Tag Archives: Neglect

Just what is the place of parents in the hierarchy of child protection?

When ‘knowing your rights’ equates to ‘sense of entitlement’ and what this says about child protection practices today.

It is a frequent complaint made to me that parents from poor backgrounds are targeted in care proceedings because they are poor. That the struggles they have in parenting are reflections of their alienation from more affluent society and that they need support for this – not condemnation.  There is very worrying evidence that rates of child protection intervention shoot up in the more deprived areas of the country which certainly demonstrates a link between poverty and increased likelihood that your child will be taken into care.

Can this really all be down to ‘bad’ rather than ‘sad’ parents? Are wealthier parents not exposing their children to any kind of harm worthy of state intervention? Or are they just better able to hide it or to avoid professional scrutiny?

So it was very interesting to read Professor Claudia Bernard’s research ‘An Exploration of How Social Workers Engage Neglectful Parents from Affluent Backgrounds in the Child Protection System’.

This research was commissioned by the City of London to find out what is known about child neglect in affluent families. There is little current research on this issue and Professor Bernard wanted to investigate what factors arise for social workers in responding to child neglect in  affluent families.

 

How is neglect defined?

Working Together to Safeguard Children (2015) definition of neglect is used:

“The persistent failure to meet a child’s basic physical and/or psychological needs, likely to result in the serious impairment of the child’s health and development” (DfE 2015).

‘Neglect’ is still the most common reason for child protection proceedings. Most investigations into ‘neglect’ focus on those families already known to the authorities and who are likely to be members of lower socio-economic groups. Issues of neglect in more affluent families is generally off the radar. A child who comes to school dirty and smelly is pretty easy to spot – but the child who lacks emotional attunement with a wealthy and largely absent parent is less immediately visible. Lack of immediately visible harm can flow from those parents who do not spend enough quality time with their children, pressure them to be high achievers and thus create psychological and emotional problems for the children in adulthood.

Such harm is recognised as an ‘ACE’ – an adverse childhood experience. As the study points out:

Adverse childhood experiences refer to physical and emotional abuse, sexual abuse and neglect, being exposed to domestic violence, substance abuse, and other early life stressors (Felitti et al. 1998). While many ACEs are disproportionately found in economically disadvantaged communities, it is important to note that research has identified that ACEs are far from absent in more affluent families (Bellis et al. 2014).

What did the research set out to do and what did it find?

The research posed three specific questions to participants from 12 different and diverse local authorities. The limitations of this work are recognised – it is small scale and exploratory and was not trying to elicit statistical or generalisable data.  

  • How do social workers identify risk factors for vulnerable children in affluent circumstances?
  • Which factors inhibit or enable social workers’ engagement with affluent parents when there are child protection concerns?
  • What kind of skills, knowledge and experience is necessary for frontline social workers to effectively assert their professional authority with affluent parents when there are concerns about abuse and neglect?

Key messages identified

  • The findings revealed that thresholds for neglect are not always understood, which posed challenges for effectively safeguarding children at risk of significant harm in privileged families.
  • The vast majority of the cases described by the participants concerned emotional neglect, although other forms of maltreatment, such as sexual abuse, child sexual exploitation and emotional abuse, were also identified.
  • Commonly-encountered cases involved struggling teenagers in private fee-paying and boarding schools,
  • Participants gave many examples to show how parents had the financial resources to access psychological support through private care providers to address their children’s emotional and behavioural problems; some practitioners viewed this as a positive outcome for the child, but some saw this as a way for the parents to opt out of the statutory child protection system, and to thus slip under the radar of children’s services.
  • Participants consistently cited that highly resistant parents were more likely to use legal advocates or the complaints procedures to challenge social workers.
  • All of the participants also experienced the challenges of inter- agency working with private fee-paying and boarding schools when child protection concerns were raised.
  • Considerable experience, practice wisdom and knowledge of neglect were essential in relation to working with highly resistant parents who had the resources to challenge social workers’ decision-making.
  • Skills, knowledge and competence: all of the participants highlighted the important role that supportive managers and good supervision played in helping them to effectively intervene in affluent families.

 

 

Conclusions and comments

One problem here is that the ‘vast majority’ of cases involving affluent parents involved ’emotional neglect’ – a phrase which almost every parent I have ever spoken to reacts to with baleful suspicion. Unsurprisingly, as the research noted: ‘Participants stressed that the vague and ambiguous nature of emotional neglect was one possible factor making it difficult to interpret and assess indicators of emotional neglect’.

But the much more troubling issue was the apparent assumption that parents’ knowledge of and willingness to act upon their legal rights was a Bad Thing.

The key question identified in the study is how to assess the psychological and emotional availability of parents and when and how the state should intervene, particularly as we are now embedded in a culture of ‘neoliberalism‘, where hierarchies are seen as based on competence and those who do not strive to achieve will fail and be left to fail.  How can we criticise parents for wanting their children to adapt and thrive in this environment?

I am sure many parents would be taken aback at the notion that their wish for their child to do well and their decision to push a child to achieve should be seen in the same category of the child who is not fed or clothed well enough, who has no toothbrush or no clean bed to sleep in. However, while relative affluence may mean it is easy for parents to avoid obvious physical signs of neglect – for example, by paying someone else to take care of their children’s physical needs – it does not mean that their children escape from emotional or psychological harm.

However, if we want parents to get on board with this we have to be able to explain it clearly and engage them to listen. What does the study tell us about this?

The comments I found most interesting were these:

All of the participants described difficulties in maintaining focus on the child because of the way that parents used their status and social capital to resist child protection intervention, and many also displayed a sense of entitlement to do as they pleased and that they know best.

One participant commented:

“Those children are quite hidden, because parents know their rights, they are articulate, and they can be quite avoiding. I would say that social workers are quite often concerned that working with affluent parents rather than with other parents because they are educated and they are very challenging”.

The report notes

in some cases, their obstruction towards social workers manifested in formal complaints to senior managers and elected councillors and the threat of legal action.

And

Participants elaborated the ways that the parents’ class backgrounds gave them an unspoken advantage, which meant that they were generally knowledgeable about the workings of organisations such as children’s social care and the safeguarding process; perhaps more crucially, their sense of entitlement, brought a greater confidence to challenge the child protection decision-making processes.

The point is that the vast majority of parents resist social work intervention when the allegations made about their parenting are serious and are made in a clumsy or belittling way by someone the parent does not know and trust. The vast majority of parents who contest these matters in court will say ‘they know best’ – so, of course they will ‘do as they pleased’ – a revealingly pejorative way of referring to parents acting on what they think is the right thing for their child.

The use of phrase ‘know their rights’ as if this was somehow a criticism – ‘a sense of entitlement’ –  was a chilling echo to my earlier conversations with social workers about the law merely being ‘an aspect’ of what they do and Louise Tickle’s examination of long standing and extremely serious failings on the part of social workers to understand their legal obligations behind the use of section 20 accommodation.  Not all formal complaints are made to ‘obstruct social workers’. I often advise clients to make formal complaints about some piece of bad practice – but of course to parents in the middle of proceedings, how many of them have the time and space to do this? They tell me they are worried what will happen to them if they are seen to complain – it looks like they have a point.

Parents resist intervention because they deliberately wish to evade detection to carry on abusing their children (a small minority) or – much more likely – because they lack the skills or insight to accept that they are in fact doing harm to their children. it is easier to resist intervention or criticism than accept that you might be doing something to hurt the person you love very much.

Rich parents use status and social capital to dodge intervention; poor parents use other blunter techniques. But the common thread to all successful interventions with families must be social workers with the time, space and skill to build relationships of trust. And I am not sure that this time or space exists anymore. Its useful to focus on a group who may be escaping necessary intervention and to ask some questions why – but not if that takes away proper consideration of how the fundamentals of social work are being neglected and degraded.

Its not about money. Its about trust, its about relationships, its about working together. I am not sure how helpful it is to set up another group of parents to potentially demonise for their horrid neglectful ways .

When asked what helped, participants replied:

Participants cite the organisational cultures of support, purposeful informal conversations about the case with colleagues, good supervision, knowledge and confidence and responsive managers, themed learning activities, as key to their ability to work in this complex field.

It is both sad and revealing that ‘building relationships of trust with the parents we work with’ did not feature in that list.

It is high time we grappled with the increasing push in social work to see the child in isolation from family and community and that any indignity heaped on a family can be justified on the basis that the social worker is ‘there for the child’.  Issues of neglect and abuse which do not involve immediate and substantial harm – the broken bone, the sexual assault – are always going to be tricky to identify, define and deal with in the right way at the right time. The key to all of this will be working together.

I leave you with one final comment from the research

For example, some participants spoke of being belittled and humiliated by parents in meetings, leaving them feeling as if they had to prove themselves and establish their credibility

This is what parents tell me they feel in care proceedings. Time and time again. This is what happens when you set each other up in opposition. When the culture is one of blame and shame. It cuts both ways – and it hurts everyone.

Further reading

Abuse and ‘neglect’ – how is this identified? And what support is offered?

 

I am grateful to this post from one of CPR’s readers, who is parent to an autistic child. She writes about her difficulties in getting help and support for her son and the problems families experience in a system which does not seem set up to identify difficulties and offer support. What happens when children with difficulties arising out of their undiagnosed disabilities are mis-identified as children suffering from parental neglect or abuse?

As she comments:
As it stands, the Child Protection system is a blunt and sometimes cruel instrument often used without much prospect of bringing about positive change because it can only ever work as one part of a system of support for families, and this system of support is largely absent.

Not having met a social worker in our local authority until the day my son with an Asperger Syndrome diagnosis entered Care under section 20 of the Children’s Act 1989, I began to read anything I could find about children with his profile who enter Care. That was the day I accepted that having tried everything else, Care was the only option available to get an integrated package of support for him, something we and he had needed by any measure for some time. He was not going to be someone ‘who didn’t fit within our services’ remit’ nor just another statistic of a disabled young person living rough with poor mental health or worse, something that seemed almost inevitable at that time, without trying everything including Care.

As part of my coping mechanism for the immense grief and desolation I was experiencing, I read report after report to learn about the Care system. Eventually, to cut down on my reading, I’d open reports and papers in pdf format and search within the document with the search facility using terms like ‘disabled, disability, autism, neuro-developmental, ASD, ASC’ and might get one ‘hit’. What I did notice was that if I carried out the same search using ‘neglect’ as a search term I’d get scores of ‘hits’ within the same document. I concluded that for social workers ‘neglect’ was ‘sexy’ and disability anything but. Children like mine, with an autism diagnosis but without an obvious learning disability were a bit of a side show while all the action in Child Protection was around ‘abuse and neglect’ and that didn’t seem to be up for discussion. There were a few reports like the excellent ‘Unprotected, Overprotected’  that made links between disability and core child protection issues but generally these reports were few and far between.

If one looked a little wider to the family unit with an autistic or learning disabled family member there seemed to be almost nothing in terms of research into how to support families with complex difficulties around neuro-disability including poor mental health, different ways of thinking and processing information, mental inflexibility and the need for extreme control to manage anxiety as just some examples.

I came to loathe the word ‘neglect’, surely the reasons why children enter care are multi-faceted yet this word is so un-nuanced and brings with it a mountain of stigma, shame and blame for parents.

One of the things that also became apparent to me, was that there seemed to be a lot of children with extreme difficulties within Care. When I asked why our son hadn’t a social worker from The Children with Disabilities Team I was told they only took on cases of children with multiple and complex disabilities and they had a very full caseload. Similarly when I asked why his case did not have clinical oversight, (something that eventually did come) I was told ‘’All our children have the same kinds of difficulties’. My response was ‘’well, are they being given autism assessments?’’ The answer to that question ( yet more reading..) was that ‘no, children who enter Care are not assessed or even screened for autism – all their difficulties (they are most commonly described as having developmental delay not disability and/or traumatised with poor mental health) unquestionably stem from ‘’neglect and/or abuse by parents prior to entering Care’’. Well that is not my experience so..?

I eventually came to the conclusion that assessments and healthcare for children in Care are not remotely up to the task of meeting the needs of a sizable number of children who are in Care, many with undiagnosed hidden disabilities. There is almost no data collected on children in Care with disabilities and we do not know how many are diagnosed as being autistic before they enter Care or within Care although we know from 2017 Freedom of Information requests there is considerable local variation in their numbers from 0% (Calderdale) -to 12.7% (Walsall). Surely this is Corporate Neglect and why were Child Protection professionals / CQC / Ofsted not making that point? Obviously some types of neglect are more ’sexy’ for professionals working in Child Protection than others.

There are some other troublesome issues around ‘neglect’

I’ve recently being made aware of this project. Identifying and Understanding Inequalities in Child Welfare Intervention Rates. It is worth watching the You tube video associated with the link as it identifies that in a poor neighbourhood within a wealthy borough there are a lot more children on child protection plans than in a poor neighbourhood in a poor borough. Surely ‘abuse is abuse’ and ‘neglect is neglect’ so how to explain this? Assuming ‘abuse’ is an absolute, maybe the concept of ‘neglect’ is a relative one, so one person’s/team’s idea of neglect is not another’s? I’ve a working lifetime of experience where I’ve learned to never ask anyone in a local authority whether they would like to be involved in decision making unless it falls within their strictly defined statutory remit and I check that myself first rather than asking. This is because I have found that many are tempted to try and control things they have no statutory remit for and ‘it is best not to invite trouble’. This is certainly not unique to people who work in Local Authorities just that when asked for our opinions, most of us have difficulties not telling people what they should be doing based on our own likes/dislikes/perspectives. When it comes to Child Protection, where there is a huge power imbalance and a very diffuse remit, I think this can enter some really dangerous territory.

Take this situation where there are concerns about abuse and neglect by parents of their autistic children :-
‘’ Some families may feel that they accept their child for who they are and allow them to withdraw from the world. Is that neglect? Many people with autism need to have structure and routine in their lives to cope with an unpredictable world. Some parents may allow this to take over and dictate the lives of the whole family, others may rally against it, believing it’s in the child’s best interest for them not to give way to the structure. Is this abuse?

There are many different therapies and interventions available which claim to cure autism. Some of these practices can in themselves ‘appear’ abusive. Some parents pursue these out of desperation and when the claims for some of these therapies and interventions are far from clear, it can be difficult for parents to know what to believe’’

http://www.autismeurope.org/activities/projects/speak-up-publications/guide-for-the-protection-of-children-and-young-people-with-autism-from-violence-and-abuse.html

If social workers working with children have little training about autism, are they really able to make decisions about what constitutes ‘neglect’ when it comes to this group? What if an autistic child doesn’t t have a diagnosis because clinicians do not have resources to carry out specialist assessments? If they do not have very good multi-disciplinary working arrangements that can quickly identify the reasons for a child’s difficulties and help build the child’s capacity, ,not just focus on questions about the parent’s fitness to parent, are they likely to get this right?
Where is the discussion about this in Child Protection circles and if decision-making is wrong why is that not abuse? It is absolutely foreseeable and mostly preventable with good training and good multi-disciplinary working arrangements around diagnosis.

Which brings me to ‘Edge of Care’ support for autistic children.

Autism is a spectrum condition and a child’s difficulties can present in many ways. One of the most difficult to explain is that a child who is very bright and no trouble in school can have extreme difficulties in processing what is happening around them and may develop very poor mental health particularly around anxiety. See this National Autism Society video  explaining how autistic children who have acute difficulties such as these, may end up in secure or forensic settings.

The tone is very much ” Their parents never taught them and because of this..” My response to that would be ”Give parents the tools to help their autistic children and most will.” Autistic children need an autism diagnosis (my son got his at 16 in the most horrendous circumstances) and parents need support (we got none). I also believe billions of pounds of cuts are purposefully being made to Children’s Services, legal aid and the NHS with an unspoken acceptance that naive carers/parents in desperate circumstances will find it almost impossible to access support for themselves and their children. Many pathways to support exist in name only, are supposed to be provided by the market via brokerage or self-funding or unfunded charities, are initiatives or time limited programmes that quietly disappear, unlike the fanfare around their introduction. Services where they exist are understaffed and complaints/appeals processes so difficult to negotiate that only the most committed, resourceful and able persist. All, including professionals who have to somehow work in this environment whilst retaining their own humanity, understand this, so is this the ‘neglect and abuse’ that Child Protection Professionals are concerned about? Maybe.

I could go on and on..

As you will have gathered my own ‘special interest’ is around children who are autistic. See this piece http://www.bbc.co.uk/news/health-41345647
”About 20,000 children have been harmed by valproate medicines in the UK since the 1970s. The medicines regulator said the drug had been kept under constant review. Babies exposed to the drug in the womb have a 40% risk of developing autism, low IQ and learning disabilities.” —Almost 70% of women surveyed about a powerful epilepsy drug have not received new safety warnings about the dangers of taking it during pregnancy.”

Anyone interested in the law may already know that a number of years ago, legal aid was withdrawn to families trying to take a case against the drug’s manufacturer and it could not proceed. Since then children continued to be born with abnormalities and some died, as a result of their mothers taking this drug without being aware of the risks, causing unimaginable and completely preventable suffering to children. Is that ‘neglect’ by the State? Can it get any more serious if so?

Or is this the kind of ‘neglect and abuse’ that the United Nations has called for action on, United Nations criticises treatment of disabled children in the UK  that concerns Child Protection professionals?

These are rhetorical questions in the main because although Child Protection professionals refer to preventing ‘abuse’ and ‘neglect’ of children what they really mean is intervening in families that are experiencing difficulties with the mind-set that children’s difficulties stem from neglectful or abusive parenting. The reality is that it isn’t possible for parents or professionals to nurture children particularly children with high needs, without the State taking an active role in supporting and protecting families.

As it stands, the Child Protection system is a blunt and sometimes cruel instrument often used without much prospect of bringing about positive change because it can only ever work as one part of a system of support for families, and this system of support is largely absent. I think families are a huge resource – painting us as incompetent, neglectful, not to be trusted, ignorant etc. is just so damaging for our children. My son didn’t need rescuing. We needed to be listened to and we needed help. That our son had to enter Care to get it is my idea of what constitutes ‘neglect’.

 

Further Reading

NHS (2017) Developing Support and Services for Children and Young People with a learning disability, autism or both  ”The Department for Education supports the development of the work undertaken in the Transforming Care Partnership Boards and encourages local authorities to pay regard to this guidance”

Tizard, Challenging Behaviour Foundation (2017) Developing Better Commissioning for Individuals with behaviour that challenges services – A scoping exercise.
The Children Act 1989 – deeply flawed legislation?

What do we mean by ‘significant harm’?

 

  • Your starting point in care proceedings is section 31 of the Children Act 1989. You can find the whole Act here or read what Wikipedia says about it.  
  • For more detail about this issue from the social worker’s perspective, please see this helpful article. 
  • For NSPCC Guidance on how to notice signs of abuse, see this document from December 2017 

Section 31 of the Children Act allows a Local Authority (LA) ‘or authorised person’ to apply to the court for an order which makes it lawful to to put a child in the care of a LA, or under the supervision of a LA. At the moment, the only other ‘authorised person’ is the NSPCC.

It is NOT the social worker who decides whether or not there should be a care or supervision order. This is a decision for the Judge or the magistrates. They are only allowed to make a care or supervision order if :

  • they are  satisfied there is evidence (‘threshold criteria’)
  • which proves on the balance of probabilities, that:
  • the child is suffering OR;
  • is likely to suffer significant harm in the future AND;
  • this significant harm will be a result of either ‘bad’ parenting – likely to be seen as the parents’ fault; OR
  • the child is beyond parental control – which may not necessarily be seen as the parents’ fault.

[For discussion about what is meant by ‘beyond parental control’ see the case of P (permission to withdraw care proceedings) [2016] EWFC B2.]

The ‘significant harm’ has got to relate to what the parents are doing or likely to do when they are caring for their child. The court will consider the standards of a ‘reasonable parent’: see Re A (A Child) [2015] EWFC 11 and  Re J (A Child) [2015] EWCA Civ 222.

In one case, LCC V AB and Others [2018] the LA and Guardian wanted to argue that the threshold regarding significant harm was crossed when a terminally ill mother wanted her children to go into foster care before she died; the court found that it was not and refused to make a care order. The Judge commented at para 26:

Recognising the difficulties she was going to face in her medical treatment and in her medical condition, she made, in my judgement, a timely request for alternate care.  In so doing, in my judgement, she acted as a perfectly reasonable, loving, caring mother and requested that the children be cared for by the local authority.  She has not subsequently wavered in her acceptance and understanding that the children should remain in full-time foster care, however much no doubt she would want to be looking after them herself.  She has cooperated at every stage with the local authority.  She has been a willing recipient of advice and support, as is exemplified, as I set out earlier in this judgment, with her acceptance of the advice about the frequency of overnight and weekend contact.

The court will look at two different issues:

  • how is the parent looking after the child? Is the kind of care they are giving the kind you would expect from a ‘reasonable parent’? or
  • Is the child out of control? for example, not going to school or running away from the parents and getting into trouble?

There is already quite a lot to unpick here.

  • What does ‘harm’ mean?
  • What does ‘significant’ mean?
  • What happens when the court is worried about risk of future harm?

What do we mean by ‘harm’ ?

Section 31(9) of the Children Act tells us that harm means:

  • ‘ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another’.

This last part about being exposed to someone else being badly treated, was added by the Adoption and Children Act of 2002. It is intended to cover such circumstances as a child who witnesses or hears someone else being hurt, for example if the parents are fighting or shouting at one another at home.

Development means ‘physical, intellectual, emotional, social or behavioural development’

Health means ‘physical or mental health’

Ill-treatment‘ includes sexual abuse and other forms of bad treatment which are not physical. This includes ’emotional harm’. This is the category of harm which probably cases most concern for a lot of people; they are concerned about what kinds of behaviour get put into this category. We will look at the issue of ’emotional harm’ more closely in another post.

 

What do we mean by ‘significant’ ?

Section 31(9) tells us what is meant by ‘harm’. But it doesn’t give a definition of what is meant by ‘significant’. The original guidance to the Children Act 1989, issued by the Department of Health,  stated that:

Minor shortcomings in health care or minor deficits in physical, psychological or social development should not require compulsory intervention unless cumulatively they are  having or are likely to have, serious and lasting effects on the child.

We can get further guidance from looking at Article 8 of the European Convention on Human Rights [ECHR]. Article 8 exists to protect our rights to a family and a private life. Article 8 makes it clear that the State can only interfere in family life when to do so is lawful, necessary and proportionate.

Proportionality is a key concept in family law. A one off incident – unless extremely serious, such as a physical attack or sexual assault – is unlikely to justify the making of a care order as the court would be unlikely to agree that a single incident would have long lasting and serious impact on a child. But the same type of incident, repeated over time may well have very serious consequences for the child.

Read Article 8 here. For further discussion about what is meant by proportionality, see our post here. 

There are some useful law reports where ‘significant harm’ has been discussed. For example, Baroness Hale stated in B (Children) [2008] UKHL 35:

20. Taking a child away from her family is a momentous step, not only for her, but for her whole family, and for the local authority which does so. In a totalitarian society, uniformity and conformity are valued. Hence the totalitarian state tries to separate the child from her family and mould her to its own design. Families in all their subversive variety are the breeding ground of diversity and individuality. In a free and democratic society we value diversity and individuality. Hence the family is given special protection in all the modern human rights instruments including the European Convention on Human Rights (art 8), the International Covenant on Civil and Political Rights (art 23) and throughout the United Nations Convention on the Rights of the Child. As Justice McReynolds famously said in Pierce v Society of Sisters 268 US 510 (1925), at 535, “The child is not the mere creature of the State”.

21. That is why the Review of Child Care Law (Department of Health and Social Security, 1985)) and the white paper, The Law on Child Care and Family Services (Cm 62, 1987), which led up to the Children Act 1989, rejected the suggestion that a child could be taken from her family whenever it would be better for her than not doing so. As the Review put it, “Only where their children are put at unacceptable risk should it be possible compulsorily to intervene. Once such a risk of harm has been shown, however, [the child’s] interests must clearly predominate” (para 2.13).

In 2013 the now Lady Hale stated in Re B (A child) 2013 UKSC 33

Significant harm is harm which is “considerable, noteworthy or important”. The court should identify why and in what respects the harm is significant. Again, this may be particularly important where the harm in question is the impairment of intellectual, emotional, social or behavioural development which has not yet happened.

The harm has to be attributable to a lack, or likely lack, of reasonable parental care, not simply to the characters and personalities of both the child and her parents. So once again, the court should identify the respects in which parental care is falling, or is likely to fall, short of what it would be reasonable to expect.

Sometimes, a lot of time is needed in care cases to argue about whether or not the harm in a particular case is serious enough to meet this statutory requirement. If the Judge decides there is no significant harm either being suffered now or likely to be suffered in the future, then he or she cannot make a care order or supervision order.

If he or she decides that there is enough evidence of significant harm, we move to the second stage of the necessary legal test – whether or not to make a care or supervision order is in the child’s best interests. This is called the ‘welfare stage’ of the test and we will examine this in another post.

 

Different types of abuse which can cause significant harm

In some cases it is very easy to see that a child has already suffered significant harm, for example when a child has been sexually abused or physically attacked. The court is likely to have clear and first hand evidence in the form of reports from doctors or the police who have examined or interviewed the child. The majority of people agree that being attacked or sexually abused is likely to be very harmful to children.

The more difficult cases involve issues of neglect and emotional abuse where it is hard to find one particular incident that makes people worried – rather it is the long term impact on the child of the same kind of harm continuing. These cases are particularly difficult when it is also clear that there are positives for the child in his or her family and the court has to decide whether the positive elements of family life are outweighed by the bad, or whether the family can make necessary changes quickly enough to meet the needs of the child.

For example, if on occasion you get angry with your child and shout at him or smack him it is highly unlikely your child would be considered at risk of significant harm if for the majority of the time you are loving and patient. But imagine a child who is shouted at and hit on a daily basis. It is not difficult to see how living in such an environment is likely to cause that child significant emotional or even physical harm.

See what the House of Commons Education Committee said about the child protection system in 2012.

Table 1: Children and young people subject to a Child Protection Plan, by category of abuse, years ending 31 March 2011

Category of abuse

2006

2007

2008

2009

2010

2011

Neglect

11,800

12,500

13,400

15,800

17,200

18,590

Physical abuse

3,600

3,500

3,400

4,400

4,700

4,820

Sexual abuse

2,300

2,000

2,000

2,000

2,200

2,370

Emotional abuse

6,000

7,100

7,900

9,100

11,400

11,420

Multiple

2,700

2,700

2,500

2,900

3,400

5,490

Total

26,400

27,900

29,200

34,100

39,100

42,690

More recent statistics from the NSPCC show neglect cases rising from 17,930 in 2013 to 24,590 in 2017; emotional abuse from 13,640 to 17,280.

You can see from the figures that the most common cause for concern about children in every year was the issue of neglect – but we can see a significant and consistent rise in number of cases of emotional abuse. The NSPCC confirmed that in 2015:

Neglect is the top reason why people contact the NSPCC Helpline with their concerns about a child’s safety or welfare – and this has been the case since 2006. In 2014–15 there were 17,602 contacts received by the NSPCC Helpline about neglect (3,019 advice calls and 14,583 referrals), an increase on the previous year13.

In 2012, the Education Committee examined the issue of neglect from paragraph 41 in their report and said:

41. Neglect is the most common form of child abuse in England. Yet it can be hard to pin down what is meant by the term. Professor Harriet Ward told us that, based on her research into what was known about neglect and emotional abuse, “we definitely have a problem with what constitutes neglect” and that “we need to know much more about what we actually mean when we say neglect”. Phillip Noyes of the NSPCC agreed that “There is a dilemma with professionals, and indeed the public, about what comprises neglect, what should be done and how we should do it”. He went on to explain his belief that: “at the heart of neglect […] is a lack or loss of empathy between the parent and child”.

42. There are two statutory definitions of neglect: one for criminal and one for civil purposes. Neglect is a criminal offence under the Children and Young Persons Act 1933 where it is defined as failure “to provide adequate food, clothing, medical aid or lodging for [a child], or if, having been unable otherwise to provide such food, clothing, medical aid or lodging, he has failed to take steps to procure it to be provided”. Action for Children has called for a review of this definition, declaring it “not fit for purpose” because of the focus on physical neglect rather than emotional or psychological maltreatment. Action for Children also believe that the definition leaves parents unclear about their responsibilities towards children and seeks only to punish parents after neglect has happened rather than trying to improve parenting.

[….]

The civil definition of neglect which is used in child and family law is set out in the Children Act 1989 as part of the test of ‘significant harm’ to a child. This is expanded upon in the previous Working Together statutory guidance which describes neglect as:

the persistent failure to meet a child’s basic physical and/or psychological needs, likely to result in the serious impairment of the child’s health or development. Neglect may occur during pregnancy as a result of maternal substance abuse. Once a child is born, neglect may involve a parent or carer failing to provide adequate food, clothing and shelter (including exclusion from home or abandonment); protect a child from physical and emotional harm or danger; ensure adequate supervision (including the use of inadequate care-givers); or ensure access to appropriate medical care or treatment. It may also include neglect of, or unresponsiveness to, a child’s basic emotional needs.

  • With regard to violence in the home between adults there is some useful information from the Royal College of Psychiatrists about the impact upon children of domestic violence here.
  • Read what we say about emotional abuse here.
  • Further information about the impact of neglect from research at Harvard University. 

 

Future risk of harm – what do we mean by ‘likely to suffer’ ?

Simply to state that there is a “risk” is not enough. The court has to be satisfied, by relevant and sufficient evidence, that the harm is likely

The most difficult cases of all are where a child hasn’t yet suffered any kind of harm but the court is very worried about the future risk of harm. It is this category which has caused most concern to those who worry about the child protection system as they feel strongly it is not fair to a parent to punish him or her by removing their child for something they haven’t yet done.

As Dr Claire Fenton-Glyn explained in her recent study on the law relating to child protection/adoption in the UK, presented to the European Parliament in June 2015:

A major problem with the law prior to 1989 was that it required proof of existing harm, based on the balance of probabilities. The local authority could not take a pre- emptive step to protect a child from apprehended harm, causing significant difficulties, in particular with newborn babies. As such, the inclusion in the Children Act of the future element of “is likely to suffer” was an important innovation, introduced to provide a remedy where the harm had not occurred but there were considerable future risks to the child. However, this has also been the cause of some controversy, as the answer as to whether a child will suffer harm in the future is necessarily an indeterminate and probabilistic one.

You can read about what the Supreme Court decided in a case like this in re B in 2013 where the court had to grapple with the issue of the risk to the child of future emotional harm.

Lady Hale said from para 193:

I agree entirely that it is the statute and the statute alone that the courts have to apply, and that judicial explanation or expansion is at best an imperfect guide. I agree also that parents, children and families are so infinitely various that the law must be flexible enough to cater for frailties as yet unimagined even by the most experienced family judge. Nevertheless, where the threshold is in dispute, courts might find it helpful to bear the following in mind:


(1) The court’s task is not to improve on nature or even to secure that every child has a happy and fulfilled life, but to be satisfied that the statutory threshold has been crossed.


(2) When deciding whether the threshold is crossed the court should identify, as precisely as possible, the nature of the harm which the child is suffering or is likely to suffer. This is particularly important where the child has not yet suffered any, or any significant, harm and where the harm which is feared is the impairment of intellectual, emotional, social or behavioural development.


(3) Significant harm is harm which is “considerable, noteworthy or important”. The court should identify why and in what respects the harm is significant. Again, this may be particularly important where the harm in question is the impairment of intellectual, emotional, social or behavioural development which has not yet happened.


(4) The harm has to be attributable to a lack, or likely lack, of reasonable parental care, not simply to the characters and personalities of both the child and her parents. So once again, the court should identify the respects in which parental care is falling, or is likely to fall, short of what it would be reasonable to expect.


(5) Finally, where harm has not yet been suffered, the court must consider the degree of likelihood that it will be suffered in the future. This will entail considering the degree of likelihood that the parents’ future behaviour will amount to a lack of reasonable parental care. It will also entail considering the relationship between the significance of the harmed feared and the likelihood that it will occur. Simply to state that there is a “risk” is not enough. The court has to be satisfied, by relevant and sufficient evidence, that the harm is likely: see In re J [2013] 2 WLR 649.

Therefore, if the court is worried about things that happened in the past and wants to use those events as a guide to future risk of harm, it must be clear about what has actually happened in the past – you cannot find a risk of significant harm based on just ‘suspicions’ about what might have happened before.

See further the Supreme Court decision of Re S -B [2009].

Baker J commented in 2013:

In English law, the House of Lords has now concluded definitively that in order to determine whether an event has happened it has to be proved by the person making the allegation on the simple balance of probabilities. Where the law establishes a threshold based on likelihood, for example that a child is likely to suffer significant harm as a result of the care he or she would be likely to receive not being what it would be reasonable for a parent to give, the House of Lords has also concluded that such a likelihood, meaning a real possibility, can only be established on the basis of established facts proved on a balance of probabilities.