Panorama

On Monday Panorama showed a report on the journey through the family courts of a family accused of causing serious non-accidental injuries to their baby son: ‘Parents’ Child Abuse Nightmare’. After lengthy police investigation and care proceedings no prosecution was pursued and a finding of fact hearing exonerated the parents, the Judge holding that there was no cogent evidence that causation of the injuries was non-accidental.

.

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.

.

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).

.

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.

.

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.

.

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.

.

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.

.

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.

.

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.

.

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.

.

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.

.

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

5 thoughts on “Panorama

  1. Julie Haines MF

    The bottom line is that agencies and associated professionals should be accountable and the best way to do this is to publicise these cases.

    There is no reason why anyone should not stand by their opinions and defend them.

    There is too much trial by expert and experts do get it wrong. I have been on cases where I got one social practitioner to admit under cross examination the the Mum was ” a good enough parent” yet the court found against us.

    Section7(4) tells us that the court may order expert reports ( sorry that is very paraphrased). The Judge doesn’t necessarily need to take on board what the “experts” say.

    However the Judges do take on board what the experts say. The same experts are used over and over again and the same experts meet the same Judges and Lawyers in the same courts.

    More expose’s are needed .

    Maybe the legal inaccuracies were there to be thought provoking. For too long not much in our family court system is thought provoking. I try to be.

    It seems to me that parents are deemed “guilty” before they ever set foot in a court room , not least because most cases go the Social Services way. SO if this program helps redress the balance and gives hope to innocent parents, long may it continue.

  2. TrentCareLawyer

    Julie,

    It seems you have not read and/or understood Pink Tape’s comments on the Ward Case.
    In this instance, the decision was that the legal threshold for the making of a care order was not made out by the Local Authority. That is not the same as saying the case should never have been put before the court in the first place.
    The child, only a few weeks old, sustained a spiral fracture of his leg in circumstances that were not explained. That was an extremely serious event, for both child and parents, that required detailed examination and consideration by experienced medics, social workers and lawyers. That is precisely what occurred. The alternative would have been to do nothing, which is untenable. The baby was never removed from his parents’ care, and the gramdparents were fortunately able to live with parents and child and provide 24 hour supervision until a final decision was reached.
    The system is not perfect – none is – but it worked. And it worked because the welfare of the child was at all times regarded as paramount.
    The child’s parents were never “deemed guilty”, or innocent. Those words have no place in care proceedings, the task of which is to establish the facts on the civil burden of proof (balance of probabilities), determine whether on the basis of the facts so established the threshold for the making of a care or supervision order set out in s 31 Children Act 1989 is made out and, if so, whether it is necessary in the welfare interests of the child to make an order, and if so of what type.
    In the Ward case, the court decided that, on the basis of all the evidence, including expert evidence, the Local Authority had failed to establish the threshold had been made out. As Pink Tape says, this is unusual.
    You say “most cases go the Social Services way”. With respect, that is to approach matters from an incorrect perspective. Courts make decisions on the basis of the child’s welfare interests, not on the basis of the “way” of the adult parties, whether social Services or parents.
    Independent research indicates that about 25% of applications for care orders do not result in any orders being made by the Court. Some of these will be cases, like the Ward’s, where the threshold is not established. Others, and I suspect the majority, will be where it is established but that no order is deemed necessary by the Court, because, for example, the parents have taken on board the concerns about their care and parenting ability and have brought about the necessary change and improvement.
    You imply professionals and judges are not accountable unless cases are publicised. This is simply not accurate. What you mean is that they are not exposed to comment from the public and media. There is a well defined structure of accountability within the various professional bodies invloved in the family justice system. Trial by media and public opinion is no suitable replacement or addition and will do nothing to advance the interests of the children involved in these cases.
    Your assertion that professionals do not stand by their opinions and defend them is also inaccurate – that occurs evert time they give evidence to a court. The whole point of giving evidence in a family court is to assist the court in reaching a decision in the child’s best interests – it is not to persuade a largely uninformed and unqualified media and public that one party is right, or wrong.
    What is needed instead is an information campaign to educate media and public alike about the legal and factual complexities of these cases, so as to enable a more informed understanding of what actually occurs in practice, whilst maintaing the confidentiality of information relating to the most intimate and private aspects of children’s lives. Again, independent research shows that children who have been involved in care proeccedings do not want details about them and their familes being made known to all and sundry, and that if when asked during the proceedings about their experiences and wishes/feelings for the future they had been told those would be made public they would have refused to provide any information, thus hampering the court in coming to a fully informed conclusion about the best decision to take for their welfare.
    Experts are instructed on behalf of the court to assist the judge to make a decision, but experts themselves do not make any decision at all.
    Section 7 children Act 1989 refers to welfare reports from probation (now CAFCASS) or Social Services, not experts of the type to which you are referring. The provisions relating to the latter are contained within the Family Proceedings Rules 1991.
    You are correct to say the judge doesn’t have to take on board what the experts say, but you need to ask yourself why any court would go to the time and trouble and expense of directing the parties to agree and instruct an expert if no attention is to be paid to that expert’s opinion when it is provided. Doing so does not mean the judge will accept expert opinion without question. Expert evidence is part of the totality of the evidence provided, and is taken into account. Sometimes experts provide conflicting evidence, and the judge has to weigh one against the other, and come to a conclusion if possible.
    As for your comment that the same experts meet the same judges and the same lawyers, well yes, what would you expect? All are professionals who specialise in this very specialist field. By definition there are not many of them (and legal aid cuts will mean that shortly there will be many fewer around). It takes years of training, qualification and experience to become an expert or specialist in this field, so the people involved are not ten a penny. It is the same in any other field you may care to think of, and it should be like that shouldn’t it? Surely you do not want such serious and complex matters decided by people who are not properly qualified?
    i have specialised in representing both children and parents (not in the same case, obviously) in care proceedings for over twenty five years. I am still learning, and my thoughts have been constantly provoked throughout that time, contrary to your assertion. You say you try to be thought provoking. If your interest in care proceedings is that strong, I urge you to find a way to become a Solicitor or Barrister so that you may represent children and parents and help them in a much more effective way than is possible as a Mackenzie Friend (I assume that is what the initials MF after your name signify).
    If you do a consequential benefit is that you will relaise there is no concept of “guilt” or “innocence” in care proceedings, and that all parties begin from the same place as far as the court is concerned, i.e. the whole purpose of the proceedings is to do what is best for the child.

  3. TrentCare Lawyer

    Julie,

    For a recent example of the court taking an expert’s evidence into account, but not agreeingwith it see the case reported in the following link;

    http://www.familylawweek.co.uk/site.aspx?i=ed64997

    • I’ve just read this judgment. I will be quoting it when representing parents who are criticised for being hostile to social workers as if this were in itself poor parenting.

  4. Julie she is right but best if she explain that her findings should reffered to different incidents to avoid chaos and confusion. Julie some times parents are wong. But the SS cannot get it right.

Leave a Reply

Your email address will not be published. Required fields are marked *