Author Archives: Sarah Phillimore

Wardship

The wardship jurisdiction

The concept of ‘wardship’ is very ancient. It is part of the court’s ‘inherent jurisdiction’ i.e. the power of the court to make orders about matters which are not included in any statute. This is because the court is treated as a trustee of the Crown’s duty to protect all its subjects.  Wardship is just one facet of this wider inherent jurisdiction.  suesspicoussminds comments:

Wardship is part of the High Court’s Inherent Jurisdiction, and as long-term readers will know, the High Court is very fond of using the Inherent Jurisdiction as authority for doing just about anything, and often use the phrase “the powers of Inherent Jurisdiction are theoretically limitless”

The earliest origins of wardship can be found in feudal times, giving the Crown the right to exercise powers and duties over orphaned children whose fathers had owned land.  These children ‘belonged’ to the King as ‘pater patriae’ (the ‘father of the country’).

In 1540 a Court of Wards was set up to enforce the right of the Crown and the execution of its duties in connection with wardship. This court was abolished in 1660 but the wardship jurisdiction carried on and the Court of Chancery claimed jurisdiction over children. It began to expand from being merely concerned with property rights, to the general welfare and protection of children.

Lord Cottenham LC in Re Spence (1847) 2 Ph 247, 251 described wardship in these terms:

 I have no doubt about the jurisdiction. The cases in which the court interferes on behalf of infants are not confined to those in which there is property . . . This court interferes for the protection of infants qua infants by virtue of the prerogative which belongs to the Crown as parens patriae and the exercise of which is delegated to the Great Seal.

The Guardianship of Infants Act 1886 provided a statutory basis for consideration of children’s welfare – but ‘wardship’ continued to exist beyond statute law as part of the court’s ‘inherent jurisdiction’.

In R v Gyngall [1893] 2 QB 232,248, Kay LJ commented that wardship:

. . . is essentially a parental jurisdiction, and that description of it involves that the main consideration to be acted upon in its exercise is the benefit or welfare of the child. Again the term ‘welfare’ in this connection must be read in its largest possible sense, that is to say, as meaning that every circumstance must be taken into consideration and the court must do what under the circumstances a wise parent acting for the true interests of the child would or ought to do. It is impossible to give a closer definition of the duty of the court in the exercise of this jurisdiction.

Modern Day Wardship and its limitation by the Children Act 1989

Practice Direction 12D explains what is meant by wardship and the inherent jurisdiction in the modern age.

It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.
1.2
The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common –
(a) orders to restrain publicity;
(b) orders to prevent an undesirable association;
(c) orders relating to medical treatment;
(d) orders to protect abducted children, or children where the case has another substantial foreign element; and
(e) orders for the return of children to and from another state.
1.3
The court’s wardship jurisdiction is part of and not separate from the court’s inherent jurisdiction. The distinguishing characteristics of wardship are that –
(a) custody of a child who is a ward is vested in the court; and
(b) although day to day care and control of the ward is given to an individual or to a local authority, no important step can be taken in the child’s life without the court’s consent.

The Children Act 1989 introduced some significant limits to the jurisdiction. Section 100 provides  that wardship may NOT be used to put a child into care as this would by pass the Children Act 1989 and could mean that the necessary statutory tests weren’t met, such as the need to prove significant harm.

The Children Act itself was intended to incorporate many of the beneficial aspects of wardship, such as a flexible range of orders and the intention was that the Children Act would substantially reduce the need for people to apply to the High Court for wardship.

However, the Court of Appeal have confirmed that it is possible to make a child a ward of court when they are voluntarily accommodated by the LA under section 20 – see this post by suesspiciousminds for further discussion. 

If a wardship order is made, it is for the Court to make decisions about the child and the court can’t use wardship to make this decision if it could be made using any other provision of the Children Act 1989.

This is why wardship was used in the case of Ashya King in 2014 whose parents removed him from hospital in the UK and took him to be treated abroad. The LA were not applying to have him taken into care and there was no other provision in the Children Act that was available. Ashya was made a ward of court on the application of the LA and the parents were ordered to take him for medical treatment. Fortunately this case had a happy ending and the court were able to discharge the wardship order and Ashya remained with his parents.

Use of the inherent jurisdiction to accommodate children

For discussion as to when the inherent jurisdiction can be used to authorise placing a child in LA accommodation outside the statutory/regulatory regime see the case of Tameside MBC v L (Unavailability of Regulated Therapeutic Placement) [2021] EWHC 1814 (Fam). The court decided that it remains open to the High Court to use the inherent jurisdiction to authorise the deprivation of liberty of a child under 16, where the child will be living in a placement which is outside the statutory or regulatory scheme, provided that everyone followed the President’s Guidance of November 2019 entitled Placements in unregistered children’s homes in England or unregistered care home services in Wales and the addendum thereto dated December 2020. 

See also the discussion of the use of the inherent jurisdiction by the Supreme Court in the case of Re T[2021] UKSC 35, which determined that use of the inherent jurisdiction IS permissible and doesn’t ‘cut across’ the statutory scheme of LA accommodation – but expressed grave concerns about its use to fill gaps in the child protection system, due to lack of resources. The child’s consent or lack of it did not determine the decision about whether a deprivation of liberty was permissible. Placement of a child in unregistered or unregulated accommodation must be a temporary solution, only if no other alternative available and reflects a ‘scandalous lack’ of provision. The full judgment is here

Hearsay Evidence

Unless uncontroversial, it must be regarded with great caution

It is a frequent complaint that care proceedings are unfair because the court relies largely or entirely on hearsay evidence. ‘Hearsay’ in law is evidence provided by someone about something said by someone else and it usually is not admissible evidence in court proceedings for the simple reason that it cannot be tested in cross examination – the person who actually said the thing that is relied upon is not in court. For example, a report from a foster carer or a teacher about what a child said is hearsay.

Under section 2 of the Civil Evidence Act 1995 and Part 33 of the Civil Procedure Rules if a person wishes to rely on hearsay he must give advance notice to the other parties and explain why.

So why are proceedings involving children treated differently? Historically wardship proceedings in the High Court were an exception to the general rule that hearsay evidence would not be admitted. This is because in such cases the paramount consideration was the welfare of the children who were made wards of court, not the rights of the parties.

See Re W (Minors) (Wardship: Evidence) [1990] 1 FLR 203. The court said:

… wardship hearings are not subject to the strict rules of evidence and a judge exercising the wardship jurisdiction may admit evidence classed as hearsay which would otherwise be excluded.

The statutory justification for the use of hearsay evidence in care proceedings is found at section 96 of the Children Act 1989 which refers to evidence given by or in respect of a child. The Children (Admissibility of Hearsay Evidence) Order 1993, SI 1993/621, simply provides that such evidence shall be admissible “notwithstanding any rule of law relating to hearsay”.

Growing awareness of the impact on vulnerable witnesses of giving evidence has also impacted on the criminal courts – the Criminal Justice Act 2003 now allows for hearsay evidence to be given in criminal trials in a much wider set of circumstances than used to be the case.

Tension between admissibility of hearsay and rights to a fair trial

There is clearly a tension between the demands for a fair trial process pursuant to Article 6 of the ECHR and the need to protect children. The Supreme Court in W [children] 2010 UKSC 12 commented:

The object of the proceedings is to achieve a fair trial in the determination of the rights of all the people involved. Children are harmed if they are taken away from their families for no good reason. Children are harmed if they are left in abusive families. This means that the court must admit all the evidence which bears upon the relevant questions: whether the threshold criteria justifying state intervention have been proved; if they have, what action if any will be in the best interests of the child? The court cannot ignore relevant evidence just because other evidence might have been better. It will have to do the best it can on what it has.

Courts must consider hearsay evidence very carefully

But it cannot be a ‘free for all’. The court is entitled to the best evidence that can reasonably be put before it. The judge will have to consider hearsay evidence very carefully, particularly if it is relied upon to prove a particularly serious allegation, such as sexual abuse. The court in re W in 1990 commented:

In wardship, therefore, the rules as to the reception of statements made by children to others, whether doctors, police officers, social workers, welfare officers, foster-mothers, teachers or others, may be relaxed and the information may be received by the judge. He has a duty to look at it and consider what weight, if any, he should give to it. The weight which he places upon the information is a matter for the exercise of his discretion. He may totally disregard it. He may wish to rely upon some or all of it. Unless uncontroversial it must be regarded with great caution.

In considering the extent to which, if at all, a judge would rely on the statements of a child made to others, the age of the child, the context in which the statement was made, the surrounding circumstances, previous behaviour of the child, opportunities for the child to have knowledge from other sources, any knowledge, as in this case, of a child’s predisposition to tell untruths or to fantasise, are among the relevant considerations.

The most recent case to warn of the need to treat hearsay with caution is found in the judgment of the President in Re A (A Child) [2015] EWFC11, where he commented at paragraph 9:

…the local authority, if its case is challenged on some factual point, must adduce proper evidence to establish what it seeks to prove. Much material to be found in local authority case records or social work chronologies is hearsay, often second- or third-hand hearsay. Hearsay evidence is, of course, admissible in family proceedings. But, and as the present case so vividly demonstrates, a local authority which is unwilling or unable to produce the witnesses who can speak of such matters first-hand, may find itself in great, or indeed insuperable, difficulties if a parent not merely puts the matter in issue but goes into the witness-box to deny it. As I remarked in my second View from the President’s Chambers, [2013] Fam Law 680:

“Of course the court can act on the basis of evidence that is hearsay. But direct evidence from those who can speak to what they have themselves seen and heard is more compelling and less open to cross-examination. Too often far too much time is taken up by cross-examination directed to little more than demonstrating that no-one giving evidence in court is able to speak of their own knowledge, and that all are dependent on the assumed accuracy of what is recorded, sometimes at third or fourth hand, in the local authority’s files.”

It is a common feature of care cases that a local authority asserts that a parent does not admit, recognise or acknowledge something or does not recognise or acknowledge the local authority’s concern about something. If the ‘thing’ is put in issue, the local authority must both prove the ‘thing’ and establish that it has the significance attributed to it by the local authority.

Civil Evidence Act 1995

Section 4 sets out what considerations may have an impact on the weight of hearsay evidence

  • whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
  • whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
  • whether the evidence involves multiple hearsay;
  • whether any person involved had any motive to conceal or misrepresent matters;
  • whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
  • whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.

Forced Adoption: We need to talk about this

This is a post by Sarah Phillimore

The Latvian Intervention

I can only hope that these discussions will assist to shine a light where it is needed – and not to encourage the rhetoric and clumsy propaganda of either side of the ‘forced adoption’ debate. Because that way we are all losers, but the children most of all. 

Owen Bowcott, writing in the Guardian in March 2015, described the situation:

Latvia’s parliament has formally complained to the House of Commons that children of Latvian descent are being illegally and forcibly adopted by British families.

The extraordinary intervention by foreign MPs in the way social services take children into care comes as the Baltic state has been granted permission to give evidence during an appeal over the case of a six-year-old girl who has been removed from her mother. It is due to be heard this month.

Other eastern European countries have also raised concerns about British adoption procedures, sometimes in cases where children have been born to mothers who have been trafficked into the country for the purposes of prostitution. In one case, Nigeria also expressed concern.

The child at the centre of Latvia’s intervention was first put into care in 2012 after being found at home alone, aged 21 months. Both her parents are Latvian; her father remains in their homeland.

The mother, according to an earlier judgment, had previously been found drunk, walking barefoot with her daughter in a buggy in the middle of a road in the south London borough of Merton.

The mother disputes the local authority’s assessments and the allegation that she was inebriated; she is now challenging the adoption of her child. Her lawyers have complained that the six-year-old was put in non-Russian speaking foster care which has delayed her language development.

Challenge in the courts

The mother has made various legal challenges to every stage of the adoption process. The Judgement of one such challenge in 2013 is here. Her most recent challenge has also failed. The judgment of the Court of Appeal is here.

Of note are the conditions in which the child was discovered at paragraph 6 of the judgment. This was described by a Latvian politician speaking on the Today programme on 13th August as a ‘mistake’ made by the mother and that ‘we all make them’.

I then heard a whimpering sound from a door directly in front of me. Once I had opened the door, I saw a room. In the left-hand corner of the room was a wardrobe and there were toys all over the floor. In the right-hand corner of the room against the window was a double bed that looked very soiled. On the wall beside the bed was a large area of damp and the wallpaper was coming away. There was a very strong and overpowering smell of urine and faeces in the room. I saw the child curled in an almost foetal position on the bed lying on a pillow. She sat up when we came into the room and she was holding an empty pink bottle. I went towards the child and she stood up and came towards me. I saw that her clothes were wet and that she was wearing a nappy that was falling off between her legs. Once in a different room, I could see that the child’s clothes were wet and she was shivering. The strong smell was coming from her and it was clear that she had not been changed or cleaned all day. I removed the child’s nappy to find dried and fresh faeces. The nappy was so swollen with urine that the child was unable to walk properly. There were also dried faeces on the child’s body and her skin was soaked in urine that had leaked from her nappy and gone through her clothes.

England and Wales needs to bring itself into line?

Part of the mother’s argument was that the law in England and Wales is simply ‘out of step’ with the rest of Europe:

“Most countries in Europe do not have a policy of “forced adoption.” As they do not, then the jurisdiction of England and Wales needs to be brought further in to line with the rest of Europe.”
This is elaborated by the mother in her skeleton argument with the assertion that if this case had been heard in another European jurisdiction, then a different solution would have been found. She says that other European countries have a greater understanding of familial ties, whereas in this country, she says, too little weight is attached to the child’s biological, national, ethnic and cultural inheritance. She says that this country should consider that it may be causing or permitting too many children to be adopted, and is out of line with the rest of Europe. Whilst accepting that there is a margin of appreciation, she says that this country is so far out of step with the rest of Europe that it needs to bring itself into line. She refers to the observations of Mostyn J in Re D (Special Guardianship Order) [2014] EWHC 3388 (Fam), [2015] 2 FLR 47, para 35, and to what Holman J said in A and B v Rotherham Metropolitan Borough Council [2014] EWFC 47.

The President responded to this argument at paragraph 80:

I am acutely conscious of the concerns voiced in many parts of Europe about the law and practice in England and Wales in relation to what is sometimes referred to as ‘forced adoption’ but which I prefer, and I think more accurately, to refer to as non-consensual adoption. Manifestations of these concerns are to be found both in the Borzova Report and in the letter from the Saeima of the Republic of Latvia to which I referred in paragraph 39 above. I refer also to the fact that at its meeting on 19-20 March 2014 the Committee on Petitions of the European Parliament considered and declared admissible a petition by LB making allegations about the local authority’s behaviour in the present case. It would not, however, be appropriate for me to say anything more about that particular matter.
I refer in this connection to what I said in In re E (A Child) (Care Proceedings: European Dimension) Practice Note [2014] EWHC 6 (Fam), [2014] 1 WLR 2670, [2014] 2 FLR 151, paras 13-15:
“13 Leaving on one side altogether the circumstances of this particular case, there is a wider context that cannot be ignored. It is one of frequently voiced complaints that the courts of England and Wales are exorbitant in their exercise of the care jurisdiction over children from other European countries. There are specific complaints that the courts of England and Wales do not pay adequate heed to BIIR and that public authorities do not pay adequate heed to the Vienna Convention.
14 In the nature of things it is difficult to know to what extent such complaints are justified. What is clear, however, is that the number of care cases involving children from other European countries has risen sharply in recent years and that significant numbers of care cases now involve such children. It is timely therefore to draw the attention of practitioners, and indeed the courts, to certain steps which can, and I suggest from now on should, be taken with a view to ameliorating such concerns.
15 It would be idle to ignore the fact that these concerns are only exacerbated by the fact that the United Kingdom is unusual in Europe in permitting the total severance of family ties without parental consent … Thus the outcome of care proceedings in England and Wales may be that a child who is a national of another European country is adopted by an English family notwithstanding the vigorous protests of the child’s non-English parents. No doubt, from our perspective that is in the best interests of the child – indeed, unless a judge is satisfied that it really is in the child’s best interests no such order can be made. But we need to recognise that the judicial and other State authorities in some countries that are members of the European Union and parties to the BIIR regime may take a very different view and may indeed look askance at our whole approach to such cases.”

The law of England and Wales is NOT incompatible with the ECHR

But what is very clear is that the UK laws are NOT incompatible with the ECHR. The extent of the UK’s violations of the ECHR is set out in this helpful infographic from Rights Info.  It is ironic to find ourselves criticised by, for example, Slovenia –  which has the highest number of violations of fundamental rights of all members of the Council of Europe. Only 3% of cases bought to the European Court involve the UK.

The President commented at paragraph 83 of his judgment:

The second point is that, whatever the concerns that are expressed elsewhere in Europe, there can be no suggestion that, in this regard, the domestic law of England and Wales is incompatible with the United Kingdom’s international obligations or, specifically, with its obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms. There is nothing in the Strasbourg jurisprudence to suggest that our domestic law is, in this regard, incompatible with the Convention. For example, there is nothing in the various non-consensual adoption cases in which a challenge has been mounted, to suggest that our system is, as such, Convention non-compliant.

Sanchia Berg described the reaction of a Latvian politician:

Latvian MP Ignor Pimenov, said he found it hard to understand how a country “with high moral standards” could act in this way.
He believes this is not a unique case and said he had been contacted by several other Latvian women in the UK whose children had been taken into care.
“I can see there is something behind it… but families have been ruined,” he said.

What do we need to do?

Recent posts on this site and elsewhere have highlighted the current levels of ignorance about what actually happens here and abroad. What is not controversial is that there are children who need to be rescued from their parents and that there are state officials who either do not understand or misapply the law. The failures of the latter do not negate the need to protect children or render all parents blameless.

Do the mistakes or even deliberate malice of some individuals mean that there is a conspiracy to ‘snatch’ children from blameless, loving homes and ‘put them up’ for adoption? We have argued ‘no’. But there are many who disagree.

As a society we have an urgent need for better and more honest debate about this.

  • What support are families getting or should they be getting, to reduce the need for their children to be ‘rescued’ ?
  • When and how should the state intervene to carry out this ‘rescue’?
  • What should be the consequences when the state get it wrong? What redress could or should parents be given?

As Joshua Rozenberg commented in the Guardian:

This is not a case about whether the Latvians have been denied jurisdiction over one of their citizens. This is a case about what is in the best interests of a seven-year-old girl who was born in England and rescued from what a judge described as “appalling” neglect. Until she grows up, it must surely be better for CB to stay just where she is.

The current state of the debate, based on hyperbole, inaccuracy and massive distrust,  is unlikely to assist any process of reform, particularly not when politicians in other countries are now adding their critical voices and their refusal to accept the initial judgments of the UK courts.

There is a danger that the pendulum will swing again, back to focus on the ‘rights’ of parent, with the consequent loss of understanding or appreciation of what some children suffer. The ‘family’ is not always a haven of safety and security.

I can only hope that these discussions will assist to shine a light where it is needed – and not to encourage the rhetoric and clumsy propaganda of either side of the ‘forced adoption’ debate. Because that way we are all losers, but the children most of all.

EDIT – appeal to Supreme Court refused and Adoption Order made.

The judgment of Moylan J in October 2015 made an adoption order and brought these proceedings finally to a close. He set out at paragraph 8 the reasons why the Supreme Court had refused the mother’s application to appeal. They held her appeal had ‘no prospect of success’ commented that it relied upon the following as facts:

i. In March 2010 the mother left CB alone at home in a disgusting condition and Merton began to accommodate her. The circumstances of that incident were fully investigated by the District Judge in July 2012 who disbelieved the mother’s account. He decided that CB should be placed for adoption and that the mother’s consent be dispensed with.
ii. The mother brought two unsuccessful appeals against his orders. In the present proceedings the mother is not entitled to challenge the District Judge’s findings nor, by her addendum ground, the conclusion in the second appeal that Merton had been entitled to hold the adoption panel meeting on 9th March 2012.
iii. In view of her contentions that Merton was trying to meet a higher target for adoptions and was therefore “biased”, the mother should note that it was the court, not Merton, which took the decision to authorise the placement of CB for adoption.
iv. In May 2013, following the dismissal of the second appeal, CB was placed with the prospective adopters. So she has lived with them for almost 2½ years. She last saw the mother in March 2013.
v. The adopters would have understood that the path to CB’s adoption was clear. Instead there has been a prolonged challenge to her placement with them, supported with all the authority of the Latvian State. The pressure to date on the adopters, and indirectly on CB, is obvious.
vi. Moylan J accepted evidence that CB was at risk of significant emotional harm if removed from the adopters. It is not arguable that it would be in her interests to be removed from them at this late stage and to be placed wherever the Latvian Court might direct.
vii. The loss of CB’s national and cultural identity is a substantial factor and was rightly weighed by Moylan J. He held however that it was outweighed by other aspects of her welfare and this court would not disturb his assessment.

Attachment Theory – the Basics

We are grateful to Kate Wells for this piece outlining the basics of ‘attachment theory’. This is a very important concept in care proceedings as often conclusions reached about a child’s attachment or lack of will be very influential in determining the direction of a case. But it is often  a concept which seems poorly understood and misapplied by many. 

I think it is absolutely essential that social workers have a basic understanding of attachment theory and the importance of the early relationship between baby and mother (again used as shorthand) from the first moments of birth, and even in utero as there is evidence that babies can be adversely affected if there is tension, hostility, domestic violence etc., and how this insecure attachment pattern will affect the children as they grow through the ages and stages of childhood.

Attachment theory in psychology originates with the seminal work of John Bowlby (1958). In the 1930’s John Bowlby worked as a psychiatrist in a Child Guidance Clinic in London, where he treated many emotionally disturbed children. This experience led Bowlby to consider the importance of the child’s relationship with their mother in terms of their social, emotional and cognitive development. Specifically, it shaped his belief about the link between early infant separations with the mother and later maladjustment, and led Bowlby to formulate his attachment theory.
Evolutionary theory of attachment (e.g. Bowlby, Harlow, Lorenz) suggests that children come into the world biologically pre-programmed to form attachments with others, because this will help them to survive. The infant produces innate ‘social releaser’ behaviors such as crying and smiling that stimulate innate caregiving responses from adults. The determinant of attachment is not food but care and responsiveness.

Bowlby suggested that a child would initially form only one primary attachment (monotropy) and that the attachment figure acted as a secure base for exploring the world. The attachment relationship acts as a prototype for all future social relationships so disrupting it can have severe consequences.

This theory also suggests that there is a critical period for developing an attachment (about 0 -5 years). If an attachment has not developed during this period then the child will suffer from irreversible developmental consequences, such as reduced resilience and aggression
I don’t propose to give any further background details as there is so much more information since Bowlby’s works in the 1950s that it would be a mammoth task and as my aim is to provide some very BASIC information on attachment theory, further detail would not be helpful.

However there is a huge amount of published information on Attachment Theory readily available for anyone wishing to gain a greater understanding of the theory.

I do NOT claim to be any sort of expert in this theory, although I do have a basic understanding of the theory and have in the past been involved in collaboration with a clinical psychologist and play therapist, in delivering training to prospective foster carers and adopters.

 

‘Attachment’ is often used in a meaningless way

The word “attachment” is often used by social workers in my experience in a way that is meaningless e.g. “He’s attached to his mother” I ask “In what way?” and the usual response is along the lines of “well he goes to her at contact and isn’t upset by seeing her…” I then ask “Is he upset when the mother leaves at the end of contact?” “Oh no, he’s fine, sometimes he waves bye bye” Hence there is a misunderstanding of attachment theory. The word is used in almost the same way as “I am attached to these old slippers.” We read of “strong” attachments, “good” attachments, and even “solid” attachments. Sometimes the term “bonding” is used in much the same way we read “There is a good bond between X and his mother.”

Incidentally I am using the term “mother” as shorthand, but of course it could be father or any other caregiver.

Attachment theory holds that within close relationships young children acquire mental representations or internal working models of their own worthiness based on other people’s availability and their ability and willingness to provide care and protection (Ainsworth et al 1978).

 

Attachments can be SECURE or INSECURE/ANXIOUS

A SECURE attachment pattern between baby and mother develops when the mother has an ability and willingness to try to understand behaviours and emotions from her baby’s point of view. She is attuned to his needs, e.g. responds to his crying by picking the baby up and soothing him, either by feeding, or changing him, or simply holding him. She learns to differentiate his cries, sometimes hunger, pain, boredom, tired etc and responds appropriately. She talks to the baby, maybe sings to him and smiles at him and as the baby grows she is rewarded by his response, in that he smiles back and they can engage in “conversation” e.g. the baby “coos” and laughs/gurgles in response to the mother’s attention and often tries to mimic her sounds. Within this attuned, coordinated relationship, the baby learns to regulate his own feelings and behaviours. The mother’s love is unconditional, and this provides the growing child with a sense of security and trust in his mother (often referred to as his attachment figure)

Babies can of course have secure attachment patterns with fathers, and other adults, so long as those adults are able to be emotionally available to the child (as outlined above) as well as physically present.

A secure attachment pattern will be a protective factor for the child throughout the lifespan. He will have learned that he is loved, effective, autonomous and competent and will have an expectation that other people will be available, co-operative and dependable, as he progresses through life.

INSECURE/ANXIOUS ATTACHMENTS.

These attachment patterns are broken down into Avoidant or Ambivalent attachments. Children who show these insecure attachment patterns have learned that there are conditions attached to their gaining proximity to their mother.

Interestingly these children develop appropriate strategies that a) increase the mother’s emotional availability and do not cause her to withdraw and b) bring care and protection. These strategies are of course devised for survival and can be effective, but the feelings of anxiety and insecurity remain in relation to the mother.

However both secure and insecure attachment patterns represent efforts by children to ORGANISE their behaviour, to achieve some kind of proximity to their mother and with it a “felt security” – and when there is an insecure attachment pattern, these behaviours in children have varying degrees of success.

AVOIDANT ATTACHMENT

This attachment pattern is sometimes referred to as dismissive. The mother (or parents) of these babies are often rejecting and controlling. If the baby cries it annoys or agitates the parents, and they lack sensitivity to the child, are unreliable and largely disinterested in the baby. These babies are often “prop fed” a bottle put into their mouth propped up by a towel (or something similar) while they are lying in the pram. The parents do not get any pleasure from the baby.

Hence at times when the baby is in need of comfort, care, protection, and this is manifested by crying, clinging, following, demanding, it actually brings the opposite reaction to what the child needs, in that the parents are rejecting or controlling.

The child’s strategy in this attachment pattern is often to minimise their needs and deny or not communicate their distress. Strong feelings are defensively excluded and emotional self-containment is established. This allows the child to stay in reasonable proximity to the attachment figure without causing him or her too much irritation, thus reducing the chances of being rejected. This strategy can be seen as the psychological defence of flight, rather than fight, e.g. a child may sit close to his mother, gradually moving nearer and if not rejected, attempting some kind of physical contact. Maybe they sit on the floor next to their mother’s chair, and then stand up and lean on the arm of the chair, and eventually chance getting into a mild form of physical contact e.g. putting their arm around their mother or laying their head on her arm. If they are not rejected they may try to sit on their mother’s lap and if the mother is not rejecting but not responsive either, the child will usually remain as long as possible.

These children are often described by foster carers and adopters as difficult to “reach” emotionally, “detached” “can’t make him out” “never know what he’s thinking” and in extreme cases, unable to show any affection other than very superficially. One adopter described her child as “fine on the outside, mostly pleasant and co-operative, but “hollow” – he has no middle.” Emotional self-containment was learned very early on in his life as a way of survival.

 

AMBIVALENT ATTACHMENT

This attachment pattern forms when parents are insensitive, unreliable and inconsistently responsive. Children very often adapt the psychological defence of fight, and show angry behaviour, crying, whining, fretting, clinging, demanding, shouting and tantrums. This is an attempt to break through the emotional neglect, unavailability and lack of responsivity. Needless to say this generally doesn’t bring the desired response, and these children grow up feeling that they are not worthy of automatic interest. Other adults are seen as inconsistent and not always able to soothe and provide comfort. These children grow up to be particularly vulnerable to stress and are very frustrated (sub consciously of course) that the mother is emotionally desired but emotionally unreliable. At any one times these children’s relationships with their mother are guided by strong feelings of either love or anger.

It’s important to recognise that even when children are insecurely or anxiously attached to their mother, they can adapt their behaviour (or organise themselves) in an attempt to get physically and emotionally close to their attachment figure, with varying degrees of success.

There is however a type of insecure attachment that is so severe that children are unable to organise their behaviour or develop a defensive strategy to achieve proximity or security, and their distress remains heightened and unregulated. The parents of these children are often dangerous (abusive) or emotionally unreachable because of severe mental illness, and/or abuse of drugs and alcohol. If one parent is the abuser, the other fails to protect. Children are severely neglected and/or abused. Without an organised strategy children may freeze, either physically or psychologically. These children have an attachment disorder and are going to need a great deal of understanding and resilience by the foster carers or adopters, who have a full understanding of how their early life experiences have affected these children.

By definition therefore ALL children who are removed from their parents by a Court Order are going to have one type or another of insecure or anxious attachments with their mother or parents/step-parents.

Frozen Awareness

I appreciate that this notion of babies and children being able to organise their behaviours in order to get the best they can from their mothers, might seem strange, even bizarre. However I have observed this happening and it can be very chilling. I remember reading about “frozen awareness” in a very young child and was I admit sceptical, until I actually saw a 4 month baby lying quiet and still in the pram but with eyes wide open, like a rabbit caught in the headlights, fearing (quite rightly) that danger was nearby. I was to see this many more times, but the memory of that first baby has never left me. The step-father had been shaking the baby and twisting her arms (this was relayed to me by the mother who had a mild learning difficulty and was afraid of her partner.) Fortunately the court agreed that the baby should be removed and she was subsequently adopted and thrived in the care of the adopters.

Likewise I have seen the “frozen” child crouched in the space between his bed and the wall. This was a little boy not yet 2 years, and the bruising to his face and ears was very visible. When I picked him up the child was rigid, frozen, traumatised. I have observed toddlers sitting still on a chair, casting fearful glances at the abuser, again keeping very quiet so as not to attract the attention of the abuser. These are definite strategies that the child sub-consciously employs for survival.

I recall a 6 year old boy after a phone call from his mother, dancing around the room of the foster carer, repeatedly calling out “she loves me, she loves me” – clearly the mother had said this to him on the phone and it may well be the first time that the child had heard this from his mother and his delight was both sad but very moving. When one of the foster carer’s older children returned home, the little boy immediately pounced on him and said “my mom loves me….” And of course the older child looked bewildered, failing of course to understand the significance of the little boy’s delight.

Obviously I could go on to give many more examples but I don’t think that is necessary.

 

Attachment patterns throughout childhood

Looking at attachment patterns through the ages and stages of childhood Robert Karen (Becoming Attached) provides a chart of typical patterns of secure and anxious attachment. Before doing so he makes a very important point:

The following chart is meant only as a convenient guide and does not take into account many of the complexities and exceptions found in the research. It should be remembered that insecure attachments (avoidant and ambivalent) is not always associated with the style of parenting described here, but can sometimes come about for other reasons; that a child often has a different pattern of attachment to mother and father; and that attachment patterns can change, so that while many avoidant babies for example, continue in their early pattern, others do not end up behaving like an avoidant 6 year old or develop later into a dismissive adult and parent.

I believe this is largely because these babies are adopted at a young age and the adopters have a good understanding of attachment theory and practice, and can therefore help the child to develop a secure attachment pattern. This takes time, patience and resilience. The adopters need to understand that there will be a gap between the child’s emotional and chronological age, (sometimes called arrested development) and that they will need to allow the child to regress and gradually gain confidence and a sense that he is in fact loved and valued by his parents, and this is unconditional.

Robert Karen’s chart is extensive and so I don’t propose to reproduce it in full. But he describes a secure attachment pattern between mother and baby – mother is warm, sensitively attuned, and consistent. Readily attends to baby’s cries. Baby readily explores, using mother as secure base, compliant with mother. Pre-school: easily makes friends, popular, resilient under stress, good self esteem. Teachers treat him in warm, matter of fact, age appropriate way. Aged 6 with parents: Warm and enthusiastic, comfortable with physical contact. Middle childhood: Forms close friendships and is able to sustain them in larger peer groups. In adulthood: Easy access to wide range of feelings and memories, positive and negative. Balanced view of parents. If insecure in childhood has worked through hurt and anger. Usually has securely attached child.

Avoidantly attached baby. Mother is often emotionally unavailable or rejecting. Dislikes neediness, may applaud independence. By end of 1st year baby seeks little physical contact with mother, randomly angry with her, unresponsive to being held, but often upset when put down. Pre school: Often angry, aggressive, defiant, may be isolated/disliked by peers. Teachers become controlling and angry. Age 6 with parents: Abrupt, neutral, unenthusiastic exchanges. Absence of warm physical contact. Middle childhood: No close friends or friendships marked by exclusivity, jealousy. Often isolated from group. In adulthood: Dismissing of importance of love and connection. Often idealises parents, but actual memories don’t corroborate. Shallow if any self-reflection. Usually has avoidantly attached child.

Ambivalently attached baby: Mother is unpredictable or chaotic. Often attentive but out of sych with baby. Baby cries a lot, is clingy, demanding, often angry, upset by small separations, chronically anxious in relation to mother. Limited in exploration. Pre School: Fretful and easily over whelmed by anxiety. Immature, overly dependent on teacher, maybe be bullied. Teachers indulge, excuse, and infantalize. Age 6 with parents: Mixes intimacy seeking with hostility. Affectedly cute or ingratiating. May be worried about mother when apart. Middle childhood: Trouble functioning in peer groups. Difficulty sustaining friendships when in larger groups. In adulthood: Still embroiled with anger and hurt at parents. Unable to see own responsibility in relationships. Dreads abandonment. Usually has ambivalently attached child.

WHAT THEN DOES ALL THIS MEAN FOR SOCIAL WORKERS IN THEIR WORK WITH CHILDREN WHO HAVE INSECURE/ANXIOUS ATTACHMENTS WITH MOTHERS, FATHERS, STEP-PARENTS/CAREGIVERS.

I think it is absolutely essential that social workers have a basic understanding of attachment theory and the importance of the early relationship between baby and mother (again used as shorthand) from the first moments of birth, and even in utero as there is evidence that babies can be adversely affected if there is tension, hostility, domestic violence etc., and how this insecure attachment pattern will affect the children as they grow through the ages and stages of childhood. They need to understand that attachment patterns are secure or insecure/anxious, not “strong” or any of the other adjectives that are often used. However it is only by observing the interaction between the mother and child that can demonstrate the attachment pattern. Having said that, great care should be taken not to jump to conclusions, and indeed I don’t think it fair that social workers should be expected to determine the exact attachment pattern between mother and child. This is more the work of clinical psychologists and play therapists, often working collaboratively.

The other important point is that LAs should make it a priority to ensure that all prospective and approved foster carers and adopters are given the opportunity to learn about attachment theory and practice. These children with insecure attachment patterns, or an attachment disorder are going to be in their care, and it can only be positive for them to have an understanding of the reasons for the child’s often difficult and challenging behaviour.

Adopters need to know that “love is not enough” (a commonly held view, and not unreasonable) but the child who has an insecure/anxious attachment with his mother, or an attachment disorder is going to prove a huge challenge for the adopters, especially in the case of the attachment disordered child. Indeed these children should be able to receive play therapy and the adopters should be assisted/guided by the therapist as to the best way of caring for the child, to enable the adverse effects of his early life to be minimised, and for him to begin to feel loved and valued for who he is, and that love and care is not conditional. There is no “quick fix” and sadly LAs are so cash strapped that they are highly unlikely to pay for play therapists. Some LAs have clinical psychologists who are able to offer training on attachment to social workers, managers, foster carers and adopters.

Many foster carers and adopters in the LA in which I worked said that it was “like the scales falling from their eyes” as they recognised the child who was insecurely attached to his mother, and the behaviours that were manifested as a result. Many of them went on to read and study the topic further and in turn were able to share their knowledge with other foster carers and adopters.

REPORT WRITING.

I have only been able to give a very basic introduction to the topic in this piece, and it is not within the social worker’s remit in my view to be able to define the particular type of insecure attachment pattern between mother and child in written or oral evidence in court. To do so would require a thorough understanding of the topic in order to be credible and able to handle cross examination.

I think the best way of dealing with this matter is for social workers to talk of children who have “learned that adults can’t always be trusted to care for them” and be able to give an example of a mother not attending to the cries of the baby or failing to give him attention and this in turn causing the baby to feel insecure and anxious, and these feelings may well persist throughout his childhood and into adulthood. I am sure a lawyer acting for birthparents would challenge such an assertion and this could be problematic for an inexperienced social worker who was nervous in court in any event.

I once had a barrister say something like “So you’re saying Ms W that unless a baby is picked up the moment he cries, his future is doomed to failure – is that what you’re saying….” I was experienced and competent enough to deal with this kind of comment, but I can imagine it could be intimidating for a newly qualified social worker.

This piece is far longer than I anticipated but I hope it has provided a very basic understanding of the importance of the mother/child relationship and what can go wrong in the absence of a secure attachment pattern established between mother and child. ……………..Kate Wells.

 

Further reading

See the guidelines from NICE published in November 2015: Children’s attachment: attachment in children and young people who are adopted from care, in care or at high risk of going into care.

For what reasons do other countries allow adoption without consent?

We are grateful for this helpful summary of the position in other EU Member states from Claire Fenton – Glynn. See further her post, We are not alone: Every European country permits adoption without parental consent. 

ANNEX III: COMPARISON OF GROUNDS FOR ADOPTION WITHOUT CONSENT IN EU MEMBER STATES

Abandonment or Lack of Contact with Child

Deprivation of Parental Rights

Dispensing with Consent

  • AUSTRIA Whereabouts or residence unknown (6 months) Refusal of consent without justification
  • BELGIUM Parent has lost interest in the child, deprivation of parental rights; has compromised his or her health, safety or morals
  • BULGARIA Resident in a foster home or institutional care, and parent has not requested the termination or modification of this measure and the return of the child (6 months) Parents continuously fail to provide care for the child, do not provide financial support, or raise and educate the child in a manner harmful to its development.
  • CROATIA Abandoned the child, lost the right to parental care
  • CYPRUS Abandoned or neglected the child, neglect or persistent mistreatment. Unreasonably withholding consent
  • CZECH REPUBLIC Not manifested a proper interest (6 months) Not trying to rectify their family and social condition within the limits of their possibilities so that they can personally care of the child (6 months)
  • DENMARK Deprivation of parental rights If dispensing with consent it is of decisive importance to the welfare of the child
  • ENGLAND AND WALES If dispensing with consent is in the best interests of the child
  • ESTONIA Whereabouts or residence unknown (for “an extended period of time”) Deprivation of parental rights
  • FINLAND If the refusal is not sufficiently justified taking into account the best interests of the child
  • FRANCE Manifest disinterest (12 months) Risk of compromising the child’s health or morals Abusively withholding consent
  • GERMANY Shown through conduct to be indifferent to the child Persistently grossly violating parental duties Where it would be disproportionately disadvantageous to the child if the adoption did not take place
  • GREECE Deprivation of parental rights
  • HUNGARY Not contacting the child (12 months)
  • IRELAND Parents failed in their duty towards the child (12 months)
  • ITALY Abandonment: lacking the moral and material care of their parents
  • LATVIA Treat the child especially badly or does not care of the child or does not ensure the supervision of the child and it may endanger the physical, mental or moral development of the child.
  • LITHUANIA Parental authority restricted for an unlimited period
  • LUXEMBOURG Manifest disinterest (12 months) Lost their parental rights
  • MALTA Unjustifiably not having contact (18 months) Neglect or persistent mistreatment Unreasonably withholding consent
  • NETHERLANDS Have not, or hardly, lived together, abuse of parental authority or grossly neglected duties to care for the child
  • NORTHERN IRELAND Abandoned or neglected the child, persistently failed in duties towards the child, has persistently ill-treated, or seriously ill-treated the child, withholding consent unreasonably
  • POLAND Deprived of parental authority If refusal is clearly contrary to the child’s welfare
  • PORTUGAL Not showing interest (3 months) Deprived of parental authority
  • ROMANIA Abusively refusing to give consent, and adoption is in the child’s best interests
  • SCOTLAND Unable to satisfactorily discharge parental duties
  • SLOVAKIA Systematically did not manifest proper interest (6 months) Deprivation of parental rights
  • SLOVENIA Whereabouts or residence unknown (12 months) Parental rights have been take away
  • SPAIN Deprived of parental authority
  • SWEDEN Where a parent has no share in custody

We are not alone – every European country permits adoption without parental consent.

So we can see that England really is not alone in allowing adoption without parental consent – every country has some mechanism for doing so. What makes England unique, however, is the extent to which this mechanism is used.

We are grateful for this post by Claire Fenton-Glynn, author of ‘Adoption without consent’ which was presented to the European Parliament in July 2015. She was cited by the President of the Family Division in the case of Re N (Children) (Adoption: Jurisdiction) [2015].

Claire Fenton-Glynn is a Lecturer in Law at Cambridge University. Her research lies in the field of human rights and the protection of children. She has published on a wide range of issues including  inter-country adoption, parental child abduction, and international surrogacy, as well as the right of the child to identity, and child participation in family law proceedings. At the core of this research is the way in which private international law instruments interact with human rights norms, and the protection of children and youth in regional and international instruments.

Are we alone in Europe?

It is a popular myth, perpetuated even by the upper echelons of the English judiciary, that England is alone in Europe in permitting adoption without parental consent.

In Re D (a Child) [2014], Mostyn J states that only 3 out of 28 European Countries permits ‘forced adoption’, while Lady Hale in Down Lisburn Health and Social Services Trust v H [2006] suggested that:

The United Kingdom is unusual amongst members of the Council of Europe in permitting the total severance of family ties without parental consent. (Professor Triseliotis thought that only Portugal and perhaps one other European country allowed this.)

On the other hand, a 2015 report by the Council of Europe, stated that such adoptions are permitted in Andorra, Croatia, Cyprus, Estonia, Georgia, Germany, Hungary, Italy, Lithuania, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Serbia, Slovenia, Sweden, Switzerland, and Turkey. However, it maintained that such adoptions were not possible in France, Greece, Luxembourg and Spain.

As such, there appears to be considerable confusion concerning the extent to which adoption without parental consent – pejoratively named “forced adoption” by some – is permitted throughout Europe.

 

Every country in Europe permits ‘forced adoption’

As this post will make clear, despite assertions to the contrary, EVERY country in Europe has a mechanism for permitting adoption without parental consent, in certain circumstances. (“Europe” can be defined in a number of different ways, but for these purposes, I mean all 47 Member States of the Council of Europe).

Three different mechanisms – abandonment, parental misconduct, child’s welfare

When looking at ways in which an adoption order can be made without parental consent, I have identified three different mechanisms that are used throughout Europe:

  • Where parental consent is not necessary because of abandonment or lack of interest in the child;
  • Where consent is not necessary because of parental misconduct or deprivation of parental rights;
  • Where consent is dispensed with because the parents have refused consent unjustifiably, or because it is in the child’s best interests.

Some States use a combination of these approaches, allowing consent to be dispensed with in a number of different ways.

 

Child has been abandoned

One mechanism for permitting adoption without parental consent is where a child who has been deemed abandoned by their parents. The precise grounds for not requiring consent in this area vary significantly, including:

  • abandonment (Albania, Cyprus, Italy);
  • not contacting the child (Hungary, Malta);
  • not showing interest (Portugal);
  • being manifestly disinterested (France);
  • not participating in his or her upbringing (Azerbaijan, Czech Republic);
  • parents’ whereabouts or residence is unknown (Austria, Estonia, Hungary, Montenegro, Slovenia, Switzerland).

Different time limits are also placed on authorities before they can dispense with consent for these reasons, ranging from:

  • three months (Montenegro, Portugal);
  • six months (Austria, Azerbaijan, Czech Republic, Hungary, Moldova, Montenegro, Ukraine);
  • twelve months (Albania, Andorra, Armenia, France, Hungary, Luxembourg, Slovenia);
  • eighteen months (Malta);
  • “an extended period of time” (Estonia, Switzerland).

 

Parental misconduct

Parental consent is not necessary because parents have been deprived of parental rights or on the grounds of parental misconduct. The most common way in which consent is dispensed with is where the parents have been deprived of parental rights.

This is the case in:
• Armenia;
• Belgium;
• Croatia;
• Denmark;
• Estonia;
• Greece;
• Latvia;
• Liechtenstein;
• Lithuania;
• Luxembourg;
• Moldova;
• Monaco;
• Montenegro;
• Poland;
• Serbia;
• Slovakia;
• Slovenia;
• Spain;
• Russia.

Other countries do not require deprivation of parental rights for consent to be dispensed with, but instead focus on the specific conduct of the parents. This focus varies:

  • neglect or persistent mistreatment (Cyprus, Malta);
  • abuse of parental authority (Netherlands);
  • risk of compromising the child’s health or morals (France);
  • persistently grossly violating parental duties (Germany);
  • not caring for the child to any meaningful degree (Switzerland).

In some countries, the deprivation of rights must have lasted for a set period of time before an adoption can be granted, for example:

  • where the parents have been deprived of parental rights for longer than six months six months (Russia);
  • where the parents have been deprived of parental rights for a period of one year (Azerbaijan, Georgia, Slovenia);

Dispensing with parental consent by overriding an unjustified refusal, or in the child’s best interests

Another common mechanism for allowing adoption without consent is where the parents’ refusal is overridden in certain circumstances:

  • if the court adjudges the consent to be “unreasonably” withheld (Cyprus, Malta);
  •  “refusal without justification” (Austria, Liechtenstein);
  • if the refusal is “abusive”, (France) or consent is “abusively denied” (Greece)

However, in Romania, even if parents are deprived of parental rights, their consent is still needed.

 

A shift to a process based on the welfare of the child

On the other hand, some jurisdictions have shifted to a process that is more explicitly based on the welfare of the child. This position is in line with the requirement under the UN Convention on the Rights of the Child. Article 21 of this Convention, which deals with adoption, is the only article under which the child’s rights must be the paramount, rather than merely the primary, consideration.

Such legislation can be seen in the following jurisdictions:

  • if the parents’ refusal of consent is clearly contradictory to the child’s welfare (Poland);
  • if the refusal is not sufficiently justified taking into account the best interests of the child (Finland);
  • if it is of decisive importance to the welfare of the child (Denmark);
  • if it is in the best interests of the child (Malta, England and Wales).

 

But what makes us unique is the extent to which we rely on ‘forced adoption’.

What does all this mean?

So we can see that England really is not alone in allowing adoption without parental consent – every country has some mechanism for doing so. What makes England unique, however, is the extent to which this mechanism is used.

Governmental statistics indicate that of the child placed for adoption in England in the year ending March 2014, 4,870 were completed without parental consent, with only 130 the result of voluntary placements on the part of the parents. This constituted 96% of all adoptions. (Department for Education, “Statistics: looked-after children” (30 September 2014))

Statistics in this area are difficult to come by from other jurisdictions, and in particular statistics disaggregated in this way are not easily accessible. Research indicates that the Netherlands only have about 20 adoptions per year in total (though it is unclear whether these are with or without parental consent), while France generally has around 700, however, 600 of these are as a result of an anonymous birth (“accouchement sous X”).

 

So what is happening to the children in other countries? And why are outcomes for children in care in the UK so bad?

So the question we really should be asking is: what is happening to all the children in these countries who would be placed in adoption in the England? Are they staying with their parents, with support from the authorities? Or are they placed in another form of alternative care? If so, what are the outcomes for this?

One of the difficulties we face in England is that the outcomes for children in state care are dire. In 2014, the Department of Education noted that looked after children continue to have poorer educational outcomes than other children, and 66.6% have special educational needs. In the year prior to March 2014, 5.2% of looked after children from 10-17 had been convicted or subject to a final warning or reprimand, while 3.5% of all looked after children had a substance misuse problem. Of children aged 16 and 17, the rate of conviction, final warning or reprimand raised to 10%, and the rate of substance abuse 10.8%. Statistics also showed that looked after children were also twice as likely to have been excluded from school, and around only 50.4% of looked after children had emotional and behavioural health that was considered “normal”, with 12.8% more “borderline”, and 36.7% “cause for concern”.

We can thus see that there is a tension between leaving children in public care, where the outcomes for children are simply unacceptable, and the placement of children for adoption without parental consent. There is no doubt that many children do not thrive in public care in England, and thus leaving them in this environment is detrimental to their welfare. The response has been to place more children in adoption, rather than to address the reasons why public care is so harmful, and seek better alternatives. In this respect, we need to look to other jurisdictions, and learn from each other. There are always going to be children who need to be separated from their families – the question is how best to provide long-term care for them that gives them stability, security, and all of life’s chances. Currently, we are not achieving this.

 

Further reading

Information on comparative systems for adoption without consent can be found in the following report for the European Parliament

Further comparative information concerning other areas of adoption law can be found in: Claire Fenton-Glynn, Children’s Rights in Intercountry Adoption: A European Perspective. 

An open letter to Ian Josephs

Is there anyway we can bridge this gulf between us? Or are we simply doomed to shout at each other from our opposite sides of the gulf, whilst the parents and children continue to slide into it?

This post is sparked by comments on a recent post Helping Parents Leave the Jurisdiction where I set out my concerns about the activities of John Hemming, Christopher Booker and Ian Josephs.

Sarah Phillimore

 

From Ian Josephs

On 5th August 2015 at 1.51pm

Mother on the run
Katie Lee Jones, 24 year old British mother and her children captured in West Cork.
https://youtu.be/nI6GJtMdqEo
I got sent this video today and it speaks for itself !
Sarah, the mother you describe who beats and starves her children has indeed committed a crime and probably the children should be removed.

Screaming and shouting on the other hand can be a way of life in some countries like Italy but in any case the children can still love their parents and suffer far more by adoption and separation from everyone they know than by staying where they are.

Many cases that come my way concern women who have found new non violent non shouting partners because of the risk that history might repeat itself and forced adoption in those cases is indeed a crime.

Lastly I have never once been reproached by a parent for giving bad advice, but I do have many letters of thanks from parents who folowed my” infamous” golden rules and got their kids back. Quite a few are on my site.

I do not believe in punishment without crime and before you say taking babies is not punishing anybody just tell that to non criminal mothers who have had their babies snatched at birth to be given to complete strangers for life. Strangers who can never love like a real mother; but then love is a dirty word rarely used in social service circles where they prefer to talk of new adoptive parents “bonding” with other peoples children; bonding is what the players do in football teams like Arsenal and Chelsea but they rarely “love” each other !

 

From Sam

Sam August 6, 2015 at 9:27 pm
I speak as a parent who has suffered from domestic violence. The man who abused me saw his mother abused, in fact she readily admitted to being thrown down the stairs, a number of times and having all her teeth knocked out. Her own mother was an alcoholic. My ex’s father was a drinker, I cannot say he was an alcoholic for certain but certainly the signs are all there. The next man she lived with who beat her was also a drinker, once again I didn’t meet him so cannot say he was an alcoholic, but he had the personality and behaviour. My ex’s brother had another addiction and a similar personality.

I and of course my children lived with a shouter, though it felt more like orders and it is harmful. I tried to get away before but was greatly failed by the authorities.

With respect Mr Josephs, it is rare to get out of one dysfunctional relationship without falling back straight into another one and it goes on for generations. The way to break the circle is self awareness. It is vitally important for children, unless they are to repeat their families dysfunction for the parents to become aware and work on themselves with whatever help they can find. That may be the Freedom Programme, counselling or an voluntary sector organisation such as Al Anon Family Groups. The mother needs to get skills to stop her falling down the same hole again.Where the courts fail is insisting on the 2-3 years of therapy that doesn’t actually exist.

You said you had a racehorse. He or she would have been very carefully bred , through many generations to maximise speed and minimise the faults of their sire or dam. They would have received the best of care throughout their formative years in order to grow into their potential. Hopefully at the end of their racing career you consider their options, whether to put them out to grass or stud if applicable or have them rehabilitated as a leisure horse. If so much care and attention is paid to a horse, and I am a horse lover so would never say mere horse, should it also not be applicable to children.

I did watch the You Tube clip and I saw a vulnerable young woman, that concerned me. I was also worried when I worked alongside a young woman in a voluntary project, who had already had three children removed and had got pregnant for the forth time ,it was a relationship of a few months, the father was an alcoholic. She thought everything would be all right and would not contact a solicitor even though I urged her to.

I do understand that the system is broken, if you read my other posts I have had plenty to moan about. I also think outcomes from care are appalling . I just wish there was more middle ground, that you would swing some of your resources to working here in the UK . Perhaps you would say you are already. There are partnership projects that are working in other countries and I believe there have to be more here, complete with making Children’s Services as more accountable through recording etc.

 

From Me – will Ian Josephs use his time, energy and money to do something constructive?

Sarah Phillimore Post author August 7, 2015 at 7:40 am

A very constructive and helpful comment Sam.

You are right about the loss of the middle ground. I have been saying for years that my frustration with the activities of Hemming, Josephs et al is not simply because they are wrong in most of what they say, but that they divert the energies and attention of all of us into dealing with their wrongness, instead of focusing on what we could do to make it right.

So I will put it out there – Mr Josephs. You clearly have a lot of time, energy, commitment and most importantly money.

Would you use any of those positive attributes to help projects that might actually achieve some necessary change for the better? Would you, for example support the Transparency Project with a small monthly donation so we can continue our work in pressing for greater understanding and accountability?

Would you meet with Sam and discuss with her a project for mentoring parents or peer support? I can join you and discuss what I learned in Finland about co-working with parents and children.

Is there anyway we can bridge this gulf between us? Or are we simply doomed to shout at each other from our opposite sides of the gulf, whilst the parents and children continue to slide into it?

 

A Social Worker’s perspective on the judgment in W (A child)

This is a post by Kate Wells a retired social worker, who sets out her views about the case of W (A Child) [2015] – an extra-ordinary judgment, both in its decision to refuse to make an adoption order and return W to her father’s care and also for the language used by the Judge to criticise the decision making of Judges, social workers AND the guardian. There is now an appeal lodged against this judgment and we will await further news. 

I hope you will see that I am not defending the LA social workers at all, and the Guardian was clearly lazy and incompetent. I think the Judge’s criticisms of the psychobabble were justified and yes it does underline the need to use plain English, both in writing reports and giving oral evidence.

However I am really upset that this little girl is going to be moved from the prospective adopters and am very frustrated that so called experts can honestly believe that to subject a child to 5 moves before her 3rd birthday is acting in the child’s best interests.

 

Dealing with the threshold criteria

The overarching concerns about the children’s safety and well being resulting from their mother’s chronic mental ill-health remained when the case came before the District Judge. Both parents accepted that the threshold criteria as set out in s 31 of the Children Act (CA) 1989 had been met which would allow the court to make care orders or supervision orders under the CA. The DJ had failed to set down the threshold criteria on which he was basing his decisions as to the children’s welfare. The learned judge said under the heading “Threshold” that:

The mother accepts the criteria are met. The father has made concessions also the majority of these [sic] and that the children have suffered emotional harm as a result of the parents’ relationship and the mother’s mental health and alcohol issues and his lack of awareness or insight of the stress he was under in December 2012. What he does not accept is the allegations in respect of the ‘toothbrush’ incident with [X] in November 2012 and the injury to [Z]’s ear in December 2012.
Insofar as the toothbrush incident is concerned, there is no medical evidence to assist. We have [X]’s account of how this came about, but true to say that she had in the past apparently said things had happened to her which were not in fact true. I am unable to find on the evidence that the father ‘shoved’ the toothbrush as alleged.
As to the injury to [Z]’s ear, there is no reliable medical evidence and one sees that [Z]’s evidence do in fact differ on occasions. I am unable to find evidence to support this allegation.
I am satisfied however otherwise the threshold is crossed.”
There are no details of that “otherwise”. Fortunately in reaching a decision as to W’s future welfare and placement I am not directly concerned with the threshold at the time the care and placement orders were made; indeed those orders are no longer extant as a result of the decision of the Court of Appeal. Importantly, in respect of W, no findings were sought or made regarding the baby falling off the sofa.

It would be interesting to know exactly what grounds the LA put forward to prove significant harm. Is there any way that this can be sought? I also wondered why there were no findings in relation to the baby falling from the sofa, at aged under 4 weeks, although the baby had been examined at hospital and no serious injury found.

 

Criticisms of the SW Evidence

The District Judge was very critical of the social worker’s (Ms Hendry) evidence calling it “unconvincing” and “totally focussed on one aspect namely the ability of the father to change.” Despite advocating the immediate removal of the three older children based on a decision reached at an unrecorded meeting in May 2013 between social worker, managers and solicitors, Ms Hendry had not assessed the effect on each child of such a removal and was unable to address it in her evidence. The district judge went further and said that she should be replaced as the allocated social worker for the family.

Given the DJ’s criticism of the social worker’s unconvincing evidence, in an application to remove all 4 children from the care of the father, it seems to me all the more curious that the DJ made a Care and Placement Order in respect of W. Incidentally is it within the Judge’s remit to order that a social worker be replaced – suppose it is! Is this a common occurrence?

18. The parenting assessment carried out by Ms Hendry in October 2012, as I alluded to above, formed the basis of the local authority’s case and continued to inform it even after her oral evidence had not been accepted by the court. The evidence of the social workers now allocated to this case continued to focus on their perception of the father’s inability to change or accept the need for change (although the circuit judge had given him permission to oppose the adoption of W precisely because he had changed his circumstances). Despite the fact that there were no findings of physical abuse these allegations continued to be repeated by the local authority and, I repeat, their concentration on “the need for the father to change” remained a constant part of the local authority’s case and the basis for their opposition to his attempts to have W returned to his care. In September 2013 the court found that the father provided “very good care” and was satisfied that he had separated from the mother and “had reached a turning point recognising that he must concentrate on the care of the children to the exclusion of his relationship [with the mother]. I am satisfied that he is intending to address his difficulties and has started to do this by engaging in counselling. I am satisfied that the children are for the main part doing well at school. I am satisfied that they have significant attachment to their father.

It seems clear that Ms Hendry was well out of her depth in proving that these 4 children were being significantly harmed. The substitute social workers must have felt very anxious and intimidated, but did themselves no favours by repeating the same arguments i.e. the need for the father to change, and repeated allegations of physical abuse, which had been disregarded by the DJ. It could be however that the DJ’s judgement was also “erroneous” in this respect, but that doesn’t excuse the LA from persisting along that track.

However there is no mention of the LA lawyer and why an application to remove 4 children from their parents was not scrutinised to ensure that the evidence met the standard required to prove significant harm in the balance of probabilities.

 

What is the Impact on W of being moved 5 times in 3 years?

41. Dr Willemsen was clear when I asked him that he had thought hard about this child and what was best for her throughout her life; he said when he was preparing the report in the first instance he thought “this child belongs with her father, that was the starting point, then I became very worried about child and good attachments and at that time had the legal evidence as it was she should stay. This verged [sic] me towards thinking I am really worried about this child moving. The additional evidence there is now is a father by going to the Court of Appeal says ‘I want to be a good father to my child’ and further evidence that [he] understands some of [her] needs. So I think it is clear to say that it has changed. I think most important argument knowing what Court of Appeal decided what are you going to say to child when she is 12 or 13 or 14 what are you going to tell her and say? What are you going to tell her? This is a miscarriage of justice. Much will depend on how will she take it. This argument is the one that went through my mind if she comes to ask”. When asked on balance what he thought he said, unequivocally, “I think she returns to her father.”

Here we have a clinical psychologist talking of “good attachments” – good, as opposed to “bad”……….grrrh. There are references in the judgement to “strong” attachments – I MUST make those notes on attachment theory. However I am really concerned that Dr W can believe that this child should be moved back to her father. The wrong decision was almost certainly made by the DJ but this child was moved 3 times before moving to her adoptive placement, where she has lived for 16 months, and Dr W is recommending a 5th move for a child not yet 3 years old. Does he not realise that the first 3 years of a child’s life are the most important years of all, and lay down the foundation for the remainder of her life, be that positive or negative.

 
All this talk of what W is going to think when she is 12/13/14 and asks why she was adopted and not the other 3 children, is pure conjecture, nothing more, mothing less and it seems to have totally influenced the Judge. There is absolutely no way of knowing what W might think about the reasons that she was adopted. It is just as likely that she will be glad that she was adopted especially if she has had a happy and untroubled childhood and a family who will continue to support her throughout their lifetime.

 
Balanced against this child being subjected to 5 moves before her 3rd birthday it is, as far as I’m concerned a “no brainer” (much as I dislike that phrase) W was placed with her adoptive family at the age of approx. 1.5 years and will be 3 years old in Nov this year. We know nothing of the early weeks and months of W’s placement with the prospective adopters, and the difficulties of settling a child who had 3 moves in 18 months.

 
At some point in the judgement, the Judge acknowledges the trauma for the prospective adopters but comments that their failure to re-assure the court of their willingness to facilitate W’s move back to her father as evidence of them not putting the needs of the child before their own. I think this comment was grossly unfair and unnecessary. It was also unfair to put the adopters on the spot by asking how they would explain to W that she was adopted whilst her 3 siblings remained in the care of their father, and again the Judge was critical of their inability to provide a satisfactory response. Prospective adopters are all told that the child must know that they are adopted right from the word GO – and it is usually done by means of a life story book which should contain pictures of the birth parents/siblings, other members of their extended family, foster carers etc. Photographs can be added as the child grows. Birth mothers are usually referred to as “tummy mummies” and all explanation obviously have to be age appropriate. However to expect adopters to be able to “fast forward the tape” to answer the possible questions of an older child is simply unfair, as so much will depend on the child and the nature of any questions, if indeed any are forthcoming. Many adopted children are not interested in their background although this tends to change once they are adult and especially after giving birth to their own child. This is a key time for searching for birth mothers, though many adoptees wait until the adoptive parents have died before searching.

 

The wishes and feelings of W’s siblings

42. Mark Hatter is an independent social worker with considerable experience of social work and, in particular, with working with adolescents when adoptive placements have failed and broken down. He had seen the father and the three children at home and had made very positive observations of their father with X, Y and Z. He too had felt able to work with the father, was impressed by the children and found their father to be responsive to them and managing the family in what is a very cramped environment. Mr Hatter found the family as a whole had a strong awareness of W and that her return was something that X wanted, which may lead to a reduction in her anxiety. His recommendation altered when he gave oral evidence to the court when asked he said “[The recommendation] is still extremely balanced but in light of those changes I would have to support the return of W [to her family].” The changes he referred to were the evidence of Dr Willemsen and the decision of the Court of Appeal.

What I wonder is a “strong awareness” – yes the children know they have a little sister but they haven’t seen her for over 18 months, though given their ages, they will remember her of course. On what basis does Mr H make his assertion that W’s return to the family reduce X’s anxiety? It is small wonder that X is anxious given her family background and the fact that her mother is seriously mentally ill, and she therefore is not able to have a good relationship with her, something that is very important to young women on the brink of adolescence. There is no mention of a supportive granny or aunt who may be able to offer X the support she will need as she reaches puberty. I think it naïve in the extreme that Mr H believes that having W back in the family will alleviate X’s anxiety – it could well increase it, especially as W is going to be very confused and upset at the move, and this distress will be played out in the family home, in my view adversely affecting all 3 of the other children. The father will of necessity need to divert his attention to W and so the other children could be disadvantaged as a result.
So much talk of “finely balanced” ……….

 

Matter is finely balanced, recommendations vague

43. Mr Hatter observed that he had not had long to consider those changes and he had not heard the evidence of Dr Willemsen, but as much of his opinion was based on the attachment of W to the adopters and as he is not a psychologist and he would rely on Dr Willemsen and as his recommendation has changed he would acknowledge and respect that change. He voiced the same concerns for W going up in an adoptive placement with the background of this case and said “I struggle with what W’s journey would now be in terms of being an adoptive child when backdrop to the case appears to be care and placement orders now set aside and I struggle to understand how she would cope with knowing that at some stage whilst also knowing has three siblings remaining in the care of her father and on balance I believe that with very clear support to the father that with the father fully engaging with that support that the potential harm to W of being adopted in the present circumstances versus potential of remaining within her birth family outweigh [adoption]and make me wish to change recommendation. Though I again stress it is very finely balanced in my professional opinion and I would still hold concerns however now faced with other concerns for W if she remained.”

Seems to me that Mr H has bowed to the “superior knowledge” of the clinical psychologist and does not have the courage of his convictions. Any experienced social worker should know that to move a child 5 times in her first 3 years of life is NOT acting in her best interests. You don’t need to be a psychologist to know this, and of course Dr W doesn’t seem to know that either.

44. He had based his original recommendations on matters that were relied on by the local authority as I set out in paragraph 32 above; most of which are without foundation, as can be seen from the evidence of Dr Willemsen. Mr Hatter said that he found the father to be “completely open to working with me.” He was also very concerned about overcrowding; an issue which cannot weigh heavily with this court as it affects so many low-income families and cannot be the basis for the permanent removal of children from their families. Mr Hatter urged the local authority to support an urgent move for the family to larger accommodation. I am assured by counsel on behalf of the local authority that such support would be forthcoming. He said that bearing in mind the cramped surroundings he was most impressed by the children, their interaction and the father’s management of them. He praised the children’s mother for the position she had taken which he described as “good”. He spoke of X, who as the eldest and a girl had the response of wanting to help and voiced the, wholly reasonable, opinion that she could do with some individual support, perhaps from a mentor, and “time out”.

What do these vague recommendations actually mean? Yes I agree X needs support, but where is this “mentor” going to come from – the LA won’t be in the business of paying anyone to perform this mentoring duty, and what is meant by “time out” ??? Hmm the Judge doesn’t seem to be concerned with vague comments that don’t mean anything.

45. As to the father seeking help and support when and if necessary Mr Hatter emphasised that it was a two-way street and that the father had to feel that he and the local authority were working from the same sheet. He said that from his observation the father was not a man seeking victory as his empathy towards the adopters was real. Moreover the father acknowledged he’d need support and would appreciate support from the local authority. Mr Hatter felt that the biggest remaining upset within the family was that W was missing and they saw themselves as disjointed; although he still had concerns “the balance moved to W going home.”

Mr H “feels” – the court shouldn’t be concerned with “feelings” surely, they should be concerned with evidence. This is a family that have all suffered in their different ways, the mother because of her mental health issues, the father attempting to save the marriage and the stresses and strains of doing that, alongside being the primary carer for 4 children, one just a few weeks old. And the children have witnessed their mother in irrational and angry states and attacking their father on at least one occasion, and the turmoil and distress this must have caused them, and now the mother is no longer in the family home – and Mr H believes that the “biggest remaining upset” is that the family “see themselves as disjointed” – I’m sure they do, because they are, but not necessarily because W was missing.

 

What will happen in the future?

46. Mr Hatter has had experience of teenage adoption breakdown both as an independent social worker and a social work manager and he anticipated difficulties for W in the future if she finds out the circumstances of her adoption. He considered that she would find out and would be upset and feel anger about the adoptive placement.

Ah I see Mr H can see into the future! I am simply astonished at this comment and even more astonished that it has been accepted by the Judge.

48. Mr Hatter had pointed out in his report at paragraph 76 that should W remain in the adoptive placement she would be likely to want to have direct contact with her parents and siblings in the future, particularly as her siblings remained living with their father. “It will be relatively easy once W has unsupervised access to the internet and Facebook for her to make contact with her family should she wish to do so which will be in turn a challenge for her adoptive parents to deal with and to manage. I am concerned that this situation may be compounded if there is the potential of the family moving abroad during W’s minority.” He went on to say, in his oral evidence, that it was a valid point to add to the likelihood of breakdown the fact that the As are part of these proceedings and voicing resistance to her going home. He saw the difficulty as being that W was securely attached to her current carers but that the change was a positive one of being back with her birth family; there would be losses but also gains. In the longer term, if the local authority works with the children’s father, there is a lot more to be gained by going home.

Given Mr. H’s comments about the internet, this could well be true for any child who has been adopted and it is a valid issue, but if this is going to weigh so heavily in deciding a child’s future then it surely will only be a matter of time before it will mean an end to a child’s future being secured by way of adoption or any other form of permanent care. And again we see Mr. H’s capacity to see into the future, evidenced in his comments about the possibility of the prospective adopters moving abroad during W’s minority! Astonishing!

 
As you can see I am very frustrated about Mr. H’s “expertise” but that changes to anger when he assert that “a breakdown of the adoptive placement is likely because the As are part of the proceedings and voicing resistance to her going home.” Dear god, of course they are resistant to her going home. Mr H claims to have an expertise in adoption and adoptive placements, and yet he can make such a ridiculous comment. They would be very strange adopters if they would happily agree that this child, who they have loved and nurtured for 16 months and who they envisaged being a part of their family for ever, should be returned home to the care of her father.

 
Maybe Mr H spelled out in details just how exactly “there is a lot more to be gained by W going home.” Or then again maybe he didn’t, but he’s impressed the Judge, so that’s all that matters.

 

Psychobabble and defensiveness

47. I heard the oral evidence of Lucy Wilkinson the current social worker. She had not filed a statement but her practice manager Ms Alsop had done so which was largely based on Ms Wilkinson’s interaction with the family; I am still unclear as to why the evidence was produced in this way and, although Ms Wilkinson denied it, it seems the likely explanation is that she was not considered to have been a “success” as a witness in the previous hearing in December 2014 when permission was given to the father to oppose the adoption.
48. The statement of Ms Alsop, in addition to containing evidence which could only be attested to by Ms Wilkinson repeated outdated evidence (of Gail Miller) and what can only be described as psychobabble about the effect on the father’s parenting of his own childhood experiences. In short it voiced opinions which neither Ms Wilkinson nor Ms Alsop are qualified to make. I give two examples only; at paragraph 4.6 statement of Ms Alsop dated 2nd March 2015 it reads”[the father] is unable to have a dialogue with the children about [W] as it is too painful to him. It is my opinion that due to [the father]’s own experience, this has had an impact on his emotional intelligence and that is so poor that he may not be able to put himself in his children’s position and think from their perspective. His own adverse childhood experiences may have led him to develop maladaptive strategies in order to protect himself from his own experiences and his therefore not able to acknowledge the difficult experiences of his children and the difficult experiences they have suffered.” Not only is this evidence entirely at odds with the evidence of the qualified clinical psychologist Dr Willemsen, it is not supported by any evidence from the school or the observations of independent observers such as Mr Hatter; both in the care proceedings and in the adoption application the local authority has given insufficient weight

It is very odd in my view, and totally unacceptable that the social worker with case responsibility does not file a statement, but this is done by her team manager and I am sure the Judge is right in thinking that Ms Wilkinson did not feel she was capable of making a statement and being cross examined. Maybe the Ms W was a newly qualified worker. But Ms Alsop’s noble attempt to step in fell on stoney ground, and as much as I dislike the term “psychobabble” as a derogatory term, I have to agree that her comments made little sense.

 
I have tried to de-gobbledygook the comments made by Ms A: – The father has had such a traumatic childhood that he can’t really talk to the children on their level, and he has tried to shut out the pain of the past, and this prevents him from understanding the distress the children are suffering. Best I can do! However this is opinion not evidence and it doesn’t make much sense even when phrased in simple language

Not only is this evidence entirely at odds with the evidence of the qualified clinical psychologist Dr Willemsen, it is not supported by any evidence from the school or the observations of independent observers such as Mr Hatter; both in the care proceedings and in the adoption application the local authority has given insufficient weight to the observations of professionals working with the family apparently where that evidence does not accord with its case. The wholly positive and unchallenged evidence regarding the parenting skills of the father of the Family Support Worker, the health visitor and the school welfare officer is barely touched on.

Poor Ms A – the team manager who stepped in to show the social worker how it’s done – maybe she should remember that when you’re in a hole, stop digging!

In paragraph 6.8 in an attempt to dismiss the counselling the father has undertaken and to build their case against him they say “I am aware that the father has undergone counselling at the R clinic but it is my opinion that the trauma C has suffered in his own childhood is still unresolved and this is impacting on his ability to offer attuned parenting to the children. Research strongly suggests that [reference to part of a sentence from a publication identified only as Cozolino 2002, The neuroscience of psychotherapy]. I would question whether the father uses disassociation as a defence against the trauma he has suffered, as a coping strategy to stop thoughts and memories causing anxiety.” This opinion is used to justify comments about his alleged inability to cope with and provide for the individual needs of each of his three children. Again there is no evidence to support these assertions either from the school or in the assessments of Dr Willemsen and Mr Hatter, whose evidence I prefer. The continued reliance on the report of Ms Miller (which is clearly out of date) alone raises questions as the validity and substance of any view expressed by the social workers but the continued references to the father not being able to put into practice what he has learnt after engaging in parenting work at paragraph 6.20 are almost risible when considered against the evidence of Dr Willemsen and Mr Hatter.

Churlish of Ms A to disregard the counselling the father has undertaken. Ok there are no quick fixes and 11 months (or even 11 years) are sometimes not enough to alleviate the long term difficulties associated with a traumatic childhood, as these can persist through the lifespan, often in the form of PTSD, but credit should be given to the father for seeking help via counselling. MsA is very hung up on the notion of the father “using disassociation as a defence against the trauma he has suffered” expressed previously as “adopting maladaptive strategies………

To describe the social workers’ written and oral evidence as merely grudging when it comes to the care and security the father has given his children is too generous; Ms Wilkinson was certainly both grudging and defensive when giving oral evidence; their unprofessional attempts at case building are reprehensible. There is no evidence that they have moved on from the social work assessment carried out in October 2012 by the then social worker Ms Hendry who was criticised by the district judge.

I’ve stopped feeling sorry for Ms W – there is absolutely no excuse to be grudging and defensive in written and oral evidence and demonstrates a complete lack of even a modicum of professional wisdom and integrity. I have come across this attitude when working as a Guardian (before guardians were employed by CAFCASS) and we worked on reciprocal arrangements with neighbouring LAs, and when I was working independently. However I still think it was regrettable that the DJ made the serious error in the first place and this must have influenced the LA social workers that they had a good case. Again where was the LA lawyer in all this………….?

 

Guardian’s evidence – beyond shocking

At the hearing before the district judge in September 2013 the guardian produced a brief report that was scant of any real analysis and which failed to set out the reasons for and against permanent placement outside her family. Re B-S, though heard on 22nd July 2013, was handed down on 17th September 2013 (2 days prior to the reserved written judgment being handed down the hearing having taken place earlier in September), as Lord Justice McFarlane said at [22] of his Court of Appeal judgment in this case “Although the district judge may not have had any knowledge of this court’s decision in Re: B-S, which was only handed down some 2 days prior to the district judge’s judgment, Miss Branigan submits that the district judge should have been fully aware of the Court of Appeal decisions given some two or three months earlier upon which much of the judgment in Re: B-S was based (Re R (Children) [2013] EWCA Civ 1018; Re G [2013] EWCA Civ 965; Re S (A Child) [2013] EWCA Civ 926).” The guardian should have been aware of the decisions which preceded B-S at the time of the hearing in September 2013.
The lack of any real child-centred analysis within these proceedings is inexcusable, the report he filed on the 27th April 2015 contained very little analysis (in barely two pages from the foot of page 7 to the foot of page 8 setting out what he considered to be the “essential balance”) and certainly not the table setting out the advantages and disadvantages to W of adoption, which he was advocating, that the court could expect from the child’s guardian. Moreover Mr Madge explicitly criticised the father for pursuing multiple applications and appeals, which he described as at sixes and sevens with each other and blamed him for causing significant delay for W. He clearly accepted the local authority’s view of the children’s father describing the father as a thoughtful man whose reflection of W’s situation was “systemically closed”. I do not know to what he referred as it is a jargonistic phrase empty of meaning, unaccompanied by an explanation.

Shocking, clearly hopelessly incompetent Guardian – “at sixes and sevens with each other” WTF! And “systemically closed” – I have absolutely no idea what this means and I doubt he did either. “Shut out” is a guess!

I expressly asked Mr Madge to provide the court with a balanced analysis at the outset of the hearing and he did so, finally, on the 21st May 2015. His counsel complained on his behalf that the court had prejudged the issue; in fact it was he who had done so. He did not attend court for counsels’ final submissions. The import of his last report was to swing behind the expert opinion but he was rancorous about it and I found his analysis lacking both depth and balance, bereft of objectivity and of little or no assistance.

Beyond shocking – sounds like he just didn’t care about these children or their future, and having been criticised for aligning himself with the view of the LA, he grudgingly aligned himself with the expert opinion. I imagine this was to prevent any further criticism from the Judge, rather than anything else.

 

Conclusions

Well Sarah this took rather longer than I expected and I am beyond burning the midnight oil. I hope you will see that I am not defending the LA social workers at all, and the Guardian was clearly lazy and incompetent. I think the Judge’s criticisms of the psychobabble were justified and yes it does underline the need to use plain English, both in writing reports and giving oral evidence.

However I am really upset that this little girl is going to be moved from the prospective adopters and am very frustrated that so called experts can honestly believe that to subject a child to 5 moves before her 3rd birthday is acting in the child’s best interests. I think far too much weight was given to what she might think about her adoptive placement when she is old enough to understand – and how this influenced the Judge. At one stage he mentioned that W will have some residual memory of her father and siblings at the last contact, which must have been some 18 months ago. I absolutely disagree and in the child’s sense of time, at her age, she can’t possibly have this kind of recall.

 
There is not a great deal of criticism from the Judge about the DJ’s judgement, other than to say it was “erroneous” (something of an under statement) and again no criticism of the LA lawyer. What IS it with these lawyers – do they not understand the need to ensure that there is sufficient evidence for the LA to prove their case. That surely is a fundamental task of such a lawyer.

 
The other issue is the mother of the children, and little is said about her in the judgement. I think I read father has a RO on the 3 children. I do wonder if the LA were critical of the fact that the parents were obviously having a sexual relationship which resulted in the birth of W. This wasn’t made explicit, but I wonder if it was somewhere in their thinking, as there were comments that the father was putting his relationship with the mother before the needs of the children.

 
I also wonder about the mother’s mental health. I note that she has a diagnosis of recurrent depressive disorder with Emotionally Unstable PD, but I wonder if there is also a psychotic element to her mental illness, as some of the descriptions of her behaviour would suggest this could be the case. She has also been sectioned under the Mental Health Act on more than one occasion I think and it’s very unusual for the use of a Section in the absence of a psychotic illness.

 
If this is the case, then there is the possibility of this illness emerging in one (or more) of the children, as psychosis is by and large a hereditary condition. This doesn’t seem to have been addressed at all. I think EUPD is a bit of a “catch all” diagnosis and until relatively recently wasn’t seen as a treatable mental illness. Very often though patients are wrongly diagnosed and this may well be the case with this mother. Mental health services as I’m sure you know are very stretched and it is easy for people to “slip through the net” as it were.

 
Ah well, those are my thoughts/views for what they’re worth.

Kate Wells

Helping parents leave the jurisdiction

What happens if you don’t know the whole story… or you don’t care? The links between Hemming, Booker and Josephs.

“Any person who embraces one party’s version of events and treats it as the whole truth is making a serious mistake. In most family cases the version given by one side is partial and tendentious; on any view it does not give the other side. The only sensible course is to see what the court says in a judgment on all the evidence”.  Sir Nicholas Wall

This is a post by Sarah Phillimore

On the 27th July 2015 the BBC reported that Marie Black had been found guilty of child sex abuse charges. EDIT – and on May 13th 2016 her application to appeal against her conviction was dismissed. 

Marie Black, 34, of Norwich, stood trial with nine others, including five women, at Norwich Crown Court. Black denied 26 charges. A jury found her guilty of all but three counts.
She was convicted of offences including rape and inciting a child to engage in sexual activity. Two men were found guilty of child sex abuse and another woman was found guilty of assault.
Michael Rogers, 53, from Romford, was found guilty of 14 counts including cruelty, rape and inciting a child to engage in sexual activity. Jason Adams, 43, from Norwich, was convicted of 13 similar counts. Carol Stadler, 60, from Atkinson Close, Bowthorpe, Norwich, was found guilty of assault causing actual bodily harm but cleared of nine other charges, including serious sexual assaults.

Six other defendants were cleared of all charges.

Allegations were first made about Marie Black in 2010. Further evidence was available in 2012 and she was arrested in 2013.

Christopher Booker and Marie Black

But this is not the first time Marie Black’s name has appeared in the media. On 7th July 2012 Christopher Booker wrote about her in an article in the Telegraph. Marie Black and her partner had ‘fled’ to France to give birth to their daughter after being under investigation by Norfolk Social Services. Norfolk wanted to apply for a care order for their child but the court ruled that the child was habitually resident in France and therefore the Norfolk LA had no jurisdiction. Christopher Booker commented:

This is a landmark case which should give cheer to those scores of parents who flee abroad for the birth of children threatened with seizure by our social workers. For this reason, perhaps the British taxpayer’s expenditure on this episode – estimated at £250,000 or more – was not entirely wasted.

He wrote about her again in 2013 – ‘Another couple flee to France only to have their baby taken away’. This was to report on another parent who had successfully left the jurisdiction to escape care proceedings and relied on the Marie Black case as precedent.  Christopher Booker referred to the ‘happy ending’ for Marie Black and her child and applauded the help she had been able to give another parent in the same position:

The mother had already been in touch with Marie Black and Brendan Fleming (although there is still no order from a British court to authorise all that has happened). When the couple appeared in a French court to contest the demand that their baby be deported, the judge was shown a statement citing the Marie Black judgment, making clear that, since Britain had no jurisdiction over the child, deporting her would be illegal. The judge, seemingly out of her depth, adjourned the case, suggesting that it should be heard by a more senior judge in three weeks’ time. We may hope that the new judge can recognise that the law is clear, and that the British authorities had no legal right to arrange what amounted to an act of kidnapping.

But the ending for Marie Black (and presumably her child) we now know was very far from happy. She has been convicted on 23 charges of serious child sexual abuse, including rape.

 

Encouraging and supporting parents to leave the jurisdiction

Christopher Booker is sadly not alone in simply accepting uncritically any complaint made by parents about the child protection system. He is often supported by the former MP John Hemming and Ian Josephs.

John Hemming has also been subject to serious judicial criticism . Of interest is also this article by Jonathan Gornall in 2007 which explains why Hemming first became interested in ‘waging a war’ on children’s services. 

Booker goes rather further than simple uncritical acceptance but instead often ignores published judgments and established facts when writing his articles.

And its not just Christopher Booker’s reporting about the family justice system which is criticised. As George Monbiot commented in the Guardian in May 2011

I have begun to wonder whether there’s a single subject Booker has tackled in recent years which he has not distorted out of all recognition. For how much longer can this go on?

Sadly for all of us, its still going on.

Its one matter to simply write things that are stupid and wrong. It is another, and more dangerous matter, to encourage and even pay for parents to leave the UK, rather than face investigation into the quality of their parenting. I don’t know if Christopher Booker has ever given a parent money to fund leaving the jurisdiction – but he certainly associates with and is sympathetic to those who do.

He has apparently commented on the criminal trial of Marie Black in May 2015 – making his disdain for the criminal process clear and likening this case to  ‘crazy’ allegations of ritual abuse in previous cases which were like an ‘epidemic of collective hysteria’. 

 

The ‘mums on the run’ network – giving money to parents

It is clear that there is a network of people who act to help these parents ‘flee’ the UK.  This website describes it in these terms (and then goes on to discuss articles written by Christopher Booker):

The situation can be stated in a very simple manner. There is now a network of Good Samaritans spanning six countries. The countries are the UK, Ireland, Belgium, France, Spain and Cyprus. Parents, mainly mothers, are fleeing with children and heavily pregnant women and teenaged girls are fleeing to have their children born in a foreign country where their citizenship will make it difficult if not impossible for the British authorities to bring them back for forced adoption.

Now for the very simple bit. The hard-pressed volunteers in the network are seeing no Irish or continental European parents and none from Cyprus. All the fleeing parents are British, desperate to escape from UK Social Services, now commonly referred to as the ‘SS’.

We also know that some in the network put their money where their mouth is. One who openly admits giving cash to parents to help them leave the country, is Ian Josephs. He is based in Monaco and is the author of the infamous ‘ten Golden Rules’ which advises parents not to co-operate with social workers and to think very carefully before reporting even sexual abuse of your children.

BBC Radio 4’s Face the Facts programme in January 2014 ‘Forced Adoption and the Mums on the Run’ examined the network of people helping parents leave the UK rather than face investigation.

Mr Josephs was interviewed and confirmed that he has spent about £30,000 helping parents and he did not conduct any kind of risk assessment about the danger these parents might pose to their children. An article in the Daily Mirror in July 2014 confirmed this figure and said it involved 200 families.

Ian Josephs helped Marie Black leave the UK. She wrote to him from France. 

Hi Ian,

We hope you are well.

Attached is a recent photo for you of L, she will be 10 months old this thursday and is trying to walk already! She is so happy and laughs so much. We feel lucky everyday to have L home with us and we are looking forward to her 1st Christmas.

We get on well with the social worker here and she took us swimming last week and this week will be a baby group. She is also looking into if she knows anyone who can help us with French lessons too.

She commented on how happy L is! We have even been to see Mr Mondin the manager of social services who helped us in Court with a shining report and he has a photo of L on his desk, he was so happy to see us all together last week.

Thank you again in our rescue operation!

Best wishes

Marie, Joe & L

No risk assessment before they leave, no follow up after they’ve gone.

In the interview with the Mirror,  Josephs claims he ‘ploughs through’ ‘piles of documents’ before agreeing to help but other than that he is silent on what criteria he uses to judge whether or not it is safe to send these parents out of the country. He is reported as saying:

I know what I do is controversial. People ask how I know the people I’ve helped don’t go on to do something wicked, but my reply is that even killers are entitled to lawyers. These woman are entitled to a fair chance to keep their children if they have not been convicted of any crime of cruelty and aren’t on drink or drugs.

Not only is no or no adequate risk assessment conducted before giving these parents money, there is no formal follow up or investigation as to how their children fare once they leave the jurisdiction. Sadly, the poll conducted by the Daily Mirror attached to its interview with Ian Josephs, shows 66% of those responding agreed it was right to help ‘pregnant mums’ leave the UK. So its not only Christopher Booker who is willing to uncritically accept reports of a ‘happy ending’.

Ian Josephs later said he does ‘not care’ if the parents have done anything to justify intervention. Because forced adoption is wrong and that justifies his actions. ‘ I don’t care who it is. They have every right to escape’. See this video from 6 mins 50 seconds.

 

Connections between Booker, Josephs and Hemming

Ian Josephs has close connections with both Christopher Booker and the former MP John Hemming, in their self appointed roles as critics of the child protection system and champions of its many alleged victims.

For example:

  • both Booker and Josephs appeared at a ‘Stop Forced Adoption Conference‘ in Birmingham in December 2012, together with Brendan Fleming, the solicitor who represented Marie Black with regard her daughter.
  • There is cross fertilisation from Josephs’ website to Booker’s articles.
  • Also see this article.
  • See this post from Head of Legal in 2013, discussing the joint activities of Booker and Hemming around the ‘forced C-section case’.
  • John Hemming was interviewed for the January 2014 Panorama documentary ‘I want my baby back’ and there advised parents to leave the jurisdiction as they wouldn’t get a fair hearing in the UK. He continues to promote ‘mums on the run’ on his blog – see this post from July 2015. [EDIT – JH now appears to have removed this blog post]
  • See the Justice For Families e-conference with John Hemming and Ian Josephs on 3rd September 2014, ‘Refugees from the UK’. Brian Rothery claims one family arrives in Ireland every week.

 

It’s not always a ‘happy ending’

However, as the Marie Black case demonstrates, it is naive and dangerous to simply take at face value a parent’s assertions that they are nothing but the ‘victims’ of the corrupt family courts. Marie Black has been tried and convicted in a criminal court, on the criminal standard of proof and found guilty by a jury of her peers  – this is just what Ian Josephs has been campaigning for, that no parent should lose their child without a criminal conviction. He said to the Daily Mail in March 2012 

 ‘It’s time the criminal rules of justice applied in the family courts. We need parents to be considered innocent until proven guilty and also be free to talk about what is happening in those courts without being thrown into jail.

So presumably Marie Black would not now qualify for his help to leave the country.

Just how many more ‘unhappy endings’ are out there? If Josephs has paid 200 parents to leave the UK, just how many dangerous parents have been helped to escape scrutiny in this way? We don’t know, because he doesn’t care to find out.

How much longer are Booker, Hemming and Josephs going to be permitted to carry on like this? Just what kind of tragedy will it take to shine a light on their activities?

Apparently Christopher Booker will be writing about the Marie Black case in tomorrow’s Sunday Telegraph. It will be interesting to see what he says and how – if at all – he will try to  justify his role in these events.

If he isn’t actually handing over cash to parents to get them out of the country, with every dangerously false and inaccurate article he writes he is certainly encouraging and supporting those who do.

 

EDIT Sunday 2nd August – there is no article from Christopher Booker in today’s Sunday Telegraph. Further speculation is probably unhelpful given that I am not clear if Marie Black intends to appeal against her conviction. I hope it is a safe conviction. If its not safe I hope it is overturned speedily.

BUT whether the conviction stands or falls, the activities of Booker, Hemming and Josephs remain open to serious criticism. If Marie Black is not a child sex offender, the risk remains that other parents might be. And they are being supported to leave the country with their children – not merely with encouraging words in a newspaper, but with cold, hard cash.

I hope I am not alone in finding this both appalling and dangerous.

EDIT Sunday 9th August 2015 Christopher Booker has now commented in more general terms.

EDIT September 28th 2015. Marie Black is sentenced to a minimum term of 24 years.

EDIT December 4th 2015 – for the latest wilfully misreported case, see this blog post by suesspiciousminds about the Latvian family ‘helped to flee’. Christopher Booker reports the child’s injuries as a ‘slight mark’ whereas in fact they were more akin to a rope burn, the child said his father did it. It’s ironic that Josephs continually asserts that only parents who are convicted in a criminal court should lose their children; but he helps them leave the country before they can be charged with any criminal offence.

Home Education

 

Thanks to our contributor who wishes to remain anonymous. She works primarily as an advocate for parents who home educate. In this post she discusses the legal framework around home education and how to deal with a referral to children’s services to prevent matters escalating. 

Parents have a right to educate their children at home providing they fulfil the requirements of Section 7 of the Education Act 1996, which places a duty on the parents of every child of compulsory school age to cause him or her to receive efficient full-time education suitable to their age, ability and aptitude, and to any special educational needs that they may have, either by regular attendance at school or otherwise.

Home-educating parents or carers are not more likely than others to abuse or neglect their children. However, there have been a number of serious case reviews where home education has been stated as a factor. This has led to the parents in these cases being viewed as having removed their child from school to avoid the scrutiny of safeguarding agencies. Despite there being no case in which home education has been found to be a ‘key’ factor, this no doubt explains the suspicion that some professionals may feel about parents who chose to home educate – and why those parents may sometimes feel as if they are under excessive or unfair scrutiny. 

The Badman Review of home education (DCSF, 2009) recommended a formal registration scheme of children who are home educated and rights for local authority staff to access the home and interview children alone. This review has been subject to serious criticism from the HE community. They point out that these recommendations never became law but some LA rely upon this review to justify acting unlawfully. No doubt there will be continue to be a tension between those who wish to home educate and those who believe that an essential element of child safeguarding is permitting state agencies access to children. 

Sarah Phillimore

I have been referred to children’s services because my child is home educated

It is not unusual for a report to be made to childrens’ services, solely because a child is home educated (HE). In fact around 10% of home educated children known to the Local Authority are referred, although HE children are considerably less likely to end up with a child protection plan than those attending school. Quite often this will be by a misguided neighbour, health visitor or GP, equally often it will be by the former school the child attended. In these cases a teacher will often express concern that the parent is not ‘competent’ to educate the child.

In the case of teaching staff, this is generally not malicious, rather it is because they have trained in a system which makes them view HE as quite alien in its practice and approach, to their own view of what education should look like. HE can be successful without formal learning taking place, where it is totally autonomous (Child led), where a parent has little or no qualification and where the child may appear to be ‘doing nothing’.

Most social workers are just as frustrated as you are that they have been caused extra work because someone does not realise that HE is a viable and lawful choice to make. Often their involvement will end with a ‘sorry to bother you and thank you for explaining’ if you approach matters in a reasonable way.

Legally you do not have to let a social worker into your home and there is no such thing as a ‘safe and well check’ for a HE child. This is because the duty of the social worker is to react to concerns, not to proactively investigate whether a child is at risk simply because the parents have made a minority choice. The Social worker must balance child protection needs with only intervening when it is appropriate. It is not appropriate to intervene simply because a child is HE.

 

What’s the legal position regarding home education?

However, just saying ‘no’ is not helpful to you, it is far better to explain to the social worker that your child is HE and that it is a legal choice for you to make. Do this politely and refer them to the relevant guidelines concerning elective home education for England which are well worth reading to enable you to understand the legal position (guidelines for Wales are currently being reviewed).

In the words of Graham Stuart MP (the chair of the All Party Parliamentary Group on home education)

…councils often conflate home education with a child safeguarding risk and seek to impose routine monitoring and inspections. These actions are at odds with government guidelines and can be accompanied by misrepresentation of the legal situation both on parents’ doorsteps and in local authority literature’

If you are prepared and knowledgeable, it is much more likely that any such referral is dealt with quickly and without distress to you or your family.

 

Update – Home Education, changes afoot?

Thanks also to this update from Looked After Child who examines the findings of the Home Education of Children Report 2017 (see below for link and summary) and considers what the rising numbers of children in home education is saying about the support available for disabled children. 

It seems to have taken a while for the Department of Education, Ofsted and others to appreciate that rising numbers of children being home educated is one indication that a significant number of schools are excluding – both formally and informally – children who require adaptations or more support than the school is prepared to make/can provide. This 2017 Ofsted and Care Quality Commission report Local area SEND inspections: one year on makes for very depressing reading on that front.

The Children’s Commissioner Anne Longfield has recently said she is concerned that a number of schools are forcing or “encouraging” children with behavioural issues to leave school. She has also produced a briefing paper Briefing: Falling through the Gaps in Education

Sometimes it is about the cost and sometimes about changing the values and culture within the (specialist day) school to be more welcoming of children who have learning disabilities and/or autism and/or behaviour that the school finds challenging.

Dame Christine Lenehan and Mark Geraghty the authors of a recent report commissioned by Department for Education called Good Intentions, Good Enough? A review of the experiences and outcomes of children and young people in residential special schools and colleges has something similar to say :-

“There can be a vicious circle occurring within the ASD (autistic) cohort. A poor provider triggers challenging behaviour or physical meltdowns (or fails to prevent such events), often exacerbating this with their reactions e.g. restraint, punishment or confinement. Good providers in whose care this behaviour may not have occurred will now not accept the child due to their history and pattern of risk.
Therefore, the child is placed in a more restrictive or secure setting which can result in a worsening situation. Eventually, the child reaches a secure NHS setting which often is wholly inappropriate for their ASD needs. In different circumstances, a good specialist day placement could have worked for this child”.

In this context, a significant number of parents, whose children have neurodisabilities including autism, find themselves considering ‘Home Education’. Years of battling to get a child’s needs first recognized and then met in a school setting, while watching the child’s anxiety increase to the point that they develop extremely poor mental health, brings some parents to consider all alternatives including home-schooling. It is a daunting prospect for many and is likely to involve loss of a household income. Most of us would find it difficult to teach the national curriculum in one subject, never mind all however some parents see no viable alternative. There are also parents who home school by choice.

Review of Home Education following the death of Dylan Seabridge.

The death of Dylan Seabridge in December 2011 raised questions about whether existing safeguarding mechanisms are sufficient for children who are home educated. A review was commissioned by the National Independent Safeguarding Board of Wales in February 2017 to explore possible risks in relation to safeguarding, health and well-being for children and young people who are educated at home.

I’ve extracted sections from this report below because it helpfully analyses the current context and makes recommendations for change.

The report is clear that although some home educated children are abused and neglected there is no reason for believing this is any more or less common than in the general population.
An evidence based review of the risks to children and young people who are educated at home Final Report

Review of existing evidence

Only a small proportion of children are home educated –perhaps 2-3,000 in Wales ( there is no register) There are signs that the numbers are increasing–perhaps doubling over the last 6 years

They are a diverse group of children, including those whose parents choose home education from birth and a larger group who leave school. Often the reasons for children leaving school include bullying, additional needs or a child having other problems at school. Home educated children tend to have poorer access to both universal and specialist services that are provided for children in school

Serious Case Reviews and Child Practice Reviews:

Home education was identified as a feature in 11 Serious Case Reviews and Child Practice Reviews
These broke down into two types of case:

“Withdrawers” in four families home education was part of a withdrawal from services following the identification of concerns. There was evidence that professionals failed to respond to this sufficiently robustly.

“Avoiders” in seven families home education was part of a strategy by parents that prevented, limited or controlled professional contact with children.
This seemed to be associated with controlling and apparently eccentric parents, several of whom may have had undiagnosed mental health problems.

It is clear that where children are maltreated it can be more difficult for this to be identified if a parent wishes to limit access to a child, and home education can and did contribute to that in the serious cases under review. Parents who are abusing or neglecting their children can, do and have used home education as one of the ways of limiting professional contact and therefore protection. Current practice leaves some children at risk because their parents are using home education as a way of controlling and limiting contact with their children.

Recommendations

Recommendation 1: A significantly enhanced support service for home educated children.

A Clear duties for local authorities to support the education and well-being of children who are home educated.
B The Welsh Government and local authorities should ensure that funds are available to deliver this duty to support home educated children, for instance by providing a proportion of the per-pupil funding that is provided for school educated children
C This support service should be delivered by professionals who understand the particular needs and circumstances of home educated children and their families.
D Such support to be developed in partnership with the local home education community as consistent with principles of co-production.
E. The proposed home education support service should fund the sitting of examinations as a right for each child in Wales not only those in school.
F Where children leave the school roll the family should have access to an independent assessment of their child’s educational needs. This assessment would identify whether reasonable steps could be taken by education services to ensure the child remains in school and/or the support needed for the child to be educated at home.
G Schools should be encouraged to be creative in addressing the needs of children who might become home educated where this is not a positive choice by parents, and in particular explore shared educational options. Inspection of schools and evaluation of attendance figures would need to recognise this as a valid option for some children, for instance by excluding them from attendance measures
H Where a child is withdrawn from school and home educated the school and other professionals should assess whether this change might give rise to care and support needs or pose a risk to the well-being or safety of the child. If this is the case a referral to social services should be made.

Recommendation 2: Clearer assessment of the needs and wellbeing of home educated children
A. There should be a register of home educated children in a similar way to the school register.
B. A more holistic assessment of the well-being and education of children educated at home should be undertaken at regular intervals. Such assessments would focus on ensuring that the child is thriving, their education is adequate and would help provide and plan for appropriate support services.
C Such assessments should involve children, as appropriate for age and ability. They should also take place in the child’s home as their place of education.
D. A key decision is whether registration and/or cooperating with assessment should be a legal expectation on parents. Making registration and assessment compulsory would create high levels of resistance from a significant proportion of home educating parents. Yet, a voluntary scheme
would be unlikely to have protected Dylan Seabridge or other children known to have suffered serious abuse or neglect whilst home educated. We therefore recommend that registration and regular assessment should be legal expectations for parents choosing to home educate.

Recommendation 3: An improved response to children where actual or suspected harm is identified and the child is or becomes home educated.

Home education is not a risk factor for child abuse or neglect. However, where there are concerns for a child’s safety or wellbeing home education significantly reduces professional access and child safety monitoring opportunities. Responses to any risk of abuse or neglect identified about a home educated child need to take seriously this reduced level of scrutiny

A. Failure to educate a child may harm their wellbeing and can in itself be a form of neglect. If there are grounds to believe a child is not receiving education, this should result in a referral to social services, either for an assessment of any care and support needs the child and family might have, or, where the level of risk is higher, as a child at risk of neglect.
B . Where actual or suspected abuse or neglect has led to a child being allocated either as a child in need of care and support or on the Child Protection Register, and that child is or becomes home educated, the plan should include as appropriate.
C Where actual or suspected abuse and neglect is identified professionals should assess whether home education appears to be an attempt to avoid professional scrutiny. Where there is evidence that
this is the case it increases the risk of harm to the child. Appropriate legal action and statutory safeguarding procedures should be used to ensure the child is safe.
D Where home education is considered to increase risks to a child, professionals should be aware that education legislation will not provide protection. The safeguarding provisions
of the Children Act 1989 need to be used as appropriate for the child and their circumstances.
E Each local authority should have a named individual with responsibility and expertise in relation to home education and safeguarding. This individual should provide advice and consultancy for the relatively small number of families where home education and safeguarding issues arise.

Recommendation 4:
We recommend that Estyn be given a duty to inspect the adequacy of local authority provision to support and assess home education. Such inspections would need to include educational and social care expertise and knowledge of good practice in home education. This should include designing criteria for inspection that do not take a negative approach to flexi-schooling arrangements.
Such inspections should also consider the adequacy of support and safeguarding for home educated children within each authority.

Finally

Parents who home educate may be very alienated. They and their children may become ‘invisible’ by choice or because services are not configured to meet their needs.

Home education is not a reason in and of itself to consider a child is suffering, or is likely to suffer, significant harm. However, where a child is ‘hidden’, intentionally or not, from services (i.e. there is no engagement with education, health services, or other statutory agencies) it seems unclear how the State is able to fulfil its obligations under Article 19 the UNCRC – Governments must do all they can to ensure that children are protected from all forms of violence, abuse, neglect and bad treatment by their parents or anyone else who looks after them.

Our duties as a society to support, protect and ensure the education of children do not end if they are home educated. The state (some elements of safeguarding continue to be affected by legislation and policy from both the National Assembly for Wales and the UK Parliament) is not currently supporting home educated children or their families. Equally, we can have no confidence that the minority of children educated at home who are being abused or neglected are being identified or protected.

Further information

Home Education of Children Report 2017.

This report was commissioned following the death of Dylan Seabridge in 2011 and it examines Welsh legislation and practices. The authors conclude that home educated children are diverse and are no more likely to suffer abuse than children in the general population but made a number of recommendations:

  • A significantly enhanced support service for home educated children
  • Clearer assessment of the needs and well being of home educated children – including a register
  • An improved response to children where actual or potential harm is suspected and the child moves to being home educated.

Websites and blogs

Education Otherwise -This site provides information and resources for home educating families and those considering home education for the first time, including guidance on home education and the law, SEN and disabilities; downloadable fact sheets covering many aspects of HE; and links to local HE groups across the UK.

Home Education UK – a celebration of families as places of education and parenting.

Home Education Forums – founded in 2009, an information portal and networking community for UK based home educators

Read why this blogger made the decision to home educate her son.

 

Information from Serious Case Reviews

The Report from the NSPCC Home Education: learning from case reviews [2014]. This briefing is based on seven case reviews published since 2008, where elective home education was highlighted as a key factor.

The Serious Case Review looking at the W Family – which deals with a mother who had chosen home education to conceal her abuse of the children and the implications of this for agencies with safeguarding duties for children. 

See also the case of Khyra Ishaq and comments from the ‘No Nationalisation of our Kids’ website:

In July 2010, the Birmingham Safeguarding Children Board published a Serious Case Review [SCR], in respect of the Death of a Child which was identified as Case Number 14. Though not named in the text, media reports made it clear that this was the case of of Khyra Ishaq, a seven year old girl from Handsworth, Birmingham who starved to death in May 2008. The full case review was available on the BSCB website but has been removed – click here to read it.

[Also see this article for extracts from the SCR]

The case hit the headlines because the Secretary of State for Children, Schools and Families at the time of Khyra’s death, Ed Balls, made it his lead example in his argument for imposing regulation on home educating families. Whilst Khyra’s death was widely reported, what most of the public was not told until after the end of the trial of her mother, Angela Gordon and de facto step-father Junaid Abuhamza, was that Khyra had five siblings who were also mistreated and under-fed. Most of the facts of the case had been made known in a High Court care order hearing in relation to the five surviving children. The judgement in this case was given on 6th March 2009 and can be found here.