children from the problems that their parents are experiencing or are assessed as experiencing to the ‘safe’ world of ‘care’. I discuss the actuality of ‘care’ later, but for now, I want to consider the rapid changes to the notion of ‘best interests’ judgements. (I agree with this) 

Not so long ago, homosexuality was illegal, and at best a sign of mental illness or at worst of perversion. Homosexual young people were subject to religious or psychiatric ‘treatment’. Not much longer ago, a woman who left her husband was assumed to have forfeited her right to custody of the children. Within my lifetime unmarried mothers have been locked up in Magdalene laundries, or confined to mother and baby homes, and forced to give up their children – all in the children’s ‘best interests’. Now we are apologising to those mothers and their children – too late for many, who have died without ever being offered contrition. What are the prejudices or convictions today about children’s best interests that future generations may look back on in disbelief and horror? (I agree with this – and have said so)

Aside from these issues of principle and of politics, in any case a court case is at the end of a process, during which the best interests of children are supposed to determine all decisions made in intervening in a child and family’s life. The ‘best interests’ argument in these cases is often deployed to justify the termination or severe restriction and policing of contact between children and their parents, from the point that a child is removed and long before a case comes to court. It is used to prohibit parents from telling their child they love them and are fighting to get them back, it is used to prevent parents showing upset, and to demand that they are cheerful and assure the child that they want them to be happy in ‘care’ and that their social worker is doing the right thing, and it has also been used to forbid the parent talking to the child in their common language of origin. The consequence is quite often the long drawn out destruction of the parent-child relationship, the evidence of which, ironically, is then used as the main reason why the child must be permanently separated from the parent(s) by adoption. These and other social work decisions on contact are not founded on any reliable body of knowledge, and yet are accepted by the courts as the result of ‘expert’ application of knowledge about children’s best interests. (I agree with this. I am particularly troubled by the lack of clear and reliable access to relevant research and how often unevidenced assertions about issues such as ‘attachment’ are made in care proceedings.)

Florence Bellone, a French journalist whom Sarah dismisses in her blog as not credible to comment on the programme, because she has consistently and outspokenly criticised UK adoption law and practice, offers this advice to Sarah (I dismiss Ms Bellone as not credible because of what she says and who she associates with. Being ‘outspoken’ is not a problem for me. Consorting with Sabine McNeill definitely is. If Ms Mellon is not familiar with who Ms Bellone associates with, I suggest she does some reading here).
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“The only thing I could say is: ‘follow parents on the field to see the evidence…Don’t rely on what is written in the paperwork…If there is one thing which is covering up real rubbish, it is that mantra of the “BEST interest of the child” which is covering up all possible rubbish.’

Stacey continues with this advice from her knowledge of a case based on the mother’s alleged ‘failure to bond’ with her child. She points out that evidence that points away from this conclusion even if it is presented in court by the mother’s representative, will not weigh against the social workers’ assessment and that ‘… the social worker should have evaluated the evidence before writing the assessment and the mother’s time might be better spent focusing on her infant’s development rather than worrying about having to defend such nonsense in front of a judge, even if she does have a lawyer.’

Giving birth to a baby while the threat or knowledge of its forcible removal hangs over a mother is one of the most likely ways to damage her relationship to her unborn child. The uncertainty, the suspicion, the stress, the knowledge that any love felt might inevitably mean unbearable pain of loss: what could be more likely to make a mother hesitate to commit to a child? And then to find that that very self-preserving distance may be used as justification for removal? I have yet to be persuaded that there are any circumstances beyond psychosis, or other evidence, that the parent represents an imminent physical threat to the child that would make removal at birth necessary or right (I agree, and so does the law, that removal of a child at birth is the most serious of all interferences in family life. It should not be done lightly, and in my experience, it is not done lightly. But it is sad reality that there are sometimes not enough safe and protective mother and baby placements available and thus sometimes hard decisions have to be made. Those cases I have experienced when mother’s lose babies do not involve psychosis but generally involve long standing and serious issues of substance abuse which was on going during pregnancy).

And that brings me to the second part of my disagreement with Sarah; her apparent acceptance of non-consensual adoption as a response to circumstances which are much short of absolutely critical, or where the parent’s consent can’t be sought due to absence or refusal to respond. Other countries in Europe require a far higher standard – if it happens at all. Forced adoption against the explicit opposition of parents is not contemplated as a routine childcare option anywhere in Europe, to the extent that it is here (I agree, as I have said that other European countries do it differently and it would be interesting to know more about why and what are the outcomes for children). 

What is peculiar is that Sarah does not even begin to grapple with the contention that ‘failure to bond’ with a child after birth should be advanced as a reason for the removal and adoption of that child. (I don’t grapple with it because I was not aware it was being raised in the documentary. The documentary asserted that children were removed for ‘no reasons’ or reasons that were not explained to the parents – which I don’t accept. I don’t know what Maggie means by ‘failure to bond’. It is not something I have seen asserted in any threshold criteria. If that were the only thing contained in a threshold document, of course I would challenge it. It’s a meaningless assertion on its own. We seem to be moving far away now from the issues which I thought were under discussion).

Apart from any other concern, the child will be first moved to a foster mother, who is being paid to care for the child and has no bond at all with the child, and will not be required to prove one. And from there to a succession of such foster mothers, including ‘respite carers’ offered to give the paid carer a break from the 24/7 demands of a young baby – curious that it is an expensive justifiable for a paid carer, but not for the original mother. Finally, the child will be moved to a placement with adopters who may or may not ‘bond’ to the standard demanded of the birth mother. If they don’t they will be offered post-adoption counselling and support, rather than the child protection assessment and removal offered to the birth mother. It is ironic that such a support structure can be utilised for the paid recipients of the child, but not its birth mother, and callous that the emotional cost, of knowing your child is being passed around such a series of strangers, without your consent or knowledge, is not considered (I agree that frequent moves of placement are generally disastrous for children. But this was not, so far as I recall, an issue raised in the documentary so I am unsure why I am criticised for not dealing with it.)

Over the last couple of years, I have had the privilege and the pain of acting as an independent social worker in a number of adoption cases. Invariably I find major discrepancies between the file records and the reports that are presented to Children’s Hearings and to the Sheriff courts. These are usually the result of a number of either deliberate or accidental misrepresentations. Within these records, I rarely, if ever, see reference to any research by social workers to justify their assessments and their decisions. I often find claims about the damage to infant brains that ‘failure to bond’, or exposure to ‘emotional abuse’ will cause, or that children’s upset after having contact with their mother ‘must be’ a result of ‘re-traumatisation’. These claims are scientifically and intellectually suspect at best, but worse, they are professionally incompetent. (that is really worrying. I have also found misrepresentations and I have challenged them. However, they are not commonplace. If others have found them commonplace, this definitely requires investigation.)

This is at the crux of the issue, there is a dearth of critical thinking, and a dearth of professional robustness in the carrying out of forced adoptions. (This is the ultimate irony for me. This document represents something far worse than a dearth of ‘critical thinking’ or robust analysis. It promotes lies and distortions. It is indefensible, particularly from one who rightly recognises the fundamental importance of proper analysis.)

So, no, I have no regrets about taking part in a programme that addressed the pain of parents separated from their children and their very poor experiences of social services and the courts. (and that’s fine. And important. So far as it goes. But Maggie appeared under the flag of the British Association of Social Workers and thus added a gloss of credibility to some very incredible assertions.)

The programme was worth making and worth watching (no it wasn’t and I have explained precisely why) and deserves more than a litany of complaints about everything and everyone associated with it. (this trivialises, diminishes and demeans the very serious nature of my criticisms.)

Yes, my contribution and that of others was edited – unless a programme is live, editing is inevitable. I have appeared or been quoted in many articles and programmes and there is always editing. (I have agreed with much of what Maggie says in the documentary. My complaints and concerns are not about how her contributions were edited – but that she cannot bring herself to accept that Ian Josephs and John Hemming are not a force for good in this debate). 

My own unedited views are clearly expressed in a number of published articles, in Professional Social Work, in The Herald, Scotsman and Guardian newspapers, online in Community Care, Common Space, Scottish Review, Scottish Justice Matters, amongst other places. Until such time as I can make a programme that allows me editorial control of content then I will accept invitations that allow me to offer a challenge to what I believe is a collective failure to protect and promote human rights. (I applaud Maggie’s passion and commitment to speak out against a failure to protect and promote human rights. I remain dismayed and alarmed that she thinks this documentary is a vehicle for either noble ambition. I would ask her again to consider the story of Colin and Clare. Who went into their final hearing unrepresented, save for the ‘advice’ of Ian Josephs. How did they end up in such a parlous position? Who did they listen to and why? Who preyed on their vulnerability and to what end? There are serious problems with the child protection system and we need to deal with them. But this is not the way. If Maggie wishes to continue to sup with the devil, I hope her spoon is long enough). 

John Hemming: An apology

In the matter of CB (A Child)

This post arises out of discussions on Twitter on New Year’s Day regarding the ‘Latvian case’ and the extent to which John Hemming is able or willing to accept the findings of various courts about the harm suffered by the child CB. I will set out a summary of my response and then a more detailed chronology of the case to support that summary.

On January 1st 2017 I published a tweet to which Mr Hemming objected.  This was part of a discussion with other Twitter users about the nature and extent of Mr Hemming’s misrepresentations about the case of CB (A child) – ‘the Latvian case’

I said, in the context of a question about what the mother had done to make necessary changes to her parenting:

Mr Hemming denied that he had said the mother hadn’t done anything wrong and asked me to retract this statement and apologise. He referred me again to this blog post from 2015. I have already commented on Mr Hemming’s involvement in the Latvian case in this post and again in this post.

I concede that I owe Mr Hemming an apology. I don’t know when he first made direct contact with the mother in this case so I cannot imply that he was ‘advising’ her during the care proceedings in 2011. However, it is clear that by the time of her appeal to the Court of Appeal in April 2013 she had dispensed with her lawyers and was represented by ‘Mr H’ – who I shall assume is Tim Haines, one of Mr Hemming’s trusted advisers with his Justice For Families organisation. This assumption is bolstered by the fact that it was Mrs Julie Haines who was representing her in 2015.

It is also clear that Mr Hemming did concede on his blog that going out and leaving your 20 month old alone before the babysitter had turned up, was not great parenting. So I accept, it is misleading for me to suggest that Mr Hemming thought ‘nothing’ wrong had happened here.

However, what is abundantly clear, from his blog and his discussions via Twitter, he certainly didn’t think anything had happened to justify the removal of CB from her mother’s care and her eventual adoption. According to Mr Hemming, this was a case of a child adopted ‘because of nappy rash and a missed babysitter’.

So here is what I should have said

I don’t know when Mr Hemming first spoke directly to the mother. But he was clearly involved with her by 2013. He persistently and consistently asserts that this case was about no more than ‘nappy rash’ or a ‘late babysitter’ . This is utter, unmitigated hogwash and displays a chilling lack of concern for CB or recognition of the danger in which she was placed. The facts of this case – which I summarise below – show the clear and cogent reasons by which various courts have accepted that CB had suffered significant harm in her mother’s care and would be at risk of suffering more harm in the future if not removed. Mr Hemming’s continued misrepresentations about this case are wrong, ridiculous and dangerous. He should apologise for making them and agree never to repeat them.

But don’t just take my word for it. Have a look at the Court of Appeal judgment from 2013, from where I take the summary of facts and chronology set out below.

CB was born on 30th April 2008. On the 4th April 2009 the mother accepted a caution for the offence of being drunk in charge of a child under 7 when she was found at 1am with CB in a buggy, drunk and barefoot in the middle of the road.  On 18th January 2010 a social work assessment concluded that this was not the mother’s usual behaviour and CB would be ok in her care. However in February 2010 the local authority received complaints that CB was screaming and running about ‘almost every night’ until about 2am. On 5th March 2010 the mother’s landlord called the police who arrived and found CB, aged about 20 months, alone and in a pitiful state.

What did the court accept about CB’s circumstances? From para 8 of the 2013 judgment:

  • the room had a strong and overpowering smell of urine and faeces
  • CB’s clothes were wet and she was shivering
  • It was clear she had not been changed or cleaned ‘all day’
  • She had only an empty bottle within reach
  • Her nappy was so swollen she couldn’t walk properly
  • Her skin was soaked in urine to extent that a rash was noted when she was examined in hospital

Para 11 of the judgment confirms that by 3rd August 2010 CB, who had been taken into police protection and then into foster care, had been assessed as having significant delay in ALL aspects of her development.

Para 17 confirms the finding that the mother had maladapted personality traits which made her prone to denial and repression and reliance on ‘avoidance strategies’ such as alcohol.

On 26th October 2010 the  mother was again detained by the police on suspicion of being drunk.  On 15th June 2011 care proceedings were issued and on 10th July 2012 a placement order was made by DJ Mc Phee. The mother appealed against this to HHJ Cryan who dismissed that appeal on 8th October 2012 which is how she ended up in the Court of Appeal in April 2013, where her second appeal was also dismissed.

So how does Hemming deal with this?

By minimisation, denial and apparent lack of any regard for the welfare of CB. His blog post refers to the case ‘starting with two incidents’. The first becomes simply a mother crossing the road after a night out with a friend, having slipped off her shoes because they were hurting her. No mention of fact it was 1am and the mother accepted a caution for a criminal offence.

The second incident he admits ‘was more serious’. CB had been ‘found home alone and with a full nappy’. But, he asserts, the mother had actually arranged a babysitter and her only mistake was to leave CB before the babysitter arrived.  Mr Hemming goes on to quote the police report from the time  which simply underscores how ridiculous his analysis is.

The report notes that the police arrived at the scene at 18.50. We know they were called by the landlord so presumably CB had been alone for some time by now. Shortly after the police arrived a female also turns up and tells the police that she was the babysitter and she had just popped out for 10 minutes ‘and had been looking after the child all day long’. The ‘babysitter’ was promptly arrested. At 19.08 a decision was made to take CB to the hospital as she was very cold and possibly dehydrated. At 20.10 CB’s older sister arrives. The mother does not turn up until 21.30.

Mr Hemming states that the mother ‘accepts and I agree that she should not have left home before the babysitter arrived’.

And that appears to be the full extent to which Mr Hemming or the mother would accept any wrongdoing here.

This ignores entirely:

  • the fact the mother accepted a caution and therefore admitted guilt for being in charge of CB whilst intoxicated at 1am in April 2009;
  • the disgusting state in which CB was found in March 2010, cold, wet, whimpering and clearly having been left in a filthy nappy ‘all day’;
  • The ‘babysitter’ and the  mother clearly giving conflicting accounts of when this ‘babysitter’ was due to arrive – the babysitter maintaining she had been there ‘all day’. If the babysitter had indeed been there ‘all day’ then given the state in which CB was found, the mother’s judgement in choosing this person to care for her daughter is seriously in question;
  • That by August 2010 CB was found to be delayed in ALL aspects of her development, which points to significant neglect in her mother’s care.

The conduct of this case by the local authority does not escape criticism and nor should it. I note that earlier assessments of the mother which were positive are described as ‘naive’. I have to accept it must have been hard for the mother to process why initial positive reports about her parenting did not then translate into her daughter’s return to her care .Nor do I understand why it took so long to make an application for a care order given the findings about global developmental delay for CB in 2010.

But nothing in any failings or delay by the local authority can justify Mr Hemming’s persistent and deliberate mischaracterisation of this very sad case, as one where a baby was adopted for having a nappy rash. The impact on the mother has been obvious. She has been encouraged by Hemming and his entourage to see her conduct as attracting very little criticism, her child ‘stolen’ to meet adoption targets and the last 5 years of her life wasted in an utterly futile fight.

I’m not an idiot

I’m not an idiot. I realise that nothing I say here or anywhere else is going to stop Hemming. His distortions and misrepresentations about the family justice system are now part of his DNA. A great deal of his activities and his identity is tied up now with this crusading role. Presumably quite a lot of money too – I keep asking how much the Haines charge to take parents to the Court of Appeal and I have never got an answer, but I hear from some disgruntled parents that its about £1,500 a time.

But I hope that my activities in attempting to call him to account might give some others pause for thought about how much they take him seriously or how much they think it wise to engage with him.

As I have taken the time to deal with his blog post, perhaps he could return the favour and deal with mine? I’ve only been asking since September 2016.

‘Mums on the Run’ – Where do they go? How safe are they?

The importance of challenge in the post truth world

2016 has been a terrible year but perhaps a necessary year. Just as the boil has to burst or be lanced before it can heal, we do need to confront why so many people are so angry and so unhappy and so willing not only to embrace distortions and misrepresentations of what is true, but to help spread them far and wide.

I operate on a small canvass. My interest, knowledge and expertise is around court proceedings when the State wishes to remove a child from a family. But this superficially small area of law and policy encompasses a whole world of human pain and really interesting and necessary discussions about the limits and justifications to State interference with individual liberties.

So I think it is a hugely important topic and worthy of proper discussion. I have tried to do my bit to be part of that; I have organised two multi disciplinary conferences in 2015 and 2016 with the help of the Transparency Project – read about 2015 here. I try to provide clear information on this website and provide a forum for debate. I have learned a lot from those who comment here; my perspectives have shifted and needed to shift.

But what I will continue to refuse to do is accept or promote issues which I know are not true. This seems to attract a lot of negative attention, which in the past few months has increased considerably.  I have had emailed threats directly to my chambers – for the first time ever in December 2016 I went to the police (who were very good indeed).

My dismay has now reached even higher levels. In November a documentary called ‘England’s Stolen Children’ was aired in France. I saw a short press release about it in English and was immediately alarmed. I wrote about that here. 

I then requested an English language version from the producer and I transcribed it here. I was even more alarmed after watching the whole thing. I won’t repeat the lies, distortions and mispresentations I found here, you can read if you are interested, the post on the Transparency Project.

However, instead of trying to engage in discussion about these really serious points, what I got were insults. These are just examples from the comments to the first of my posts on the Transparency Project. I am told things are even worse on Facebook where I am variously accused of being a ‘kiddy fiddler’ or forcing my mother to buy me a car.

So, dear Sarah, if you do not understand what is going on in UK, simply shut up and make deep reserches.

So, I not suprising when illiterate baristers are resuming their ”experiences”. Sorry, Sarah, but when you will began to demonstrate real ability to think and act proffesionally, we can to discus, but at present I can see just very dangerous presentations of UK justice, full of personal illiterate ambitions, who is able to destroy any family in UK. Justice,

I do not understand how people involved in the justice business can support such practices, pocket the legal aid money and defend Mother System for their own comfort. You say “bonkers” ? Yeah… Bonkers are all those professional loosers on the LAs lawyers lists that I have seen, taking no risk and no pride, acting like rats when they should stand for justice. (this from an allegedly ‘award winning’ journalist)

Forced adoption and forced long term foster care should be abolished immediately, so you , Sarah, wlll find some more dignified job rather than defend totally discredited, shameful system which even not allow my son to read his own judgement and UNCRC .

How dishonnest you are, Mrs Phillimore, by quoting me uncorrectly. The sentence is : “You might know that foreign families are even prohibited contacts in their own language! You need to understand that this is something that no journalist from any country has read on the parents’paperwork without wanting to vomit.” It’s a bit different, isn’t it ? So you are a barrister and you transform the facts ? Maybe you did this too many times and you can’t anymore realise if you are doing it again? Is your insulting and panicking style ok in court ? Well it is true that all those bad parents are giving you a living…
But now maybe I understand your point. You hate Ian Josephs who did help loads of family and of course in these cases, no child, no fee.

You also ‘sneered’ because I was not visibly ‘disabled enough’ to suit you!
I don’t believe I have said I support Hemming or Josephs; just that their answers to you raise major issues that I can evidence.
Your accusations of ‘barbed comments’ is exactly what I would expect from an LA solicitor or Barrister!!!!

Time and time again I ask for help understanding where my analysis has failed. I have set out my position in detail here.  Time and time again the response is simply insults and hysterical language.  It might be naive of me to expect differently from those who have obviously gone through very painful and real life experiences. I cannot expect emotional detachment and precise analysis in those circumstances and I hope I have showed how patient I try to be, even in the face of the most disgusting comments and assertions.

But I had hoped rather more from the professionals. One former social worker, Maggie Mellon was interviewed extensively in the documentary and was introduced as a member of the British Association of Social Workers. Clearly, this will give an air of legitimacy to her appearance. I do not provide comment as ‘a Member of the Family Law Bar Association’ – I don’t speak for the members of that organisation and I certainly don’t ask that they legitimise my campaigning activities. I think it would be helpful for BASW to review their policy about how their name is used for the future.

I agreed with much of what Ms Mellon had to say about the impact of poverty on parents and the probably disastrous consequences that will flow from privatisation of any part of child protection services. But I was concerned that she was prepared to be part of such a documentary which relied on demonstrable untruths and offered such uncritical support to Ian Josephs. I asked for her comments. She said ‘you disagree with the programme. Some people disagree with you. Get over it’.

I replied that I could not simply ‘get over’ the promulgation of really serious lies that would not only frighten vulnerable people but scare them away from the very help that could achieve something for them – which seems to be the case for Colin and Clare in the documentary.

I received this response.

Let’s be clear. I am not ‘designated’ by anyone, God or court to do what I do. And  nor do I think I require any such ‘designation’ to challenge what I know and have proved to be really dangerous distortions of truth, made under a false flag of campaigning for human rights.

I think we all have a moral duty, simply as human beings, to strive to identify the truth and then promote it. I am not naive enough to think I have a monopoly on ‘the Truth’ or that my perspective is always and only the ‘right’ one. But if you disagree with me – tell me why. Tell me without insulting my intelligence, my lack of attractiveness, my marital status or my mother. And then we can have a dialogue. And out of that dialogue we might be able to agree on some common ground.

Or not. Frankly, the way 2016 has been going, I’m not holding my breath. But I won’t stop just because I am ordered to do so. I will carry on lighting my candle and I hope others will join me.

 

Further reading

If you are interested in the debate, I recommend the following websites which both provide clear, accessible information about the family court system and the importance of distinguishing truth from lies.

https://hoaxteadresearch.wordpress.com – very good and through debunking of the Satanic Ritual Abuse Hoax fiasco which still rumbles on in some quarters.

The Transparency Project – a registered charity of which I am a proud Trustee.

‘Is likely to suffer significant harm’ – to what extent are social workers relying on their crystal balls?

Thanks again to Kate W a retired social worker for her thoughts about the meaning of ‘likely to suffer’ significant harm. Consideration of the ‘risk of future harm’ is often a hot topic in debates about the child protection system; its detractors complain that this is no more than ‘crystal ball gazing’ and removal of children without actual proven harm is ‘punishment without crime’. What does Kate say in defence of ‘future risk’?

There appears to be a degree of confusion/misunderstanding about the meaning of “likely significant harm” Children Act 1989. The standard of proof needed is that the children IS suffering significant harm or is likely to suffer significant harm.

I can to some extent understand this confusion, as the wording can suggest that it is possible to see into the future and there is talk of social workers gazing into “crystal balls” etc. Very often parents involved in care proceedings talk of “future emotional harm” though significant harm covers all aspects of abuse and neglect. It would be difficult to argue that any child suffering abuse and/or neglect was not also suffering from emotional harm.

There are some cases where the issue of “likely significant harm” can be proven in court, and I provide some examples from my own experience below.

Case Studies – when parents just can’t cope

Case Study 1: D is a 25 year old single woman, pregnant with her first child. D suffers from schizoid affective disorder, a complex and enduring mental illness. She was diagnosed with the condition at the age of 18 years, though had suffered from mental illness since she was aged around 13 years. The illness from which D suffers is characterised by episodes of deep drug resistant depression and frequent psychotic episodes (as in not being in touch with reality) D hears voices that tell her god wants her to kill herself and she has made numerous suicide attempts by way of ligatures to her neck. She has been sectioned under the Mental Health Act on many occasions and is well known to the Mental Health Crisis Team and the emergency services.

D lives alone on the 10th floor of a high rise block of flats. She has no family support and her only friends are other flat dwellers, one of whom is allegedly the father of the child. However he is completely disinterested in D and claims that he is not the father of the child. He is a drug user and has criminal convictions. D is a heavy smoker, and a moderate drinker, and self harms on a frequent basis, almost always needing hospital treatment. The only support she has is a CPN (Community Psychiatric Nurse) who visits on a monthly basis to deliver medication. D rarely leaves the flat, only to buy essential items of food etc from a nearby shop. Neighbours sometimes shop for her and generally befriend her.

D is 28 weeks pregnant and refuses to access ante natal care though has allowed the health visitor to visit. D claims that she will be able to care for the baby. The HV does not share this opinion. The flat is very unhygienic, the floors are dirty and sticky, the only furniture is a very worn sofa; there is a TV and small table. The kitchen is dirty and greasy – there is a portable cooker and no fridge. The bathroom is dirty as is the bedroom. D has not collected any items for the baby and is dependent on state benefits and the flat is cold in the winter as she rarely has money for the electricity meter. In discussions D shows a complete lack of understanding of caring for a child, either practically or emotionally.

The psychiatric report states that D’s mental health condition will prevent her from giving good enough care to a child. The point is made that this may not be the case if there was a supportive partner and a good support network but this is not the case.

A pre-birth multi disciplinary case conference made a unanimous decision that the LA should make application to the court for an ICO on the basis that this baby is “likely to suffer significant harm” if left in the care of the mother.

D gave birth at 32 weeks to a premature baby who needed several weeks in the Special Care Baby Unit. D left hospital and didn’t visit the baby or show any concern for her child. The baby made good progress and was discharged and placed with foster carers at aged 3 months.
The court made an ICO and later a Placement Order. D did not contest the application, and the Orders were made by consent.

I would stress that it was in no way any fault of D that she was unable to care for her child. Indeed because of her severe mental illness she was barely able to care for herself and that given the extreme deprivation and poverty in which she lived, the care of a baby would have presented her with insurmountable difficulties and of course would place the child “at risk of significant harm.”

Case Study 2: This case concerns a couple who have lived together for 2 years. B (the female partner) and C (male partner). B has moderate learning difficulties and C has mild LDs. There are 2 children aged 2yrs and 8 months. C is not the father of the elder child. A social worker is allocated to the case and is in frequent contact with the family. The SW is concerned because C appears to be spending very little time at home and instead goes to the home of friends to play computer games. This leaves B alone to cope with the 2 children, which puts her under a great deal of pressure. A family support worker is allocated to the family and she visits twice per week and she too is concerned for the welfare of the children in B’s care. She has talked to C about the need for him to spend more time at home to help B care for the children, and despite his promises to do so this isn’t borne out in fact. C’s mother gives support from time to time but other than that, there is no support, although a neighbour “looks in” from time to time.

A nursery place for the 2yr old girl is being financed by CSs for 3 days per week. When C was part of the family he would take the child to nursery but since his absences, B is not motivated to take the child to the nursery hence the child only attends spasmodically. The nursery are concerned that the child is thin, often appearing dirty and smelly and unable to interact with the other children, preferring to cling to one of the adults.

There is growing concern that C is no longer living with B and the children and has in fact moved in to live with another young woman and her children. Initially B denies this but later admits that she thinks he is “not coming back.” The situation is deteriorating, and it is becoming evident that B cannot cope with the house and children. One day the neighbour contacts the social worker to allege that the 2yr old is screaming and B has shut her outside into the small yard. It is cold and the child is wearing only a vest and wellington boots. When the social worker visits a short time later, the child is in the house but C admits to shutting her outside because she was “getting on her nerves” – the child is still cold and distressed. C admits to smacking her to make her stop crying and is vague when asked what the children have had to eat that day. The baby is asleep in a pram and is suitably clad. During the visit C continues to shout at the 2 yr old and is threatening to shut her outside again and the child is crying inconsolably. It’s a grim picture and the social worker tells C she is not capable of caring for the children on her own. C immediately says “well you can take her – she’s a little shit…” the child is moved to foster carers under a S.20 on a temporary basis.

The issue of “likely significant harm” arises with the 8 month baby. He is of normal weight but very pale and has bad nappy rash. Again C cannot say what the baby has had to eat and there is no baby food to be seen in the house. C is disinclined to talk about the child’s diet other than to say he has a bottle of milk at bedtime but there is no formula to be seen, though there are feeding bottles which are dirty and have encrusted milk around the rims. The social worker asks C if there is any formula for the baby or baby porridge/jars etc and C says she doesn’t know but he can have some orange squash. This of course is not suitable nourishment for an 8 month baby. C is disinterested in the baby or his care but is very distressed about B leaving her, which is understandable, and is threatening to go round to the flat where he is living and leaving the baby with him. The social worker speaks to B on his mobile phone and he confirms that he has left C and has a new relationship. He does not want to care for the baby and claims that he is not the father. He is told about the EPO on the 2 year old and makes no comment, other than to say it’s a good thing as C is a “lazy cow who sits on her arse all day.” The SW asks if C’s mother will look after the baby and he says he doesn’t know but provides a telephone number, but she is totally unwilling to care for the baby or support C and repeats the claims that her son is not the father of the baby.

The social worker goes next door to talk to the neighbour who gives more information and states her concern that things have “gone downhill” since B left the family. Upon the social worker’s return to C’s home, she is half asleep on the sofa and the baby is wailing. She is refusing to give her consent for the baby to be taken from her. The social worker advises that she will have to seek an EPO on the grounds that the child is “likely to suffer significant harm” if he remains in the care of his mother. The EPO is granted and the baby moved to foster carers later that evening. He thrived in the care of the foster carers and was described as an “easy pleasant baby who ate and slept well.” C made very little effort to take advantage of contact offered to her whilst the children were with foster carers. However it was recognised by all concerned that C needed care and support for herself, given her moderate learning disabilities and this was provided by a social worker to some extent. It was an impossible task to expect that she could care for 2 young children when she was functioning as a child herself. It had been possible while B was in the family home as he was far more able than C and there hadn’t been any serious concern until he actually left the family.

Both children were later made subject to Placement Orders and adopted, though separately as it became clear that the 2 year old needed to be the youngest child in the family as she had clearly been immensely traumatised in the first 2 years of her life in the care of her mother and step father. This was manifested in some very difficult and challenging behaviours – and like many children who have suffered abuse/neglect, there was a significant gap between her emotional age and chronological age. Additionally she was also failing to meet her developmental milestones and there was concern about global developmental delay. The baby fared better as he had been with the mother and step father for a shorter time and so was much more able to form secure attachment patterns with his adopters.

Case study 3: this involved J (a young woman aged 18 years) who lived with her mother and younger brother. It was a very stable family and J enjoyed a close relationship with her mother and brother. Her mother reported that J was a quiet girl who had a few friends but was a “homebird.” Then J formed a relationship with a man (T) she met through a friend also in his late teens. J became pregnant very soon after the relationship started. Her mother was shocked and very concerned as she had no liking for T sensing a difference in her daughter, in that she seemed afraid of him although she denied this was the case.

The couple moved into a flat near to J’s mother’s home and the baby (M) was born but it was obvious from the beginning that the baby had physical disabilities – diagnosed as cerebral palsy of a severe nature. The young parents and J’s mother were distraught as can be imagined. J’s mother did all she could to support the young family and ensure that baby M got all the medical support that he needed. However a few weeks after M’s birth J told her mother than she was not to visit the flat again as T didn’t like her and thought her interfering. J said she would try and bring M to see her mother when T was out. J’s mother was a feisty woman (I’ll explain how I know all this at a later stage) and most definitely had J and baby M’s best interests at heart. She refused to abide by T’s rules and continued to visit the family as her concern for J and baby M was increasing. T would usually absent himself when she visited, slamming the door and telling her to F off.

J arrived at her mother’s house one day with baby M and she had a badly bruised eye and was shaking and crying, saying that T had “lost the plot” and she was terrified of him. Her mother immediately said that she and the baby should not in any circumstances go back to the flat. They were both welcome to stay with her and she would tell T not to come near her daughter again. But before this could happen, J took a phone call from T and immediately rushed back to the flat. This kind of event happened several times and J’s mother was very worried and frustrated that J was clearly dominated by T. When baby M was aged 6 months, T was bathing him and held his head under the water, gripping him tightly around the neck. J was hysterical and dialled 999 and M was taken to hospital and T arrested, claiming he was only playing with the baby.

However on examination baby M was found to have bruising and old fractures to both of his legs. T was later charged with grievous bodily harm and given a custodial sentence of 2yrs 6 months. Fortunately baby M survived and was hospitalised for 3 weeks. Obviously CSs were involved and were not satisfied with J’s account that she was not aware that T was harming baby M. They initiated care proceedings and placed baby M with J’s mother (baby M’s MGM) Contact between J and the baby was allowed x 3 per week but always to be supervised by J’s mother. J’s mother did not believe that J was unaware that T was harming baby M but she was convinced that her daughter was dominated by T and would therefore be unable to protect the baby.

J was adamant that she would have no contact with T in prison or when he was released but her mother didn’t believe her and was more or less certain that she was visiting him in prison. She challenged her of course, but she denied emphatically that she would have anything to do with him after what he had done to baby M. Apparently he had told J that he had done it as it was the best thing for a kid like that with twisted arms and legs and wished that he had drowned in the bath. J blurted this out to her mother but later denied that he had made such comments.

When T was released from custody J’s mother kept a close watch on the flat to see if T was visiting J as she believed this to be the case. Within 3 months of T’s release J became pregnant again but denied that T was the father. J’s mother immediately involved CSs and advised that she believed T was the father although she obviously had no proof of this. J’s mother began to visit J at the flat but there was no evidence of T. However one day J’s mother’s suspicion was aroused as J asked her not to visit that day as she was having a friend to visit with her baby. J’s mother kept a watch on the flat and decided to stand outside and wait to see if T went in or came out. She waited for over 2 hours and in the lobby area and finally saw T leaving the flat.

J’s mother “saw red” and as he ran off, she gave chase (she was a very fit woman, a hillwalker and strong swimmer) – he eventually jumped on a bus and the chase ended. J’s mother immediately contacted the social worker and the police (as T was on licence) and admits to slapping her daughter across the face, as she was so disgusted with her. J was apparently hysterical but her mother’s only concern was baby M. and the unborn child. J was trying to convince her mother and the social worker that T had only been in the flat for a few minutes to collect some belongings, but no one believed her, especially as her mother had stood outside the flats for 2 hours. I did ask J’s mother what she would have done had she caught T and she admitted that she didn’t know, as her anger had taken over!

There was a pre birth Case Conference and it was decided to initiate care proceedings on the basis that the unborn child was likely to suffer significant harm, given the injuries to baby M and the fact that J was still in a relationship with T and it was likely that T was the father. It was made clear to J that whether he was the father or not, she had been unable to protect baby M, given her fear of T and his controlling and bullying behaviour, and hence this unborn baby was at risk of likely significant harm. She eventually admitted that T was the father.

The baby girl was born and placed with J’s mother. She was made subject to a Care Order. J’s mother later successfully applied for SGOs on both children. I undertook the assessment initially for kinship care of the children and later for an SGO.

What do these case studies demonstrate?

I hope that I have been able to demonstrate in the 3 cases above exactly why that wording was contained in the CA89 “likely to suffer significant harm” and not because someone looks into a crystal ball and thinks “Oh they look like they might abuse or neglect that child in the future, so we’d better ask the court for an Order to be on the safe side.”

I don’t understand why so many people talk of the injustice of “future emotional harm” – I don’t see how emotional harm (be it in the present or the future) can be a “stand alone” reason to give as a justification for seeking an Order to remove a child. If a child is physically abused, sexually abused or neglected, then they are by definition going to be emotionally harmed – they can’t not be…………..can they?

Special Guardians – Impact of ‘local guidance’ for courts?

This is a post by Sarah Phillimore

EDIT – 20th June 2018 the Court of Appeal  have now considered this issue of such ‘gloss’ upon the statute n the case of P-S (Children) [2018] EWCA Civ 1407 (18 June 2018), The CoA held that the Judge was wrong to make a care order instead of an SGO, relying on the local guidance which said that SGOs should not be made if the child had not lived with the prospective SGs for some time. If there were concerns about the appropriateness of the SGO, the correct response was to adjourn the final decision not make a ‘short term’ care order.

Recently I attended the Family Court at Worcester where I was representing a family member who wished to apply to be a Special Guardian to a new born baby. I was alarmed to be told by the local authority representative that there was a local direction that prevented a Special Guardianship Order being made unless the child had lived with the prospective Special Guardians for ‘some time’.

I asked to see a copy of this guidance/directive as, of course, this is not a requirement in the statute. When the court is being asked to make a SGO it looks at the welfare checklist in the Children Act and makes the child’s welfare its paramount consideration. There is no specific direction to consider how long the child had already lived with the prospective Special Guardians – and of course, if the child in question is a new born baby, its highly unlikely that child has lived much with anyone at all.

I was relieved to see that the guidance/directive was not in fact a prohibition on the making of a SGO where the child had not lived with the applicants – but it did seem to be adding quite a significant extra layer to the requirements of the statute.  See this post for more detailed discussion about how an SGO can be made under section 14 of the Children Act 1989.

I assume this guidance/direction must be a response to the general concern that SGOs were being made too hastily in cases where local authorities did not feel they had sufficient evidence to jump the hurdle of ‘nothing else will do’ that would justify the making of a care order with a plan for adoption. I discuss this further in this post which examines the huge rise in SGOs made alongside Supervision Orders.

But issuing local guidance in response to Special Guardian Orders that should not have been made,  is like changing the colours of your bucket when your roof is leaking. The roof needs to be fixed. If there really is such a serious and widespread inability of lawyers and social workers to prepare and analyse cases so that judges can make orders in the best interests of children, how reasonably can anyone expect piecemeal local guidance to fill the gap?

I also raise serious questions about the legitimacy of any such guidance which purports to add such a significant gloss to a statute. Lawyers and Judges cannot ‘make’ law’  – we must identify existing law and apply it. If the Children Act and its requirements for the making of a SGO are insufficient, those gaps must be filled by Parliament.

 

The relevant part of the local guidance/directive reads as follows. I have put my comments in bold:  
1. Special Guardianship Orders … In public law proceedings where the court is being invited to consider a placement with prospective special guardians should the court, assuming the threshold criteria are satisfied, (i) make a care order and leave it to the local authority and the prospective guardians to decide when the time is right to place the child with them and/or to support the prospective special guardians making an application for an SGO or (ii) keep the proceedings open under interim orders pending a time when the court considers it appropriate to make a SGO in favour of the prospective special guardians? The answer is that it all depends on the particular circumstances of each case. Exactly. This is why additional ‘guidance’ can often do more harm than good. Each case is dependent on its own facts and a consideration of what is in the best interests of the particular child involved. I suggest the following points may be of assistance to determine what is the right course in any particular case:
a. a SGO must not be made without the court having a full special guardian assessment report. It is an essential component of the court’s decision making process; this should go without saying. It is depressing therefore that it has to be said. 
b. a SGO should not be made, absent compelling and cogent reasons, until the child has lived for an appreciable period with the prospective special guardians; this is alarming. This is not a provision in the Children Act. It seems to operate to exclude very young children from consideration. This is neither rational nor reasonable and is promoting a move away from considering the welfare of the particular individual child before the court. 
c. the special guardianship assessment report process must not be curtailed in an attempt to conclude proceedings within 26 weeks; again – should go without saying. Depressing it needs to be said. 
d. in some cases a child arrangements order may be the order which meets the welfare best interests of the child; Yes. Why even bother saying this? But if the matter before the court is in care proceedings then equally we need to recognise that child arrangement orders are not going to be a likely mechanism for keeping a child safe. Care orders can only be made if child has suffered or is at risk of suffering significant harm. 
e. where the care plan (providing for placement with the prospective special guardians and, in time, support for the prospective special guardians to apply for a SGO) is agreed and/or is approved by the court, the proceedings should be concluded with the making of public law or private law orders; Yes.
f. where a local authority cannot approve a placement of a child with prospective special guardians under the auspices of an interim care order (i.e. the requirements of placement or fostering regulations cannot be met) the court may sanction a placement under an interim CAO or, if the circumstances justify the same, under wardship;
g. only in exceptional cases should care proceedings be prolonged solely for the purpose of awaiting the outcome of a trial placement of a child with prospective special guardians and/or the completion of a SGO assessment report. Agreed – but this requires recognition that assessments must therefore be on going as soon as possible if they are to be finished within the timescales of 26 weeks. Judges are continually critical of late arrival of family members but we need them to start actually exercising their judicial authority over this and managing cases; the message needs to go out loud and very clear that there is no excuse for late arrival of family members as prospective carers. Everyone’s minds needs to be focused on what other family members could be available. And courts need to start having the courage to refuse to consider assessments of people who arrive late, unless there is exceptionally good reason and they really didn’t know what was going on. 

 

 

Match Mothers

Match Mothers  is a charity, run by volunteers, which supports mothers apart from their children, for whatever reason:

  • You have been through divorce and family breakdown
  • Your child has been fostered, taken into care or adopted
  • You are a mother in prison
  • Personal reasons or choice
  • Religious and cultural
  • Your child has been abducted

 

What it offers

It offers uncritical support, from other mothers who are in similar situations. There is an annual membership fee , but there are concessions for those on low incomes. The first line of support is online, via the website where there are various sources of information available including about family courts and links to resources. Members can also contact each other via the forum, either in a public post or a private message. There is also a private Face book group, which is strictly available for members only. In addition there are a number of local support groups where members can meet face to face and a pen friend matching service. There are two get together’s a year, free to attend, one in the South and one in the North of England, which are very social able meetings with fantastic raffles.

Why it helps?

It can be very isolating being a mother apart from your children. There is still significant stigma, mothers apart being judged far more harshly than their male counterparts. Just realising that you are not the only one is a relief. More experienced members can offer their personal experience in trying to either maintain contact or offer you hope for the future.
A monthly newsletter, offers members a chance to tell their stories and shares relevant topics that may be of interest to members on subjects such as parental alienation .
Members have also taken part in research and shared their stories with journalists who have contacted Match Mothers which has increased awareness.

How to contact ?

en*******@**********rs.org

Mothers in Re-current Care Proceedings – how do we break the cycle?

On 20th October a group of about 100 lawyers, social workers, local authority professionals and others interested in child protection issues, met at the Bristol Civil Justice Centre to discuss how we can break the cycle for those mother who have child after child removed from their care.

This is a post by Sarah Phillimore. 

The timetable and speakers for the event

16.30 Introductory remarks by Judi Evans, Barrister, St John’s Chambers.

16.35 Professor Karen Broadhurst of Lancaster University explained why some mothers are so vulnerable to repeated care proceedings and removal of successive children.

16.45 Georgina Perry, Co-Founder of Pause, discussed the Pause project.

16.55 Sally-Ann Jenkins, Head of Children & Young Peoples Services, Newport City Council discussed the development of their recent programme of help and support for vulnerable mothers.

17.05 Dr Freda Gardner, Chartered Clinical Psychologist and Deputy Clinical Director of Orchard House assessment and intervention centre, discussed a pre-proceedings intervention model for parents with children.

17.15 Written contribution from Surviving Safeguarding, a parent and campaigner outlining her concerns about the types of intervention proposed for mothers (read out by Sarah Phillimore as sadly Annie couldn’t make the event).

17.20 Questions from audience

18.00 Close

Presentations from the Speakers

Professor Broadhurst kicked off discussions by presenting some ‘short, sharp’ findings from her research into recurrent care proceedings. If the rate of ‘recidivism’ for mothers in care proceedings was repeated in the criminal justice system it would be a huge concern. Research in 2015 showed 1 in 4 of mothers would return to the family courts. The data she presented showed powerful argument for intervention – not merely to save money but to recognise the significant and harmful emotional cost upon mothers who have successive children removed from their care.

 

Women facing recurrent care proceedings are often very vulnerable and there is a real risk of injustice that many cannot access the interventions that the family court say they need. There was clear argument for earlier intervention – if we continue to do nothing, as care proceedings rise, we are simply creating more mothers for the family justice system.

We then heard from Georgina Perry of Pause, who gave brief overview of how the organisation started and what it wanted to achieve.  They had been ‘astounded’ to identify 205 women who had 49 children removed between them. Something had to be done to break the cycle. The group of women they met were very vulnerable – issues of violence in relationship, drug use and mental health challenges. Their vulnerability was compounded by the alien environment of the family court and the language used. They did not understand what was being demanded and they could not access the services the courts ordered them to use.

Pause requires the women they support to use Long Acting Reversible Contraception for 18 months – they appreciate that this is a controversial topic but point out that the adversarial atmosphere of the family courts gets in the way of supporting women and allowing them time and space to reflect and benefit from that support.

The wording of this tweet caused some concern from Surviving Safeguarding, which I shall discuss below.

Sally Ann Jenkins then spoke. She is Head of Children’s Services in Newport. She spoke of working in the area as a social worker in the 1980s and on her return meeting a mother she had worked with and one of her children had children in Newport’s care. This was a stark reminder of the cycle that needs to be broken.

Inspired by attending a seminar and hearing from Professor Broadhurst, Ms Jenkins became part of a local initiative to use existing funding and resources to help parents break the cycle. They work in close collaboration with Barbados. It was early days for the Newport project and it was important to manage expectations – but key message for the audience was that we are going to have to do this by better use of existing resources; unlikely to be any extra funding.

They ask parents – what do you need? What can we do to help you access our services? Work with Swansea on the ‘cost/benefit’ analysis of this approach shows clear

Dr Freda Gardner of Orchard House then spoke about some initiatives that she was piloting. She pointed out that it was often simply a waste of resources to carry on ‘assessing’ parents who had not been able to access the therapy/intervention proposed in previous proceedings by the family courts. She suggested instead a new model – use the funds to provide some therapeutic intervention.

Not all parents could or would respond to intervention. But for some, a short period of focused intervention could bring about real change – for example, helping parents understand the need to be emotionally atuned to their child. This can be taught.

Then a powerful written piece from Surviving Safeguarding. She supported the need for intervention and preventative work but was very concerned by the requirement of Pause that women agree to take LARC as condition of getting access to services. She felt strongly that for vulnerable women who had faced control all their lives, this was simply another aspect of control and she was concerned at the implications this raised around State control of women’s bodies.

She was also concerned about the language used by some professionals – there was a risk that it would continue the ‘othering’ of such mothers and treating them as less than human.

https://twitter.com/survivecourt/status/789141442438520832

 

Discussion with the audience

There was then discussion with the audience about the various issues raised by the speakers. There was exploration about the reasons why women had successive pregnancies – clearly an important driver for some would be the desperate wish to have a child they were allowed to keep.

Pause emphasised that the requirement for women to use LARC was not seen as some form of ‘control’ but to give women freedom from continuing adversarial care proceedings and to empower and educate them so that they could be able to parent in the future. However, judging from subsequent conversations on Twitter, this is clearly an issue which raises strong emotion, along with the need to use language with care in case it simply built up further barriers to engagement and communication.

There were some useful discussions about better support for parents who were often very hostile to and alienated by the court process. A suggestion was made that it would probably be cheaper in the long run to provide parents with their own social worker – the social worker for the child was unlikely to effectively advocate for and support parents.

The Designated Family Judge for Bristol, HHJ Wildblood QC raised three questions: Why has a Pause type model not been introduced in Bristol? Who will introduce it? And when? Bristol City Council confirmed that they were in the process of developing such a service and they would persist.

All recognised the importance of systemic work and recognising the networks around the parents.

It was a useful and though provoking evening and I am grateful for the energy and innovation of our DFJ to encourage these meetings and for use of the Bristol CJC.

Researching fee-charging McKenzie Friends in private family law cases

 

This is a post from Emma Hitchings of the University of Bristol Law School. She is part of the independent research team investigating what fee-charging McKenzie Friends do and what difference their support makes to people who deal with a family dispute without a lawyer.

In the wake of legal aid cuts, individuals in the midst of a family law dispute who cannot pay for legal representation are faced with a stark choice: settling the dispute outside of court or representing themselves as a litigant in person. However, a new market has emerged to plug this post legal aid funding gap: the fee-charging McKenzie Friend. A non-lawyer assistant who charges a fee for services provided to litigants in person.

Fee-charging McKenzie Friends are a current hot topic in the legal press. Only this week a fee-charging McKenzie Friend was jailed for perverting the course of justice in a private family law case and earlier this year the Judiciary conducted a consultation into the courts’ approach to McKenzie Friends.

In response to the ongoing debate, the Bar Council  is currently funding research into the work that fee-charging McKenzie Friends do to support litigants in person in private family law cases. There is very little evidence about the background, skills and practices of fee-charging McKenzie Friends and there is no research on the factors underpinning litigants’ decisions to employ a fee-charging McKenzie Friend or on their experiences as McKenzie Friend clients.

The project comprises three strands:
– Strand one involves in-depth interviews with fee-charging McKenzie Friends
– Strand two involves in-depth interviews with clients of McKenzie Friends
– Strand three involves observation of a number of private family law court hearings involving a fee-charging McKenzie Friend and linked interviews with those involved in the case (litigant, judge, McKenzie Friend, lawyer),

 

Have you ever paid a fee for a McKenzie friend?

The team are currently in the process of recruiting clients of McKenzie Friends and would like to talk to individuals who have ever paid a fee for a McKenzie Friend to help them with a dispute about childcare arrangements or post-divorce financial arrangements. Potential participants can find out more information by visiting the following website

http://www.cardiff.ac.uk/research/projects/view/410729-mckenzie-friends

or they can take part by sending an email to Mc*************@********ac.uk.

The team expect to present the research findings in a final report due to be published in early spring 2017.

Special Guardian Orders and Supervision Orders – is it ever right these go together?

On 13th October 2016 a group of local practitioners – barristers, solicitors, guardians and local authority managers – met to discuss the growing concerns over the practice of making special guardianship orders alongside supervision orders. Those present agreed that this should not be  as commonplace as the statistics suggest (about 30% of SGO have a SO attached) because this could indicate concern about the vulnerability of the kinship placement. However, some commented that that a SO had been used positively in their cases to provide a framework to promote local authority help around contact issues. 

We agreed that we should contact those researching the issue and highlight some of our discussions. Crucial to proper understanding of what is going on is identifying who is pushing for these orders – is it the local authority applying or the court imposing? And what are the statistics on breakdown of such kinship placements? 

We met at the Bristol CJC to discuss this issue. By happy coincidence, it was the subject of a letter to the Times by Sir Martin Narey that very day, so his observations provided another framework for discussion.

Sarah Phillimore lead the discussion by first setting out the historical development of our debate about permanence for children.

A history lesson – the push for adoption and the push back from the courts

[If you are interested in reading more about this debate and want the links to documents cited, see the ‘Forced Adoption’ post.]

In 2000, the government introduced a national target to increase the number of children adopted from care by at least 40% between 1999-2000 and 2004-5. Tony Blair had been horrified by the numbers of children who remained in care for long periods of time without a permanent home. These were not targets to take children from their homes in order to get them adopted – as some assert – but a well intentioned attempt to help children who were already in the care system and hadn’t been found a permanent home.

Claire Fenton-Glynn describes the situation in her study on the UK system, presented to the European Parliament in June 2015:

The Prime Minister’s Review of Adoption in 2000 put forward the belief that the system was not delivering the best for children, as decisions about how to provide a secure, stable and permanent family were not addressed early enough. As such, it advocated an increase in the use of adoption to provide children with permanency at an earlier stage. The Review gave the opinion that there was too great a focus on rehabilitation with the birth family, at the expense of the child’s welfare. It emphasised that the first choice should always be a return to the birth family, but where this was clearly not an option, adoption should be seen as a key means of providing permanence. Foster care, on the other hand, was viewed as a transitional measure, which should be used only as a temporary option.
Following on from this, the government produced a White Paper entitled Adoption: A New Approach, which outlined the government’s plan to promote the wider use of adoption for looked after children, establishing the target of increasing adoption by 40-50 per cent by 2004-2005.39 The White Paper also announced that the government would require local authorities to make a plan for permanence – returning home, placement for adoption, or special guardianship40 – for a child within 6 months of being continuously looked after.
It was in this context that the Adoption and Children Act 2002 was introduced, with the explicit aim of promoting the greater use of adoption. The Act changed the process of adoption itself, by making the welfare of the child the paramount consideration for courts and adoption agencies in all decisions relating to adoption, including in deciding whether to dispense with the birth parents’ consent to adoption.

Various governments since 2000 have been very clear that they believe adoption is the best option of permanency for children who can’t live with their birth families. See for example letter in today’s Times from Sir Martin Narey (above).

This official ‘push’ for adoption met an equal and opposite reaction from the courts in and In the matter of B (A Child) [2013] UKSC 33 and Re B-S (Children) [2013] EWCA Civ 1146. Although the Judges insisted they hadn’t changed the law, there is no doubt these authorities had a massive impact on PRACTICE and applications for placement orders fell dramatically.

So – what to do with children if you are worried they aren’t safe with their birth families, but you also worry that you can’t show sufficiently well argued grounds to support placement order with plan of adoption? One recourse was clearly Special Guardianship Orders.

Implications of the ‘adoption agenda’ for SGOs

Its worth reminding ourselves why SGO came into being. It is an option of permanence – not a ‘holding position’. The Adoption and Children Act 2002 amended section 14 of the Children Act 1989 to create special guardianship orders (SGO). These are a ‘half way house’ between a Child Arrangements Order and adoption, which severs all legal ties between a child and his birth family.

The aim behind a SGO is that it will give a child permanence and stability but also allow him to retain links to his birth family. For example, if a child is cared for by a close relative such as a grandmother, then adoption doesn’t make much sense as his grandmother would legally become his ‘mother’. However, special guardianship is not intended to be only used for relatives; foster carers should also be considered as potential special guardians. See Re I (Adoption: Appeal: Special Guardianship) [2012] Fam Law 1461.

The court in S (a child) [2007] EWCA Civ 54 discussed the government’s motivation behind creating SGOs at paragraph 11 of its judgment. The concept of special guardianship was introduced and discussed in paragraphs 5.8 to 5.11 of the 2000 White Paper in the following terms:

5.8 Adoption is not always appropriate for children who cannot return to their birth parents. Some older children do not wish to be legally separated from their birth families. Adoption may not be best for some children being cared for on a permanent basis by members of their wider birth family. Some minority ethnic communities have religious and cultural difficulties with adoption as it is set out in law. Unaccompanied asylum-seeking children may also need secure, permanent homes, but have strong attachments to their families abroad. All these children deserve the same chance as any other to enjoy the benefits of a legally secure, stable permanent placement that promotes a supportive, lifelong relationship with their carers, where the court decides that is in their best interests.
5.9 In order to meet the needs of these children where adoption is not appropriate, and to modernise the law so as to reflect the religious and cultural diversity of our country today, the Government believes there is a case to develop a new legislative option to provide permanence short of the legal separation involved in adoption. This view was strongly supported by respondents to the consultation on the PFU report.
5.10 The Government will legislate to create this new option, which could be called ‘special guardianship’. It will only be used to provide permanence for those children for whom adoption is not appropriate, and where the court decides it is in the best interests of the child or young person. It will: –
• give the carer clear responsibility for all aspects of caring for the child or young person, and for making the decisions to do with their upbringing. The child or young person will no longer be looked after by the council;
• provide a firm foundation on which to build a lifelong permanent relationship between the carer and the child or young person;
• preserve the legal link between the child or young person and their birth family;
• be accompanied by proper access to a full range of support services including, where appropriate, financial support.

Use of SGOs on the rise – and concerns about this.

There is no doubt that the use of SGOs is rising. So too the number of SGOs made together with a SO. What isn’t clear from the statistics is whether this is a combination actively pursued by a LA or imposed by a court.

Community Care made a FOI to CAFCASS and reported the statistics in an article on 3rd December 2015. Of the 4,121 special guardianship orders (SGOs) made in 2014, 1,193 had a supervision order attached. The number of SGOs made with a supervision order attached almost tripled from 2012 to 2014, while the numbers of those without a supervision order rose by around 50%.Figures up to 31 September 2015 indicate the practice may increase again this year. By September 2015 922 of the 3,148 SGOs made had a supervision order attached, which is nearly 30%.

This is confirmed by the research funded by the Nuffield Foundation ‘A national study of the usage of supervision orders and special guardianship over time (2007-2016)’:
• There has been a steady rise in the number and proportion of special guardianship orders resulting from public law proceedings since 2007/08.
• There has been a marked change in the ratio of usage of special guardianship orders since 2012/13 when compared to placement order trends. The proportion of placement orders has declined as the share of special guardianship orders has risen. In 2014/15 for the first time ever, the proportion of special guardianship and placement orders (20.1% v 20.9%) and the numbers (3,591 v 3,749) are converging.
• A new and growing trend is the use of a supervision order made to the local authority to accompany a special guardianship order. In 2014/15 28.7% of special guardianship orders were accompanied by a supervision order, up from 11.2% in 2010/11. But usage of supervision orders as a standalone option compared to other legal orders has remained almost level (e.g. 13.1% in 2010/11 and 13.8% in 2014/15).

The first briefing paper comments:

The steady increase in special guardianship orders accompanied by a supervision order is another important new trend. It means that in approximately a third of all cases the local authority is required to ‘advise, assist and befriend the supervised child’ when a special guardianship order is made. There are practical and resource implications arising from this new trend. But above all it raises the question why a supervision order is necessary and what it can achieve. There is no national evidence on the contribution of supervision orders to child wellbeing in general and supporting special guardianship orders in particular. This trend will need careful monitoring.

Concerns about this trend and poor quality assessments have been exacerbated by extensive media coverage of the death of young children at the hands of their Special Guardians.

  • 7 year old Shanay Walker was found dead at a house in Nottingham in July 2014 while in the care of her aunt Kay-Ann Morris, 24. She had suffered more than 50 injuries. Jailing Morris for eight years and Smikle for four years, the judge Mr Justice MacDuff said the pair were guilty of a “most wicked betrayal of trust”
  • 18 month old Keegan Downer was killed on 5th September 2015 by Kandyce Downer, 34, less than a year after SGO made.

Andrew Webb (ADCS) and Anthony Douglas (Cafcass) prepared a note: ‘The assessment of Special Guardians as the preferred permanence option for children in care proceedings applications’ . This was circulated via email in October 2015 to all local practitioners for ‘information only’ – it was not signed or endorsed by the President of the Family Division.

Their identified concerns were:
a. Insufficient consideration of placement’s long term viability.
b. Many placements have been arranged at a late stage in care proceedings without adequate time to carry out a suitability report to safe minimum standards which avoidably increases the risk of placement breakdown or the risk of immediate and significant harm.
c. Basic safeguards routinely applied to other forms of permanence should be followed with every Special Guardianship assessment and court process.
d. Where an SGO is being considered at a late stage in proceedings, care must be taken to ensure that minimum standards are complied with and that the suitability report covers the issues sufficiently. This is just as crucial if professional concerns relate to the long term capacity of the proposed special guardians to parent well, as it is if the child has neither lived with the proposed special guardian/s nor has a relationship with or attachment to the proposed special guardian.
e. If such a late assessment means that the 26 week limit cannot be complied with, this should be clearly presented to the court as a legitimate reason for assigning the case to the non-standard track.
f. All assessments/suitability reports, should comply with the Schedule set out in Regulation 21 of the Special Guardianship Regulations 2005 (2005 No.1109). The threshold for a Special Guardianship Order in social work terms is that there is an evidence base that neither a co-parenting agreement, nor a s8 Order under the Child Arrangements Programme, will guarantee the child sufficient security and stability throughout their childhood. Conversely, the social work assessment and the children’s guardian’s analysis must demonstrate that the special guardian can meet the needs of the child in question including, where appropriate, recovery from the trauma associated with severe abuse or neglect if that has been the child’s prior lived experience.
g. It is important not to regard a Special Guardianship Order as a default option because of the higher hurdle of an adoption recommendation – ‘the nothing else will do’ test, or ‘last resort’ concept. Care must be taken to provide a balanced assessment of the special guardian, rather than over-emphasising untested positives.

The Department of Education conducted a review of the use of SGOs and published its findings in December 2015:
a. A significant minority of cases where assessments were rushed or of poor quality;
b. Potentially risk placements being made – for example, where the SGO is awarded with a supervision order (SO) because there remains some doubt about the special guardian’s ability to care for the child long-term
c. Inadequate support for special guardians, both before placements are finalised, and when needs emerge during the placement.

It is vitally important for the local authority analysis to be robust, supported by strong and intelligent evaluation. SGOs are permanence orders, awarded on the expectation that the child will remain in that placement until he or she is an adult. For this reason, a sound prediction of the child’s long-term welfare in that placement should sit at the heart of the assessment, and form the basis for the final care plan.

Discussions with the audience

SGOS made alongside SO are rising. Is this ever the right outcome for children ? Why would these orders be made together? Some possible answers are:
a. Worries about SG placement and risk of harm. But if you are concerned about a placement to the extent that a Supervision Order is required, can this really be the right permanent placement for a child? Particularly now with judgment of Court of Appeal in Re W (A Child) [2016] which demolishes any presumption of the primacy of a family placement. A child’s opportunity to grow up with a distance aunt or uncle or grandparents should not outweigh that child’s right to be kept safe – even alive.
b. Worries that not sufficient analysis for ‘nothing else will do’ – but SGO can’t be fudged compromise between adoption and long term fostering.
c. Court concerned that lack of support on offer for the SG – but will a supervision order have any impact on this?

There was general agreement in the audience that they were very uneasy about a SO being used to ‘prop up’ a risky placement but some said a SO had a positive impact when used to promote contact arrangements. However, it is not clear that this is a legitimate use of a SO; there is no enforceable obligation upon a local authority to supervise contact post placement unless the court was prepared to entertain an application under the Human Rights Act (which carries its own complications). Some in the audience agreed that what made post placement contact arrangements work was the willingness of the local authority to engage, not the impact of orders which could not be practically enforced. There was widespread unhappiness about the impact of Family Assistance Orders – most perceiving them to be ‘useless’ – but two practitioners did report a positive impact of an FAO after the SGO was made.

All agreed it was vital to try and break the statistics down further to see if it was local authorities pushing for SGOs with SO, or whether this was being led by the court.  Further, it would be essential for future discussion to understand more about how and when SG placements break down. It was noted that some LA review and keep records of the financial assistance offer to SGs so this would be one way of trying to ‘track’ what happened to placements when the court proceedings finished.

However, the point was made that local authorities could not be expected to be a ‘go between’ the Special Guardians and other family members throughout the child’s minority. The whole point of such a placement was that that the SG was deemed able to meet the child’s needs. If continuing assistance was required from a local authority to monitor or manage contact, that raised some doubts as to the suitability of the SGO in the first place.

All agreed that the rise of social media had a significant impact on issues around contact and children seeking out their birth families post placement. This was another reason for getting better statistics for breakdown rates for SG placements.

There was general agreement that the ‘disconnect’ between official policy – more adoptions, more quickly – and what was happening on the ground – pressure to end proceedings in 26 weeks – was having an impact on the nature and quality of assessments. The majority of those present had experienced SG orders being made for people who had failed or would have failed a fostering assessment. There was general agreement that courts needed to be more robust in insisting that possible family placements were identified as soon as possible and that ‘late applications’ would not be entertained. It simply isn’t possible to produce a SG assessment of suitable quality in the middle of a 26 week timetable.

It was agreed that Sarah Phillimore would contact the Nuffield and raise some of these issues with the researchers.

 

EDIT by SP- I am reminded that the Special Guardian Regulations were updated in 2016.  I cannot see that these amendments will have much practical impact on the problems identified, given that the primary problem is the lack of time to carry out proper assessments. But it is a useful reminder that careful consideration must be given to what harm has been suffered by a child before the SGO was made. This will inevitably have an impact on what kind of placement is best for that child.

The relevant part of the amendments reads:

Amendments to the Special Guardianship Regulations 2005

4. In paragraph 1 of the Schedule (matters in respect of the child) —

(a)after sub-paragraph (g) insert:
“(ga)any harm which the child has suffered;
(gb)any risk of future harm to the child posed by the child’s parents, relatives or any other person the local authority consider relevant;”
(b)in paragraph (j) after “related” insert “current needs or likely future”.
5. In paragraph 4 of the Schedule (matters in respect of the prospective special guardian or, where two or more persons are jointly prospective special guardians, each of them) —

(a)for sub-paragraph (j), substitute:
“(j)an assessment of the nature of the prospective special guardian’s current and past relationship with the child;”
(b)for sub-paragraph (n), substitute:
“(n)an assessment of the prospective special guardian’s parenting capacity, including:
(i)their understanding of, and ability to meet the child’s current and likely future needs, particularly, any needs the child may have arising from harm that the child has suffered;
(ii)their understanding of, and ability to protect the child from any current or future risk of harm posed by the child’s parents, relatives or any other person the local authority consider relevant, particularly in relation to contact between any such person and the child;
(iii)their ability and suitability to bring up the child until the child reaches the age of eighteen