Tonight’s episode struck a real chord – those cases where clients make a remarkable turnaround are so fantastic, and so awful. Because you are hoping against hope it won’t go wrong. But sadly, most often, it does. It is no surprise that the social workers who bear the responsibility for making the judgment call to terminate those mother and baby foster placements drop like flies. Its a terribly stressful job, especially if you put your heart into it like the social worker in today’s case. Some social workers become hardened, no doubt to protect themselves, but the best are warm and sympathetic – and of course all the more vulnerable because of that.

It was a surreal experience watching the #protectingourchildren hashtag on twitter tonight. It cascaded down my screen almost to fast to read – faster that #bbcqt. It seemed to be a mixture of “that social worker / foster carer is amazing”, “social workers do such a hard job”, “heartbreaking”, messages of hope that the mother would succeed, and angry comments about how irredeemably awful the parents were: “they should be sterilised” and “disgusting”, “how could she choose drink over her baby”. These latter display a lack of understanding of just what a big achievement it was for the mother depicted to break free from her unhealthy relationship, remain dry and parent apparently very well for the first five weeks of the baby’s life – albeit that it could not be sustained. 

I’m really pleased that this series seems to be generating a certain amount of goodwill to social workers, and it certainly is a reminder that what we lawyers scrutinise and criticise in witness statements and in cross examination, was a real lived experience for the social worker – with all the shouting, crying, noise, smell, emotion, hope, frustration, stress, danger, responsibility and fear that goes with it. Lawyers criticise and defend their client – they bear responsibility for doing a job well or poorly, but the burden of decision making rest elsewhere. Social workers must bear responsibility for making decisions in the field and then often have to defend themselves in court. I wish I could say that the kind of social work demonstrated is a reflection of what I see day in and day out in care cases I deal with. In truth it’s not. The picture of social work we see is far more inconsistent than that. But this series is a reminder that the court based professions must constantly remind themselves of what it’s really like to be out there, working against the tide. And on top of that, what the show has yet to tackle is the chronically high caseload and lack of resources that most social workers struggle with.

At court recently we were all struck by the young social worker who, having weathered quite an attack in cross examination from myself and another counsel, chirpily joked “thanks for going easy on me”. It was his first experience in the witness box and he made a point of being polite and friendly throughout the rest of the trial. Often social workers are ill prepared for cross examination, and misperceive the experience as personal attack – this is partly a product of inadequate training about how the court system operates and what a lawyer’s role is, and partly because social workers as a profession are used to being under attack. David Norgrove was partially right when he identified a dysfunctional relationship between the social work and legal professions, but this young social worker was a breath of fresh air. I hope he doesn’t bring the barriers up and become like so many of his stony faced colleagues. He will be a poorer social worker for it.

For anyone who has not seen this series there is a useful guide on Community Care, as well as on the BBC website.

As a preliminary point let me say that I can’t comment on whether or not the comments contained in these threads are true or accurate. But I can comment briefly on their potential significance if true.

In the first thread the points of most interest are contained in the account given by user Trippy, who describes having been encouraged by Hemming to adopt a stance of non-cooperation and to flee the jurisdiction. She is admirably able in hindsight to acknowledge her own failings as a mother, but appears to feel that Hemming’s advice to flee the jurisdiction and to adopt a stance of non-cooperation with social workers may have adversely affected the outcome in her case, or at any rate was not helpful. She also suggests offers of assistance with travel abroad were made. If what Trippy describes is accurate it would be both shocking and concerning behaviour from an MP. However, I am not in a position to verify or investigate these matters, and I can only flag them up for others to consider. Note, as I have been writing this post the comment in question from Trippy has been removed and marked “Message withdrawn at poster’s request”. I don’t have a screen capture, but if I did I would have to consider carefully whether or not to post it or to respect Trippy’s privacy. As it is I have decided to go ahead with the post and use it as a starting point for a discussion about the issues it raises rather than an analysis of the individual case.

The second thread is interesting for a number of reasons. It contains in places some very well argued points in defence of the current system, or at least rebuttals of some of the points made by Hemming and other posters, and gives the perspective of foster carers, adopters and parents rather than lawyers. The comments and assertions made by Hemming in this thread do not in large part appear to be backed by evidence, and although he does at one stage draw on statistics which he has obtained by asking written questions in Parliament he appears to have a non-conformist view about what represents “the majority” (see posts on the evening of 8 May).

Both of those threads refer to a number of posters who regularly post “guidance” to parents involved in care proceedings, apparently in the vein of Hemming and organisations advocating non-cooperation stances, guidance which is of concern to some Mumsnet users.

Reading those threads did remind me that there is little information out there for parents about the other side of the “secret corrupt child snatching family courts” coin, so I’d like to take a first step towards redressing that balance [Edit - see also Kate Gomery's excellent post on Family Law which makes a similar point rather better than I have here]. I think it’s important that information is out there so that parents can make properly informed decisions about how to conduct themselves. There is a lot of noise about how awful the system it is and how to fight it. It is in that context that it vitally important that parents faced with care proceedings and the possible removal of their children are made aware of just how high risk the strategies apparently recommended by Hemming, Ian Josephs and the like can be.

So let me deal with it in the hypothetical:

If a parent adopts an approach of non-cooperation, resisting social work intervention, refusing to give information, fleeing the reach of the court or publicising their case through the press or other media (all of which have been either put forward by Hemming or are guidance attributed to him), they could well adversely damage the chances of keeping or securing the return of their children. There may be high profile cases in the press which appear to demonstrate that such tactics are an effective way to protect your family (see Booker articles for example), but my experience suggests that the far more likely outcome is that a parent will only succeed in creating a further set of concerns that will need to be allayed in addition to the original concerns before a child can be safely returned. They leave a parent open to criticisms that they are focusing on their own needs rather than the child and are prevent parents from demonstrating that the original concerns were not well founded. They cause delay, which can end up being determinative of successful rehabilitation. That is not to say that parents should not determinedly resist the removal of their children, or that they are not entitled to do so, but generally the most effective route is a lawful route, and a route which involves being open and cooperative. It is also absolutely right that lawyers representing parents should fearlessly defend their client as they are mandated to do, and that they should be rightly criticised for failing to do so, or for failing to act on instructions.

However, it would be very concerning if parents were fed information suggesting that they should not trust their own legal representatives (as a number of commenters on this blog have regularly suggested), because this can render them unable to benefit from good legal and strategic advice about how best to maximise their chances of a good outcome for them and their family. Parents in care proceedings are vulnerable and generally not well equipped to tell good advice from bad. They are likely to rely upon advice from person in a position of authority, or perhaps to accept advice which lays the responsibility for their predicament at someone else’s door, or which gives them the answer they wish to hear. I would be very concerned to think that any person, but particularly an MP (well intention or otherwise) was conducting himself in such a way as to interfere with the proper legal process and with the relationship of trust between lawyer and client, to the ultimate disadvantage of parents. I would not in any way want to prevent an MP and his constituent from communicating freely, but I would expect an MP to avoid giving potentially inaccurate or misleading information or guidance to parents in matters which are legally and factually complex.

Postscript: hat tip again to @carlgardner for alerting me to this judgment in respect of the Goodwin injunction case, in which Hemming is criticised for misleading comment, and the prospect of referral to the Attorney General is raised.

Postscript 2: this post really ought to be read in conjunction with this really really excellent post on Ministry of Truth: The Hemming Agenda.

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It was a shocking story, perhaps more so for those who do not work in the system and have not been caught up in it in respect of their own families. On another level, for care practitioners like myself it was however in many respects unremarkable – although the case broke new ground in respect of issues concerning publication of judgments and the identity of experts the care proceedings themselves raised familiar issues and followed a well worn path. What was unusual in terms of the care proceedings was the total failure of the Local Authority to make out threshold.

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There were several predictable references to the secrecy of the system, though the system was not so secret as to prevent the programme from being made. The fact that permission had been given for the proceedings to be reported did not appear to attenuate the hyperbole about the cloak and dagger approach of the courts (In fairness though, the lengths to which the parties and the BBC had to go to get permission were not insignificant as can be seen from the number of citations which follow at the end of this post).

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In general I thought that the process was explained pretty well, and accurately. However I thought that towards the end it rather descended into a sort of tabloid style. I am thinking in particular of the naming and shaming of ‘the experts who got it wrong’, which rather undermined what had gone before and was frankly rather unfair to the Community Paediatrician whose referral triggered the child protection processes. It went as follows:

‘The experts who got it wrong:

Dr Carl Johnson the police expert whose evidence suggested a history of abuse (cue mugshot on wall of shame)

Dr David Vickers the community paediatrician who told police that without an explanation for Williams injuries the likely cause was that it was inflicted. The judge did not accept this argument. (cue mugshot on wall of shame)

Professor howard bird the rheumatologist who suggested hypermobility. The judge found that he had failed to be guided by a duty of professional detachment. (cue mugshot)’

What was not adequately teased out to my mind was the fact that the evidence of the community paediatrician who had made the initial referral was ‘rejected’ only after further expertise was drawn in for the purposes of the family court proceedings: i.e. the court process had served to vindicate the parents in a way that could not have taken place had no court process been commenced. It was a significant omission in my view not to make clear the distinction between professionals treating on the ground offering provisional opinions about the risk of NAI for the purposes of initiating child protection processes, and the considered opinion of experts instructed specifically for the purposes of conducting a rigourous after the fact analysis of the cause of injury on the basis of a vast amount of additional evidence and with the benefit of a great deal of hindsight. The insinuation from the programme was that the evidence of the community paediatrician involved prior to the commencement of proceedings was rejected as in some way substandard, or that he did not do his job properly, when it is not in fact at all clear that this was the case. The Radiologist was the subject of criticism and this was spelt out, and the listing of them together as ‘the experts who got it wrong’ tends to suggest the court was similarly critical of Dr Vickers.

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Unfortunately, although permission was granted to report it, the original judgment in the care proceedings does not appear to be reported although extracts from it appear in the subsequent judgments about publicity. It is not clear from that material what role the community paediatrician played in the care proceedings, but most likely he was a witness of fact if even called, who will have testified simply to the child’s presentation on the day. It is unlikely that he offered an opinion on causation to the court as he was not an independently instructed expert in the case, if indeed he gave evidence at all.  There is no suggestion in the material available that he was criticised by the Judge, even though her conclusion was that there was a non-accidental explanation for the injury. A child protection professional must approach possible NAI from the perspective of protecting a child whilst investigation and judicial processes are carried out: there is a necessarily cautious basis of operation based on risk. It is only subsequently that the judge enters the arena and she does not deal in terms of risk but in terms of fact.

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The fact that the court, taking into account all the evidence, concluded that findings could not be made and that NAI did not take place is not equivalent to suggesting that the individuals named were professionally substandard, wrong or incompetent. Had Dr Vickers not made a referral raising concerns about NAI he would have been in gross dereliction of duty and no doubt criticised for it. The parents in the programme acknowledged as much, clearly accepting that the child protection process had to be worked through, however awful. The programme fundamentally confused the identification of risk and triggering of child protection processes – which is a process designed to further investigate suspicions of harm rather than to conclude upon them – with the considered opinion of experts instructed to assist the court in reaching conclusions about what did or did not happen.

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Although in the event Munby LJ in did not grant anonymity to the treating clinicians, he did say this in his judgment ([2010] EWHC 538 (Fam)):

‘there is a significant and important wider public interest in protecting the anonymity of treating clinicians in child protection cases in order to promote the effective working of the child protection system; if treating clinicians are publicly ‘named and shamed’ and subjected to vilification for merely doing their jobs properly, there is a legitimate concern that they will become understandably reluctant to make child protection referrals and/or consciously or subconsciously require a higher standard of proof before doing so; or they may simply refuse to accept the personal risks of becoming involved in this area of work – consequences all of which would be profoundly against the public interest.’

This would seem to be a case in point.

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I was also  struck by the concluding remarks which I thought implied that in some way the campaign fought by these parents was responsible for some sea change in the approach of the courts, and indeed was instrumental in bringing about the Children Schools and Families Act 2010. Of course cases like these of perceived or real injustice and heartbreak are many, and it is the collective pressure applied by individual parents and campaign groups, as well as the advice of professionals from within the system that have brought about some change in this area and have made the question of transparent justice a matter of serious public debate. The Ward case is one example of the incremental shift in approach which has been gathering pace for some time.

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Jeremy Vine, during his brief slot topping and tailing of the report also suggested that the law had now been changed (as a result of the Children Schools and Families Act 2010) so that experts could now routinely be identified in the way that the experts in this case had been. He said:

‘And in the final week of the last Parliament, a bill was passed which rubber stamps the Ward ruling that paid expert witnesses can be identified.’

(Of course two of the three professionals the programme makers crowed about having obtained permission to identify did not fall into this category). This is not an accurate representation of the legal position, not least because the CSFA has yet to be brought into force. I think that viewers may well have understood from the programme was that they can name experts and tell the world what experts have said about their family and why they were wrong. In fact even when (if) the CSFA is implemented the press will be able to report only the name of the expert. The contents of any report will be classed as ‘sensitive’ and not publishable without permission, the background to its having been ordered is likely to be largely unprintable because it may identify the family and the parents themselves are not permitted to publish any information at all. Even if the press considered the bare bones of the story which are permitted to be published to be newsworthy they would only be able to publish information that they had gathered from attending the proceedings. There is of course facility under the new provision for specific application for permission to publish more, but this is already the case – and is the process used by the Wards and the BBC in order to make and air the programme.

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Far from the shift in the law that Panorama insinuated this case brought about, the situation remains and will remain in broad terms the same on this point (subject to any further statutory amendment). There is provision in the Act for relaxation of the reporting restrictions in future, but there is an 18 month moratorium from the date of implementation on that, and a slew of hoops that must be jumped prior to that being permissible under the act, including an independent review and public consultation.

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I thought it was a shame that a programme that quite carefully explained the court process and the reasons why child protection professionals had to take the action they did in a balanced way, was spoiled by basic legal inaccuracies and the temptation to find a way to engineer in a few punchy soundbites.

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The judgments in this case (excluding the original final care judgment) can be found here:

• British Broadcasting Corporation v CAFCASS Legal and others [2007] EWHC 616 (Fam).
• A v Ward [2010] EWHC 16 (Fam) [2010] 1 FLR 1497.
• Re Ward (A Child), Doctor A and Others v Ward and Another (No 2) [2010] EWHC 205 (Fam).
• In the Matter of William Ward [2010] EWHC 538 (Fam).

Although I have not had time to read it for myself I understand that Francis Plowden concludes that “the increased fees are an additional complication to an already complicated field and, specifically, added to the immediate costs of what was already more expensive than other ways of safeguarding children. The new arrangements also seem to be more expensive to administer than the previous arrangements”; he commented that he was “struck by how complex the arrangements for safeguarding are, how poorly understood the interdependencies are by outsiders, but also by some working within the area, and by the poor quality of data. These factors perhaps contributed to the decision to raise fees, which was based on a number of misconceptions.”

Is this happening anywhere else?

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Of course the mere fact of her acquittal is in itself not enough to secure the return of the children. The family court within care proceedings will have heard evidence, including medical evidence, and most likely made a finding of fact that she was more likely than not the perpetrator of the non-accidental injuries to the child. In order to secure a return of her children she will have to go further than persuading the court that the evidence is insufficient to be satisfied of her actions to the criminal standard – she will need to persuade the court that the new evidence she seeks to rely upon is such that the balance of probabilities now falls in her favour. It is quite possible that whilst evidence is insufficient to secure a conviction in criminal the same evidence can be sufficient to satisfy the lower standard of proof in civil and family proceedings. And before the court will re-open the findings made in the family case it will need to be persuaded that there really is important new evidence that may well undermine the findings.

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It is impossible to tell from the reported material whether any of this is likely to happen, but one thing is for certain – seeking the return of children in these circumstances is a road fraught with potential difficulties even if one is armed with an acquittal. And even more so if the children have already been adopted.

But what I want to know having read this article is - what portion of the 739 applications issued in March 09 (79% up on the same month in 2008) have a Guardian appointed? And in how many of those cases issued in March have the children been removed without a Guardian being appointed or at court? The new duty CAFCASS Officer system doesn’t do justice to the seriousness of urgent removals and I have done at least one ICO hearing where the application was for removal where there was no duty Guardian at court, and another where the duty Guardian had not read any of the papers.

On one level 7% unallocated doesn’t sound too bad, but I would hazard a guess that of new applications the proportion is much much higher, and of the 6090 total cases the majority of ’old’ cases have a Guardian. Crucial – and sometimes irreversible – decisions are made at early hearings in care cases and it is vital that the children’s needs are properly protected. And of course the 7% figure does not include Guardian appointments in private law cases under r9.5 FPR 1991, or the dire situation with respect to s7 reports.

Whilst it is right to prioritise cases in circumstances where CAFCASS are simply unable to meet demand, this really does an injustice for the families which fall in the ‘serious but not that urgent’ category, particularly in private law cases where what might previously have been a short interruption in contact remedied by a swift and robust s7 report can turn into a protracted interruption in the parent-child relationship, which is a massive disadvantage to the parent seeking a contact order, and of course a failure for the children involved. 

I wonder when CAFCASS leadership will stop telling us all ‘we can manage’ and admit that the system is in crisis and needs an urgent increase in its staffing levels? I don’t know what Anthony Douglass means by suggesting CAFCASS is providing a ‘proportionate’ children’s guardian service: either a child needs a Guardian or they don’t and when they do CAFCASS are ordered to appoint one – there is not then a discretion on CAFCASS as to whether or not to comply. As a matter of public policy a child is deemed ALWAYS to need a Guardian in care cases, as set out in the Public Law Outline. Under the PLO CAFCASS are ordered by the court, to appoint a Guardian before the first hearing in every care case. There is a good reason why a Guardian is required to be active before first hearing – a hasty removal in those feverish early days can have a ripple effect that can affect the direction and outcome of a case and can have a long lasting effect on a child’s life.

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Often for a parent in the midst of care proceedings the realisation that they need therapy comes late, too late for the children who are subject to proceedings. But the legal process gives parents access to professional analysis of what has gone wrong with their lives, with their parenting and their relationships generally that might otherwise not have been available to them. And in the course of making recommendations in the context of the case, an expert will often point to the way forward for the parent in the shape of therapy. But whilst many of these damaged parents are still of child bearing age and may want to become parents again, they can do nothing to make the recommendations from the court appointed experts for long term therapy become a reality. Long term psychodynamic psychoanalytic therapy (often what is recommended) is usually completely unavailable on the NHS or at best subject to very long waiting lists (and my point is good in respect of drug rehabilitation too although there community based provision is more widely accessible in one shape or form even if residential rehab is difficult to access). So the opportunity to make the best use of the money spent on expert reports, to seize the moment, take something positive from the sadness of such cases and to prevent a repeat with future siblings is lost. Looking at it from a purely economic point of view this is madness. The cost of repeated care proceedings, and the long term financial burden to the state of supporting a child in care throughout his life must surely outweigh the cost of therapy, even if in many cases the parent will be unable to fully engage.

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It’s not every case by any means where therapy is a viable option – some problems are not susceptible to treatment, and other individuals are not ready to accept help. And of course in many cases therapy is not even the answer to the question. But in cases where an expert in care proceedings recommends therapeutic input and gives a reasonably positive prognosis, particularly where that therapy will increase the parents chance of successfully parenting either existing or future children, there should be an obligation on the Local Authority or the NHS to make that available to the willing parent. Somebody ought to stump up so that parents can be rehabilitated. They are often the product of the care system themselves.

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To be told and to come to terms with the fact that your life and chances of parenting in future will be blighted by your deep rooted psychological and emotional issues is extremely difficult (quite apart from the fact that this realisation is often coupled with the permanent loss of your children). But to be told that there is a way out for the future but you can’t have it because the NHS won’t provide it and you can never afford it must be soul destroying, and probably compounds a parent’s pre-existing difficulties and sense of despair. To be finally ready to make the changes you have needed to make for years, and yet to have that opportunity put before you and snatched away is a cruel thing. If we are serious about child welfare and serious about our responsibilities to help families we need to focus more of our resources on helping people to be better – better people, better parents. We need to prevent the removal of children by helping (if not ‘curing’) the parents.

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I know that simply making therapy available will not magically fix deep rooted issues. There will be a high attrition and failure rate. But this is part of a cross generational cycle of abuse and poor parenting where indiviudals are very often involved in the care system as both child and then – sometimess seemingly almost as day follows night - as parent. The system currently fails both those in need of therapy, and their children who may suffer needlessly as a result of society’s failure to help them become better parents and to break the cycle.

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As a story this piece would have us believe that social workers have acted on the basis of one dichotomy: age versus sexuality – and have ignored all other features of the case (including the welfare of the child) in the name of political correctness. From reading the story one might reasonably form the view that the grandparents were in some kind of direct competition with a specific adoptive couple and have been sidelined simply to give the gays a shot. Of course what in fact will have happened is that the matter will have been approached in stages: 1 can the children remain with family (preferably a parent) long term? 2 if not what is the best non-family arrangement for them? On the basis that this is how the law and the procedure works, question 1 must have been answered negatively by the social workers and subsequently the court quite separately from the second question (although often in practice the court will sanction both decisions on the same day they are legally distinct processes).

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It is common for news pieces to fail to distinguish properly between the judgments of social workers and the sanctioning of those judgments through the decisions of the courts. Although social workers will have formed a view and prepared a care plan for the children, and although their views will have been important to the court, we know from the article that the litigation continued for 2 years. That in itself is an indication that the social work view has not simply been rubber stamped, and so the validity of the social workers views about the grandparents and the issue of adoption has been aired at length. We know that ultimately the court must have accepted the social work view that the children could not remain with their grandparents long term. The reasons for that will have had nothing to do with the identity or characteristics of any proposed adopters.

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It is apparent from the article that the grandparents both suffered from quite serious health complaints which might realistically have had implications for their long term ability to act in a parental capacity, particularly when considering that the grandfather would be over 70 by the time the children were 18. We can make a reasonable guess that these little children had been subjected to some significant disruption in their lives prior to placement with the grandparents owing to their Mother’s drug addiction, making it very important that whatever arrangements are made for them were permanent. So many other factors are likely to have played a part in the assessment of whether or not the grandparents were suitable long term carers – what is the background to the Mother’s drug abuse? Are there intergenerational or family wide problems of substance abuse or other difficulties in the family background which may have led to the drug abuse? Are the grandparents able to manage the relationship between the children and their mother without exposing them to disruption or risk? And many other questions. I don’t know the answers to those questions but I do know that the decision is highly unlikely to have been based just on the age of the grandparents, even though that may be their perception.

The tone and construction of the article tends to suggest a degree of sympathy for the grandparents indignation at the placement with a gay couple. The immortal lines ‘I’m not prejudiced but…’ are followed by the clearest ever demonstration of why the grandparents would be unable to emotionally allow or support the children in settling into the adoptive placement. The old argument about playground taunts is the same one used years ago to discourage mixed marriage or dual heritage children (‘it’s not fair on the children’). It didn’t wash 20 years ago and it doesn’t wash now – children are just as likely to be teased for living with their grandparents as for having 2 dads.

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And then, to cap it off, in wades someone from the Catholic Church with a blanket statement to remind us all why no children should ever be parented by gay parents. And apparently ‘There is an overwhelming body of evidence showing that same sex relationships are inherently unstable and reduce the life expectancy of those involved.’ REALLY? Being in a homosexual relationship makes you DIE EARLY? I’d like to see that evidence.

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So…I’ve picked a few holes, speculated a little and hopefully demonstrated that this is very probably only part of the story. In fact there is only really a ‘story’ in the sense of something one can utilise to express moral outrage and disgust at the erosion of ‘traditional family values’ if the factual information is pared right down. Each time I read an article like this that plays off of the sadness and anger of families it makes me more convinced about the need to open up of family courts to the media. Because these articles do nothing to genuinely inform but they do erode public confidence in the system and for the families who are the subjects of these articles they may well instill in them a sense of justified grievance that may not in fact be valid in law or reality. Whilst all cases are difficult, important and heartrending for the families involved, 99% of cases do not raise any point of public interest that is genuinely newsworthy as opposed to being merely prurient or an exercise in headline over substance.

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PS 1 Feb Oh God…it gets worse. The Daily Mail has waded in…

PPS 2 Feb And worse yet still…