*Professionals*

Communication across the Professional Divides.

This is a post by Sarah Philimore

On 30th March I was really pleased to travel to Huddersfield University with Lucy Reed at the invitation of Jenny Molloy AKA Hackney Child to have a go at ‘training’ social work students in cross examination skills.

This is something we have often discussed and thought would be a really good idea, but was the first time we had ever attempted to put into practice. As it was our first time I am sure there were things about the structure of the day which could have worked better, but on the whole I was really pleased with how it went and I hope that both the students (and us) learned quite a lot about each other’s worlds.

We’ve asked for honest feedback about what worked well and what could have been done better and we hope this is something we can set up more locally in the South West.

What did I think worked well?

Huddersfield had worked tirelessly to produce case materials which mirrored well the complexity of a real life set of care proceedings. We had discussions about whether or not a full on ‘mock trial’ would work well. However, the difficulty with this (in my view) is that often people become overwhelmed by ‘learning their lines’ and the real point of the exercise gets lost.

We made some brief introductory remarks about the role of lawyers in care proceedings and some practical ‘top tips’ for answering questions – never be afraid to say you don’t know the answer!

We then had some brief evidence from both the ‘guardian’ and the ‘mother’ and a more focused attempt to ‘cross examine’ individual students with questions directed at certain ‘themes’ arising in the case papers – had the mother been assessed fairly? What support had been offered to her? We also had some direct contributions from ‘real life’ magistrates about how they approached cases in their courts.

We asked the students what they thought of their colleagues’ answers; what would they have done differently? what was a ‘good’ answer? These questions branched out into quite far ranging discussions about many aspects of practice and procedure in the courts, the importance of primary evidence and the impact of case law.

Jenny Molloy played the role of the mother with considerable skill, transporting me immediately to a real court room and many of my real cases. She demonstrated the frustration and misery of a person in a process which they do not understand and which provokes huge emotional reactions. What struck me the most about Jenny’s contribution was how she underscored the life long impact of such proceedings on entire families; the siblings who may grieve for the loss of family members they never even had time to get to know and the importance of life story work for everyone.

Know your audience – the rule of law.

For me, the most important ‘headline’ of the day was some reinforcement of the concerns I expressed last year in this post about my discussions with some social workers on line about the law being ‘an aspect’ of their work.

Obviously, for me, arguing in court is 80% of my professional life (the other 20% being tedious admin and looking for documents that have completely disappeared on my desk, 5 seconds after being placed there). But for these students, their professional lives may well involve the court process as only a tiny fragment of what they do. But when they do come to court, their involvement can be absolutely crucial to the smooth running of a case and its fair determination.

We do desperately need to understand each other; what we do and why we do it.

A key point made was ‘know your audience’ – which applies to any delivery of any information. What happens to the social worker in court who doesn’t appreciate what the Judge wants to hear? We asked how many of the students had heard of Re B-S or Re W (which talked about more creative options for post adoption contact, among other things). Very few had.

This was interesting. I have written about cases which have ‘gone off the rails’ – we can’t afford for this to happen, in any sense of that word. The 26 week timetable is unforgiving and often unyielding. But nor can we berate social workers for not ‘speaking to their audience’ if they do not know who their audience is and what they want to hear.

I would be really grateful for suggestions/comments from anyone about what would be useful in terms of further work between the lawyers and the social work profession. It would be nice to think that our trip to Huddersfield was not just a ‘one off’.

https://twitter.com/SVPhillimore/status/847355289321877504

Social Workers Speaking Out – What Should they Say?

This is a post from a social worker who wishes to remain anonymous. She discusses her frustration about the constraints on social workers speaking out about who they are and what they do and her particular concerns at the way ‘Social Work Tutor’ recently chose to frame the narrative, in terms of ‘monster parents’. 

Over the last couple of years I have been involved in various real world and online discussions about social workers speaking out, mainly why they don’t as individuals. As a general rule, if you are independent or in academia you can talk about social work, in an LA you can’t without representation or approval from the directorate (and usually under the auspices of the comms team). As far as social networking is concerned, most employment policies are restrictive enough for social workers to be anonymous if they work for an LA. I’ve felt my share of frustration with the barriers to communicating about social work as well as with the voices who claim to represent me at times. There are several aspects to this for me. On a personal level I feel silenced, and in a field active with anti oppressive practice, that feels a bit oppressive. For families who encounter social workers, not knowing about social work limits their understanding of what we do and creates a barrier of fear, barriers can be ameliorated, but it’s a shame there is one there in the first place. More widely it contributes to the air of secrecy that surrounds social work and the family justice system and I would like more transparency.

 

It won’t be a surprise to know that I was therefore interested to the Facebook page of a social worker who has a large “fanbase” (their words) and who also contributes to Community Care. I haven’t read all of the Community Care articles but this is someone with who I agreed completely when they wrote recently about feeling like social worker’s voices have been heard for the first time since Munro. There were almost 20,000 followers on the Facebook page and, from what I read, SWT appeared proud of their high profile. Reading further, some of the posts gave me pause for thought. I really didn’t like the way social work was ramped up, I didn’t like the notions expressed that social workers are heroes, or working on a frontline. I also didn’t like some of the memes, because although they might be funny in another context, they read as being jokes made at the expense of the people we work with. I also strongly objected to a very emotive post about the Ellie Butler case. Others have written very fluently about the case and I don’t intend to repeat that here, I will though tell you why I minded about it so much and thought you might wish to read the original post first. It has now been taken down, this was copied before it was, and screen shots were taken.

 

“Social Work Tutor

21 June at 19:38 ·

Ben Butler is the kind of violent monster that Social Workers fight to protect children from on a daily basis…

Ben Butler is a man who used violence, control, intimidation and fear to rule those around him. He has a history of robbery, intimidation, assaults, carrying offensive weapons and domestic violence.

He admitted that he “hoped situations might present themselves where he could engage in violence” and believed that “violence used to help him improve his mood when he was upset”.

When his daughter Ellie was just seven weeks old, she suffered a “triad” of brain and retinal injuries associated with shaken baby syndrome. Ben Butler was convicted of grevious bodily harm and child cruelty, and sentenced to prison as a result.

Using his controlling and dominant personality, he used a legal technicality to quash that conviction then proceeded to engage in a media tour to campaign for the return of Ellie to his care. Supported by the convicted sex offender Max Clifford, Ben Butler did the media rounds and portrayed himself as the doting father who simply wanted to care for his daughter.

He convinced The Sun, he convinced The Daily Mail, he convinced This Morning. Most sadly of all he managed to convince Mrs Justice Hogg who commented of her ‘joy’ at seeing a ‘happy end’ when she returned Ellie to the care of the man who would go on to murder her.

Justice Hogg dismissed his violent past.

Justice Hogg dismissed the doctor who raised concerns about aggression and bullying.

Justice Hogg dismissed the burns Ellie experienced to her head and hand at only seven weeks old.

Justice Hogg dismissed the concerns of the Local Authority who did everything they could to prevent Ellie’s murder and fought all the way to save her from her father.

Justice Hogg dismissed the heart-felt plea from Ellie’s grandfather, who warned her she would have “blood on her hands” if Ben Butler regained custody.

Eleven months later, Ellie was murdered in a fit of violent rage.

This vile creature subjected his six-year old daughter to a fit of murderous rage and then attempted a cover up with his partner and Ellie’s younger sibling; staging a scene so that the sibling would find Ellie’s limp and lifeless body.

Those last eleven months of Ellie’s life must have been hell.

She was blocked from having the support of her local Social Workers.

The independent service brought in stopped engaging seven months before she was killed.

She was living with a man she told her Grandfather she was terrified of.

She was referred to as a c**t by her own father.

Neighbours reported her as being so scared of him she wet herself.

In the weeks before her death she experienced a broken shoulder.

I could go on but even writing these words brings tears to my eyes; I can’t even begin to imagine what it was like for Ellie to be subjected to such a life.

And yet these are the monsters that Social Workers save children from on a daily basis. These are the vile creatures we fight to protect these vulnerable little souls from.

People so dangerous that they will kill their own children.

People so controlling they can convince the media and judges to bend to their will.

People so evil they will attempt to portray death and injury as accidental; using their other children to hide their heinous deeds.

We will keep fighting to save children from harm, just as the unheralded heroes of Sutton tried to do for Ellie.

We will be there for children who have nobody else.

The sad truth is that Ben Butler is not an isolated figure. There are parents like this up and down our country that Social Workers are having to deal with every day.

These are the terrors that we are trying to save the world from.

These are the parents who will tell the media that Social Workers are ‘stealing their children’ at the same time as living with the awful harm they have caused.

These are the monsters that we keep from children’s doors at night.

SWT”

 

So, I minded all that because I am horrified that anyone in my profession can imply that the people we work with on a daily basis are monsters or that Ben Butler is the face of social work. I would always say that most of the people I work with are sad rather than bad, their stories are often ‘there but for the grace of God’ and the Ben Butlers of this world exist but are thankfully few and far between. I minded that a view was being expressed that social workers work daily to save children from monsters, as a child protection social worker I think I’m working with families because they need help to look after their children safely and with the need to ensure those children live elsewhere when that isn’t possible. The rescue narrative which can describe vile creatures and protecting vulnerable little souls is not mine, neither is the battle motif. I am not saving the world from terrors or keeping monsters from anyone’s door. If there really is anyone who could be described as a monster who might be in need of restraint, that’s a job for law enforcement not me.

 

So, then I minded the legal stuff because social workers work within the law. Ben Butler didn’t use a legal technicality to quash his conviction. The court considered evidence and, however terrible anything might now seem, there was no other decision that could be made based on that evidence. It is also wrong to say that Mr Butler convinced a judge, the evidence was used by the judge to do what judges do, make a judgment. This was no act of control or anyone bending anyone else to anyone’s will. It is indeed true that this returned Ellie to the care of the man who murdered her and this is very sad indeed, nobody can think otherwise. The Judge also did not exonerate Ben Butler of all of the issues, she exonerated him of the crime the evidence supported he did not commit, if you read the SCR, the LA seem to have taken this further. I suspect this is not the only time that a judge has been warned they will have blood on their hands, I have no evidence to support this but cries from the public gallery are not unheard of.

 

So why does this matter? It matters because this person is representing social workers, not just in a publication that only social workers read, but also on a public Facebook page and they are crowdsourcing £15k to publish a book that will tell people about social work much more widely. My view is that any narrative including monsters and rescuing children demonizes the people with whom social workers work, and that narrative marginalizes social justice in the context of a time of austerity and savage cuts and with a government in power whose rhetoric about adoption is akin to social engineering. I am not the only social worker who thinks this and I would always want families to know that a large following on Facebook is not representative of any social worker I have encountered in real life or online. In the meantime, having spoken for myself, I am going to have a bit of a rethink about who represents social workers, I’ve been quite critical of BASW at times, but they are doing sterling work at the moment.

 

Sticks and Stones….

This is a post by Sarah Phillimore

I have been thinking a lot in the aftermath of the EU Referendum, about how we speak to and about each other and the impact that has on our willingness to listen and try to understand. Most people, it seems to me, will ‘mirror’ the attitude and responses of the other in conversation – if you go in fighting, you will encourage a combative response. But what is the impact of this on the subject matter under discussion, on the prospects of shared understanding? Particularly in an arena such as a family court in care proceedings where the issues under discussion are going to impact on adults and children for the rest of their lives, or even into the next generations.  Cross examination should never be perceived as a ‘game’ – if it is, it’s a game that no one wins. 

 

The impact of the adversarial system of cross examination on social workers giving evidence.

I had an interesting chat with a social worker when I represented a LA last week. She had been in her post seven years so I simply assumed she had lots of experience in giving evidence in court and being cross examined. I was very surprised when she told me that my assumption was way off – in that 7 years she had given evidence on just two occasions, and the last one was 3 years ago. She had never received any training in how to present evidence in court or deal with cross examination and felt that the necessary support from managers at court was sometimes lacking.

She said that she felt that a lot of lawyers treated it as a game or a piece of theatre and a brutal cross examination was very difficult for social workers to cope with. Of course, for those of us who conduct contested hearings day in, day out we do become habituated to our work and probably de-sensitised. As lawyers we probably need to be more aware of this and more aware of the consequences for those we cross examine. The SW explained that she felt very nervous about the prospect of giving evidence in what we both agreed was a finely balanced case and it was giving her real pause for thought about whether she wanted to carry on with her job.

She, like many other SW was juggling a case load well in excess of what could be sensibly managed. It is little wonder that SW get apprehensive about how to defend their statements in court if they don’t have sufficient time or proper supervision to get their case in order. Is our current system really the best way we can devise to protect parents’ rights to a fair trial but without losing focus on the needs of the child?

What is the current training offered to social workers about how to cope with giving evidence in court? This social worker had none. Is it different for the newly qualified social worker today? Or should the focus rather be, not to train social workers to better withstand aggressive cross examination, but rather moving more explicitly to an inquisitorial system to try to determine what is best for children.

EDIT July 13th

Thanks for this comment from a reader who wished to remain anonymous. I am surprised again to hear that the police also get no formal training!  This does appear to be another example of the dangers of ‘silo working’ – when we have little or no appreciation about how other organisations work.

One reader commented that he suspected that social workers got no formal training about giving evidence, in the same way that most police officers get no training – which again, came as a surprise to me. There are some local schemes where magistrates go to talk to social work students about the court system and decision making but it seems clear that this is a fairly ad hoc arrangement and dependent on the availability and good will of the magistrates.

Happy Edit July 20th

As a result of Twitter conversations prompted by this post, hopefully I will be visiting Huddersfield next year with some other barrister colleagues, to take  part in some training for social workers in a mock trial. Useful evidence that Twitter is not just a playground for the bored and mad.

The Particular Dangers for Professionals if they can’t (or won’t) feel empathy.

This is a post by Sarah Phillimore

I recently posted about the particular dangers for parents of becoming engaged in ‘conspiracy theories’, defined as ‘a story that is based on limited real data and imagined data and blended into a coherent, emotionally satisfying version of reality’.

This prompted strong reactions from some commentators who pointed out that they had been victims of clear wrong doing from professionals, including deliberate falsifying of evidence. They understandably rejected the suggestion that their anger and pain resulting from such experiences was because they were promoting a conspiracy theory.

Some useful discussion followed and I accepted that it was true that a number of different things can be happening. Parents can make assumptions on limited or false data (or be encouraged by others to do so) and equally so can professionals. The dangers for parents are stark – they end up losing their children.

But what are the dangers for professionals of a false narrative?

A professional who tells him or herself a false ‘story’ about the family poses several clear and serious dangers. There is the danger of failing to abide by the law, of advocating a disproportionately harsh response to the families difficulties. There is the danger of causing serious emotional pain to the family by unwarranted interference.

And finally, there is a danger to the professional as a person; that he or she becomes insensitive to pain, lacking in compassion and hence with the potential to cause even more harm to families from insensitive or inappropriate interventions.

Two commentators, Angelo and Jason, spoke with eloquence about the reality of their pain and what professional intervention had done to their families.

Mothers dream of holding their babies no matter how big they have grown. Flashbacks, inventing narratives, daydreams and misery remain theirs for life. On the spiritual, mystic, unknown plains such as ESP, true or not, they can visualize and feel themselves in one another’s arms. Children may go home in their imaginations! Parents would lay down their lives for their children but that would be meaningless; they are forced to go on and on, repeating their narratives again until they get too old or succumb to madness. Children too! Then, if approached in that state by a SW, they will raise both arms in utter contempt and cry pitifully “ F— OFF”. This,i hope,describes how it feels to these parents when they are hung out to dry.

My “narratives” give me nightmares – I wouldn’t say they are self-protective. I have PTSD because of the horrible things that happened to me. In some ways I would like to find a way to think myself to blame, just so I could have that power back, but there was nothing I could have done, it wasn’t my fault. It was shocking to see how far people could get with their lies, but what hurt the most was the cover up.

The discussion that followed was interesting and illuminating for me (and I hope others). As always I am very grateful for those who take the time and trouble to comment on this site and to share their experiences. Because without these attempts to connect and to understand each other, the necessary debate about what is going wrong with our child protection system will remain polarised in unhelpful rhetoric; everyone will be the loser for it.

The discussion allowed me to articulate fully what I think is the problem  – why do working relationships between parents and professionals get so toxic so quickly in many cases? I believe it is down to a lack of empathy and understanding. Between BOTH parents and professionals.

As I commented:

I think the problem is this. I don’t have an emotional horse in this race. So I will make comments that I accept some may find glib or upsetting or dismissive. Because I am not subject to the same overweening emotions and pain.

I think this is why the debate between the different perspectives on the system stalls. Because we react according to our narratives and belief structures, as I believe was the very point of this post initially.

Of course children don’t get adopted by force by ‘one mistake’ They get adopted by a series of incremental issues that build up, step by step until the course is set and it is very difficult to take another course.

Professionals in social work and child protection must not numb themselves against recognising the pain other human beings can suffer. But equally parents must remember that professionals in child protection systems often have to deal very frequently with very distressing situations.

It is easy to feel empathy for a child who is suffering, particularly a very young child who is completely dependent on adult care.  It is much less easy to feel compassion for the angry, hurting parent who tells you to ‘fuck off’ or threatens you, who can’t or won’t keep their house clean, or meet their children’s basic needs.

It is easy for me to see how the professional’s goal becomes ‘rescuing’ that child from a situation of perceived harm.

I was recently tweeted details about a truly shocking case where in 2012 a father successfully convinced a court he had been a victim of false accusations that he shook his baby. Now he is on trial for her murder. This is the ultimate fear that lurks behind many social work interventions with families. If you get it wrong, a child may die. Not only must you carry the pain of what that child had to suffer but you also run the risk of vilification in the tabloids and losing your job and your reputation – as we saw so clearly and horribly in the media storm that followed the death of Peter Connelley.

Of course, parents murdering their children is a rare event. Most parents, with the right help and support at the right time, can look after their children well enough. In now nearly 17 years ‘on the job’ I have met only two parents who I thought were dangerous psychopaths, incapable of feeling love for their children.

But we have to understand what is the monster hiding in the shadows in each and every interaction between parents and professionals. Putting it bluntly – parents fear their children will be taken for no good reason, to feed Government targets for adoption. Social workers fear that parents will hurt their children and the blame will fall on the social worker who didn’t rescue that child in time.

What we all need is empathy.

I quote Brene Brown again:

It is important to note here that empathy is understanding what someone is feeling, not feeling it for them. If someone is feeling lonely, empathy doesn’t require us to feel lonely too, only to reach back into our own experience of loneliness so we can understand and connect. We can fake empathy, but when we do, it’s not healing or connecting. The pre-requisite for real empathy is compassion. We can only respond empathetically if we are willing to be present to someone’s pain. Empathy is the antidote to shame and it is the heart of connection.

And to remember it’s  not an equal relationship

I have suggested that parents also need to try to understand where the professionals are coming from. But I don’t mean to suggest by this that each bears equal responsibility to be compassionate towards the other. Clearly, this is not an equal relationship and professionals hold most of the cards.

Therefore professionals have to remember that the pain and stress caused by their interventions cuts right to the heart of what makes us human. Parents are threatened with the loss or disruption of their relationship with their children. This is primal.

I have known loss, heartbreak and suffering. What human hasn’t? But my child lives with me. I have the privilege of watching her grow, imagining her future and the role I can play in it. I don’t have an emotional horse in this race. And the danger of that is that I may become indifferent or dismissive to those who do.

 

Further reading

Re-Imagining Child Protection – Brid Featherstone, Susan White and Kate Morris.

A mother’s reaction to the lack of empathy shown to her child with learning disabilities

Promoting Humane Social Work With Families

Why don’t Social Workers Feel Safe About Speaking Out?

 

And what can we do to help?

This is a post by Sarah Phillimore

The post arises out of an interesting Twitter discussion between lawyers and social workers on Sunday 20th February 2016.

In essence, we were discussing the forthcoming Child Protection Conference, organised by the Transparency Project on 3rd June 2016 in Birmingham ‘ Where Do We Go From Here?’ following on from last year’s successful event: ‘Is the Child Protection System Fit for Purpose?’

What was sobering and worrying for me, is that one of the social workers who came last year discussed how she had not felt safe to reveal that she was a social worker, given what she perceived as an atmosphere at the conference which was very negative and hostile towards her profession. This was alarming as I had naively thought we had successfully worked hard to create a safe and respectful environment to allow people to speak .

During our Twitter discussions the social worker elaborated further about just how draining it is to feel constantly blamed and discredited for the failings of an entire system and how those attacks quickly become personal. She spoke of being ‘hated’ on line and discussed how she had been attacked and vilified to extent that she had to disengage from debate on many occasions.

She raised a further very troubling point; that policies on use of social media set down by local authority employers are extremely strict and in effect prohibit social workers from engaging in even general discussion. This view was confirmed by a number of other social workers on Twitter who pointed out that they were posting anonymously.

This raises for me some very troubling issues; both general and particular.

The general issue – Why can’t social workers speak out?

I clearly have a rosy tinted view about the freedom of speech for social workers as those I have been exposed to recently have been feisty, engaged and very outspoken; see this post on my attendance at the Promoting Humane Social Work Conference in February.

However, I can understand the position is very different for a social worker employed by a local authority who is subject to a strict policy about engagement on social media. No one wants to risk their job or their reputation for a Twitter conversation.

I have not conducted any detailed research into local authority social media policies but my cursory investigations suggest the following:

Superficially social media and the use of it,  is seen as a ‘good thing’: for example, this policy from the Local Government Association says:

The LGA is committed to supporting local government colleagues to help realise the full potential of social media. We believe that, used correctly, social media is a powerful tool helping to drive cultural, political, economic and social engagement. It is also a key communications tool for local authorities and highlights their commitment to openness and transparency.

But it’s not clear that this support is translating into general practice. It is also likely that any existing policies are not a result of long gestation: research in 2013 showed that 43%  of local authorities had no policy about use of social media.

And regardless of the policies themselves, certainly the interpretation of those policies by the social workers on Twitter on Sunday night, was to find them either prohibiting outright, or inhibiting significantly engagement on social media for employees of a local authority.

It was a sobering wake up call for me; I have often complained that social workers won’t speak out and I was disappointed at how few engaged with the first Child Protection Conference. I had not appreciated what forces may have marshalled against them to prevent their engagement. The issues of cost, getting time off work AND perceiving that you cannot speak out and keep your job are pretty powerful forces against your engagement.

The specific point – what can we do to encourage social workers to come to the conference?

I think we need to look at the conference ground rules again with care and make sure the message is going out that everyone who comes is entitled to speak freely and to feel safe while doing so.

We ought to be able to disagree with each other and yet still recognise and respect our essential humanity. No one should feel that a disagreement is a personal attack. We need to experience constructive criticism as an opportunity for change and improvement, not as an excuse to sink further into the culture of blame and shame, which already casts a long and toxic shadow over debate in this area. 

But probably the most important thing is to engage directly with the professional bodies that represent social workers  – what support are social workers getting from their professional bodies? What’s the message they are getting about how and when they can engage?

Because this is vital. We can’t make changes if some of the people crucial to the debate feel scared to talk.

I will see what responses I get and hope to update this post.

 

What is significant harm? And how do we prove it?

I wonder how deep the murky waters of sub-optimal care need to be before it is deemed as “significant harm.”

Kate Wells, a retired social worker considers the recent judicial criticism of social worker’s ability to analyse the case before them and provide the necessary evidence of ‘significant harm’. She notes that the distinction between ‘sub-optimal care’ and ‘significant harm’ is not always that easy to find – and what does it say about us as a society that we have such low expectations for so many children?

 

When the courts criticise social workers for not providing evidence of ‘significant harm’

I do wonder why the LA lawyers are not picking up on this, and whether some of the blame should be placed in their direction. In my view it is unfair for criticism to fall on the social worker who has failed to provide the evidence to prove significant harm.  The Team Manager should pick up the shortfall and if he/she fails in this way, then the LA lawyer most certainly should not fail to spot the lack of evidence to support the LA’s case.

Pressures on the newly qualified social worker

I am aware that newly qualified social workers are most definitely “thrown in at the deep end” in this day and age. Whereas, when I qualified in 1980 I was supported by experienced workers who had the time and motivation to coach me in social work practice, and this enabled me to gradually grow in confidence and become a credible and competent practitioner.

I do have some direct experience of poor quality social work and the reasons behind this, as from 2005 to 2009 I worked independently and carried out work for various LAs including Birmingham City Council. They were during those years, operating with approx. 30% vacancy rates. There were high levels of sickness with stress related illnesses and a reliance on agency social workers. There were struggles with excessively high caseloads which unsurprisingly left social workers feeling overwhelmed, stressed and de-moralised and managers seemed to lack the competence required to assist and support their social workers, but particularly the newly qualified.  I spent a lot of my time carrying out this task myself on an informal basis of course.

I believe that in the intervening years, the situation in social care nationally has reached crisis point.  I attribute this to the fact that the government have demanded all public services make massive savings in their budgets, with the result that they are largely unable to cope with their statutory responsibilities and this is certainly the case for Children’s Services.

Now that the Conservatives are re-elected I believe that the situation will deteriorate further, as they pursue their privatisation agenda.  Allied to this is the fact that there is a dearth of social workers who are opting to work in child protection and who can blame them – to coin a phrase “They are damned if they do and damned if they don’t.”

It is highly stressful and sometimes dangerous work, and if a child on your caseload dies at the hands of the parent or some family member, then you will be pilloried by all and sundry.  The Director of Children’s Services will be on TV talking about “learning the lessons” and I am frustrated to the point that I shout at the TV – “why don’t you tell the truth – that no amount of learning lessons will prevent these horrendous child deaths at the hands of their parents/step-parents – RISK CAN NEVER BE TOTALLY ELIMINATED no matter how many risk assessments are undertaken.

It’s small wonder people unconnected to child protection are frustrated too, because they keep hearing the same things parroted each time there is a tragedy.  Following procedures, working together with other agencies and close monitoring of a child at risk of abuse/neglect will NOT save that child when they are in the hands of an individual who is capable of inflicting serious harm on a child.  Sad but true.

 

The particular criticisms in A (A child) [2015]

What the social worker got wrong

I can see only too clearly the fundamental flaws in the social work assessment, and maybe the first flaw is that it was undertaken by a newly qualified social worker which is highly irresponsible BUT probably because there was no alternative.

It appeared that the social worker had decided the father was a “bad lot” and then proceeded to scrabble around to dig up as much dirt as she could.  All that nonsense about whether or not he was present when his friend was killed on the railway.  I can’t believe they went chasing after evidence as to whether he was there or not – what did it matter that he was engaging in a bit of hyperbole.  But this was used to try to prove that the father told lies about everything.

More nonsense with all the USI rigmarole.  Dear god, he was 17 and the girl 13, not ideal of course, but I could barely believe how the social worker had contrived to label this as child sexual abuse and the whole immorality issue and how this might affect his son. I’m not surprised the bloke got angry and accused them of “throwing this back in his face” and quite how she came to the conclusion that he was a risk to “vulnerable young women” is unfathomable.

The other great mistake was all the stuff about the EDL.  I’m sure many of us look upon this group with contempt BUT it is a democratic society and as the Judge pointed out there was no link between the father’s involvement in the group with “likely significant harm” to the child.  It seems the mother decided to have a “walk on part” by insisting to the social workers that the father was still very much a part of the organisation, although he was denying this was the case. How could the social worker  not question the motives of the mother in making these claims?  And whether he was or wasn’t still a member of the organisation is neither here nor there, as the Judge pointed out.

 

What the judge got wrong

It wasn’t clear whether the father knew about the mother’s sexual offences before or after she became pregnant with A.  It was difficult to prove one way or other I know, but there was no mention of the mother’s account of this issue – did they not bother to discuss this with her, or did she back up the father and so they decided against including it in the assessment.  However the Judge decided that the father was being truthful and didn’t know about the sexual offences until the Court hearing.  He didn’t say on what basis he made this decision.  Is it not for him (or any other Judge) to make it clear in their Judgement the reasons for their decisions about the truthfulness (or otherwise) of witnesses?

I was also concerned about the fact that the father was on his 3rd relationship in a relatively short space of time, demonstrating that he was unable to sustain lasting relationships, which would in fact cause emotional harm to a young child, especially as based on past experience, this young child was likely to have a series of “step-mothers” and so no continuity of care.  Maybe the Judge would have discarded this too, as failing to prove significant harm.

The issue of the conflict between father  and his 1st partner H and the reasons for the separation, and the allegations about bruising to the children whilst in his care, should have been thoroughly investigated and fully outlined in the assessment.  Maybe it was, as I haven’t seen the full report obviously, and I know there was some reference to comments made by a CAFCASS social worker  but it all appeared to be inconclusive and the Judge threw it out again as failing to prove likely significant harm, which indeed it did, but I think it was a serious omission by the social worker..

The issue of the father’s relationship with J I found very worrying.  There seems to be no doubt that the father  deliberately failed to mention that he was in a relationship with J and the report did evidence the fact that this was the case as they had evidence that the pair had made a joint housing application.  I don’t believe the father didn’t realise he should have mentioned his relationship with J in the assessment.  Clearly he was keeping it quiet in the knowledge that if the LA discovered J’s child had been removed from her care it would significantly weaken his case, which indeed it should have in my opinion.  His parents were complicit in this omission too.  I think this issue (probably above anything else) demonstrates that the father  is unable or unwilling to put the needs of the child before his own needs, in his choice to form a relationship with J, knowing about her child being removed from her care.  He was happy for her to become a substitute mother to his own son. 

I am aware that the father later stated that his relationship with J had ended and I was astonished to read that the Judge stated quite categorically that the father said the relationship had ended and “I believe him………..”  I DON’T – not for a single minute!  Again there was nothing about what had led him to believe the father on this important issue.

The thing is Judges have absolutely no idea of how the parents caught up in care proceedings live their lives (I don’t want to sound judgemental) but am aiming for realism.  I know it would be difficult for the social workers to prove that they were no longer in a relationship, but not beyond the realms of possibility.  I wouldn’t rule out the possibility of the father  returning to his relationship with the mother either, or allowing her to have unsupervised contact with her son.

I realise I couldn’t prove this in any way shape or form, but I think it is a huge problem, that Judges and lawyers can have no idea of the mismatch between their own lives and those of the parents who are opposing the LA’s application in care proceedings.  In my experience most of these parents live a chaotic lifestyle, often engaging in “serial monogamy” often characterised by domestic violence, and drug and alcohol abuse.  think that Judges and lawyers can have absolutely no understanding of the way in which the parents for whom they act, and are caught up in care proceedings, actually live their lives.  I make this assertion not as a criticism but an observation.

I shared the social worker’s concerns about the conflict between the father and his parents, particularly his step-father and how the police had been involved on at least one occasion.  Again I was astonished by the Judge’s comments that he had observed the father’s mother and step-father in court and had formed the view that there was a mutually supportive relationship between them! (or something similar)  How naïve is that??   He has come to this conclusion simply by observation!  They are hardly likely to become involved in conflict in the court arena are they!

 

What was really in the child’s best interests?

I was pleased that the Judge stressed that the newly qualified social worker should never have worked on such a complex case, and that the failure to evidence “likely significant harm” should have been picked up by the TM and/or the LA lawyer.  It’s not surprising that the LA lawyer (unless it was outsourced in this case) gave up on most of the issues put forward by the social worker in her assessment.  Too late was the cry.  Maybe the LA are short of competent lawyers too?  The Judge also commented that Senior Managers should be held to account and I absolutely agree.  However he should also have cognisance of the fact that Children’s Services are buckling under the weight of having to make massive savings in their budgets, imposed by the Tories.  And I can guess where he put his cross on polling day!

The CG also appeared to be “hapless” and contradicted herself in her written and oral evidence.  However I believe that guardians are now inundated with work in the same way as LA social workers.  I will return to this issue later in these notes.

The real issue here though is that this little boy in my view should have been placed for adoption to give him the permanence and stability that he deserves.  He will almost certainly receive sub-optimal care with his father and frequent changes in substitute mothers.

The pity is that this case (and presumably so many others like it) was not handled by an experienced and competent social worker who understood the need to produce evidence to back up their case, rather than going off at a tangent on all sorts of irrelevant issues.  BUT I note the Judges believe that sub-optimal care is to be accepted for some children, rather than “good enough” parenting.  I wonder how deep the murky waters of sub-optimal care need to be before it is deemed as “significant harm.”

 

What’s going wrong in social work practice?

There has always been a marked inability for some social workers to actually analyse a situation

Lack of knowledge

I believe that many social workers have a lack of knowledge on the following issues:

  • Child development
  • The needs of the child at different ages and stages of childhood
  • The crucial importance of the very early years of life.
  • Attachment theory
  • The importance of observation of parent and child interaction
  • The ability to analyse this interaction and other relevant issues
  • The way in which ill treatment of a child can have an adverse effect on him throughout the lifespan
  • The child’s sense of time
  • The possibility of FAS in babies whose mothers abuse alcohol in pregnancy
  • The adverse effect on children witnessing sustained domestic violence
  • Sexualised behaviour in children
  • Frozen awareness/watchfulness in babies and children.

 

Whether these sorts of social work skills are taught on the new degree courses, I don’t know, but I somehow doubt it.  Moreover I think there is no likelihood that these skills will be learned in practice, given the lamentable lack of experienced workers with the time to coach newly qualified workers, allied to the overwhelming volume of work for social workers and managers alike.

Additionally I think that social workers became gradually de-skilled as it became custom and practice in care proceedings for birthparents to be assessed by a psychologist and there was an over reliance on his/her assessment.  There has always been a marked inability for some social workers to actually analyse a situation.  Assessments typically contain a great deal of factual information about a family, a lengthy description of the sequence of events, with dates when meetings/discussions dutifully recorded, but a LACK of analysis as to what all this really means.

As far as care proceedings are concerned, obviously social workers need to understand the importance of evidence based assessments and the need to prove significant harm.  Allied to this I think they need to have the courage of their convictions and “fight the child’s corner” with more spirit and determination in their assessments.  It isn’t enough to keep talking about the “best interests of the child” – it needs to be spelled out exactly what the child needs, what are those best interests, and what are the consequences of the child’s needs not being met. But this can’t be done without a working knowledge of the issues I outlined above.

 

Lack of confidence

Another issue is lack of confidence in the court arena.  I have rarely met a social worker (or Team Manager or Middle Manager) who is confident in this setting.  Indeed I would go so far as to say most social workers are intimidated by the process and this causes them a great deal of stress.

I’m sure that this lack of confidence is observable when they are giving evidence, especially in cross examination.  I may be doing social workers a dis-service here but somehow I think not.  I think they “undersell” themselves – they are the ones who know the family and the child/ren at the centre of the proceedings and will have seen at first-hand how the children are ill-treated, spent hours and hours with the family in their home surroundings and been involved in numerous meetings about the family, and the ones who have had disturbed sleep worrying over their cases, especially when newly qualified.  Lawyers don’t have the same kind of understanding about child care, nor would it be expected that they would have, but it is for social workers to recognise this and not be intimidated by lawyers/barristers acting on behalf of their clients.

Where barristers are instructed for the birthparents in care proceedings, I think there are added difficulties, as I believe there is a significant “mismatch” between the ability of the average social worker and the experienced and competent barrister who is extremely confident in the court setting.  Social workers may complete many years of practice and have very little experience of being involved in care proceedings, and maybe none at all, hence the court arena is a very unfamiliar place to them.  There are publications to assist social workers when giving evidence in the Family Courts, but certainly there was no formal training for social workers on this important issue during the time that I worked for a LA Children’s Services Department.

 

Why is it ok to leave some children in sub-optimal care?

Munby in his Judgement on the case commented “there’s more than a whiff of give a dog a bad name here……..”

In my view this acceptance that many children will receive sub-optimal care has “more than a whiff of – well they’re the children of the lower working classes so they’re never going to make much of their lives…………”

Possibly unfair of me – I don’t know.

BUT I think that we should be aiming for good-enough parenting.

I did wonder if the Judge had made his decision for the child to be brought up by his father as a sort of punishment to the LA for their failures in proving significant harm.  Possibly unfair – I don’t know.

There’s something I find very distasteful about this notion of sub-optimal care.  Why SHOULD these children not be cared for in a stable home where their needs are met – with “good enough” parenting?

If they are left in sub-optimal care they will struggle in school, they will almost certainly have behavioural and emotional difficulties, and this prevents learning at even a basic level.  They may well be assessed as having special educational needs, but this simply means they might have a Teaching Assistant to help them for an hour or so each day.  They will be lost in the class of 30 children.

In 1973 Peter Wedge and Hilary Prosser wrote “Born to Fail” – a sociological study of the way in which children born into a deprived background were indeed “Born to Fail”

Over 40 years on and little has changed.

 

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 4th 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 4th 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 6th 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.

 

Further reading

For further investigation of how parents engage in child protection procedures, see the research from Dr Karen Broadhurst on accomplishing parental engagement. She reports on the findings of a qualitative study of interaction between professionals and parents in the quasi-judicial setting of pre-proceedings meetings in England.

See Professor Sue White’s examination of how practitioners need to look with care at the language they use as they attempt to forge working relationships with parents.

See comment on this recent case where the Judge criticised a social worker’s report, saying it may well have been written in a foreign language.

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 25th 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.

 

Further Reading

You may be interested in reading further about the research of Karen Broadhurst, funded by the Nuffield Foundation which looks at the issue of mothers who have successive babies removed from their care. This is known as ‘recurrent care proceedings’.

The website for the study is here. The overall aim of this study is to generate evidence to inform service development in respect of the timing, content and mode of delivery of services designed to intercept a cycle of recurrent care proceedings. Further quantifying recurrent care proceedings at a national level will also provide policy makers with the necessary data to enable the economic costs of this problem to be estimated.

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

Careless Talk and the Duty of Confidentiality

this post is by Sarah Phillimore, a barrister. 

Unbelievable having lunch at my usual cafe , 2 social workers discussin case at the next table laughing and joking , making me feel sick. This is private stuff and I’m not the only one who can hear there discussion.

Parent, posting on Facebook Group UK Social Services

Reading that comment from a parent made me feel very uneasy. It’s common for groups of lawyers and social workers who know each other well to take their discussions at court outside, for a coffee.

A frequent complaint made to me from parents is just how difficult it is for them to see lawyers and social workers laughing and chatting together; even if it isn’t a particular case they are discussing.

But its more than just insensitive to have these kind of relaxed ‘chats’ within ear and eyeshot of traumatised parents; it could also land you in very hot professional water if you carelessly breach confidentiality.

For example, it is one of the ‘Core Duties’ of the Barristers’ Code of Conduct that:

you must protect the confidentiality of each client’s affairs, except for such disclosures as are required by law or to which your client gives informed consent.

Further:

The duty of confidentiality is central to the administration of justice. Clients who put their confidence in their legal advisers must be able to do so in the knowledge that the information they give, or which is given on their behalf, will stay confidential. In normal circumstances, the information will be privileged and not disclosed to a court… Rule rC15.5 acknowledges that your duty of confidentiality is subject to an exception if disclosure is required by law.

The Professional Practice Committee (PCC) of the Bar Council considered the issue of what may or may not be disclosed by a barrister and advised that a barrister should tell the client as soon as possible about the broad ambit of his or her professional duty:

  • Counsel’s role is to represent the client and to present the client’s case to the best of his or her ability;
  • Counsel has a duty of “full and frank” disclosure in respect of relevant material that is disclosed by the client and which impacts upon the welfare of the child;
  • Counsel is not in a position to conduct a trial or proceedings whilst withholding or concealing relevant information from the parties and the Court;
  • The duty of confidentiality to the client owed by Counsel and contained in the Core Duties at CD6 may be overridden as permitted by law. In particular, any information which reveals a serious risk to the welfare of a child, or serious harm to a third party, may have to be disclosed even if Counsel’s instructions are discontinued.

The PCC consider that the duty on family lawyers to make ‘full and frank’ disclosure of issues that relate to the welfare of a child have given rise to a particular ‘culture’ in family proceedings that the client is advised to consent to disclosure of information that might be unfavourable to the client, because:

  •  that whilst the advocate has a duty to present the client’s case to the best of his or her ability, the advocate has a higher duty to the court to disclose relevant material to the court even if that disclosure is not in the interests of the client;
  • that full disclosure of relevant material will result in a fair and proper assessment of the child’s welfare and will assist the court in arriving at the best possible outcome for the child (usually their child);
  • that full and frank disclosure is more likely to result in parents’ and/or carers’ needs being properly identified, which in turn will have a positive impact upon the child if they are considered able to care for the child;
  • that if relevant information were to be withheld (such as a new relationship with an unsuitable partner), then almost invariably it would emerge during cross-examination or further investigation within the proceedings, and the client might then be heavily criticised and his or her case damaged because of his or her failure to be honest and open with the court at the earliest possible stage;
  • that in acting for a client counsel cannot mislead the court in any way.

The PCC make it clear that if a client doesn’t accept the advice that it is best to be up front about unfavourable information which relates to the welfare of a child,  the barrister will probably need to withdraw from the case, given the risks that this runs of misleading the court.

Privileged information

There are two types of ‘legal professional privilege’ which may operate to keep some information confidential, even taking into account the duty of ‘full and frank disclosure’.

  • Legal advice privilege covers communications between a client and his legal adviser and is available whether or not proceedings are in existence or contemplated;
  • Litigation privilege is wider, covering for example communications between a legal adviser and potential witnesses. These communications are privileged only where proceedings are in existence or contemplated.

The courts have decided that litigation privilege does not apply in care proceedings as they are meant to be non-adversarial. Thus all reports obtained from third parties should routinely be disclosed.

However information may still be privileged if the documents under scrutiny were prepared for the purposes of criminal proceedings (see S County Council v B [2000] 2 FLR 161 where the court held a parent could claim legal professional privilege in care proceedings in respect of communications with medical experts who had been instructed solely for criminal proceedings).

Communications between a client and his legal adviser remain privileged in family proceedings. This is considered a very important principle for the administration of justice –  a client must be free to consult his legal advisers without fear of his communications being revealed.

There is one exception to this – if the communications reveal a crime has been committed or is intended to further a criminal purpose.

 

A Barrister’s obligations to the court where there are concurrent care and criminal proceedings.

The court gave guidance in A Local Authority v PG [2014] EWHC 63 (Fam):

  • when a party to care proceedings is ordered to file and serve a response to threshold and/or to file and serve a narrative statement, that party must comply with that order and must do so by the date set out in the order;
  • the importance of parents or intervenors giving a frank, honest and full account of relevant events and matters cannot be overstated. It is a vital and central component of the family justice system;
  • a legal practitioner is entitled to advise a client of (i) the provisions and import of s.98 of the 1989 CA and (ii) the ability of the police and/or a co-accused to make application for disclosure into the criminal proceedings of statements, reports and documents filed in the care proceedings;
  • it is wholly inappropriate and potentially a contempt of court, however, for a legal practitioner to advise a client not to comply with an order made in care proceedings;
  • It is wholly inappropriate and potentially a contempt of court for a legal practitioner to advise a client not to give a full, accurate and comprehensive response to the findings of fact sought by a local authority in the threshold criteria document. This applies both where that advice is limited in time, eg until after a criminal defence statement has been filed and served and, worse still, the advice is given not to make such a response at all.

With regard to the risks parents might be running in giving statements in care proceedings that might go on to be used in criminal proceedings, see this post by suesspicious minds. 

There is also very useful discussion about the operation of section 98(2) and disclosure of documents to the police in the case of Re X and Y (Children: Disclosure of Judgment to Police) [2014].