Author Archives: Sarah Phillimore

Only connect – how language can get in the way of communication

Genuine ignorance is profitable because it is likely to be accompanied by humility, curiosity, and open mindedness; whereas ability to repeat catch- phrases, cant terms, familiar propositions, gives the conceit of learning and coats the mind with varnish, waterproof to new ideas (Dewey, 1910: 177).

What happens when we not only haven’t shared the same experiences, but don’t share a common language to talk about our differences? Kate Wells, a retired social worker discusses how communication can be sabotaged by the gulf between us. Kaylee and Jessica are not real people; but the challenges each of them face are informed by real experiences.

Kate concludes by expressing her doubts that therapeutic intervention will help improve Kaylee’s parenting skills.

A tale of two children.

Kaylee

Kaylee and Jessica were both born on the same day in January 1990 – in different hospitals but only 12 miles apart.

Kaylee (known as K) was born in the City Hospital, the third child of the family. Her mother was a single parent and there were 2 older brothers. The family home was a high rise flat in a deprived area of the inner city. Her father and mother were separated before she was born. Her older brothers both had different fathers.

When K was 3 years old, her mother was in a new relationship and so K and her brothers had a step-father, and a 4^th child was born. K started school at aged 5 and liked her primary school – there were bright coloured crayons and story books and the teachers were kind. One of them kept clean shorts and T shirts for K to wear on PE days, and she loved the school meals. She played out with friends who lived in the same high rise block, but older children broke the few swings and the roundabout. Her mom and step dad shouted at each other a lot and K was scared of her step-dad because he shouted at her and sometimes sent her to bed without any tea. There were no holidays or days out (though K remembers going to visit a farm on a school trip) no birthday or Christmas presents. Her eldest brother bullied her and their step dad used to hit both the boys. There was not much contact with the extended family, K’s mother had fallen out with her own parents and although she had 6 siblings, there was very little contact with any of them.

K moved to secondary school at aged 11 and felt scared because the new school was so big and there were all different teachers. She didn’t have a proper uniform and her shoes were too small for her and hurt her feet. She didn’t like the lessons and by the time she was 13 she was “kicking off” in school and getting into all sorts of trouble. She hated the school and the teachers and started truanting and then got into more trouble. One day she had a fight with another girl and swore at teachers and was suspended. By this time her eldest brother was in prison for burglary. K was finally permanently excluded from school at aged 15 and went to a Pupil Referral Unit where all the pupils had behaviour problems. K got into fights with the other pupils but made a couple of friends and they used to go shoplifting together. They were caught and went to Court and got a Conditional Discharge. K had no educational qualifications.

K became pregnant when she was 16. The father was also 16 and lived in the same block of flats, but he denied he was the father and they split up before the baby was born. Her mother had separated from the step-dad and had a new partner. He said K was a “slag” and her mother agreed. The baby (B) was born when K was just 17 and they continued to live in the flat, which by now was very over crowded. There were lots of arguments and when B was 8 weeks old, there was a big argument over some stolen cigarettes and K’s mom “kicked her and the baby out” – K went to stay with friends and moved around the town, staying with different people. K asked her mother if she’d look after the baby till she could get a place of her own but she refused. K was drinking alcohol whenever she could and shop lifted again to buy vodka and cider.

Eventually Social Services became involved when B was aged 12 weeks and he was made the subject of an EPO and placed with foster carers. He was later adopted.

K was homeless and was staying with whoever would put her up for a few nights and then she got a room in a Hostel in the city. She started using cannabis and other drugs and continued abusing alcohol.

Between the ages of 18 and 25 K had several different relationships and 2 more children, both of whom were removed from her care and placed for adoption. At aged 25 she is pregnant for the 4^th time and has been doing quite well with the Substance Misuse Team, and is on a script for methadone. There is a suspicion that she is still abusing alcohol although she denies this. She is living with the father of the baby and wants to keep this baby.

Jessica

Jessica (known as J) was born in a hospital 12 miles away from the inner city hospital. She is the first born child – mother is an educational psychologist and father is an IT Manager. The family home is a spacious 3 bed semi with a garden situated in a quiet backwater of an upmarket town. J’s mother stays at home till J is 18 months and then works 2 days per week – J is cared for by maternal grandmother. When J is 3 years another daughter is born and mother stays at home to care for the children.

At aged 3.5 years J attends a local nursery for 2 mornings per week. At home J’s mother plays with the children, reads to them, and provides opportunities for painting and messy play both inside and outside. There are visits to the park and other child friendly places. Birthdays are celebrated with parties and birthday cake and Christmas is celebrated in the traditional manner. There are annual holidays to Devon and Cornwall. The children enjoy a good relationship with both sets of grandparents, aunts, uncles and cousins.

At aged 5 J starts school at the local primary school and enjoys all aspects of school life. She could read before starting school which gave her a head start and she loves reading and writing and makes new friends. She learns to play the recorder and violin. At weekends there are family outings and swimming and ballet lessons. J takes her SATS exams in Year 6 and scores 5 in all subjects (4 is the average) Her end of primary school report says that she has been “a pleasure to teach through her primary education.”

At aged 11 years J transfers to Secondary School, a state comprehensive but with a good catchment area and rated as Outstanding by OFSTED. Many of her classmates from primary school transfer to this school and she also makes new friends. J is a little unsettled at the beginning of Year 7 and there is a period of adjustment, from primary to secondary education. By the end of the first term J is settled and has a nice group of friends. Teachers describe her as “a conscientious pupil who works hard and is a popular and mature member of the class.” Interests outside of school include swimming, dancing, music and drama. J joins a drama group and continues to play violin. By the time she is 15 J is able to go “out and about” with her group of friends, to the cinema, bowling alley, swimming etc. They spend time at each other’s homes and spend a lot of time on social media. J is doing well academically and is conscientious about her homework. By this time her mother has returned to work and there are family holidays in the Mediterranean and visits to European cities.

At aged 16 J has passes in 10 GCE subjects with good grades. She transfers to the local 6^th Form College and begins A levels. She is more inclined to the arts, and chooses to study Psychology, English and Drama at A Level. She would like a job “helping people” – maybe teaching or social work. At aged 18 she has passes in 3 A level subjects with good grades. She is still thinking of a career in social work and contacts the Admissions Tutor of the social work degree course and is told that she needs relevant experience. Undeterred J sets about embarking on voluntary work. She volunteers in a Home for Older People, a Children’s Centre, and a nursery in a deprived area. J has a Saturday job but is mainly supported by her parents. At aged 22 she successfully applies for a place on the Social Work Degree course. At aged 25 J is a newly qualified social worker.

J begins her social work career with a nearby LA and is a member of a Child Protection Team. After 6 months, she is allocated a case – Kayleigh and her unborn child.

The parent and the junior social worker; first meeting

It is at this point that Kaylee and Jessica meet for the first time. J has made her way up to K’s flat. K opens the door – she is pale and thin, apart from a baby “bump” – she has tattoos around her neck and huge gold hooped ear rings. J has long shiny hair, tied back and is dressed in smart casual clothes. She smiles brightly at K, and introduces herself. K makes no comment, walks away but leaves the door open for J to follow her.

Neither K nor J has the slightest idea of each other’s lives. It isn’t important that K knows nothing of J’s background but it is of huge importance that J has some understanding of K’s background and how this has shaped the adult she has become.

But J can’t know – it isn’t her fault – she wants to help people who are disadvantaged – she wants a more just society. She realises she has had opportunities that have been denied to her clients. She hopes to be able to support people and bring about improvements in their lives.

J follows K into her flat – the curtains are drawn even though the sun is streaming in, there is a worn sofa and chair, a coffee table and a rug on the floorboards. K’s partner (G) is sitting on the floor in front of the TV playing on the Xbox. K sits down and rolls a cigarette. J tries to introduce herself to G who vaguely looks in her direction and goes back to his game.

J is trying to form a relationship with K as that’s what she’s been taught on her social work degree course. She asks about the pregnancy and how K is feeling……..K says “they’ve took 3 kids off me and now you’re here to take this one as well – I know you lot and I don’t trust you, none of you.” J tries to reassure K that her job is to try to keep families together and asking a court to remove the baby would be a last resort. K snorts in derision – J says she’s pleased that K is keeping her ante natal appointments, and it’s really good that K has done so well to get off heroin with the help of the Substance Misuse Team. K says “yeah – I’ve cleaned me act up” and G looks over and says “apart from the vodka” and starts laughing. J looks anxious and asks if K is drinking vodka…….K replies “take no notice of him, he’s a wanker.” J doesn’t want to press the issue any further but talks about the dangers of using alcohol in pregnancy. K makes no comment and after a fairly desultory conversation J makes another appointment in 2 weeks and leaves.

J records her visit and in supervision she talks to her Team Manager about her concerns about K’s possible abuse of alcohol while pregnant. TM talks about the dangers of Foetal Alcohol Syndrome (FAS) but J has never heard anything about this and agrees to make sure she is better informed on this issue. J is a bit scared of K but she doesn’t want to tell the TM about this…….

At home J talks to her mother about some of her cases (her mom will keep the matters confidential) and says she’s a bit scared of K as she looks “mean” (she isn’t aware of the reality, that K’s face shows the hurt inflicted on her as a child) and she knows she has a temper and is worried about upsetting her. J’s mother wonders whether J would have been better doing teaching or nursing. J also talks about her caseload and how it feels overwhelming and she’s not getting much support from the Team Manager or from anyone else in her team. She’s starting to feel anxious and is having trouble sleeping.

Over the next few weeks J continues to visit K and smells alcohol on K’s breath sometimes. K’s mother phoned in to say “K was a “smackhead” and an “alki” and wasn’t fit to have kids. There had been ongoing conflict between K and her mother for many years. J finally plucks up courage to tell K she’s concerned about her possible abuse of alcohol. K gets angry and says “for fuck’s sake, it’s never enough for you lot, I’ve given up drugs, now you’re on about me having a can of cider now and again, you’re all the fucking same, you’ll find something to pin on me so you can take this kid like the others – well I’ll tell you something it ain’t gonna happen so you can just fuck off.” J is scared as K is shouting loudly but she tries to calm K by saying she’s not accusing her of anything, she’s just worried that alcohol in pregnancy can really harm the baby. K says “yeah right” – “you got any kids then” and J shakes her head NO “I thought not” says K sarcastically. The visit ends on a hostile note. J is very worried about this case.

The report for a case conference:

J writes:

I am concerned about K’s parenting capacity and her ability to put the needs of her child before her own. She has done well on the drugs issue but I believe she is still abusing alcohol though she refuses to discuss this issue. She appears largely unaware of the dangers of alcohol abuse in pregnancy and the possibility in particular of Foetal Alcohol Syndrome, caused by alcohol being passed via the bloodstream into the placenta and adversely affecting the foetal cells in utero, a process that cannot be reversed or rectified.

K is mostly hostile in interviews and is disinclined to communicate effectively with me. Her partner G is sometimes present but shows no interests in any discussion about K’s pregnancy, or the coming baby. He appears somewhat immature and is usually playing games on the internet. The flat is generally grubby and both K and G smoke rolled up cigarettes which would be harmful to a young baby. Furthermore K’s mother has made allegations that K is still using heroin and is abusing alcohol, although this has to be treated with caution as allegations and counter allegations are frequently made, which cannot be verified.

K is furious with this paragraph in the report and says she doesn’t know what J is on about and WTF does she mean with all these big words, and smoking doesn’t harm a baby cus all her mates smoke and they have kids, so what’s J on about……………..and why are you taking notice of what that cow of a mother says about me – she drinks from morning till night and so what right has she got to talk about me………………

J has been using the elaborated code of language, whereas K uses the restricted code.

Language: the Elaborated and Restricted Code

These are terms introduced by the British sociologist Basil Bernstein in the 1960s, referring to two varieties (or codes) of language use, seen as part of a general theory of the nature of social systems and social rules. The elaborated code was said to be used in relatively formal, educated situations, permitting people to be reasonably creative in their expression and to use a range of linguistic alternatives. It was thought to be characterized by a fairly high proportion of such features as subordinate clauses, adjectives, the pronoun I and passives. By contrast, the restricted code was thought to be used in relatively informal situations, stressing the speaker’s membership of a group, relying on context for its meaningfulness, and lacking stylistic range. Linguistically it is highly predictable, with a fairly high proportion of pronouns, tag questions, and the use of gestures and intonation to convey meaning.

The attempt to correlate these codes with certain types of social class background, and their role in educational settings (such as whether children who are used to restricted code would succeed in schools where elaborated code is the norm) brought the theory considerable publicity and controversy.

How could the case conference notes be use to improve communication between J and K?

I am worried whether K will be a good mom and make sure the baby’s ok before thinking about herself. K doesn’t talk to me about how much alcohol she drinks. She doesn’t know that drinking when you’re pregnant can harm the baby. FAS means the alcohol can get in the mom’s blood stream and get into the womb and harm the baby and nothing can be done to make the baby better once it’s born. K isn’t friendly with me when I visit and doesn’t seem to like talking to me. G is a bit young for his age and doesn’t seem to bother much about K or talking about the baby. K thinks smoking is ok around a baby but I’ve told her that it isn’t. K’s mom says she is still smoking heroin and drinking a lot, but we don’t know if that’s true, because K accuses her mom of always being drunk and her mom says the same about K.

Would therapy help K to keep her baby safe?

I don’t think so – firstly I would very much doubt that K would agree to this kind of intervention. She has experienced a traumatic and abusive childhood and suffered immense emotional harm as a result. She has never experienced any kind of relationship (either as a child or adult) where she has been valued and given the unconditional love that children need, to thrive and become emotionally well-adjusted adults, and able to be caring and nurturing parents to their own children.

K has only one model of parenting – the one she experienced herself. It was abusive and neglectful. Parents who are physically and emotionally available to their child and offer calm, safe and consistent care from the very earliest hours of birth will form secure attachment patterns with the child. This will be a protective factor for the child throughout the lifespan. Conversely children who share K’s experiences of parenting will learn that adults are not to be trusted, they won’t have learned to regulate their emotions, so anger is the emotion that is often dominant, although this often masks feelings of helplessness and worthlessness. They will be unable to sustain lasting relationships and have little emotional resilience. There will often be a significant gap between their chronological and emotional age, so a 25 year old may well be functioning as a young teenager, or even pre-teen in extreme cases. They will form insecure attachment patterns with their parents, which will persist in creating difficulties for them to a greater or lesser extent throughout their life.

For therapy to be effective there needs to be the motivation from the person seeking to engage in a therapeutic alliance with the therapist. They will need to feel safe and comfortable enough to talk about the issues that have brought them to therapy. They will need the insight to understand and conceptualise abstract ideas and start to link their behaviour with their past experiences. Most parents in this position will not be able to understand abstract concepts as they tend to be “concrete thinkers.” All of this will take time – there are no quick fixes and there will be times when the therapy will “plateau out” and motivation dips, but with perseverance the therapy can continue, and this can take many months, if not years, dependent on individual circumstances. And it is true I my view that the “child does not have time to wait.” Sadly many parents will not be helped towards better parenting via therapeutic intervention.

I think that many parents can’t understand this issue of “likely to be at risk of significant harm” and call it “gazing into a crystal ball” because they have no awareness of how the past affects the present and the future. They complain that they are being penalised because they were ill-treated as children, and of course that’s true, but because of their lack of understanding about the relationship between their own parenting as a child and how they parent in turn, it adds fuel to the fire of anger that they feel towards social workers in particular.

What can we do to help the parents when children are taken into care?

I’ve always felt that these young people don’t stand a chance in life, there are massive stumbling blocks along the way…

This is a response by Kate Wells to the recent article by Louise Tickle in the Guardian on April 25^th 2015. Kate is a retired social worker of many years experience. She agrees that more needs to be done to help young parents who have suffered abuse and trauma in their own childhoods – but she is not optimistic that therapeutic intervention will be the solution that some hope for.

I read the article in the Guardian on Saturday “Are we failing parents whose children are taken into care” and the concern expressed by Judge Stephen Wildblood QC and barrister Judi Evans, about the lack of help for parents caught up in care proceedings.

For very many years I have worked with people who live on the margins of society and are amongst the most deprived and disadvantaged people in society. I’ve met many “Leahs” who have suffered childhood trauma, be it sexual abuse, physical/emotional abuse or severe neglect and are ill equipped to provide good enough parenting to their own children – it’s often a case of “children bringing up children” as there is a significant gap between the chronological and emotional age of these young mothers. Typically they form relationships with young men with similar backgrounds and end up in a high rise flat, experiencing a range of difficulties – financial problems, mental health problems, learning disabilities, domestic violence, isolation, lack of support, drug/alcohol abuse etc.

I’ve always felt that these young people don’t stand a chance in life, there are massive stumbling blocks along the way and it’s small wonder that apathy sets in and they look for some relief in drugs/alcohol. And as the article highlights when one or two of the children are removed, they become pregnant again, and are involved in “serial monogamy” which is an added problem as now there are “step children” in the mix.

How easy is it for people to change?

Why ‘love matters’ – the importance of the early years

I share the concerns of the Judge and the barrister but I suppose I am not as optimistic about the possibility of change, especially when childhood trauma is the root of the problem. I too have read many psychological reports talking of parents needing therapy for 2/3 years whatever…..and I’ve always felt that was a cop out as any competent therapist will know that it could take many more years of therapy with no guarantee of sufficient change to enable good enough parenting, plus there is the issue of cost, with private therapists charging approx. £50 per hour and very little available on the NHS.

The thing is I have an absolute belief that the die is cast very early on in life, and right from the child’s earliest hours, days, weeks and months, the foundation will be laid, positively or negatively and the first year of life is of extreme importance developmentally, and by 3 years of age, the foundation is laid for the rest of the child’s life.

There is even evidence that a baby in utero can be affected by tension in the mother, domestic violence etc. Sue Gerhardt a psychotherapist whose work has been primarily concerned with working with the disturbed or malfunctioning relationships between babies and their mothers, explains in her book “Why Love Matters” the way in which there is evidence that the quality of care a baby/child has in its early life can affect the pathways in the brain, and the development of our “social brain” and the biological systems involved in emotional regulation.

The challenge then was for her to put this scientific knowledge of human infancy at the centre of our understanding of emotional life. Most importantly and of particular interest in the debate about the success (or otherwise) of therapy for parents struggling with providing good enough care for their babies, her research led her to the view that if the will and resources were available, the harm done to one generation may not be transmitted to the next: a damaged child need not become a damaged and damaging parent.

Gerhardt acknowledges that well intentioned governments have recognized the need to support family life, and have put measures in place to do so, e.g. tax credits and parenting classes. She stresses how politicians are well aware of the cost to society of dysfunctional families with the links to crime, violence and drug abuse. She uses the analogy of meagre efforts of support to families, to pouring money into the maintenance of a badly built house, the problems due to poor foundations may be temporarily alleviated, but nothing will change the fact that the house was not well built and will always be high maintenance. Likewise with human beings whose foundations have not been well built. Although extensive repairs can be undertaken later in life, the building stage, when adjustments can be made, are largely over. For prevention to be effective it needs to be targeted at the point when it can make the most difference.

Can later intervention have an impact on early deprivation?

To return to the issue under debate – “These foundations are laid during pregnancy and in the first 2 years of life. This is when the “social brain” is shaped and when an individual’s emotional style and emotional resources are established.”

Exactly what resources would be needed to provide parents with the “therapeutic tools” to ensure that they understood the importance of the need for a pregnancy free from tension and stress and how to make secure attachments with their babies in their first 2 years of life, is not detailed in Gerhardt’s book. I think she has made some remarkable discoveries in relation to how the development of the infant’s brain can affect future emotional wellbeing, backed up by the latest findings in neuroscience, psychology and biochemistry, but I remain skeptical about both the specific resources that would be needed and more pertinently about the availability of funding for such therapeutic intervention.

The parents (like most of us) only have one model of parenting, which was abusive/neglectful and so will repeat that pattern with their own children, just like people who have had a secure and nurturing childhood will repeat that pattern with their children. I don’t mean that every abused child will go on to repeat that pattern as some parents ensure that their children do not suffer as they did, but we are talking about parents and children caught up in care proceedings.

We’re talking of course about the “cycle of deprivation” and no one has ever found a way of breaking into that cycle. I am old enough to remember Keith Joseph (Tory Minister of State for Education and Science) horrifying us all in 1974 by declaring that “classes 4 and 5 should be prevented from breeding.” The present government talks of “troubled families” but this is a euphemism of course, as families in receipt of state benefits are referred to as “benefit units” in Universal Credit speak, but I digress………

The true cost and consequences of childhood trauma

I realise I might sound like a “fatalist” but I don’t believe that therapy can in fact help the majority of parents who have themselves suffered childhood trauma – indeed I think the Judge’s comments about a parent being offered therapy at the beginning of the pregnancy (or when one or more child/ren have been removed) demonstrates a complete lack of understanding of just how much emotional harm has been inflicted on the young parent in their own childhood, and how that continues to cause emotional pain through the lifespan.

None of us can know how it feels – we can only imagine, but I have spent many hours sitting in smelly, grubby flats with a young mom who is mildly depressed, she hates the flat, she and the boyfriend are arguing, she has no money, there’s little food in the kitchen and the toddler lies listlessly on the floor sucking from a bottle, the TV is on and an older child of 3 or so is staring vacantly at the screen and when bored, starts to tussle with the toddler and is dragged off by his mom and shouted at – he starts to cry and throws himself on the floor and she tells him to shut the fuck up…..there are a few broken toys and the situation is indeed bleak. The children are still at home but there is growing concern and if eventually they are removed, will she benefit from therapy to help her keep any more babies that she will have. Maybe, but I think the “damage has been done” many years ago and like “Leah” she will carry that emotional pain with her, and prevent her from being a good enough parent or being able to sustain relationships and have any kind of fulfilling life.

What can we do?

Having said all that I certainly think the FDAC is an excellent idea. I am really surprised that a Judge has set this up and another Judge is replicating the programme elsewhere. Are they human after all!? Judi does make the point of course that not every parent will be able to access any therapy that is set up, but if it means that some parents can be helped to prevent their child being removed, then it has to be a success.

I think another way of helping young parents is for LAs to recruit and train more foster carers who are able to take “child and parent” placements. We had just 2 in our area and were carefully chosen, as they absolutely had to have empathy with the young parents, empathy in spades, because any whiff of judgment or even criticism would defeat the object. There was a varying degree of success, but the resources were not available to extend the scheme and this was back in 2000, before the budgets were cut to the bone.

But who will pay for it?

There is also the issue of finance for therapeutic intervention as advocated by the Judge. I wonder if he is aware of the way in which this coalition has demanded massive savings from all public services (including legal aid) so this can’t have escaped his notice! There was never sufficient funding for therapy when I was working for the LA (and retired in 2004) and now they are struggling to cope with their statutory responsibilities, as are the NHS, police, teachers etc. And if this government are re-elected they will shrink the state to the size it was in the 1930s and will pursue their agenda of privatisation for all public services, whilst cutting more and more from benefit claimants.

There is mention of “Leah” being left without support, and only offered a room in a hostel, but again Housing Authorities under the Housing legislation have no duty to house single homeless people and demand for housing far outweighs supply, and so where does the blame lie? With politicians who make the law surely. I don’t suppose there are many Labour voting Judges, or barristers for that matter, though that may be unfair.

I really will end now……..be interested in your thoughts.

What does ‘Best Interests’ mean in the Mental Capacity Act 2005?

How do we make decisions for people who can’t make them for themselves?

There are very many reasons why a person may lack capacity. This can be a condition present from birth or as a result of an accident. It can be enduring or it can be intermittent. All these circumstances will inform a decision about what is in the best interests of the person lacking capacity at any given time.

How to make decisions for people who lack capacity is particularly difficult when a person has an enduring lack of capacity and there is little evidence about their wishes and feelings. Theses cases raise the starkest issues around what ‘best interests’ should really mean. This is particularly so when we examine the extent to which ‘substituted judgment’ still forms part of the decision making process.

Different ways we can make decisions for people or ourselves

Advance decisions – MCA section 24 – 26

It is possible to set out your wishes when you still have capacity with regard to refusing medical treatment. But this is a very limited field; it only applies to a decision made in advance to refuse treatment; it does not give you the right to demand any other form of care.

Lasting power of attorney – MCA section 9

If you are over 18 and have capacity at that time, you can choose someone who will make decisions for you, should you lose capacity in the future. This person then has authority to make decisions about your personal welfare and property affairs. taking into account your wishes but making a decision using the best interests framework.

You can also make a written statement about your wishes and feelings which would be considered as part of the best interests decision making process but which would not have any legal authority.

Decision making before the MCA

Parens patriae and substituted judgment

Until 1959 the ancient doctrine of ‘parens patriae’ set out the legal basis for making decision on behalf of incapacitated adults. It means ‘the parent of the country’ and conferred on the Crown a power to protect the person and property of those who could not protect themselves. The exercise of this power transferred from the Crown to the chancery courts in the seventeenth century. It is not easy to discern how this power was exercised in early cases, but it is clear that the focus was meant to be on protecting the person who lacked capacity.

The Mental Health Act of 1959 abolished this jurisdiction. Unfortunately the new Act provided a framework for decisions to be made about financial matters, but did not set out how to deal with welfare issues, such as decisions about medical treatment.

The House of Lords in Re F [1990] 2 AC 1 decided that the way round this was to invoke the inherent jurisdiction and the doctrine of necessity to make declarations regarding the lawfulness of proposed medical interventions for those who lack capacity. However, that does not deal with the cases where ‘necessity’ is not the issue but a choice needs to be made between competing welfare aims.

Substituted judgment

‘Substituted judgment’ is one way of making decisions, by trying to make the choice that the person would have made, if they had the capacity to do so.

The test of ‘substituted judgment’ was part of the parens patriae jurisdiction with regard to financial/property issues, a landmark decision being that of Re Hinde in 1816 where Lord Eldon argued that the Court ‘looking at what it is likely the Lunatic himself would do, if he were in a capacity to act, will make some provision out of the estate for those persons.’

However, the obvious criticism of this method of decision-making is the enormous difficulty in trying to make a decision that a person ‘would have made’ if that person has never been competent and never expressed a view. Not only can that lead to contorted ‘reasoning’ but there is a clear danger is that it is instead the views of the decision maker, which will come to the fore, such views being formed by all the prejudice and assumptions of that person. This is particularly dangerous if the decision maker has some personal investment in any particular outcome.

The view of the Law Commission

The Law Commission Consultation Paper No. 119 (1991) (Mentally Incapacitated Adults and Decision-Making: An Overview) considered the ‘best interests’ and the ‘substituted judgment’ tests as two conceptually distinct standards. Not only is there is a different historical development and scope of application between the two tests, but also the ‘best interests test is ‘more paternalistic and restrictive’ and emphasizing what the decision maker thinks is objectively best for the patient.

The Law Commission preferred the ‘best interests test’ due to the difficulties inherent in substituted judgement but recognized that the ‘distinction between the two tests may be little more than a matter of language.’

Example from case law – ‘best interests’ before the MCA

Re A (medical treatment: male sterilisation) [2000] 1 FLR 259.

This case involved a 28 man who had Down’s syndrome and a severe impairment of his intelligence. He was cared for by his mother who made an application under the inherent jurisdiction hat he should have a vasectomy despite his inability to consent to the operation. This was in case he had a sexual relationship that would result in the birth of a child, as he could not understand the implications of this. A was sexually aware and the mother was conscious that given her age and health she would not be able to provide him with care for much longer and he would have to go into institutional care. She was worried about what would happen once he was no longer subject to her close supervision.

The court at first instance refused to permit this so the mother appealed saying that a vasectomy should be seen as ‘fool proof’ contraception and that was of benefit to A which outweighed the risks of a surgical procedure.

The Court of Appeal carried out a close analysis of the ‘best interests’ of A and considered that:

The concept of best interests is not limited to best medical interests, but includes medical, emotional and all other welfare issues.
A’s freedom would not be more restricted if he did retain his fertility, he would still be under close supervision.
A vasectomy would not reduce the risk that A could be exploited or contact a STI.
The issue of the impact of pregnancy upon his mother or the woman who was pregnant was not a relevant consideration in terms of his best interests, as his relationship with his mother would continue. The birth of a child or anyone disapproving of his conduct was not going to impinge on him.
The operation would cause him risk and discomfort.

Thorpe LJ set out guidance on how to evaluate what is in an individual’s best interests. He said that it is ‘akin to a welfare appraisal’ and that the judge should draw up a balance sheet. The balance sheet should consider the benefits and disbenefits of the decision and the likelihood of each occurring.

Pending the enactment of a checklist or other statutory direction it seems to me that the first instance judge with the responsibility to make an evaluation of the best interests of a claimant lacking capacity should draw up a balance sheet. The first entry should be of any factor or factors of actual benefit. In the present case the instance would be the acquisition of foolproof contraception. Then on the other sheet the judge should write any counterbalancing dis-benefits to the applicant

I suggest this approach only because Sumner J’s judgment in the present case seems to me to concentrate too much on the evaluation of risks of happenings, some of which seem to me at best hypothetical. A risk is no more than a possibility of loss and should have no more emphasis in the exercise than the evaluation of the possibility of gain.

This case is a useful demonstration of the dangers inherent in ‘substituted judgment’ as it was clear from the mother’s evidence that she was also motivated by a profound distaste for the idea that anyone should have sex without being married. Issues around disabled people enjoying their sexuality are often very difficult for many people to contemplate and it is not hard to see how those inherent prejudices could infect any attempt by a decision maker to work out what was in the best interests of the particular individual.

Mental Capacity Act 2005 approach to best interests

Therefore, those drafting the Mental Capacity Act plainly rejected the notion of ‘substituted judgment’ and took on board Thorpe LJ’s hope of a statutory checklist.

The Act requires decision-makers to consider the views and preferences of the person who lacks capacity. However, section 4(6)(a) of the Act makes it clear that it is only one of the factors to be taken into account because some people have simply never been in the position to express any views about the issue to be decided.

The Act is designed to direct the focus away from the personal views of the decision maker and direct attention to both the current and future interests of the person who lacks capacity.

Section 1 of the MCA sets out that an act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests and before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.”

The Act does not attempt a definition of best interests – which is certainly impossible given the infinitely variable circumstances, which can arise. Instead, section 4 sets out a framework for making a decision in someone’s best interests.

You should consider ‘all relevant circumstances’ which is defined under section 4(11) as those which the person making the determination is aware, and which it would be reasonable to regard as relevant. The statute provides further guidance about what is likely to be a ‘relevant circumstance’, such as whether it is likely that the person will have capacity at some time and when that time is likely to be.

You must so far as is reasonably practicable permit and encourage the person to participate or improve his ability to participate as fully as possible in the decision making process.

If you are considering life sustaining treatment you must not be motivated by a desire to bring about the person’s death.

You must consider so far as is reasonably ascertainable;

The person’s past and present wishes and feelings, in particular whether there is a previous written statement made when he had capacity
The person’s beliefs and values that would be likely to influence his decision if he had capacity

The Act is also clear about what is NOT a relevant circumstance. Under section 4 (1) (a) and (b). You cannot make a best interests determination merely on the basis of:

The persons age or appearance
A condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

Under section 4(7), you must take into account, if practicable and appropriate to consult them, the views of anyone the person identified as someone who ought to be consulted and anyone who is caring for the person or interested in their welfare, which includes anyone with a power of attorney and any deputy appointed by the court.

Recent Case Law on Best Interests

The reality is however, that we simply can’t escape an element of substituted judgment in those cases where we have no evidence about the wishes and feelings of the incapacitous person – either because they have never been capable of expressing the same or have never expressed an opinion on the issue in question prior to becoming incapacitous.

In Re X,Y and Z [2014] EWHC 87 (COP) is a neat illustration of how to examine ‘best interests’ when we have little or no idea what P would say about the situation. In this case a mother of three children had suffered a RTA that left her profoundly disabled and with an altered personality. This lead to the children suffering serious emotional harm whilst living in the same household with her and the LA decided that this situation could no longer endure and the children should go into foster care.

All agreed that it would be the best outcome for the children if their current nanny could be that foster carer; all agreed she was doing an excellent job, the children were attached to her and there would be no risk of splitting up the sibling group.

However, the mother’s situation was dire; the money awarded to her for her care after her RTA was running out and she had a normal life expectancy. This was a problem because the nanny was requesting a salary on top of the foster care allowances the LA would pay. Without a salary the nanny would no longer be able to pay into her pension or maintain her own flat which made her prospects on retirement look bleak.

The mother’s deputy thus argued that it was not in the mother’s best interests to secure the services of this nanny, as it would lead to the quicker depletion of her fund.

Baker J considered the case law regarding ‘best interests’ from paragraph 27 of his judgment. He derived the following principles:

There is no hierarchy between the various factors that have to be considered. But in some cases there may be a factor of ‘magnetic importance’ in determining the outcome – see the judgement of the then Munby J in Re M ITW v Z and Various Charities [2009] EWCH 2525 (Fam).
‘interests’ is not confined to ‘self interest’ – a court can conclude that it is in the interests of P to act altruistically. See observation of Morgan J in Re G (TJ) [2010] EWCH 3005 (COP).
P’s wishes and feelings and the beliefs and values that will be likely to be influence her decision if she had capacity must be considered by the court so far as reasonably ascertainable. They are not determinative but must be considered as part of the overall best interests analysis. The weight to be attached to this factor will always be case-specific and fact-specific.
In assessing the weight to be attached to P’s wishes and feelings the court must have regard to all the relevant circumstances.

In considering this issue of ‘relevant circumstances’ Baker J set out and relied upon the observations of Munby J in Re M (op cit) at para 35:

the degree of P’s incapacity, for the nearer to the borderline the more weight must be in principle be attached to P’s wishes and feelings….

the strength and consistency of the views being expressed by P;

the possible impact on P of knowledge that her wishes and feelings are not being given effect to

the extent to which P’s wishes and feelings are, or are not, rational, sensible, responsible and pragmatically capable of sensible implementation in the particular circumstances; and

crucially, the extent to which P’s wishes and feelings, if given effect to, can properly be accommodated within the court’s overall assessment of what is in her best interests.

Substituted Judgment – still relevant

Baker J was clear that the test under the 2005 Act was materially different from the test of ‘substituted judgments’ and agreed that the new approach was more akin to the ‘balance sheet’ approach.

But this does not mean that issues of substituted judgment have disappeared from our deliberations. Baker J referred to how Morgan J traced the evolution of the best interests test in Re G (T) (op cit) by examining the judgments of the Court of Appeal and House of Lords in Airedale NHS Trust v Bland [1993] AC789 (in particular the judgment in the Court of Appeal of Hoffmann LJ) and the report of the Law Commission 231 which proceeded the passing of the 2005 Act. It was the view of both the Law Commission and Hoffman LJ in Bland that substituted judgment can be subsumed within the context of best interests’

Baker J cited paragraph 55 of the judgment of Morgan J, where he observed:

The best interests test involves identifying a number of relevant factors. The actual wishes of P can be a relevant factor: s4(6) (a) says so. The beliefs and values which would be likely to influence P’s decision, if he had capacity to make the relevant decision, are a relevant factor: s4(6) (b) says so. The other factors that P would be likely to consider if he had the capacity to consider them, are a relevant factor: s4(6)(c) says so. Accordingly, the balance sheet of factors, which P would draw up, if he had capacity to make the decision, is a relevant factor for the court’s decision. Further, in most cases, the court will be able to determine what decision it is likely that P would have made, if he had capacity. In such a case, in my judgment, P’s balance sheet of factors and P’s likely decision can be taken into account by the court. This involves an element of substituted judgment being taken into account, together with anything else, which is relevant. However, it is absolutely clear that the ultimate test for the court is the test of best interests and not the test of substituted judgment. Nonetheless, the substituted judgment can be relevant and is not excluded from consideration.

By applying these considerations, Baker J was able to conclude ‘without hesitation’ that it was in the mother’s best interests to authorize payment to the nanny to take on the care of the children.

He observed at paragraph 45:

I accept that the court has power under the 2005 Act to approve payments for the maintenance or other benefit of members of P’s family, notwithstanding the absence of an express provision to that effect in the Act, provided such payments are in P’s best interests. Such payments might be called altruistic, but are more characterised as falling within the broad meaning of the concept of “best interests” under the Act. Where a parent loses mental capacity at a time when she is still responsible for her children, those responsibilities are part of her “interests” which have to be addressed by those making decisions on her behalf, and payments to meet the reasonable needs of those children are manifestly capable of being described as in her “best interests” on all the circumstances, applying the criteria in the Act….

Plainly P’s wishes and feelings are of great importance in determining whether in these circumstances it would be in her best interests for payments to be made. She has expressed the wish that her funds should be used in support of the children. It is said that, in expressing that view, she does not appreciate the fact that her own care needs are now costing more than her income. In my judgment, however, were she to have a full understanding of the shortfall, she would nevertheless support the payment of sums to S to safeguard the future of her children, preferring to make savings in the costs of meeting her own care needs. The new arrangement will significantly reduce the sums being paid towards the children out of her estate, and as a result the deputy and those responsible for managing her affairs will have greater flexibility in adjusting arrangements to enable her to make savings. I find that P’s wishes and feelings are, in the words of Munby J Re M, ITW v Z at paragraph 35, “responsible and pragmatically capable of sensible implementation in the circumstances” and “can properly be accommodated within the court’s overall assessment of what is in her best interests.

Conclusions

This can appear to be a convoluted and artificial exercise. For many inacpacitous people who have never expressed a view about their circumstances, and never will, it seems likely that what we will end up doing is simply imposing what we think is the best thing for them.

It’s clear that we get limited guidance from the case law as each case turns on its own facts – for example, some cases are clear that the ‘best interests’ of P cannot extend to considering what is best for anyone else, whereas in other cases the impacts of the decision on others becomes a factor of key importance.

But the value of the Act is that it forces us into a framework where we really have to stop and think about what we are doing and check our own assumptions. As Lady Hale made clear in Cheshire West – this is simply about ensuring that disabled people have the same respect for their human rights as everyone else. The scales will always tip back and forth between potentially excessive paternalism and a wish to protect to recognition of the right of us all to make unwise decisions. In an imperfect world all we can do is recognize the requirements – and the limitations – of the task in front of us.

Otherwise we end up in a situation such as Somerset v MK (Depravation of Liberty : Best Interests Decisions : Conduct of a Local Authority) [2014] EWCOP B25, where HHJ Marston commented at para 74 of his judgment:

The overall summing up by the senior social work manager was: “There has been a corporate failure and a failure of those on the ground to realise that they are out of their depth, most worrying was that they looked more sure about what they were doing than they ought, … it’s going to be difficult to re-establish that trust (with the family) if it’s rebuilt it is going to be with good practice”.” Mr Justice Ryder (as he then was) in a leading authority on FII cautioned social workers in child care cases not to decide what the picture was and then make the facts fit the picture, it seems to me that is what happened here.

Want help to be a better parent? Don’t hold your breath.

What obligations does the State accept under Article 8 of the ECHR?

This is a post by Sarah Phillimore

No one has the right to expect the State to make them better parents

The high water mark of judicial denial of any ‘right’ to ask the state to pay for you to be a better parent, is found in Kent County Council v G & others [2005] UKHL 68. In this case, the House of Lords – as they then were – refused to accept that a therapeutic placement for the mother could legitimately fit within the ambit of section 38(6) of the Children Act. In this case, the mother wanted an assessment of her response to proposed psychotherapeutic treatment. Such an ‘assessment’ was in reality ‘treatment’ for the mother and no matter how valuable the information might be for the purposes of the eventual final decision in the care proceedings, it could not be brought within section 38(6) which focused rather upon the benefits of an assessment of the child.

However, the judgement in Kent, explicitly identifies something much more fundamental in human rights terms, than merely a wish to rescue the statutory interpretation of section 38(6). Rather, there is a clear rejection of the notion that parents have any right to seek assistance from the state to be better parents.

This is clearly set out in paragraph 24 of Lord Scott’s judgement where he grapples with that issue head on:

There is no dispute but that both Ellie and her parents have the right under article 8 of the Convention to “respect” for their “family life”. Mr Cohen QC submitted, as I understood it, that this right placed the state, and the County Council as an emanation of the state, under a positive obligation to provide for Ellie’s mother to have the benefit of the proposed therapeutic and assessment programme at the Cassel Hospital in order to provide Ellie and her family with the optimum chance of being able to live together as a family. He submitted that if section 38(6) were to be given a scope that did not extend to a direction that that programme be offered it would have deprived Ellie’s parents, and would deprive other parents in a similar position, of the chance to demonstrate that fundamental changes could be made within the necessary timescale so that it would be safe for them to parent their child. That may be so but the proposition that the refusal of the court to make that direction, or the unwillingness of the Council, or, for that matter, the NHS Trust or the legal aid authorities, to fund its implementation, would have constituted a breach of Ellie’s or the parents’ article 8 rights cannot, in my opinion, be accepted. There is no article 8 right to be made a better parent at public expense”

The funding implications are stark. The family in the Kent case ended up getting their lengthy treatment funded by the LA; they benefitted enormously and ended up back in the community with no orders made and the family intact. However, this came at a cost of more than £200,000 which caused the LA to appeal to the House of Lords after the fact, as a matter of principle.

The Children Act 1989 does not identify on whom the cost of compliance with its directions is to fall. It can’t compel the LA to fund treatment which is outside the scope of section 38(6) of the Children Act. Medical or psychiatric treatment of a parent would ordinarily be funded by the local NHS Trust. The court has no powers in care proceedings to compel the NHS to fund anything. The Legal Services Commission confirmed in Kent that they would not fund any element of therapy or treatment.

What’s the cost/benefit analysis?

But who is doing the cost benefit analysis here? £200,000 for one family in one placement seems an enormous sum. But compare that to the likely costs of a family which had been left without that therapeutic intervention, who would have gone on to have more children, got involved in more care proceedings, required foster carers to be found etc, etc.

Research from the University of Bristol in 2011 said this:

Bringing care proceedings is a costly and time consuming business for local authorities. It has been estimated that each care case takes up 20 per cent of a full-time social worker’s working hours for a year (Plowden 2009). In addition, the local authority will have to contribute towards independent assessments ordered by the court and may need to instruct barristers (counsel) to represent it at court. order to remove or detain a child in an emergency (Masson et al 2007; DCSF 2008, para 3.3).

When interviewed by Commuity Care in December 2014 about the likely costs to Birmingham’s children’s social care services of dealing with the children getting less than good enough parenting, Lord Warner said:

The work undertaken suggests that the extra costs of safeguarding and looking after more children over the next three years may well cost an additional £140m over three years and reach an annual cost of nearly £50m by 2017/18.

It appears that to focus on the immediate high costs of a therapeutic placement is to lose sight of the amounts that could be saved if troubled families are diverted out of the care system.

And there is a more immediate point of concern for those care proceedings which involve lesser levels of dysfunction and human misery. What about those cases (probably most of them) where a full on residential therapeutic placement isn’t needed but so much positive could be achieved with – for example – a short course of cognitive behavioural therapy or other counselling. But the parents inevitably can’t afford to pay, the LA inevitably won’t offer any assistance and the only outcome is to wait for NHS therapy to become available which is often many months outside the 26 week timeframe.

It seems that the stark words of the House of Lords linger still ‘there is no article 8 right to be a better parent at public expense’.

But what about our Article 8 obligations?

But how do we square that with our Article 8 obligations? What about Re B-S which set out clearly that the starting point must be consideration of the law around Article 8 of the European Convention and the fact that this imposes a positive obligation upon States to try to keep families together. See para 18 of the judgment:

To this we need only add what the Strasbourg court said in YC v United Kingdom (2012) 55 EHRR 967, para 134:

“family ties may only be severed in very exceptional circumstances and … everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”

How do we square that circle? What are we saying to vulnerable parents who are unable to access support with their mental health difficulties and/or drug abuse, who are thrown into the ring of deeply stressful care proceedings and expected to engage constructively with professionals picking apart every aspect of their lives?

Do they have a right to expect help or not? If the help just isn’t out there, because no one has any money to fund it, what are the Court of Appeal expecting us to do with the requirement that we must ‘rebuild’ the family where ever ‘appropriate’ ? There are charities and local initiatives trying to plug the gap but can the State realistically ever claim its obligations under Article 8 are satisfied in this way?

I don’t have any answers to those questions. But somebody rather higher up the political/legal food chain than me needs to be asking them. Otherwise care proceedings will continue to be an increasingly expensive and cruel farce.

The impact on parents when their children are removed

This is a contribution from a mother who wishes to be anonymous.

What happens to the mother?

The first night I walked, literally just kept walking for hours. I wanted to die.

This is a personal story of instant removal of my children. It is a snapshot, with some details left out to protect the children’s identity. I wanted to write it mainly for other mothers to relate to, but also that professionals may increase their understanding of the effect of removal on a parent.

Initial impact

What you would expect, if you have ever seen a distraught mother wailing waiting to see if their child gets pulled out of the rubble of a collapsed building, it was the same level of emotion. The first night I walked, literally just kept walking for hours. I wanted to die.

Why?

When a baby grows within you , you develop a relationship with him or her before they are born. You talk to them, you touch them as a they wriggle around, you get to know them.

When my children were born I was blessed enough to have instant love for them alongside with the need to nurture. For me, it had to be give birth then feed, it was what came naturally. I could not take my eyes off the baby.

When my children were taken this need I had to nurture was disregarded, the bond between myself and my children was hacked through and I could not keep them safe. Apart from the devastation it actually appears so surreal that you can not think straight and get the necessary help, for instance I did not contact a solicitor. My sleep was disturbed, I either did not get to sleep or woke in the middle of the night. I had the most horrrendous nightmares mainly about the children being in danger and not being able to help. I struggled to eat or concentrate. Privately I cried ,screamed, swore. I walked around with my head down. Nobody in my local small community talked to me for months , so I was also isolated. I received no support in the first six weeks then I had a weekly, which soon went to fortnightly talking therapy from the NHS for three months.

I know this is a generalisation but men talk about their jobs and woman talk about their children. If I ever went on a course and had to do one of those dreadful ice breaking exercises I would say I was a mum first. When your children are taken your identity is stolen also. I have discussed this with mums who have been bereaved and it is the same experience, some people who knew that you had children will cross the road rather than speak to you, others will not mention it.

What is different, is that some people tried to be helpful and said that you may have a relationship when the children are adults. It is not helpful.

It is unnatural not to be able to care for your children if they are ill, I had an instance when one of my children needed hospital treatment, I struggled to get anyone to take them and eventually when they went I was proved right.

A mum has that sixth sense about their child. It is abnormal to be unable to wish your child a happy birthday or know their shoe size and to only see your children for an hour or two supervised by strangers.

Practically speaking I was left in a mess, I obviously lived in a family sized house, I had all the children’s belongings including pets and because like many I had a special needs child, due to lack of support (another article!) I did not have a full time job. So in the midst of care proceedings I had to weed out the children’s belongings and pack to move to a smaller property. It is also of course expensive to move. So stress on top of stress. As care proceedings were on going every slightest moment I put a foot wrong and quite of number of times I didn’t was recorded and used against me in court.

I believe each family effectively has a template for bringing up children. Good or bad you will bring something from your own childhood and you have your own ideas. I had a mum myself who had encouraged me to have interests, she attended school functions and encouraged me to broaden my mind. I carried that on with my children, I had been involved with the school, I encouraged interests,I tried to create memories for them with high days and holidays.

These values have been obliterated and a different template imposed on my children’s lives. It goes against every instinct.

Long Term

I think to some extent I have used denial as a tool. I cannot comprehend not living again with my children so I don’t face it as a possibility. I do not think about my children’s futures as it is too bleak. The childhood they are having will not prepare them for a functional adulthood. As a parent it is usual to want the very best for your child, not a backwards step. I am well aware that someone whose child has been adopted does not have this strategy to use.

I have rebuilt my life but it is very different, none of my new friends have children at home. I live a false life, I cannot do the normal motherly stuff like worry about whether they have done their homework or if they are being bullied, bake or even buy clothes for them. I have nothing to do with children and it has affected my employability as well as previously I worked with children.

Some days I feel old before my time, I’m sure this amount of stress will later on come out in physical illness . Most days I cope well, I am kind to myself on the bad days. I can not talk about my children except to those who know me well. Sometimes I think I have spotted my child on the street and there is an incredible sadness when I realise it is a child that looks like mine. I can no longer say I am a mum if I meet someone new, that major part of me has been taken.

I want to take a photograph of my child but I am told I cannot

This is a post by Sarah Phillimore arising out of her own recent experiences.

I want to focus on the single issue of when a parent can be prevented from taking a photograph of their own child, for their own private use or for publishing on a social networking site.

It is an issue that causes significant difficulties as the law that supports such prohibition does not seem to be either clearly set out or understood. It has the potential to cause trouble for parents in a variety of environments such as school events, sporting events or during supported/supervised contact with their children. These are all occasions when parents may wish to take a photograph or film their children but may be told they cannot.

It seems that the difficulties have largely arisen because a variety of different worries converge to make people worried about parents taking photographs and some would appear to have stronger foundation than others.

What is a growing issue of concern for me is the lack of understanding about what laws and legal principles actually underpin any prohibition of a parent taking a photograph of his or her own child. This must inevitably have a detrimental impact on how child protection policies are devised and implemented.

This issue crystalized for me after my daughter attended a drama festival recently and a general announcement was made at the beginning that no photography in the building would be permitted due to the ‘Child Protection Act’.

This caused me immediate consternation, as this wasn’t an Act I had ever heard of. Further investigation of what informed the festival’s child protection policy showed that they relied upon The Children Act 1989; The Police Act 1997; The Data Protection Act 1998; The Human Rights Act 1998, The Protection of Children Act 1999; The Criminal Justice and Court Services Act 2000.

There are immediate problems with this list as a basis for a ‘no photos’ rule

The Data Protection Act does not apply to photographs taken for purely personal reasons, for example by parents or grandparents at sports days or school plays (a photo album is fine but there might be a question mark over whether or not a photo published on a Facebook timeline with no privacy settings could be ‘purely personal’) See the guidance from the Information Commission.

The Criminal Justice and Court Services Act 2000 does mention photographs but only to increase the penalties for possession of indecent photographs at section 41.

The Police Act 1997 appears utterly irrelevant from looking at its table of contents. I confess I have not sat down and read the whole Act but I note what Archbold said about it at the time

The Act has five parts: Part I puts the existing National Criminal Intelligence Service on a statutory footing; Part II creates a new national squad, the National Crime Squad; Part III gives wide-ranging powers of intrusive surveillance to the police and customs; Part IV creates the Police Information Technology Organisation … and Part V develops a wholly new system to provide access to criminal records for employment purposes.

The Protection of Children Act 1999 appears to be equally irrelevant, being an Act:

to require a list to be kept of persons considered unsuitable to work with children; to extend the power to make regulations under section 218(6) of the Education Reform Act 1988; to make further provision with respect to that list and the list kept for the purposes of such regulations; to enable the protection afforded to children to be afforded to persons suffering from mental impairment; and for connected purposes.

The Child Protection Act?

This was referred to by the organisers in their announcement but did not feature in the written list of primary legislation. I originally dismissed it as made up legislation but a bit more digging revealed the Child Protection Act of 1978 which is an Act:

to prevent the exploitation of children by making indecent photographs of them; and to penalize the distribution, showing and advertisement of such indecent photographs.

I am unable to understand how this Act could ever apply to a parent who wished to take a photograph of his or her own fully clothed child to record an event in that child’s life.

The Human Rights Act 1998 and the Children Act 1989

With regard to the Human Rights Act I don’t know what article of the ECHR I would be breaching by taking a photograph of my fully clothed child. If anything, refusing to allow me to indulge such a parental desire to celebrate and commemorate my chlid’s experiences is arguably a breach of my right to respect to my family and private life pursuant to Article 8.

Any such breach of my right to respect to my family life must be necessary and in accordance with the law: it must be proportionate.

This seems to lead to the only statutory foundation for the organisation’s prohibition on photography, that under section 97(2) of the Children Act 1989 .

This makes it an offence to publish any material which is intended or likely to identify any child involved in any proceedings in which any power may be exercised regarding that child under the Children Act 1989 or the Adoption and Children Act 2002.

You do have a defence if you can prove that you did not know and had no reason to suspect that the published material was intended, or likely to identify the child. So it would seem very unlikely that a parent would fall foul of this section if they wished to take a photograph of their child, another child wanders unnoticed into shot, turns out to be involved in care proceedings and is subsequently identified from the photograph if the parent publishes it on social networking sites.

So what’s going on?

Why are people so nervous about photographs? The concerns appear to fall within the following domains.

Fear that a vulnerable child might be identified
A wish to protect commercial profit making if a school/organization wishes to sell its own photographs of an event.
A wish to prevent an event being disrupted by intrusive efforts to take photographs/film videos.
An expectation of privacy
Fear of paedophilia

Identification of vulnerable children

Given the ubiquity of social media and the tendency now for parents to wish to publish on line photographs or videos of their children, I accept this is a real fear, particularly as use of social networking sites increases and facial recognition grows ever more sophisticated. I have discussed the inexorable rise of Facebook and the implications this has for adopted children in another post.

I agree that schools and other organizations need a clear policy setting out what is and is not acceptable with regard to photography at events so that vulnerable children can be protected from being indentified by people from whom they need to be kept safe.

But reliance on the Child Protection Act 1978 will not assist with this sensible aim and may well hinder it; if the law is constantly framed in terms that photographs are risky because they are indecent, many parents are likely to ‘switch off’ and become irritated by such constraints on their innocent wish to photograph their child.

Intrusive photography and protection of commercial interests

I can also understand and accept that efforts by parents to record the achievements of their children has the potential to be disruptive to the event and the children’s enjoyment of it. There need to be rules about what is or is not acceptable. If a school or other organization goes to the trouble of organizing an event they may wish to make some money on the sale of photographs or use photographs to publicise the event.

Provided the organisers make it clear to parents before hand so they can decide whether or not they wish to attend in the light of such restrictions, this would appear to be a reasonable policy Hopefully individual schools/organisations would have a policy sufficiently flexible to give some opportunities to individual parents who wanted to take a photograph at some point in the proceedings of their child and their child alone.

But again, a focus on the potential indecency of photographs does not assist anyone’s understanding or compliance with such policies.

An expectation of privacy under Article 8 ECHR

The case law around this, unsurprisingly, usually involves celebrities or others in the public eye who find themselves being photographed when they go about their day to day business. The case of Weller v Associated Newspapers [2015] concerned the musician Paul Weller’s objections to photographs taken of his children on a street on their way to a cafe in the USA; these photographs were lated published by the Mail Online without any attempts to obscure the children’s faces and despite Mr Weller’s objections at the time. Mr Weller succeeded at his first court hearing where the Judge found that his children did have a reasonable expectation of privacy and that the Mail On line could not argue that it was justified in breaching their privacy by claiming freedom of speech or expression. The Mail Online appealed.

The Court of Appeal considered the concept of ‘a reasonable expectation of privacy’ and the various strands of case law. At para 29 the Master of the Rolls commented:

First, a child does not have a separate right to privacy merely by virtue of being a child. Secondly, however, although the broad approach that must be adopted to answering the question whether there is a reasonable expectation of privacy is the same for children and adults, there are several considerations which are relevant to children (but not to adults) which may mean that in a particular case a child has a reasonable expectation of privacy where an adult does not.

And further at para 61 he explained why he agreed with the first court:

61.The starting point is the place where the activity happened and the nature of the activity. As the judge said, this was a private family outing. It could have been a family visit to a local park or to a public swimming pool. It happened to be an outing to the shops and to a café which was visible from the street. The essential point is that it was a family activity which belongs to that part of life which is protected by the broader right of personal autonomy recognised in the case law of the Strasbourg court: see R (Catt) v Association of Chief Police Officers [2015] UKSC 9, [2015] AC 1065 per Lord Sumption at para 4. The family element of the activity distinguishes it from Naomi Campbell’s popping out to the shops for a bottle of milk and Sir Elton John standing with his driver in a London street, outside the gate to his home wearing a baseball cap and tracksuit (see John v Associated Newspapers Ltd [2006] EMLR 27).
62.It is also relevant that the claimants’ parents did not consent to the taking or publishing of the Photographs.
63.But the critical factor which militates in favour of the claimants having a reasonable expectation of privacy in relation to the Photographs is that they are children and that they were identified by their surname. The twins were less than one year old at the time of publication. They did not “knowingly or accidentally lay [themselves] open to the possibility of having [their] photograph taken in the context of an activity that was likely to be recorded or reported in a public manner” (see Reklos para 37). Nor did their parents court publicity for them.

However, these kinds of circumstances are highly unlikely to arise when you inadvertently include another child in the background of a photograph of your own child. So long as that other child is not identified by name and you are not intruding upon a private family event, it seems improbable that anyone could argue that any publication of the photograph would be an actionable breach of Article 8 in respect of that child. The issue in the Weller case was clearly that the pictures were identified as members of his family as he was a celebrity and the pictures would provoke interest for that reason alone.

Fear of paedophilia

This to me seems the objection without any sensible foundation in fact or law but the one that looms largest over many child protection policies and is probably mainly responsible for infecting such policies around photographs with a sense of unreality and hysteria.

I am alarmed that the recent objections raised against me photographing my child appeared to be based on legislation relating to the possession of indecent photographs. I struggle to see in what possible context photographs of my child taken by me at a school event or other kind of educational/sporting/musical gathering could ever meet the legal requirements for indecency.

The Obscene Publication Act 1959 sets out the test for indecency as – does the material have a tendency to ‘deprave and corrupt’?

I am both angered and saddened that I am being encouraged to consider how a photograph of my fully clothed daughter at a drama festival coud posiibly have a tendency to deprave or corrupt anyone, let alone the limited number of people who have access to my photographs on Facebook. It seems that this belief that pictures of children are likely to invoke some dangerous sexual response from adults is widespread; note this article which suggests that parents taking pictures of their children in the bath could find themselves as a ‘test case’ for prosecution due to taking indecent images!

I am not alone in my criticism of how the spectre of paedophilia has been permitted to corrupt many innocent interactions between adults and children. See for example this article from the Guardian in 2012

The Child Protection in Sport Unit recommends that you “avoid full-face and body shots” and that children in swimming costumes should only be shown “from waist or shoulder up”. These rules create a stilted genre of child photography, where children are pictured on their own or at designated “photo moments” at the end of the play or match, rather than in the thick of events.

Schools often invoke the Data Protection Act 1998, or the Children Act 2004 as the reason for photography bans. “But there is nothing in the Children Act that says ‘Thou shalt not photograph children’,” says Eleanor Coner, information officer at the Scottish Parent Teacher Council. The Information Commissioner’s Office has taken to putting out bi-annual statements refuting the myth that the Data Protection Act prohibits photography. “We call it the ‘data protection duckout’,” says David Smith, director of data protection at the Information Commissioner’s Office. “If there is something people don’t want to do, but they can’t explain it easily, they say it’s because of the Data Protection Act.”

In fact, photography bans cannot be traced to any single event or law. Rather, it seems that there was a shift from the early 2000s, when similar regulations diffused throughout schools and sports organisations.

…. As an example of how attitudes have changed, a manufacturer of children’s play equipment asked a photographer, John Robertson, to photograph its apparatus at a variety of English sites: he was shouted at and parents snatched away their children in parks in Nottingham, Cambridge and the Isle of Wight.

The spread of photo bans is not really a response to child abusers stalking school sports days. Instead, it reflects the contamination of everyday adult-child relations – and the new assumption, as the children’s author Philip Pullman put it, that “the default position of one human being to another is predatory rather than kindness”. Any adult looking through the viewfinder at a child is viewed as potentially sinister and in need of regulation.

I don’t doubt that parents do need to be more aware than many are, that photographs published on social media may end up being published elsewhere. This was demonstrated quite horribly recently when parents in the UK discovered that pictures of their children had ended up on a Russian site where they were used for sexual gratification of those viewing.

But the focus here is probably better put on teaching people more about protecting their on line privacy (these pictures were taken from the ‘open’ profile of one of the children’s grandparents) than encouraging hysteria over what happens to pictures on Facebook and using this as justification to curtail the actions of all parents who wish to take photographs of their own children outside their own home.

So why does this matter?

Why am I getting annoyed by this issue? Does it really matter? I took a photograph of my daughter outside the venue, put it on Facebook, lots of my friends ‘liked’ it: I was able to share her special moment and show that I was proud of her and could keep a record for her to remember in future. Neither she nor I suffered in any way because of the restriction placed on photography within the building at the time.

But to dismiss this as a concern simply because at this particular time and at this particular event it had no or only trivial consequences is to miss a very important point.

That point is that a justification was given to interfere in my innocent interactions with my own child on what appears to be spurious or very poorly understood legal grounds.

And this matters. To rely upon an Act which prohibits taking indecent photographs during an event where the possibility that any indecent photographs would be taken was close to zero, suggests very strongly to me that the child protection policies devised by these organisers were not based on any clear understanding of the relevant law or what is involved in assessing risk.

If you do not understand the law which underpins your policies, how can we have any faith in these policies? How can we respect these policies? And ultimately, how will you enforce them? If you don’t understand what a risk is and how to assess it, how can we have any confidence that you have identified the relevant risks and set up proper safeguarding procedures?

This is not the only time I have been referred to ‘the Child Protection Act’. A laminated sign at Cardiff ice rink also relies upon it – or at least it did in 2013 when I was last there. Interestingly and alarmingly, it also appears in an article in the Telegraph from 2008 which suggests it has made its way very firmly into consideration of child protection policies.

Polices about something as important as child protection should not be made by reeling off a list of primary legislation which appears to have very little relevance to the issue in hand or relying on an Act which can’t possibly apply to parents who want to record their children at school or sporting events. Setting us all up as potential paedophiles does not make children any safer. Taking a photograh of a child should not be considered by default either an indecent or dangerous act.

Families and Schools Together

FREE HALF DAY SEMINAR

Delivered by Save the Children

Families and Schools Together (FAST)

Introduction to how the FAST programme supports a family therapy, attachment theory approach to improving child/family outcomes through its evidence based community engagement programme.

Aimed at members of the children’s workforce – front line, management or commissioning role in any service which supports children or families.

Voluntary & Community Sector, NHS, Social Care, and Education all welcome.

The seminar will include:

Brain development research
Ecological theory
Family therapy & attachment theory
Building resilience in families & communities
Introduction to the FAST programme

Date: Tuesday 31^st March, 9.30am-12.30pm

Location: The Elton Room, Armada House, Telephone Avenue, Bristol, BS1 4BQ

AIMS AND OBJECTIVES OF THE SEMINAR

An opportunity to increase your understanding and knowledge of the impact of parenting approaches on the child’s social, psychological and educational outcomes with a specific focus on brain development.

Explore how environmental systems supports building resilience in families, across the wider community and impacts on building social capital leading to increased cohesive communities.

Understand how environmental factors and ecological theories builds bridges between home, schools and communities within a community asset based approach to achieve ecological systemic change.

If you would like to attend please contact [email protected] for a booking form

My child hasn’t been born yet but I have been referred to children’s services

Referring an Unborn Baby

If some one is worried that you or your baby may need help after the baby is born, they can refer this to children’s services. It is good practice for the person who wants to refer – for e.g. a midwife – to let you know he/she wants to do this and to get your agreement. However, if there are reasons to think this might put the baby at risk – for e.g. they are worried you might leave the country – then you may not be told.

See this fact sheet from ‘Birthrights.org’ for more information.
You may also be interested in our posts on how child protection issues get reported
And our post about the legal framework for referrals and investigations.

What would worry people enough to refer me?

Below are some examples of situations that might make someone worried enough to want to refer you. This isn’t an exhaustive list. Basically, if there is a fear that your baby might be at risk of significant harm once he or she is born, then a referral should be made.

Existing concerns about either parent’s ability to keep the child safe – for e.g. because the parents are drug users
If the parents have had other children removed from their care
If the parents have criminal convictions for an offence against children, or the parents are associating with people who have such convictions.

Ideally referrals should be made no later than the 18th week of the pregnancy so a proper pre birth assessment can be carried out – see below.

What happens after the referral is made?

There should be a Pre Birth Assessment. The courts cannot make a care order before a child is born, so if there are worries about how safe that child will be once born, there needs to be some thought and planning about what will happen after the birth.

There should be a meeting to plan the pre-birth assessment, ideally no later than 20th week of the pregnancy. Any professional or agency who has had significant dealings with the family should be invited, such as the midwife and family GP. If the police have any information about the family, it is useful to have that at the meeting.

Parents should be involved in the planning as far as possible. The assessment should be completed with 35 days of starting.

Depending on the outcome of that pre-birth assessment, there may be a need for further meetings. For example if the pre-birth assessments showed that the baby was at high risk of harm when born. In such cases, a strategy meeting will need to happen in order to decide whether or not care proceedings need to be issued once the baby is born.

The pre-proceedings process

For more information about pre-proceedings, see this post.

The pre-proceedings process for care proceedings was introduced with the original Public Law Outline in 2008. The aim of this process is:

to try and stop cases turning into care proceedings by engaging with the parents at an early stage; or
if that isn’t possible, to encourage everyone to think early about the issues so that cases would run more efficiently.

The local authority is required to take legal advice to establish whether the requirements for court applications and orders are met. It should then send a ‘letter before proceedings’ to the parents, outlining its concerns and inviting them to a pre-proceedings meeting.

The letter entitles parents to legal aid so that they can obtain legal advice and be accompanied by their lawyer to the meeting.

Following the meeting, the local authority was required to send a revised plan for the child, setting out what the parents must do to safeguard the child and the action the local authority would take if they do not keep to this.

The pre-proceedings process seems to be used often with unborn babies as it sets out a useful framework for discussion and allows the parents access to legal advice.

See the article in Family Law Week by Professor Judith Masson and Dr Jonathan Dickens in 2013:

Two features were common in cases where the pre-proceedings process was used: (1) Almost all the children had child protection plans; this was true for less than half of the cases taken directly to court. Local authorities used the pre-proceedings process as ‘a step up’ from ordinary child protection planning, to mark the seriousness of their concerns or where parents had not responded sufficiently to the child protection plan. (2) Thirty per cent of the cases related to unborn babies; the pre-proceedings process provided a framework for working with parents in these cases and enabled parents to have legal advice when crucial matters were discussed such as co-operation with pre-birth assessment or the baby’s care after discharge from hospital. These are high risk cases; the vulnerability of new babies means that lack of parental co-operation with a protection plan may lead to a decision to remove the child. Criticism of local authorities for using Children Act 1989, s.20 accommodation (R (G) v Nottingham CC [2008] EWHC 152 (Admin), Coventry CC v C [2012] EWHC 2190 (Fam)) has made it more important for the local authority to ensure that parents have legal advice.

For further discussion about the possible difficulties of using section 20 accommodation for new born babies, see this post about the meaning of section 20 and when it should be used.

The Children Act 1989 – deeply flawed legislation?

We are grateful for this post from Patrick Philips, a retired child protection social worker of many years experience who was prompted to write this response to our post – A system in continual crisis. He is concerned that the Children Act 1989 has created poorly evidenced definitions of ‘abuse’ which can lead to children being removed from their parents when they should not have been.

It’s enough to make one ask what is driving the maintenance of such a system in the absence of evidence that it makes matters better for children rather than worse.

The 1989 Children Act and decision making – do we need to protect children from the child protection system?

I worked in Social / Children’s services, particularly in Child Protection, between 1971 and 2013 and I suggest that the approach of the 1989 Children Act is deeply flawed.

I do not dispute that children should be protected: the question is how, given that many well meaning efforts make matters worse for children, not better. Crucially, how are abused children to be discovered and how are decisions to be made for their protection?

Whilst I have extensive first hand experience of the system and do not accept that decisions are made according to a conspiracy, I can well see why some people might resort to such an explanation.

Some of the most important research, in my view, in social work decision making has largely been ignored, as well as changes which have taken place since that research was done. Dingwall R, Eekelaar J and Murray T of the Oxford Centre for Socio-Legal studies found that the only member of the child protection network who actually focussed on evidence (by which I mean forensic evidence, not research ‘evidence’) was the Local Authority Solicitor.

Her/His filtering of cases / insistence on hard evidence constituted an important barrier so that a large proportion of cases never made it to court. A great deal of pressure had to build up in the inter-agency network before action was likely to be taken (‘The Fruit Machine’). This involved the development of a good deal of consensus (though this could involve ‘dominant ideas’ rather than proper appraisal of evidence, as Stevenson and Hallett later identified).

The Dingwall research was first published in 1983 (‘The Protection of Children’). The 1969 Children and Young Persons Act was then the principal act governing child protection (with other acts).

The 1989 Children Act; the end of reliance on ‘forensic’ evidence

The Oxford studies noted that there seemed to be little difference between the circumstances of abused and neglected children remaining with their families and that of children who were removed. So long as decision making processes are erratic, one would expect this to be the case. The extent to which Child Protection authorities are prepared to remove children should affect the number of children left in abuse and neglect with their families. However, if it is not based on effective decision making processes it may have increase the number of children removed from their ‘natural’ families who were not being neglected or abused, or whose neglect and abuse will be even worse once removed than it was at ‘home’ instead of increasing protective removal.

In my experience, Local Authority Solicitors now, operating under the 1989 Children Act, hardly question the extent of evidence available to show that a child is being abused or neglected. This is understandable: the 1989 Act is drawn so widely that the mere opinion of a social worker (or their manager, more likely), that action is required is sufficient to meet it’s requirements. After all, if the professional social work manager’s opinion is that the child is being emotionally abused, the local authority Solicitor is hardly in a position to dispute that opinion, and may be instructed to take it as so anyway? I have presented cases to Local Authority legal representatives thinking the evidence to be questionable, only to find that the legal representative is pressing action even more than I was.

When the 1989 Act was in the process of enactment and implementation, I think the general view in social work was, in effect, that it was promising heaven on earth, and would never really be implemented. At the time I was responsible for policy and policy implementation, with others, in a very large Social Services Department. I was surprised that suggestions I made for the systematic identification of children “in need”, for whom the department now had formal legal duties, were completely ignored. However, after the death of ‘Baby P’ in 2007 a serious expectation that the 1989 Act could and should be literally implemented seemed to take hold. From then on the status of social work decision making also seemed to take a dive. Instead, managers increasingly made snap decisions on minimal and second hand information, instructing social workers accordingly.

Conspiracy?

I very much support the views expressed in Child Protection Resource that conspiracy theories in regard to adoption and child removal are wrong. However, the dynamics of the current system is bound to give the impression that there is a conspiracy, particularly as decision making today is just as erratic as in the Oxford research. The difference is that there is no back pressure from local authority solicitors as there used to be: cases are taken according to social work availability to take cases, and results are even more quirky, because there does not have to be the same build up of multi-agency pressure on Children’s Services as there used to have to be to produce action. Besides, there is a wider variety of people who may drive cases forward, usually (as Dingwall identified) because they regard the parents or family as discredited in some way.

I have experienced individual Judges, Children’s Guardians,Local Authority Solicitors, Doctors, Nurses as well as Social Work managers as driving cases forward for child removal on the basis of their own particular point of view rather than of collective assessment or evidence. Others involved are unable or unwilling to resist and to risk being discredited along with the parent if they do, however unjustified that discredit may be. Management domination of practice Social Workers are bound by a code of practice; breaching that code can lose them their job. However, that code of practice is only advisory on Social Work managers. Social Workers believing they are being instructed to take action which breaches their code of practice are advised that they may present the fact that they have been instructed to take that action in their defence, but action can still be taken against them.

Departments have to be very concerned with their own reputation, particularly considering the risk presented by government inspection. Workers may be instructed, for example, to make positive comment, or non at all, to inspectors. Whistle blowers are usually ‘discredited’ and dismissed. Another feature which is bound to enhance the belief in conspiracy theory is the way in which Social Workers etc are bound by gagging agreements during and following disputes with their employers. I have heard rumours that Local Authorities are spending very large sums of money in paying suspended workers and in settlements in disputed dismissal proceedings. I am not personally aware of any Freedom of Information requests in this area, nor what might the results indicate.

Consider the concerns raised by the Appeal Judges in re B-S , about the extent to which case presentation lacks proper evidence and exploration of options. I gathered from legal colleagues in court that they were surprised to encounter well researched and hard evidenced social work presentation in court. I suppose this indicates that the Appeal Judges’ concerns in re B-S were no surprise to lawyers operating in the system. However, a system in which the social worker’s first hand assessment and evidence is over-ruled by snap managerial decisions and in which social workers risk all in presenting any objection their instructions hardly encourages conscientious reflective working and organisation.

Social Work Training and the abuse of children by wrongful removal

This is ironic, given the extent of attention ostensibly given to ‘reflective working’ in social work training. However, my recent experience of social work training is that it is actually based on a narrow set of precepts and power relations.

There have been some hopeful signs; guidance issued about research to be regarded in Care Proceedings just before I left my department emphasises recent neuro-social approaches. These, and other newer ways of considering child development etc seem to me to have been of almost no attention in training taking place within only the last few years.

The extent to which social work can pretend to have an established basis for its practice remains debatable. Challenges to orthodox ways of seeing child development, for example, were not welcome. Ethical considerations and the impact on the child of ‘child observation’ by social workers in training were regarded as eccentricity on my part rather than as any appreciation of the child’s experience and perspective. To me, it is no wonder that social workers trained in that way can regard it as more satisfactory to remove children by the use of strangers in the middle of the night on suspicion of danger rather than to manage anxiety, assess properly and manage necessary removals with regard to the impact of the removal on the child as well as the need for safeguarding.

Attention to the negative impact of social work action on children has been shortlived in the past. In the late 1990’s it became commonplace in my experience to identify families in trouble because parents no longer felt they could set any kind of limits on their children’s behaviour as a result of their experience of child protection investigations. The ‘re-focussing’ exercise of the period attempted to reduce the extent to which almost all investigations began and ended as investigations without any family service or protective processes following. Within 5 years the emphasis had swung right back the other way and the re-focussing exercise seemed forgotten. It’s enough to make one ask what is driving the maintenance of such a system in the absence of evidence that it makes matters better for children rather than worse.

As I was leaving the job in 2013 the training pendulum had once again swung against University involvement in social work training, due to widespread dissatisfaction with their success in providing appropriate social work training. Employer domination of training processes must be equally suspect in light of the current system of employment and social work decision making. Social Work clients often find it astonishing that social workers and their managers make rapid judgements about matters as hard to define as ’emotional abuse,’ when they have no personal experience of child care or even family life.

In my earliest days as a Social Work Manager I was intrigued to try to identify the proportion of young social workers who thought that they had had any idea about what being a parent was really like before they had children. I only ever found one. This does not prevent most people, social workers and others, having very decided ideas other people not being good parents, views which are often mutual! Give such people the power, and other people loose their children.

Protecting children from the child protection system

I congratulate Child Protection Resource for the work it is doing, and I am impressed by the extent to which views are changing, even if that is no comfort to the latest generation of rescued children. In the UK we have, after all, a long and continuing history of ‘rescuing’ children from their parents to every variety of often abysmal future, from Barnardo, through other efforts at mass shipping of children to Australia, Canada, and to the specious identification of children to be removed in to care or placed in non-consensual adoption. Following re B -S, there must at least be less people now saying, as they were in 2013, that children from poor families not placed for adoption were being denied a great opportunity in their lives!

I am not suggesting that children should never be removed, and I see the ever swinging pendulum in the process of swinging away from child removal again. However, in my view the 1989 Children Act is pie in the sky and needs to be replaced with legal standards which more nearly reflect those expressed in re B-S, that is to set realistically measurable standards to govern the protection of children, rather than to push the law into ever less measurable levels of ‘abuse’ as Robert Buckland, QC, MP, Solicitor General curiously seems to advocate (The Times, 15 January 2015). Any reliable system also needs to recognise the impossibility of predicting abuse, a lesson one may draw from Eileen Munro’s early works in which she draws attention to the mathematics of risk assessment, false positives and negatives etc, but which she proceeds to ignore in her own advocacy of its use in social work (reference needed). The mathematics of ‘false positive’ identification would indicate even higher levels of mistaken removal than some of the conspiracy theorists in the field would have us believe, but not in the least due to ‘conspiracy’.

Knowing the fear that permeates the family lives of ordinary and especially materially poorer people of ‘Social Services’, I have been surprised at the extent to which that daily reality is hidden from view now that I am following an ‘ordinary’ life outside social work. Effectively this field of practice is shrouded in secrecy, occasionally breached by items such as BBC South East ‘Inside Out’on 2.2.2015 . In that piece Andrew Webb, Immediate Past President of the Association of Directors of Children’s Services, said “the criticisms of our adoption system isn’t based on any evidence I can see that relates to children and their outcomes, it’s more a concern about whether parents should be given more chances”.

How can one explain such a statement from such a person? Is it possible he is really unaware of the harmful impact of wrongful removal from families of children, for the children? Has he never seen adoption and fostering breakdown statistics, nor heard of the Cleveland Enquiry Report or the consequences for children of the shipping children abroad? His approach in that interview demonstrates that some social work managers are prepared to say whatever they think will justify their position, sometimes in direct contravention of contrary evidence. I say this from direct experience over many years and in several situations. Under pressure, social workers also make up information to fill the gaps in their knowledge; a perfectly human thing to do, but which may have something to do with why parents so often think that their social workers are lying. Andrew Webb is facing neither the understandable pain of parents when children are removed, rightly and wrongly, nor the problem of making decisions at the right time and in the right way.

Andrew Webb’s approach gives the impression that his interest is in maintaining the Child Protection Industry and his own status within it. This may not be a feature of conspiracy, but social workers and their managers need jobs (and empires) in order to earn their living. They don’t get paid bonuses for removing children, but they do have to demonstrate that they are ‘protecting children’. Very often that simply means that if the child is thought to be ‘at risk’ at home that they have to be removed, without regard to whether this will make the child’s life better or worse. The long term suffering of a wrongly removed child is much less tangible than the immediate risk of yet another case in which ‘social workers did nothing’. In my experience, the requirement that the child must be removed because of risk, without considering whether this will make life any better for them has been quite explicit. On other occasions, I have been able to present the pros and cons so as to achieve the best solution, or at least the ‘least worst solution’.

In the same broadcast Peter Dale, who has long influenced my approach to Child Protection, says that he believes the British Government will have to apologise in future for the damage that is being done to children in England. Another scandalous era in British child protection practice is happening right now, ready to be exposed in future years. I hope that childprotectionresource.org.uk will contribute to the development of ideas about how that system might be replaced with one which is more likely to protect indubitably abused children without perpetrating terrible abuse on children whose circumstances may be less than ideal, but whose very real abuse is created by the very system which is supposed to protect them.

Patrick W Phillips, MA, LRCC

Parents’ views of the proceedings – we have lost faith in the process

I find it almost impossible to believe that justice will prevail.

This is a contribution from one of our readers ‘M’ about how her partner saw the system unfolding around then and how it made them lose faith in the proceedings and to feel very unfairly treated. It is very sad to read this, as a lawyer and wonder why these parents felt so unsupported by their own legal team. What should parents’ lawyers be doing differently or better, to have a positive impact for these parents?

Support for Parents in Care Proceedings

When a child is taken into care the parents are often left completely in the dark as to where they should go and who they should approach. The only thing you are told is that you should get legal representation as soon as you can.

Emergency Protection Order

In the case where your child is taken on an Emergency Protection Order you have less than a week to organise any legal representation. Additionally on an EPO the first hearing for an Interim Care Order it seems is often heard at a magistrates court which means you have no chance of getting the order reversed. If you are lucky enough to find a good solicitor in the few days it still seems to make no difference. As in our case the ICO hearing was scheduled in a magistrate’s court and was given enough time only for the ICO to be granted stopping us from challenging the order. We then find that we can only contest the ICO at a hearing at the end of August some 6 weeks after M’s son was taken into care. Even then the hearing was postponed for a further 2 weeks.

Care Proceedings 6 Month Limit

The 6 month limit on care proceedings starts from the moment the child is taken into care. This is clearly grossly unfair in the situation where your child is taken into care on an EPO and you are not allowed to challenge this for 2 months. It is particularly unfair in the situation where the child is taken into care in July as the 6 month period would end late December / early January and it was clear in our case that there was no intention and that finishing the case within 5 months became the target. Given the late start due to the summer and wanting to finish within 6 months we had barely 2 months to go through any assessment’s or possible solutions. It is hardly surprising the local authority took the “easy” approach and stuck with their original plan to keep M’s son in care and seek a placement order.

No-Win For Parents

Everything you say during the period you are in proceedings is used against you no matter what it is. If you are emotional when seeing your child then you are deemed to be harming them and if you are not then you are uncaring. It seems that once a decision has been made by Social Services to pursue a course of action you have almost no chance of getting a fair hearing. I can barely believe that we were not allowed to challenge much of the case that Social Services put forward. It may be that we were poorly represented in court – I cannot be sure as I only have this experience to go on. M was criticised for considering a move to B as if B was somehow an inappropriate place to live and yet M’s son is placed in G where Primary school education is one of the poorest in the UK.

The Basic Fault in the System

The underlying fault in the system as it stands is that you are assumed to be “guilty” unless you can prove you are innocent. Justice has been turned on its head in the drive to protect children and can only lead to many miscarriages. Considering the damage taking a child into care can do to the child and to the parents it should very much be a last resort. However I believe our case demonstrates that it is being used as anything but a last resort and possibly in […] in particular is being used to excess as can be seen by the Local Authority now finding it has neither the finances nor the numbers of foster parents needed. I don’t believe there is any independence in the courts as M’s son was taken on an EPO on two grounds which we proved were incorrect. There seems to be no restraint on the Local Authority if it decides to pursue parents. Documents were presented in court with outright lies in them and M was told several times that the Local Authority have to put these statements in even though they know them to be “untrue” because they would otherwise “weaken” the Local Authority case.

Aggressive Questioning in the Final Hearing

During the Final Hearing I was subjected to the most aggressive questioning I’ve ever witnessed. I have twice done Jury service and have never seen such questioning used in the criminal cases there. I felt I was being attacked as if I was somehow guilty of some serious offence like murder. I had previously made it quite clear to the Social Services that I wouldn’t put myself forward to care for M’s son unless I honestly believed I could do this. The people that know me know that I am a very honest person. I produced a couple of witness statements from people I know and have worked with to this effect. Before this hearing I had believed that justice would prevail but I find this almost impossible to believe now.

Local Authority Policy on Keeping Children in Care

I had thought the Local Authority would take a realistic look at the options for returning M’s son but instead they’ve taken a hard line attitude which seems to be at odds with the stated objectives of keeping families together. Given M’s sons cultural background they should have made efforts to keep up his language skills which would have put him ahead of his peers at school. Instead they seem to have made a conscious effort to remove this heritage and made no effort to keep his language skills. M was banned from speaking to him in anything other than English during our contact sessions.

Missed Contact Sessions

We missed 2 contact sessions in August last year as I had to be in E for work. I know M could have stayed in K and gone to the contact sessions but she was not coping well at the time and also the contact locations were far away in G.

Placement of M’s Son in Foster Care in far away location

We were told that G was the only place that M’s son could be placed but from our conversations with the contact supervisors it seems to have been an unusual foster placement. How many other children in care are placed an hour’s drive away or 2 hours by public transport? It may be that the foster placement was the only choice but along with the later statements and lack of support from Social Services it’s hard not to believe that the intention was to make things as hard as possible for M. Applying extra pressure to both M and me while we were already under pressure is completely immoral and has destroyed my trust in Social Services. All along it seems the actions of Social Services have been aimed at justifying taking M’s son into care and making life as difficult as possible for both of us in the hope we would give up. I can no longer believe they have the best interests of children at heart but are pursuing their own targets and objectives. Speaking as an honest person who finds lying virtually impossible I cannot understand how the Social Worker can stand in court and say that M’s son has suffered “emotional harm” when there is nothing to suggest this. All along the “expert” legal advice has been to accept the findings and agree a plan with Social Services to return M’s son but following this got us nowhere as at no time would Social Services offer us any credible option.

God like Powers Granted to Social Services without any Checks

It seems we have given God like powers to Social Services but without any checks or balances. Reliance on the courts to provide this is clearly not working and especially so when the system of Guardians is clearly not providing any independence. Considering the cases one reads about and which I have more recently heard about from M’s contacts in Facebook our case seems very unusual and our treatment exceptionally severe.

Current Situation

We are still awaiting the Court’s response to our appeal. Lamentably, the LA solicitor has written to the Royal Court of Justice, submitting that the permission to appeal should be refused. There is obviously no requirement for the Local Authority to provide a response to our Appellant’s Notice, so their attempt to “expedite matters” can be viewed as their attempt to infringe upon our right to a fair and public hearing, guaranteed by Article 6 of the ECHR.