You can’t handle the Truth! Part 2

Local Authority misconduct and failure to meet the needs of children.

In March 2021 Keehan J handed down judgment in the case of YY (Children: Conduct of the Local Authority) [2021] EWHC 749 (Fam) (26 March 2021)It lays bare the failures of the local authority in excruciating detail. The Head of Children’s Services admitted to and apologised for very serious failings and there will be an extra-ordinary general meeting of the local council on April 27th 2021 to consider them.

The judgment is interesting, not merely because it sets out the Judge’s condemnation of the local authority in clear and damning terms but also because of what I think it reveals of the wider problems which may have contributed to this widespread and longstanding failure to meet the children’s needs.

I think we have a big problem in our family court system with the notion of ‘the truth’ being established at 51%, there is a now dangerous dearth of available mental health support for children AND the ‘tick box mentality’ combined with drive to meet externally imposed ‘performance indicators’ is corrupting proper analysis of what each individual child needs. None of this is said to attempt to excuse what went wrong in this case. But I do think its worth consideration. If ‘lessons are to be learned’ we all need a firm foundation on which to build our learning. At the moment, I do not think we have it and thus ‘blaming and shaming’ various local authorities in turn for their failings will offer nothing more than a fleeting sense of self righteousness. I think its high time we directed our anger at the systemic failings which allow such individual failures to flourish.

This case turned on a finding of fact which found that the children had not been sexually abused by their wider family as they alleged, but had been exposed to their mother’s poor mental health and sexual activity in the home. The children are now aged 17, 13 and 11. They had a 14 year old sister C, who sadly died in 2019. They were removed from their family in 2012 and moved to live with foster carers where they remain. Care proceedings were heard in 2014 and the Judge made findings of fact that the children’s allegations were not true and that they needed help to understand the reality of their situation and to be supported to have contact with their mother. This never happened.

It seemed that the foster carers were never helped to understand the fact finding judgment or even given a copy of it. They believed what the children were saying about the allegations. The local authority it appears was keen to meet their ‘performance indicators’ to get the children out of foster care and for the foster carers to be made ‘special guardians’. This lead to the author of an assessment, which warned against the foster carers, being pressured to change her recommendations and to support the making of a special guardianship order. The children had no life story work and what therapeutic intervention existed was little and late – and proceeded on the basis that the children had been subject to serious sexual abuse, despite the findings of the court that they had not.

Unsurprisingly therefore, the mother was not able to establish a relationship with her children and felt that she had been sidelined and ignored; demonstrated most tragically by the death of C in hospital in 2019.

The findings against the local authority are stark and set out in Appendix 1 to the judgment, including:

  • failed to use HHJ Rundell’s fact-finding judgment as a basis for challenging and changing the children’s distorted perceptions of their family.
  • failed to promote contact between the children and their mother over significant periods of time
  • failed to manage the foster placement appropriately or meet the emotional needs of the children

So what went so horribly wrong? And why do I think there are wider problems at play than simply the incompetence and mis-management of a case by one local authority?

Establishing the truth at 51%.

First, a brief summary of the fact finding process when allegations of sexual abuse are made. The burden of proof is on the person making the allegation and the standard of proof is ‘the balance of probabilities’ , i.e. is it ‘more likely than not’ that something happened. Findings must be based on evidence; you can draw inferences from the evidence but suspicion and speculation do not count. The court has to look at all the evidence and consider each piece in the context of other pieces. The evidence of parents is very important and the court must form a clear view of their credibility and reliability. It is common for people to tell lies during court proceedings but the court must always remember that there are many reasons why people don’t tell the truth and there should be no automatic assumption that this means the parents are telling lies about everything.

In Re AS v TH 2016 EWHC 532, MacDonald J set out particular guidance when determining issues of sexual abuse.

  • Where the evidence of a child stands only as hearsay, (i.e. the child’s account is being shared with the court by someone else and the child is not present to give their own account) the court weighing up that evidence has to take into account the fact that it was not subject to cross-examination (Re W (Children)(Abuse: Oral Evidence) [2010] 1 FLR 1485).
  • It is a two stage process – is there evidence of sexual abuse? If so, is there evidence about who did it?
  • The court must have regard to government guidance from March 2015 which advises that “if a child reports, following a conversation you have initiated or otherwise, that they are being abused and neglected, you should listen to them, take their allegation seriously, and reassure them that you will take action to keep them safe.” 
  • If a child does make allegations, the 2011 statutory guidance ‘Achieving Best Evidence in Criminal Proceedings’ [ABE Guidelines] must be followed. Initial questioning must be brief and detailed accounts not pursued until a more formal interview. This is to prevent evidence becoming corrupted by leading questions or assumptions.
  • The formal interview must facilitate a ‘free narrative’ from the child and avoid leading/loaded questions.
  • Failure to meet the ABE Guidelines doesn’t mean a Judge cannot rely on hearsay evidence from a child, but of course it is likely to make it more difficult to prove what actually happened. See Re JB 2021 EWCA Civ 46.

There is clearly a lot here that can go wrong and it is unsurprising that many of those not directly involved with the fact finding process – or even some that were! – may struggle to accept it, particularly when children continue to assert that what they say is true.

In the vast majority of my cases involving serious allegations of sexual abuse, the ABE Guidelines are NOT met, even and most worryingly, by the police officers who are supposedly trained to implement them. It is clear that many social workers and teachers are still ‘trained’ to believe a child and frequently refer to what a child says as ‘disclosure’ (the secret thing that is made known) and proceed from that basis. A combination of the susceptibility of children (see the work of Professor Ceci and others) and their wish to please adults, together with well meaning but often disastrous attempts to elicit information about what happened, often means that by the time we get to court there is a very muddled picture indeed, with various confused and contradictory accounts recorded.

The court does the best it can. But – as many Judges have commented – they can only decide the case that is in front of them. Despite frequent exhortations to remember that care proceedings are ‘quasi inquisitorial’ and that we should not be directing our focus on adversarial attacks, the reality is that our system is adversarial, as opposed to ‘inquisitorial’ where the Judge takes the lead on investigation.

Despite these serious and obvious limitations to the fact finding process, there still appears to be a strange belief in some quarters that the family court is able to – indeed has a moral duty to – find the ‘absolute truth’ for the benefit of the children, who deserve to know what happened to them. I do not doubt that children deserve to know the truth about whatever tragedies and suffering have impacted their earliest lives. But I have significant doubts that a finding of fact process with a standard of proof on the ‘balance of probabilities’ is the vehicle to give them this knowledge. Or, at the very least there ought to be some greater recognition of the limitations of the process. A stark example of when a court seriously over-reached was with regard to Ben Butler – ‘exonerated’ on a balance of probabilities from hurting his daughter, he went on to murder her.

Of course the court has to do something. I agree that the criminal standard of proof when applied to child protection cases is likely to leave some children at risk of not being protected at all. As the argument goes – none of us would require proof beyond a reasonable doubt before acting to keep our own children safe, so why should any other child get less favourable treatment? I don’t doubt the sense of all this at all. But – I do doubt that the obvious limitations of the fact finding process are considered properly, or in some cases at all.

In this case the children clearly believed they had been sexually abused. This coloured the reactions of their foster carers against their mother, it infected the basis on which therapy and intervention was offered. How could it not? I have had many cases where children made allegations of sexual abuse which were fantastical – they simply could not be true or the child would be dead. The court makes a finding they are not true. Therapy is offered the child. We ask the expert how the child can be assisted to ‘re-frame’ their narrative and to re-establish a relationship with the adult exonerated. The expert, sometimes quite angrily replies that this is simply an unethical request and the child’s reality is their reality.

Memories are slippery things. We do not access them as a playback of a recording. Each time a memory is re-visted and re-examined it is re-created. The ‘Satanic Panic’ of the late 80s and early 90s showed how easy it was to convince children (and prosecutors) that every spiralling fantasy of murdered babies elicited under interrogation was actually ‘the truth’ and a ‘real memory’. But I imagine that for children – as these were – exposed to a parent with mental health problems and a household with lax boundaries around sexual activities, that they were frightened much of the time and the narrative they have constructed around abuse makes perfect sense given their experiences and feelings as they grew up.

To help children unpick all this is obviously a task of extreme skill. The bottom line is and remains that we simply do not have enough or sufficiently funded resources for children to allow them to benefit from the timely and expert intervention that they need. Of course, this does not excuse the failure of the local authority to make attempts to source it and to mispresent the views of an expert – as happened here. But it must be considered. If we do not take steps to remedy this then it is difficult to see how ‘lessons can be learned’ or children can reliably access the help they need.

The corrupting impact of ‘key performance indicators’

It seems that the second most serious failing here was the local authority’s drive to change the foster carers to special guardians, in order to show that the children were not ‘languishing’ in long term care and the failure to take proper action over many years.

The dangers of being driven by external ‘performance indicators’ are obvious. For example, there is a real concern that Tony Blair’s drive when Prime Minister, to get children out of long term foster care and into ‘loving’ adoptive homes has lead to a perverse incentive for some local authorities to move more swiftly with regard to new born babies than they might otherwise have done. Establishing ‘targets’ often makes the ‘target’ the focus, not what is happening on the ground. Further, allow a period of ‘drift’ over many years to then influence the speed and direction of decisions, can be disastrous.

The drift over so many years clearly influenced a decision to ‘push’ through with Special Guardian Orders and lead the local authority to ignore all the warning signs that the foster carers were not assisting the children to come to terms with what had happened or meet their emotional needs – particularly for a relationship with their mother, who had failed them but – according to the court findings – not in the ways the children asserted.

In this case the court commented at para 141:

Ms Straughan asserted that, in consequence of the local authority’s looked after children (‘LAC’) reduction policy, she, and other social workers had been placed under pressure to recommend that SGOs were made in favour of foster carers and/or kinship carers. Further, she said she had come under pressure to recommend a SGO be made in respect of these children.

and at para 146:

Ms Straughan believed there were some positives about the children’s placement with the interveners: the children were settled and felt part of the family, the children, however, struggled with their sense of identity, with their views about their parents and wider family and with the issue of contact. These concerns and the concerns about the attitude and approach of the interveners towards the birth family escalated after Child C’s death. Ms Straughan did not consider that the interveners genuinely believed that contact with the parents and their wider family was in the best interests of the children.

Conclusions

The problems here, the lamentable delay, the failure to properly inform and manage the foster carers, the misrepresentation of expert views and the pressure on social workers to change their recommendations, cannot be simply excused by reliance on pressure of work or the systemic problems in the system highlighted above. The local authority appears committed to recognising why and how it failed and taking steps to put it right. The outcome of the extra-ordinary general meeting will be worth studying.

But I do make a plea for all to remember the water in which we swim. Not all of these failings are down to individual malice, laziness or lack of thought. While there remain tensions between meeting targets and the needs of children and while the support services they need are not readily available, we are going to continue to see cases of sub optimal performance and continued harm done to children even as they are supposedly ‘rescued’ from their birth families.

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