Other thoughts

A system in continual crisis – what happens when all you do is try to shift the blame?

The House of Lords – as they then were – discussed the inglorious history of the child protection system in 2002 in the case of S v S & Others [2002] UKHL . See para 29 of that judgment:

The Children Act has now been in operation for ten years. Over the last six years there has been a steady increase in the number of children looked after by local authorities in England and Wales. At present there are 36,400 children accommodated under care orders, compared with 28,500 in 1995, an increase of 27 percent. In addition local authorities provide accommodation for nearly 20,000 children under section 20 orders (children in need of accommodation). A decade’s experience in the operation of the Act, at a time of increasing demands on local authorities, has shown that there are occasions when, with the best will in the world, local authorities’ discharge of their parental responsibilities has not been satisfactory. The system does not always work well. Shortages of money, of suitable trained staff and of suitable foster carers and prospective adopters for difficult children are among the reasons. There have been delays in placing children in accordance with their care plans, unsatisfactory breakdown rates and delays in finding substitute placements.

30. But the problems are more deep-seated than shortage of resources. In November 1997 the Government published Sir William Utting’s review of safeguards for children living away from home. Mr Frank Dobson, then Secretary of State for Health, summarised his reaction to the report :’It covers the lives of children whose home circumstances were so bad that those in authority, to use the jargon, took them into care. The report reveals that in far too many cases not enough care was taken. Elementary safeguards were not in place or not enforced. Many children were harmed rather than helped. The review reveals that these failings were not just the fault of individuals – though individuals were at fault. It reveals the failure of a whole system.’

31. In autumn 1998 the Government published its response to the children’s safeguards review (Cm 4105) and launched its ‘Quality Protects’ programme, aimed at improving the public care system for children. Conferences have also been held, and many research studies undertaken, both private and public, on particular aspects of the problems. Some of the problems were discussed at the bi-annual President’s Interdisciplinary Conference on family law 1997, attended by judges, child psychiatrists, social workers, social services personnel and other experts. The proceedings of the conference were subsequently published in book form, ‘Divided Duties‘ (1998)….

The death of Victoria Climbie and the Laming Report

The pressures on the child protection system increased from the time of Lord Laming’s report in 2003 into the death of Victoria Climbie. Victoria was only 8 in 2000 when she finally died from the many injuries inflicted upon her by her adult carers, despite involvement from four different local authorities, hospitals and the NSPCC. The Laming report

…discovered numerous instances where Climbié could have been saved, noted that many of the organisations involved in her care were badly run, and discussed the racial aspects surrounding the case, as many of the participants were black. The subsequent report by Laming made numerous recommendations related to child protection in England. Climbié’s death was largely responsible for the formation of the Every Child Matters initiative; the introduction of the Children Act 2004; the creation of the ContactPoint project, a government database designed to hold information on all children in England; (now defunct after closure by the government of 2010), and the creation of the Office of the Children’s Commissioner chaired by the Children’s Commissioner for England.

Children’s social care services were combined with education to form children’s services departments, most of which were headed by Directors with no experience of social care (thus it is no longer accurate to refer to ‘the SS’ as many who dislike the system do).

Local authorities were required to introduce the Integrated Children’s System (ICS), a computerised system for recording casework and decision-making for children, with the consequence that social workers spent more time in front of screens and less time with families.

The death of Peter Connolley

In August 2007 Peter Connolley died as a result of the severe injuries he had received over months from his adult carers. He was 17 months old. In 2008 the criminal trial and conviction of the adults who killed him provoked a media storm quite unlike any other that had been seen before, probably because Peter also died under the watch of Haringey, one of the local authorities who did not act to protect Victoria.

Much blame was generated which became focused on Haringey and its social workers, rather than the police or the medical profession, despite their significant contributions to a system that failed to protect Peter.

The first Public Law Outline (PLO) was then introduced in the autumn of 2007 to try and speed up care proceedings. This brought in new and onerous requirements for LAs in terms of case preparation.

As a consequence of all these pressures, some LAs had enormous difficulties in recruiting and keeping social workers. There is still heavy reliance in many areas on expensive agency staff to try and fill high vacancy rates. Of course, it is not just the LAs that are under pressure. The courts are too, there are often difficulties in listing cases quickly or maintaining judicial continuity.

2008 then saw a substantial rise in the number of applications for care orders, called by some ‘the Baby P effect’ – suggesting that LAs were now over cautious and issuing unnecessary proceedings.

However, research from the University of Bristol in 2011 thought it was more likely to be a consequence of the PLO:

The significant increase [in care proceedings] from November 2008 is likely to be a result of the delay of applications occasioned by the introduction of the PLO with its substantial pre-application requirements. The continued increase may reflect a change in the operational threshold but the greater scrutiny which is now required before applications are made means that the local authority will have been advised that the threshold is met, and social work managers will have taken the view that proceedings are required.

Whatever the reason(s) behind the rise, it was significant and had an impact on the entire system. As Baker J commented in 2013, with reference to the serious negative consequences that can flow from failure to appoint a guardian at an early stage in care proceedings:

A crucial feature of the guardian’s role has been the early appointment, right at the outset of the proceedings. So often it is decisions taken at that stage that have a defining influence on the eventual outcome as well as a fundamental impact on the child. An experienced guardian is able to come fresh to a case and bring the wisdom of their expertise to bear on the immediate decisions that have to be made at the outset of proceedings … In cases where the social worker, advocates and the tribunal may lack much experience, the guardian’s role is vital….The rise in public law cases following Baby P accelerated a crisis that had been threatening for some time so that Cafcass was no longer able to provide a service at the outset of proceedings and vital decisions were being taken without their input.

The Munro Report

In June 2010 Professor Eileen Munro was asked by the Department of Education to report on the state of the child protection system in England and Wales. Her third and final report came out in 2011. The first report identified the ‘four key driving forces’ that had shaped problems in the system, following the pressures and challenges outlined above. These forces had:

come together to create a defensive system that puts so much emphasis on procedures and recording that insufficient attention is given to developing and supporting the expertise to work effectively with children…

The Driving Forces

the importance of the safety and welfare of children and young people and the understandable strong reaction when a child is killed or seriously harmed;

a commonly held belief that the complexity and associated uncertainty of child protection work can be eradicated;

a readiness, in high profile public inquiries into the death of a child, to focus on professional error without looking deeply enough into its causes;

the undue importance given to performance indicators and targets which provide only part of the picture of practice, and which have skewed attention to process over the quality and effectiveness of help given.

The Munro report made a variety of recommendations to reform the system particularly to:

remove unnecessary or unhelpful prescription and focus only on essential rules for effective multi-agency working and on the principles that underpin good practice. For example, the prescribed timescales for social work assessments should be removed, since they distort practice.

The Inquiry into the State of Social Work Report 2013

However, there are concerns that the Monro recommendations have simply been sidelined and the system continues along a target driven path which focuses on ‘rescuing’ children rather than trying to support families. See the Inquiry into the State of Social Work Report in 2013 published by the British Association of Social Workers on behalf of the All Parliamentary Group on Social Work. The report commented:

Excessive bureaucracy continues to work against, not in support of, practitioners. ICT systems remain not fit for purpose. Dangerously high caseloads for too many social workers mean serious risks for the people who need their assistance.

Low morale is not unique to social workers but if it is endemic across the profession, as some witnesses describe, then the ability of these practitioners to provide high quality services to families themselves confronting depression, poor self-esteem and even despair, must be questioned.

The inevitable consequences of a culture of blame

The list of children killed when known to children’s services and the inquiries into their deaths is now long indeed. See for example the serious case reviews collected on the NSPCC site.

The same mantra is repeated every time: ‘lessons will be learned’. However, it is difficult to see what lessons are being learned other than how best to attempt to shift blame once a crisis has occurred.

It sadly seems that despite the wealth of investigations and inquiries over the past 20 years, children remain badly served by a system supposedly designed to keep them safe. The most recent depressing example is found in the criticism by the Children’s Services Development Group of the Department of Education not using data to adequately reform the commissioning of children’s services. Spokesperson Lizzie Wills commented that lines of accountability for vulnerable children remained unclear:

“Senior representatives “passed around” responsibility for ensuring placement stability and positive outcomes, revealing an overwhelming and fundamental lack of coherence in the care system for looked after children,” she said.

But while the focus after a child’s death remains fixed on finding who we can ‘blame’ – will we ever see a shift? This is well explored by Ray Jones in ‘The Story of Baby P’. He comments:

For the child protection system more generally, it is now creaking at the seams, and at or near the point of collapse. Workloads have rocketed…The fear and threat that was now a burden on every social workers’ shoulders that they, too, could become a target of The Sun and others has, in part, led to more children being removed through the courts from their families. Others then, such as The Times and the Mail castigate social workers for taking children from their families. The media know how to have it both and every way…

…This book reflects my horror at how good people who undertook distressing and difficult – and sometimes dangerous – work to protect children were attacked and abused by powerful media forces, with other powerful forces getting drawn into the process. But the greatest horror is what happened to a little child, Peter Connelly, and my concern is that the campaigning by The Sun and others has done nothing to make it safer for children like Peter.

Is the Child Protection System fit for Purpose?

Proposed Multi Disciplinary Conference, 1st June 2015.

Please see this post from the Transparency Project.

Policing Parents, Protecting Children and Promoting Adoption: Do we get the child protection system we deserve?

The Transparency Project is pleased to announce a proposal for a multi-discliplinary conference, provisionally arranged for 1st June 2015, which will invite views and perspectives from experts, lawyers, social workers, parents and care leavers in an attempt to re-position the current unhealthily polarised debate around the child protection system.
We hope to be joined by Dr Lauren Devine of UWE who is currently undertaking research into the evidence base for our current system and by Brigid Featherstone, co-author of ‘Re Imagining Child Protection’.
The venue and full list of speakers will be confirmed over the coming months.
If you are interested and would like to be kept informed about developments, or if you have any suggestions for topics or speakers please contact [email protected]

EDIT – Topics for afternoon discussion

Suggestions are coming in for the issues most likely require debate/discussion. Please feel free to contact us to add more.

Section 20 agreements – the drift and delay problems. Are there adequate mechanisms in place for review of these? What’s the IRO doing?
The anti-authoritarian parent – does disagreeing with or failing to co-operate with a social worker equate to being a ‘bad parent’? What can be done to improve relationships between parents and social workers? These issues are highlighted in the recent Hertfordshire case and discussions over at suesspcious minds.
Perception of experts as independent – what should happen if experts in a case are on a ‘paid retainer’ with a LA? also an issue raised in the Hertfordshire case above.
Problems with ‘working together’ – example of recent disjunction between family and housing law discussed by Nearly Legal. How do we make sure family courts have the best information about issues they may not be familiar with nor fully understand?
Opening up the family courts – the impact on children. Is it likely to be a serious as some fear? What lessons can we learn from other jurisdictions?

Achieving best evidence and use in Children Act cases

This post began life as a paper delivered by Sarah Phillimore at the St John’s Chambers conference on 4th December 2014: ‘Family Justice: universal access and fair process’. It has been updated to take into account more recent case law; most particularly the case of A (A Child) [2015] and Re BR (Proof of Facts) [2015]. No doubt the updating process will continue in light of our continued and collective inability to get to grips with this most essential issue.

With thanks to Dr Harrington for the introduction to Sapir/Whorf

‘We have a system that places the proof of facts at the centre of care proceedings’

Baker J November 2013

Overview

The importance of good evidence
The consequences if we get it wrong
How can we do it better?

Why is evidence so important?

Mr Justice Baker addressed a family law conference in 2013 asking the question – how can we improve decision making in the family courts? He identified the twin evils of delay and cost which impact on the quality of decisions made. He commented on the alternatives to litigation, such as mediation or arbitration that might work to mitigate those evils. But he was also clear that alternatives to litigation could never be complete substitutes for litigation. There will always be a proportion of cases that will require the court to intervene.

He said this:

But there will always be a substantial number of disputes in which a forensic process is unavoidable, a process that involves consideration of allegations and cross-allegations made by the parties, a judicial analysis of the evidence, the makings of findings and an assessment of the consequences of those findings. There are some people who genuinely believe this can be done by some sort of committee without involving lawyers at all. Such views are profoundly mistaken.

Children cases are not fully adversarial because the court retains ultimate control of what is and is not litigated. The level of this control will vary. But fundamentally we have a system which puts proof of facts at its heart.

What do we mean by proof of facts in a court?

See Re BR (proof of facts) [2015]

Mr Justice Jackson commented:

It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence…

He set out some general principles:

The court acts on evidence, not speculation or assumption. It acts on facts, not worries or concerns. Evidence comes in many forms. It can be live, written, direct, hearsay, electronic, photographic, circumstantial, factual, or by way of expert opinion. It can concern major topics and small details, things that are important and things that are trivial.
The burden of proving a fact rests on the person who asserts it.
The standard of proof is the balance of probabilities: Is it more likely than not that the event occurred?
Neither the seriousness of the allegation, nor the seriousness of the consequences, nor the inherent probabilities alters the standard of proof required. Where an allegation is a serious one, there is no requirement that the evidence must be of a special quality. The court will consider grave allegations with proper care, but evidence is evidence and the approach to analysing it remains the same in every case.
Nor does the seriousness of the consequences of a finding of fact affect the standard to which it must be proved. The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But the fact that an event is a very common one does not lower the standard of probability to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred. Similarly, the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred. “Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely things, do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low.”
Each piece of evidence must be considered in the context of the whole. The medical evidence is important, and the court must assess it carefully, but it is not the only evidence. The evidence of the parents is of the utmost importance and the court must form a clear view of their reliability and credibility.

What happens when we get it wrong?

A tottering edifice built on inadequate foundations…

Baker J said further:

It goes without saying that this process depends crucially on the skill and experience of a range of professionals – social workers, police, guardians, doctors, psychologists, lawyers and advocates. The judge is dependent on those professionals in coming to the right decision. In the end, judges can only decide the cases that are put before them.

That last sentence is the crucial one and explains the court’s rage when they are faced with poor quality evidence and asked to make such serious decisions as whether or not a child should be adopted. No doubt the words of the President of the Family Division continue to ring in our ears from Re B-S (Children) [2013] EWCA 1146 at paras 39 and 40:

Most experienced family judges will unhappily have had too much exposure to material as anodyne and inadequate as that described here by Ryder LJ.

This sloppy practice must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high.

When evidence is poor the risks are not simply just a stern dressing down from a senior judge but that the court is deprived of the evidence it needs to make the best decision for the child.

And it’s not just a burden on the lawyers who gather and present the evidence; the burden is also upon the Judge to carefully analyse the evidence, particularly in a finely balanced case.

See for example Re B (Children: Long Term Foster Care) [2014] when the Court of Appeal found that the Judge had not sufficiently analysed the evidence before him and in such a finely balanced case, he should have carried out “a detailed and critical review of the evidence, old and new, with each step of the way meticulously charted in the judgment.”

Worst of all – lying in court by professionals

Or worse than all of this – when professionals lie on oath in court. The Judge commented that this case was ‘exceptional’, and I hope he is right about that. See this post by Suesspiciousminds for consideration of the case involving Hampshire CC.

So how can we do it better?

Active thought at the outset of a case about its evidential basis

I will examine some general propositions which hopefully will apply to any case. Particular groups of vulnerable witnesses, such as children, may have other quite specific needs and the interviewing/evidence gathering process will need further adjustment to make sure that these needs are taken into account and unfairness avoided.

There are three useful sources that highlight issues for us to consider:

Achieving Best Evidence guidance
Case law
Linguistic theory

From these sources we can derive the following general principles:

Watch out for the language you use;
Allegations which are denied or not proven are NOT ‘facts’
Test your hypothesis, don’t seek to confirm it
Distinguish ‘fact’ from the ‘processing of facts’
Be clear about what ‘facts’ are being challenged.

Watch out for the language you use

Allegations which are denied or not proven are NOT facts

I will examine these two principles together because they are closely inter-related. The language you chose to discuss the evidence can have a very powerful effect on how you think about that evidence and how you go on to treat it. You may also have a different understanding of the words you use than others do and can end up talking at cross purposes.

For example:

if a child makes an allegation of sexual abuse there is a tendency to call this a ‘disclosure’. Disclosure means what it says – a secret fact that is made known. So you have assumed the truth of what is said at the outset. This can be very dangerous.
If you say you have ‘refuted’ an allegation, I understand that to mean that you have provided proof that the allegation is wrong. But many others would simply hear that you ‘disagree’ with an allegation
Use of the word ‘paedophile’ to describe a man who is attracted to girls aged 14-16 and the emotional reactions that word triggers.

Theories about linguistics can shine more light upon this.

The Sapir Whorf Hypothesis

Edward Sapir was an American anthropologist-linguist, who was born in Poland in 1884 and is widely-considered to be one of the most important figures in the early development of the discipline of linguistics. Benjamin Whorf was his student. To refer to a ‘hypothesis’ is a misnomer because the two never co-authored anything, and never stated their ideas in terms of a hypothesis. But their work has continued to intrigue many.

What people have taken from their work is the two concepts of linguistic relativity and linguistic determinism. i.e.:

that meaningful and distinct concepts in one language system are not necessary encoded in the same way or even at all when compared to another language system; and
speakers of a language are acculturated into particular ways of seeing the world and manipulated into it by the systems that are in place.

As Dr Kate Harrington of Exeter University says:

The words used to describe a reality can have a significant effect on how others perceive and categorise that reality. When this happens in a legal context then such language can have a serious impact on legal outcome.

There is also some very interesting research from a Yale Law School professor, Dan Kahan who wrote a research papers called ‘Motivated Numeracy and Enlightened Self Government’ in 2013. This examined the impact of political passion on people’s ability to think clearly.

I haven’t read the paper in full, but an article by Marty Kaplan of Alternet provides an interesting window into its conclusions:

partisanship “can even undermine our very basic reasoning skills…. [People] who are otherwise very good at math may totally flunk a problem that they would otherwise probably be able to solve, simply because giving the right answer goes against their political beliefs.”

In other words, say goodnight to the dream that education, journalism, scientific evidence, media literacy or reason can provide the tools and information that people need in order to make good decisions.

It turns out that in the public realm, a lack of information isn’t the real problem. The hurdle is how our minds work, no matter how smart we think we are. We want to believe we’re rational, but reason turns out to be the ex post facto way we rationalize what our emotions already want to believe

Therefore, it appears that given the influences that may be operating upon us without our full awareness, the best approach to any allegation from any source, is to treat it seriously and with respect BUT to try to avoid making firm assumptions about its strength or weakness – until of course you have had an opportunity to look at a wide range of evidence that both goes to support or challenge any particularly theory of the case.

Examples where this goes wrong in practice

I have unfortunately had experience of a great number of cases where achieving the best decision for the children was significantly delayed – or even utterly thwarted – by a failure to abide by these principles.

A particularly horrible example is D v B and others (flawed sexual abuse enquiry) [2006] EWHC 2987 (Fam). It is worth reading in full. For further useful commentary on the use of ‘veracity experts’, see this post by suespcioussminds.

The Judge in D v B commented on the development of the case in this way:

Thereafter, the therapist formed the view that the allegations that the father had abused EB were true and fed that belief into the social care system in Surrey. A social worker in Surrey was influenced by the therapist and accepted her view. Groups of professionals met in Surrey and debated wide issues about their beliefs about the allegations, some believing them, some not. There was discussion about a number of issues, which were simply floated without resolution… Information was kept from the father lest it should interfere with EB’s therapy…

The County court judge dealing with the matter in the beginning…however found ‘mother’s account of events truly extraordinary, well exceeding his comprehensive fifteen years experience’. The Judge hence directed further investigations and advises the father to upgrade his contact application to a fully-fledged residence application…The former social worker applied censorship and imposed non-disclosure of minutes of some professionals meeting by means of solicitor instructions. The reasoning given was that it ‘could compromise working relationship with mother’.

There then developed two systems running in opposition. The court in Taunton made orders requiring the mother to make TD available for contact. Orders were backed with penal notices directed at the mother. The NSPCC and the social worker in Surrey gave support to the mother on the basis that the allegations were true. The case was not returned to the court for a fact finding hearing. The opposing systems continued to run in counter-measure.

The Judge further commented:

I have read (and re-read) the relevant passages from the Cleveland report (pages 204 to 214) and the Orkney reports (pages 272, para 15.21 to 275, para 15.32) during the currency of my involvement in these proceedings. I am very well acquainted with the document called ‘Achieving Best Evidence’, which is an everyday working tool for those who practice within the family justice system…I find it very difficult to understand how the history that has emerged reflects that acquired learning.

A (A Child) v Darlington Borough Council [2015]

Another horrible example of failure to get to grips with what are or are not ‘facts’ can be found in the case of A (A Child) in 2015 where the President of the Family Division did not hold back on fierce criticism of the LA handling of care proceedings. See for example paragraph 28 but the entire judgment should be read in full:

First, there was very little analysis, let alone any very rigorous analysis, of the factual underpinning of the local authority’s case. The truth is that the local authority’s case was a tottering edifice built on inadequate foundations.

The President identified 3 fundamental principles at paragraph 8 onwards of his judgment. Failure to abide by these will have serious implications for the successful pursuit of an application in court

- Facts must be drawn from evidence, not suspicion or speculation; LA must provide proper evidence, direct whenever possible and LA must not confuse the distinction between asserting a fact and the evidence needed to prove it
- Facts must be linked to the case on threshold; WHY do these facts go to prove significant harm or risk of it?
- Society must be willing to tolerate diverse standards of parenting… it is not the provenance of the state to spare children all the consequences of defective parenting… (Hedley J re L [2007] 1 FLR 2050 para 50)

An interesting aside: Sir Mark Hedley addressed the conference ‘Is the Child Protection System Fit for Purpose’ on 1st June 2015 and opined that whenever judges saw counsel citing this famous dictum ‘it was because they knew they were going to lose’ – I am not so sure he is right about this with the President’s continued endorsement.

It is depressing, to say the least that 9 years divides the two authorities cited above – yet it appears no ‘lessons have been learned’ about how NOT to conduct care proceedings.

See further the case of Re J (a Child) [2015] EWCA 222 where the Court of Appeal endorsed the President’s judgment in A (A Child). It was held that it was ‘impossible’ to detect the process of analysis by the Judge, the threshold criteria contained very little by way of ‘fact’ but made very general observations which no one analysed to show the link between these generalities and the risk of significant harm.

At the beginning – test your hypothesis, don’t seek to confirm it

This is useful guidance from Achieving Best Evidence. Good interviews don’t seek to ask questions to confirm an existing hypothesis but rather test it. Good interviews also encourage free narrative so that there is less risk of the interviewer imposing his or her own assumptions – which can be particularly dangerous when you are interviewing a child.

If you start to gather evidence operating from one perspective, its inevitably going to impact on the course of that process. Its probably inevitable that we will form a theory of a case at an early stage but be wary of allowing your theory to harden into fact without proper investigation and analysis.

For example, the police appear to now recognise the danger of proceeding with investigations on the basis that they ‘believe’ the complainant after many high profile investigations into historic child sex abuse allegations hit the buffers.

We need to distinguish between fact and the processing of facts.

We can also get some useful guidance from the courts. One such helpful overview is the case of P (A Child) [2013] EWCA Civ 963. This was a case that went wrong. A father appealed against the making of care and placement orders and the refusal to further assess him. The LA’s concerns were not about either parents ability to provide physical care for their child but rather the impact of issues around violence and conflict in the relationship.

The father complained that:

The LA assessment was so flawed to be unreliable
The nature of the father’s aggression was not reliably established
The judge had overstated the nature of the aggression

The Court of Appeal unanimously allowed the appeal and gave general comments about the need for active though at the outset of a case about its factual and evidential basis. These are set out from paragraph 112 of the judgment. The court stresses that these are not rules, but they are certainly useful guidance.

As the court considered:

Care cases involve “professional evaluation, assessment, analysis and opinion” brought to bear on facts. As the President said we need to distinguish clearly between what is fact and what falls into the other category…the processing of facts. The assessment and opinions of …professionals will only hold water if the facts upon which they proceed are properly identified and turn out actually to be facts’.

Be clear about what ‘facts’ are being challenged

This is another way the waters can get muddied quite quickly. If a parent says ‘I don’t accept that assessment’ we need to be clear exactly what they are objecting to. Are there mistakes about dates and times? Or is this a fundamental disagreement with the assessment’s conclusions? If so, what is the basis for this disagreement?

The PLO aims to assist with this process in care proceedings by creating different categories of LA material:

Evidential documents which are served with the application form; and
Decision making records which are only disclosed on request

Further, the early case management hearing should identify key issues and the evidence required to resolve those key issues. Its obviously essential that proper consideration is given to what alleged facts are actually relevant to a decision and which of those alleged facts are in dispute.

Further Cases

M (A Child: Failure to comply with Achieving Best Evidence) [2014] EWFC B141
Impact of ‘wholesale and serious’ breaches of the ABE guidelines Re W and F (Children) [2015] EWCA Civ 1300
W (fact finding) [2014] EWHC 4347 – almost everything that could go wrong with this case did, to the point that it defied credulity.
H (A Child) Analysis of Realistic Options and SGOs) [2015] EWCA Civ 460 – where non compliance with rules and practice directions meant a case was not fit to be tried and judge did not carry out the necessary analysis of the options.
24th November 2015 the case involving Hampshire CC – where social workers were found to have altered reports and lied about it in court.
E (A Child) [2016] EWCA Civ 473 The reasons for the appeal succeeding were summarised at para 98 of the judgment and included wholesale failure to acknowledge and analyse ‘numerous and substantial’ deviations from good practice with regard to interviewing children.
AS v TH (False Allegations of Abuse) [2016] EWCH 532 – Where the Judge commented at the very outset of his judgment that it was disappointing that several witnesses appeared ignorant of the Cleveland report (and concluded at the end that hysteria had taken over)
J (A Minor) [2016] EWHC 2430 – ‘the boy forced to live as a girl’; another example of failure to evaluate what was actually happening to a young child and imposition of a particular narrative orthodoxy by professionals contributed to significant emotional harm.
Re V (A Child) [2016]- poor decision making and botched assessments meant a child had no contact with his father for about 10 months.
GD & BD (Children) [2016] EWCH 3312 – example of very poor police, LA and legal practice, described by Suesspiciousminds as ‘the worst case of the year’.
H v D (Appeal – Failure of Case Management) [2017] – concerns about case management and the court’s approach to the cross examination of an alleged victim by alleged abuser.
L (A Child), Re [2017] EWHC 3707 (Fam) (22 December 2017) – significant failure of police investigation and guidance offered from para 110 about police disclosure.
M v Y (Children) [2018] Successful appeal against a finding of fact when trial judge did not properly assess credibility of child’s account in light of discrepancies in her evidence.
A (Children) [2018] EWCA Civ 1718 (25 July 2018) – failure by judge to properly consider all the evidence on a wide canvass (that previous genital injury made subsequent death of child by ligature much more likely to be a deliberate killing) and reliance on ‘pseudo maths’ to determine balance of probabilities. Also initial failures by police to secure evidence at the scene and then to disclose police evidence into family proceedings.

A 1 in 5 failure rate is not cause for celebration.

Cafcass care application study 2014

Cafcass recently published some research that they claimed showed:

that five years on from the tragic Baby Peter Connelly case local authority social workers are making timely and well prepared care applications for children at risk.

The final sample population comprised: 304 Guardians; 391 care applications; and 684 children. The guardians were asked a number of questions:

Whether the timing of the care application was appropriate, premature or late;
Whether there was any other course of action which, in the view of the Guardian, the local authority should have taken before issuing proceedings;
Whether the local authority met the requirements placed on them by the revised PLO; and
Whether new or updated assessments had been commissioned prior to the making of the application and, if so, whether the assessments were in the child’s best interests.

The key findings of the research were:

Guardians believed there was no other course of action [than making an application] available to local authorities in 84% of cases.
In 84% of cases Guardians thought that the local authority had met or partially met the requirements of the revised Public Law Outline (PLO); and in 32% of the cases where Guardians indicated that the local authority had not met the requirements they considered this was appropriate.
Neglect remains the principal category of concern for children who were, or had been, subject of a child protection plan; and was identified by Guardians as being the principal trigger for care applications where the child was not subject of a plan.
Guardians considered that the timing of the application was appropriate in 54% of cases.

This was reported by Community Care as very positive:

“It is fantastic news that Guardians consider that, in general, local authorities are bringing the right cases to court, in a timely way and with the cases being well prepared,” Cafcass chief Anthony Douglas said.

Is ‘fantastic’ really the mot juste here?

Failure to consider other options

The most common alternative to care proceedings suggested was further assessment but it is clear that there was a wide range of options the guardians felt had not been explored when they should have been.

Table 3 Category of Guardians’ views on whether an alternative course of action should have been taken

Further assessment 20
Family group conference 18
Temporary kinship placement 12
Child protection plan 11
Referral to other services 11
Section 20 accommodation 6
Parenting education programme 5
Respite care 2

Failure to meet the requirements of the PLO

The 84% of cases where the PLO requirements were met or ‘partially met’ masks a very worrying percentage of those cases where the LA had ‘entirely met’ the requirements of the PLO – in only 43% of cases.

The guardians considered failure to meet the requirements of the PLO appropriate in only 1/3rd of their cases.

No letter before action

A letter before proceedings was sent in only 63% of cases. Where a letter was not sent the guardian’s thought this was in the child’s best interests in only 45% of cases. This is an important document which is meant to ‘enable the parents to obtain legal assistance and advice, prior to a meeting with the local authority, the intention of which is either to deflect proceedings or, at least, to narrow and focus the issues of concern’.

Of course, in some situations, such as emergency there won’t be time to send such a letter. However, given that parents often complain they do not understand why the LA is making an application for care proceedings, this seems a significant and unfortunate failure.

It is not clear from the report what percentage of the 37% of cases where no letter was sent were ’emergencies’.

Timing of the application

A significant proportion of applications – 46% – were not made at the right time. 3% the guardians were unsure about, 5% were felt ‘premature’ and 39% were ‘late’. The report comments:

Cases where children were accommodated for extended periods also featured, either under s20 or with unregulated carers, as did cases where the local authority was seen to have delayed between holding legal planning meetings or other pre-proceedings meetings, despite parental behaviours not having changed. In some cases the Guardian simply identified a lack of urgency in bringing the case to court.

A cause for celebration?

The report reveals:

approximately 1 in 5 cases where the guardians thought the LA had failed to fully consider alternatives to making the application for a care order;
the majority of all applications (57%) were not fully PLO compliant and this was considered inappropriate in 2/3rds of the non compliant cases;
a significant proportion of parents didn’t get a letter before action (37%) and in the majority of these cases the guardians didn’t think this was in the child’s best interests; and
a significant proportion of the applications (46%) were not made at the right time and 39% were made too late.

Community Care are silent as to what exactly was going wrong in these cases, quoting instead Annie Hudson, the chief executive of The College of Social Work.

“These survey results are encouraging. They testify to the expertise and commitment of local authority social workers and guardians to making sure that children’s needs are at the heart of the complex and necessarily finely balanced family justice system decision making process.”

The use of the words ‘fantastic’ and ‘encouraging’ in response to this report are odd. It seems an attempt to put a weirdly positive spin on some not particularly encouraging statistics. The case law couldn’t be clearer. Care plans for adoption must be subject to strict scrutiny and holistic evaluation of all realistic options. How is this requirement met if the guardian thinks there is a hole in the assessment process? If a kinship placement was available? If the parents should have been referred to other services?

We don’t know what kind of care plans these cases involved. We don’t know the outcomes of the proceedings – did the children go home? Kinship care? Adoption? What was the impact on the children and families if they were the nearly 1 in 5 cases where the guardians thought the care proceedings were initiated without proper consideration of the other options? What’s the impact on the children of being part of the 39% of cases where applications were made ‘too late’ ?

Without answers to these questions, maybe the commentators should row back a little from words such as ‘fantastic’ and ‘encouraging’.

There is a need to consider more fully the impact of judgments such as that in Surrey CC v AB and others in 2014 where there was considerable criticism of the ‘systemic failure’ of the LA and the very damaging impact of delay (para 72) and not keeping an open mind about placement (para 74).

This case was decided in March 2014. So time enough for lessons to be learned?

Are Bonuses paid to Social Workers?

If there are no targets to take children into care, then say so. What’s so hard about that? And if you won’t say so, why not?

The issue of ‘adoption targets’ and bonuses paid to social workers has for some years now been a feature of the intense feelings of distrust and dislike many feel for professionals in this sector.

We have discussed the issue of ‘adoption targets’ in another post and how it seems that targets set up to speed up finding homes for children in care have been interpreted as pushing social workers to focus on younger, more ‘adoptable’ children in order to improve how they hit these targets. We have argued that the statistics don’t seem to support this but that there is a lack of transparency around this issue which doesn’t aid understanding.

And what does ‘performance’ mean?

Sarah Phillimore writes:

It was always my understanding that social workers were paid a salary – nothing more, nothing less – and that talk of them getting ‘bonuses’ was just more wild conspiracy theorising. There were proposals for a pilot scheme relating to bonus payments in 2009 with a view to rolling out the scheme nationally in 2013 but I don’t know what happened to that. This proposal met with sceptical comment from Community Care and as far as I am aware, it didn’t happen.

A FOI request in 2012 by Shelia Hersom produced this response about payment of bonuses to social workers. The response received did not seem to indicate that additional money was routinely paid to meet ‘targets’.

Social Workers do not receive any other specific non-monetary bonuses or
commissions. However, they may be entitled to a non-cash award, which
would be at the manager s discretion. Non-cash awards can potentially be
awarded to any KCC member of staff and are not exclusive to Social
Workers. Non-cash awards are awarded to individuals or teams as an
immediate recognition of extra effort or one-off successes. The value
of the non-cash award will not exceed £50 for an individual.

It seems that there are problems with both recruiting and retaining social workers and money additional to salary payments may be forthcoming to try and meet these problems:

Market premium payments are made to ensure the retention of experienced
caseholding Social Workers and to keep salary levels competitive within
the District DIAT, Children and Families and Disabled Children s teams in
addition to market premium payments made to Newly Qualified Social Workers
and Social Workers recruited from overseas.

One-off recruitment incentive payments are also made to Principal Social
Workers to encourage new staff to come to the Kent District and Disabled
Children s teams and to Newly Qualified Social Workers in order to offer
incentives similar to other local authorities.

The specific question was asked: ‘Question 9. Are there any targets for forced adoption? If yes please supply details?’ The answer was ‘no’.

Then I was sent a link to this article in the Maidstone and Medway News on September 20th 2014. A council spokesperson said:

Children’s social work is one of the hardest and most demanding roles in the public sector and we need to attract and retain people with talent and experience. This is a nationwide issue, which is why we have to offer attractive incentives to ensure we get the best people we can looking after Kent’s vulnerable children.

Eligibility criteria apply to these payments, which are available to social workers, senior practitioners and team managers in district teams and disabled children’s service, and are dependent on performance.

This makes me very uneasy. Paying social workers bonuses for ‘performance’ immediately raises the question – just what exactly is involved in ‘performing’ well to attract such a bonus?

I have made a Freedom of Information Request to Kent Council asking them to specify how many social workers qualified for this bonus in 2014, how much they were paid and what are the details of such a scheme.

I will update with the response I get. I agree with what Andrew Pack says:

What I would say, for the ultra-cautious people, is that I would agree that the lack of transparency on ‘payments and adoption targets’ is deeply unhelpful and creates a genuine reason for people to feel sceptical, uncomfortable and unhappy. The absence of clarity and transparency is itself very shabby. It may or may not have distorted how many times adoption was recommended in final social work evidence, it may or may not have had an impact on individual people’s cases. At this point, we don’t have the evidence to draw a proper conclusion and that in itself is wrong. It creates at best, a fishy odour, and as we well know, “Justice must not only be done, it must be seen to be done”

Update – Kent Responds Oct 2014

Dear Ms Phillimore

Thank you for your request for information made under the Freedom of Information Act (FOIA) 2000, relating to bonus payments to social workers. I am pleased to provide the response below:

I would be grateful for information to answer the following questions:

a) the total bonuses paid to social workers in 2014

The market premium/retention payments made to Social Workers for 2014 was £354,639.35

b) the total number of social workers who qualified for a bonus in 2014

262 Social Workers qualified for the market premium/retention payments

The information is for case-holding Social Workers (Social Worker – Newly Qualified, Social Worker and Senior Practitioner) within Specialist Children’s Services, receiving market premiums and recruitment premiums between 1st January and 25th September 2014.

c) disclosure of the scheme and performance targets that qualifies a social worker for a bonus

Additional Criteria for Market Premium Payment

Social Workers

carrying a full caseload

performance level – achieving or above

not subject to any formal ER process

working in post for a minimum of 4 months during the qualifying period, i.e. 01 June-30 November or 01 December-31 May (e.g. staff on sick leave for more than 2 months in that period would not qualify)

not on probation

Senior Practitioners and Team Managers

performance level – achieving or above

not subject to any formal ER process

working in post for a minimum of 4 months during the qualifying period, i.e. 01 June-30 November or 01 December-31 May (e.g. staff on sick leave for more than 2 months in that period would not qualify)

not on probation

But how much further forward does this take me, given that I still don’t know how ‘performance’ is defined?

Reference to ‘performance’ probably means reference to KPIs (key performance indicators), such as number of cases held or closed, number of s47 investigations done. But the lack of transparency does mean that parents from Kent would not be unreasonable to at least feel anxious that decisions on individual cases were taken in order to get the bonus.

I will edit again if I can get any further information.

EDIT – I reply to Kent

On 15th October 2014 I sent the following email:

Thanks for your speedy response to my original query. Is it possible to ask you to expand upon your answer or do I need to raise a fresh request?

I would be grateful if you were able to refer me to any document or written policy that can explain what is meant by ‘performance level – achieving or above’.

This is because many people appear to believe that social workers are financially rewarded for getting children adopted and if that isn’t the case it would be useful to be able to demonstrate that this isn’t what these bonuses are about.

EDIT – Kent reply on 23rd October 2014. Lots of words but no information.

Thank you for your request for information made under the Freedom of Information Act (FOIA) 2000, relating to performance levels. I am pleased to provide the response below:

The reference to ‘Performance level – achieving or above’ in the response to your previous FOI request (copy attached) relates to the process (‘Total Contribution’) which Kent County Council (KCC) uses to measure individual performance throughout each year (April to March). A total contribution assessment takes into account all the elements of an individual’s performance during a work year: their day to day behaviours, the quality and impact of their skills and aptitudes in their job. It applies to all KCC employees employed on the Kent Scheme terms and conditions, including those on the Kent Scheme working in schools.

Further information on the Total Contribution process is set out in the attached guidebook.

So no help there in defining ‘performance’. So I turn to the guidebook.

The guidebook sets out the Four Key Elements of Total Contribution.

Assessment Category	Elements
Objectives and Accountabilities	Delivery to Action Plan Effectiveness in job role on a day to day basis Targets Quality Standards Budget Control Customer Feedback Peer group/360 degree feedback
Values and behaviours	Continuously improving in terms of how the job is done Demonstrating enhanced delivery through behaviour Living our values and behaviours
Wider Contribution	Contributing to team, Project work outside the normal job Participation in KCC work activities not directly related to job role
Personal Development	Achievement of Development Plan Application of Development Attainment and use of required skills Qualifications attained

What is that word I can see in the top right hand box? The ominous word ‘targets’

So what ‘targets’ do they mean? Back to the guidebook. They don’t seem to be identified – or rather, the individual employee has responsiblity for selecting their own ‘targets’.

Check and adjust your targets throughout the year according to developments at work. Your targets are dynamic and should reflect what you achieve throughout the year so they need to change when changes occur.

Make sure you get at least one opportunity, mid year, to talk about progress against your targets with your manager. Ideally 1:1 meetings, or supervision sessions will also help you keep a tab on your progress.

Ensure that the development needs you identified are put in to action.

Cash benefits get further mention:

Cash awards are intended to be used throughout the year to reward specific actions. They can also be considered as part of rewarding the overall Total Contribution but managers need to ensure that there is no double counting of an individual’s contribution and remind themselves of any recognition given or payments made earlier in the year. They should not be used as an alternative to making the proper TCP assessment or to supplement the corporately agreed performance or general award.

So what do I learn from 40 pages of rather dense management speak? That ‘targets’ are important in order to measure whether or not employees are performing sufficiently well to be rewarded on top of their salaries. I learn that these ‘targets’ are dynamic and ‘need to change when changes occur’. But there is no clarity as to what possible areas or achievements these ‘targets’ relate.

While I am grateful for Kent’s speedy response to my queries, I can’t help but be disappointed by the nature of their reply. It’s little wonder the proponents of the forced adoption debate gain so much traction when a simple question gets a 40 page booklet in reply, that is full of lovely words but very little information.

Remember my earlier question? … many people appear to believe that social workers are financially rewarded for getting children adopted and if that isn’t the case it would be useful to be able to demonstrate that this isn’t what these bonuses are about.

My question is unanswered and I am left with a growing sense of irritation and frustation – this debate is important. The way the State intereferes in the lives of individuals has huge ramifications in so many areas. Due process matters. This is an unnecessarily opaque response to an important question. We are all entitled to as much clarity and honesty as possible about what is done in our name, with our taxes. If there are no targets to take children into care, then say so. What’s so hard about that? And if you won’t say so, why not?

‘Targets’ defined in 2012 FOI response

The 2012 FOI request lead to the provision of this information regarding ‘targets’ that are used to monitor performance in Specialist Children’s Services and are reported at a District level on a monthly basis. Information relating to performance is available at Social Worker level from which the performance of individual Social Workers can be measured.

HOW MUCH ARE WE DEALING WITH ?	Target
Number of CAFs completed per 10,000 population under 18	58.9
Number of TAFs per 10,000 population under 18	67.7
Number of Referrals per 10,000 population under 18	533.1
NI 68 – Percentage of Referrals going on to Initial Assessment	65.0%
Number of Initial Assessments per 10,000 population under 18	415.4
Number of Core Assessments per 10,000 population under 18	170.6
Number of S47 Investigations per 10,000 population under 18	109.2
Percentage of S47 Investigations proceeding to Initial CP Conference	70.0%
Number of Initial CP Conferences per 10,000 population under 18	44.3
Number of CIN per 10,000 population under 18 (includes CP and LAC)	290.0
Numbers of Children with a CP Plan per 10,000 population under 18	40.0
Children looked after per 10,000 population aged under 18	47
Number of Looked After Children with a CP plan.	30
Numbers of Unallocated Cases for over 28 days (Business)	100

HOW LONG IS IT TAKING US ?	Target
Percentage of TAFs held within one calendar month of CAF upload	70%
NI 59 – Percentage of IA’s for children’s social care carried out within 7 working days of referral	69.0%
Initial Assessments in progress outside of timescale	200
(NI 60) – Percentage of Core Assessments that were carried out within timescale	80.4%
Core Assessments in progress outside of timescale	100
NI 67 – Child protection cases which were reviewed within required timescales	97.9%
NI 66 – Looked after children cases which were reviewed within required timescales	94.6%

HOW WELL ARE WE DOING IT ?	Target
Percentage of Case File Audits judged adequate or better	85%
Percentage of open cases with Ethnicity recorded	95%
Percentage of Referrals where the Referrer is informed of the outcome	80%
Percentage of Children seen at Initial Assessment	90%
Percentage of Children seen at Core Assessment	90%
Percentage of Children seen at Section 47 enquiry	90%
Percentage of Children with a CP plan where all statutory visits are within timescale	90%
Percentage of Looked After Children where all statutory visits are within timescale	90%
Percentage of Looked After Children aged 5 to 16 with a Personal Education Plan (PEP)	95%
Participation at Looked After Children Reviews	95%
Children subject to a CP Plan not allocated to a Qualified Social Worker	0
Looked After Children not allocated to a Qualified Social Worker	5

ARE WE ACHIEVING GOOD OUTCOMES ?	Target
Percentage of TAFs closed where outcomes achieved or closed to single agency support	90%
Percentage of TAFs closed because the case has escalated to Children’s Social Services	7%
Percentage of referrals with a previous referral within 3 months	6%
Percentage of referrals with a previous referral within 12 months	23.0%
NI 65 – Percentage of children becoming the subject of a CP Plan for a second or subsequent time	13.7%
NI 64 – Child Protection Plans lasting 2 years or more at the point of de-registration	6.0%
Percentage of Current CP Plans lasting 18 months or more	7.0%
NI 62 – LAC Placement Stability: 3 or more moves in the last 12 months	10.1%
NI 63 – LAC Placement Stability: Same placement for last 2 years	67.5%
LAC Dental and Health assessments held within required timescale	85.0%
Percentage of Children Adopted	11%

ARE WE SUPPORTING OUR STAFF ?	Target
Percentage of caseholding posts unfilled (100% – QSW inc Agency Posts)	10%
Percentage of caseholding posts filled by agency staff (Agency Staff ÷ Establishment)	10%
Percentage of caseholding posts filled by Qualified Social Workers (QSW posts exc Agency ÷ Establishment)	90%
Average Caseloads of social workers in fieldwork teams	20

What the internet can teach us about communication – and being better professionals

The two words ‘information’ and ‘communication’ are often used interchangeably, but they signify quite different things. Information is giving out; communication is getting through.

Sydney J. Harris

This is an article by Sarah Phillimore of St Johns Chambers in Bristol who has been a family law barrister since 1999 and worked in courts all over London and the South West.

In this article Sarah discusses the impact of the Internet on professional debate and the new drive for openness and transparency in the family law system and how it is hoped this can have positive outcomes for all involved in the area of child protection law.

I write from the perspective of a family law barrister who has been in practice for nearly 15 years. The bulk of my work is in care proceedings and most of the time I represent parents, although I am also instructed to represent Local Authorities and Guardians.

I am also someone who spends a lot of the time on the Internet, discussing things that interest me. I now have an ipad and often many hours in the day spent travelling or sitting and waiting outside court, so I have been able to indulge this hobby pretty regularly.

What I have found depressing over the years is the increasing number of those commentating on issues of child protection who firmly believe that the entire system is corrupt and broken. They argue, inter alia, that children are taken from loving homes, for no good or for ‘silly’ reasons in order for Local Authorities to fulfill their government sanctioned ‘adoption targets’. Given that their belief is of a malign State which deliberately sets out to ruin families for some obscure and unexplained financial benefit arising from each ‘forced adoption’, it is not difficult to understand why their views of family lawyers are equally stark and unflattering.

I am variously told that I am ‘a legal aid loser’, that I am ‘in the pockets of the LA’ and do what I am told or I won’t get paid. I am told that my clients don’t get to see the evidence against them and/or are not allowed to challenge it and if I haven’t noticed that I am swimming in a sea of corruption, it is because I am too stupid.

I consider myself a relatively robust individual and can weather the insults directed at me on line. But it isn’t the impact on my psyche that is the issue here. It is what these Internet debates have more widely revealed as the general corrosion of general public trust in the entire system of child protection. I think there is now an urgent need for more professionals not only to recognize this but also to engage with it. The protection of children is far too important an issue to be hijacked by just one agenda.

Lack of public trust and confidence in the system.

One of the reasons I am so concerned is that in the last few years, I have noticed an increasing and worrying trend for the Internet debate to spill out into my practice. I have had a number of clients who tell me that they understand why their child is being removed – because it will make the LA money. I have been quoted £30,000 per child, never mind that this is more likely a figure to represent the cost of keeping a child in foster care for a year. When I ask them to tell me WHY a cash strapped LA will spend large amounts of money on expensive care proceedings, of course, they cannot explain. I really do doubt there is an international conspiracy to steal children, headed by the United Nations – as some have asserted to me in all seriousness.

All this represents is a sad waste and diversion of some parents’ energies away from what really matters – dealing with their issues with drugs, with alcohol, with violence, which are standing in the way of their ability to translate the love they undoubtedly feel for their children into action which will ensure their children are reliably fed, clothed and taken to school.

The saddest example of this for me to date was the client who had made some dramatic and impressive changes to a life previously blighted by alcohol misuse and denial of the same. She had achieved the previously unprecedented stability of her own accommodation and had stopped drinking for a number of months. But on her application to discharge a placement order, she stood up to address the Judge on the basis that her child had been ‘stolen’ to make money for the LA. There was little I could do in closing submissions to repair the damage that had done to her credibility in the court’s eyes and an application which that morning had seemed promising, by lunch time had collapsed.

The point I am trying to make is that these Internet debates and the constant round of conspiracy theorizing have real and serious consequences when people take them out into the real world. In addition, whilst our energies are focusing on either maintaining or detracting from these theories, they are not focusing on what really matters – how do we improve the child protection system, how do we ensure that Victoria Climbie, Peter Connolley, Daniel Pelka and many other children did not die in vain, while at the same time not being too quick to remove children on an imperfect understanding of their family or medicial history?

The case of Allessandra Pacchieri and the ‘forced caesarean’ in December 2013 was a stark example of all that worried the conspiracy theorists about the reach and malign motives of the State: the narrative of John Hemming MP together with Christopher Booker in the Telegraph being the targeting of a vulnerable foreign national who suffered a ‘panic attack’ and then found herself detained in a psychiatric hospital and forced to have a C section so that her baby could be ‘taken’ for adoption.

It was also a clear example of how frustrating it is for energies to be so misdirected. I agree there are interesting questions to be asked about the degree to which Alessandra Pacchieri was or could have been consulted prior to the court deciding that medical intervention was in her best interests. And I share the concerns of some commentators about why the original application was made on an urgent basis, when by that time she had been sectioned for a number of weeks and her advancing pregnancy was hardly a mystery.

However, a case involving a woman who was seriously mentally ill at the time of the application, to the extent that she lacked capacity to engage in legal proceedings and was represented by the Official Solicitor, whose two elder children did not live with her due to her inability to care for them, and who had both been delivered by C-section leading to doctors to have legitimate concerns about a subsequent attempt at a natural birth, made this a rather more complicated scenario than some would wish and certainly much less of a clear cut example of a ‘corrupt’ or ‘evil’ system.

However, reasonable and sensible debate about what could have been done better in this case quickly became buried under a mass of assertion and counter assertion about the systemic corruption of the family law system as a whole.

Positive changes to the way we debate

The first good thing

However, not all was lost. Some good has come out of what at first glance seemed to be yet another rehash of the same wild and unsupported allegations about ‘baby snatching’, lies and collusion.

The first good thing is a move towards greater transparency in the reporting of court judgments. If we have confidence in the decisions our judges make – as I do – we should not be afraid to let as much sunlight in as possible.

In the court ruling concerning reporting restrictions relating to Ms. Pacchieri’s baby, the President of the Family Division himself noted that: [2013] EWCH 4048

This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published. And, as this case so very clearly demonstrates, that applies not merely to the judgments of High Court Judges; it applies also to the judgments of Circuit Judges.

The President was true to his word and on January 14^th 2014 issued a Practice Direction relating to Transparency in the Family Courts and the Publication of Judgments that hopefully will lead to judgments routinely being transcribed and widely published. The cost of such endeavor must surely be worth it when balanced against the harm and damage done by loss of confidence in an entire system.

As the President also said in his 2013 judgment

… How can the family justice system blame the media for inaccuracy in the reporting of family cases if for whatever reason none of the relevant information has been put before the public?

I am glad that the debate is moving forward with regard to transparency but hope also that proper regard is going to be given to the need for maintaining privacy in some cases – particularly when the children don’t want details of their family lives exposed to greater scrutiny. There is a good blog post by Pink Tape on this very point.

You may also be interested in The Transparency Project -the aim of the project is to shed some light on the workings of the Family Courts, to make the process and the cases understandable for people without law degrees.

The second good thing

Along with this judicial recognition of the need for greater transparency which has been explicitly recognized goes hand in hand with increased pubic discussion of such cases, came the possibly belated recognition that those of us who did have faith in the family justice system needed to also use the power of the internet to share information and hopefully encourage more positive debate.

A number of contributors to the various Internet discussion threads pointed out that there did not currently seem to be any clearly signposted resource offering advice and information without an agenda to all the people who might be involved in care proceedings. There were many excellent sources of information on the Internet but they appeared to be directed to particular groups of people only and it was not always easy to find unless you knew what you were looking for.

So a number of us from a variety of backgrounds and experiences decided to get together and create a resource that would help to inform all of those who might be involved in child protection issues be they, parents, lawyers, social workers or doctors. You will find us at www.childprotectionresource.org.uk

We hope that this site will be useful and interesting to a wide range of people. We always welcome contributions or comments, as long as they are reasonably polite and you don’t make serious assertions about corruption or conspiracies without some kind of proof in support.

How the internet can make us better professionals

I also expect and hope to learn from the site. The emotional perspectives from parents and children who have experienced the system are invaluable and sadly can sometimes get overlooked by a busy practitioner who is focusing on the forensic task of ‘winning’ a case.

I ask my clients to trust me; to trust that I am going to do the best job I can for them, that I am not a ‘legal aid loser’, here to appease the LA or simply worrying about paying my mortgage but that I chose to be a family lawyer because this area of law deals in vital and necessary issues about the very foundations of our society, our treatment of the vulnerable and our respect for difference.

But quite apart from my commitment to family law, equally my clients need to trust me to always recognize their humanity – that I won’t be blasé or cynical about their case, one of many to me but the only case that will ever matter to them. We all need to remember and understand that sometimes the conspiracy theories are promoted by many who have suffered real pain from the removal of their children and who sadly met along the way professionals who were rude, hostile or dismissive.

I do accept that mistakes have been made and miscarriages of justice have occurred. Mistakes in this field are particularly regrettable given their often profound and life long consequences for the children and families concerned – both for those children removed too soon and those removed too late, or sadly not at all.

What I don’t accept it that such mistakes represent a deliberate and planned attempt to ruin families and ‘snatch’ children. The more time we waste on that debate, the less time and energy we have to devote to ways to improve the system. For example, see the excellent Kids Company campaign ‘See the Child’.

Conclusion

We need to remove as many of the barriers that stand between trust and good working relationships as possible. While professionals must remain ‘professional’, there is a danger this can slip into aloofness, imposition of unnecessary barriers to communication, and/or unwillingness to enter a legitimate arena of debate. This area of law and of life is too important to be dominated by those with narrow and possibly dangerous agendas, be they professional or parent.

The time is long overdue for greater transparency, co-operation and debate. We all want the same thing. To protect children, the most vulnerable members of society, and to do the least harm possible in the pursuit of that essential aim.