We are not on the same page – not even reading the same book?

This article is a guest post written by Sarah Phillimore and Judi Evans of St John’s Chambers, Bristol.

Judi Evans

Judi Evans
Sarah Phillimore Sarah Phillimore

 

Since Re B-S (Children) [2013] EWCA Civ 813 in 2013, the litany of critical judgments about the mis-management of care proceedings continues.

The year opened badly with the case of Re A (A Child) [2015] EWFC 11, with what appeared to be wholesale failure by a LA to understand the need to prove their threshold criteria, resulting in serious criticism from the President of the Family Division.

This was followed shortly after by Glos CC v AB on March 2nd. The Judge opened by saying:

Of course many cases reveal a few points of bad practice. However it is very rare that so many such points should be gathered into one case. It has taken two years and five months for these proceedings to be resolved.

Fortunately, not many cases go so badly wrong that they take over two years to be resolved. But the experience of many of us who work in this field is they go wrong quite a lot of the time and even a delay of a few months can have a serious negative impact on the children and families who must wait for a decision or appeal against a decision badly made.

So what is going wrong? We agree that there are serious pressures on social workers and publicly funded lawyers who may be juggling heavy case loads with little support. We agree that the courts are also under pressure in finding judges and court time to hear cases. But this alone cannot explain the persistency of care case coming off the tracks, despite all the guidance from the Court of Appeal and others. Is there something more fundamental going wrong?

The dangers of the child rescue narrative

We fear that there is the growing chasm between the social workers – who may approach care proceedings as an opportunity to ‘rescue’ children from situations of neglect and abuse, and the lawyers – who must ensure that legal principles are applied, proceedings are fair and the integrity of the evidence is maintained.

This narrative that ‘child rescue’ informs the purpose of care proceedings leads inexorably to social workers, guardians and experts being less likely to approach a case with the legal framework at the forefront of their minds. They are not lawyers and cannot be criticized for failing to be lawyers.

But their wish to act in the best interests of the children is inevitably going to be thwarted if they contribute to cases that stumble due to failure to gather and present the proper evidence, failure to consider the necessary legal tests, failure to properly assess family members and look carefully at what support is available for struggling parents. Not only can poor analysis of the evidence lead to children being removed when they should not have been, but equally seriously, children can be left in dangerous situations from which they should have been removed.

Therefore, there needs to be a much more widespread understanding and appreciation of the ambit of care proceedings and the rule of law. Not every child can be ‘rescued’ from sub-optimal home conditions.

Further, the law has been very clear for many years now that objections to removing children go far beyond just recognising the practical limitations of such a policy. Its not just a question of ‘could not’ but ‘should not’. The dangers of unjustified social engineering are real and State interference in family life can only be allowed in the most serious of cases.

The list of cases where Judges have had to remind us of this basic principle and warn against the dangers of social engineering are many. We begin with Lord Templeman in Re KD 1988:

The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not in danger. Public authorities cannot improve on nature

Mr Justice Hedley followed in Re L (Care: Threshold Criteria) (Family Division 26 October 2006)

Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done. …It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.

Baroness Hale repeated in B (Children) [2008] UKHL 35:

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”.

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).

Judging from the number of proceedings where judges criticize local authorities for the poor quality of their evidence and analysis, this very clear message does not seem to be getting though, even two years after Re B-S. Which is hardly surprising, if those on the ground investigating child protection issues are not on the same page as the Judges who mete out the criticism.

There is a real danger that the narrative of ‘child rescue’ and the promotion of adoption has become the driving force in child protection proceedings. In 2000, the government introduced a national target to increase the number of children adopted from care by at least 40% between 1999-2000 and 2004-5. Tony Blair had been horrified by the numbers of children who remained in care for long periods of time without a permanent home. The promotion of adoption has continued ever since. Two prominent social work academics responded to the government’s delight at the ‘record number’ of children adopted in 2013-4 and made clear their disquiet:

The government’s press release accompanying the statistics focuses solely on the 5000 children adopted in 2013-14: ‘Record number of children adopted’.   This focus on a tiny minority is of concern when set against the fact that almost 100,000 children spent some time in the care system last year. It is also of concern that adoption appears to be so central to the policy agenda and this raises serious ethical and legal concerns.

The exceptional pressures faced by children’s services against a background of unprecedented cuts to LA budgets have meant that levels of support to families experiencing deprivation have been cut dramatically across the country. The promotion of adoption in such a context can mean that disadvantaged families are losing their children permanently without having been offered the appropriate resources to ensure they could care for them safely

The practical problem of a narrative of child rescue

So just how wide is the chasm between those who would promote the rule of law and those who are driven by the narrative of child rescue?

The key points of the judgment of Re B-S can be summarized as:

  • Adoption is the ‘last resort’ [para 22]
  • The starting point must be consideration of the law around Article 8 of the European Convention and the fact that this imposes a positive obligation upon States to try to keep families together [paras 18]
  • The least interventionist approach is to be preferred [para 23]
  • The child’s interests are paramount, but the court must never lost sight of the fact that these interests include being brought up by his/her natural family [para 26]
  • There must be proper evidence from the LA and the Guardian that addresses all options which are realistically possible and must contain an analysis of the arguments for and against each option [para 34]
  • The court then ‘must’ consider all available realistic options when coming to a decision; [para 27, 44]
  • The court’s assessment of the parents’ capacity to care for the child should include consideration of what support was available to help them do so [para 28]
  • The LA cannot press for a more drastic form of order because it is unable or unwilling to support a less interventionist form of order; it is their obligation to make the court order work [para 29]

The danger and difficulty of the ‘child rescue narrative’ is that it will lead to offending against all of these principles; adoption will be seen as ‘the first resort’; the most interventionist option is thus preferred; the child’s right to be brought up by his or her natural family will fall a poor second to that child’s right to be ‘rescued’.

The dangers of confirmation bias are well known. The beguiling strength of the child rescue narrative can easily lead to neutral evidence being given an unfairly negative emphasis or even positive evidence being jesttisoned entirely because it doesn’t fit the story you want to tell.

We sadly have many examples of this; one recent case saw a mother seriously cirticised for failing to supervise her young children when they ‘played with darts’ at home. What the author of the report did not mention was that these ‘darts’ were in fact large foam darts, sold as a children’s toy. This entirely unremarkable piece of evidence was elevated to a ‘serious concern’ and reported as such – because that LA plan was for removal and adoption of the children in question.

These problems are particularly acute in cases of interim removal, where a hasty removal of a child at an early stage of the proceedings can have very serious consequences for the whole case.

If the starting point of any analysis of a case is that adoption is the ‘gold standard’ for children in less than optimal home environments it is little wonder that attention is drawn away from the need to prove ‘significant harm’ and the evidence in support of other options is given little attention or analysis. There often appears a real reluctance on the part of the local authority to engage with the issue of what support is available to help a struggling family.

Rather than focus on what significant harm has been suffered or is likely to be suffered, professionals raise concern about what is ‘appropriate’ or ‘desirable’ for children. The standards required to be met by parents in various assessments often appear to go far beyond the requirement that the parent is ‘good enough’.

The persistent and consistent failure of many local authorities in evidence to abide by the legal principles which underpin the operation of the Children Act 1989 – or even their apparent ignorance of them – must be due to more than simply stress, overwork or poor management. It points instead to a deep and worrying disconnect between what the lawyers and the social workers understand to be the very purpose of this Act.

Change is unlikely to happen despite the increasingly frustrated tone of judgments by senior Judges, and change wont occur simply because we tweak the format of statements and reports and put everything in columns. What we need is an open and honest appraisal of what we are trying to do and a clear, thorough, dispassionate analysis of the available evidence.

Show Me The Primary Evidence

Or so I often say to local authorities (although I say it nicer than that).

But often, parents – including my own clients from time to time – having instinctively grasped the best evidence principle (apparently better than some social workers), struggle then to understand why they are either prevented from gathering their own “best evidence” or from relying upon it. I am talking about the antidote to the age old “he said” / “she said” : the audio recording.

Now any family lawyer will tell you that their heart sinks when a client gets out a dictaphone and starts to squibble through it to the apparently killer moment in an audio recording of appallingly low quality. Because it is rarely killer evidence. And in fact the only time I can recall such evidence being “killer” it killed my client’s own case. It was her own recording. So beware the perils of recordings. They often reveal as much about the recorder as the recordee.

There are very real practical difficulties with the use of audio recordings in family proceedings.

Firstly, there are potential issues around the lawfulness of making covert recordings in some circumstances (and I’m not even going there in this post).

Secondly, particularly in the era of digital recordings it is very difficult to prove or satisfy oneself of the authenticity of a recording (or at any rate it is unlikely to be something that can be satisfactorily dealt with – it is highly unlikely a forensic IT expert is going to pass the “necessary” test in many cases). So, questions like : Is the recording the complete conversation? Has the recording been edited or resequenced? are likely to be unanswerable in practice. And this may render such evidence less weighty than it could potentially be if time and resources were limitless. But much the same is true of facebook and iphone printouts that are often relied upon with no forensic scrutiny of their completeness – it takes a mere couple of clicks to remove an unhelpful text from a sequence of messages. If it doesn’t bother us in that example why should audio recording be different (actually I think it should bother us in both contexts, but I’m not sure how that can be dealt with without chucking proportionality out of the window).

And thirdly, there are likely practical difficulties in terms of service of and accessibility of electronic material where LiPs are involved (as they often are in the private law cases that most recording efforts arise from), and difficulties in ensuring the necessary equipment is arranged in advance of a hearing.

I think it is fair to say that it is not only lawyers who are pretty down on audio recordings. Judges and CAFCASS officers are reluctant to listen or refer to them too, I think because they typically fall into one of three categories of recording :

  • a recording of a part of an argument, perhaps one which has been engineered by the recorder doing something provocative before the recording begins, and which are set up in order to show the recordee in a bad light
  • a recording of a child being asked direct questions or under pressure, often being asked to repeat the thing said before the tape turned on
  • a recording of a child being demonstrably in distress

In my experience these types of recordings are rarely of any evidential value and show the person making the recording in a very poor light. It is generally (but not necessarily always) my advice that this sort of material should not be relied upon because it is unlikely to help and may make things worse.

Recordings of children are even more problematic than adult to adult conversations. Children are now often more adept at the use of electronic handheld devices than their parents, and are often wise to their parents recording them on their iphone, or have a habit of finding the hidden camera behind the pot plant. I recall one excruciating recording where the child asks directly why he is being recorded. This sort of recording is almost never helpful and if a parent desperate to obtain the “proof” of whatever thing it is that they have been disbelieved on succumbs to the temptation to quiz the child can become emotionally abusive. Typically this is about childrens’ reports of what the other parent does or says to them whilst in their care, or about the childrens’ wishes and feelings.

So for me recordings of children are a no no.

But what about recordings of meetings and liasons with professionals such as CAFCASS Officers and social workers? I think that is a rather different proposition.

I know it makes professionals uncomfortable. But frankly, so what? The system is not structured for the comfort of professionals. Parents however are routinely made uncomfortable by the highly intrusive child protection process – something we should not dismiss. And since there are routinely substantial differences of recall or opinion about who said what in such meetings it is worth considering whether or not this sort of evidence would assist the court where contemporaneous notes or witness recall cannot.

Forget arguments between parents, or what the childrens’ wishes *really* are – how often have you dealt with a case where the social workers version of their assessment meetings, interviews or home visit are just incompatible with the parents account? The thing is this. There are lots of reasons why a parent’s understanding, experience or perspective of a meeting might be very different from the professional – they may well not be a “reliable” historian in any forensic sense simply by virtue of the fact that emotions are high and the stakes are high also. But the truth of the matter is that sometimes social workers are also less than reliable – sometimes even untruthful. I know that many parents would suggest that social workers are routinely and regularly untruthful, such is their desire to meet their targets to have children removed and secure their adoption bonus. Leaving that aside for one minute (I don’t think that is really what happens) I have met plenty of social workers who are just not great with detail, who don’t recognise their own emotional involvement and how it alters their own perspective and responses to a situation, and who are see, record and retell the history in an overly negative light. I have met social workers who seem to be prepared to gloss over the specifics of a particular conversation for the “greater good”, which is to secure the outcome that they genuinely think is best for the child. I have sometimes suspected dishonesty on the part of a social worker but have rarely proved it. There are cases in which social workers have been caught out lying, but they are infrequent. Here is a notorious example of a case where the honesty of a social worker became a really big issue : Bath & North East Somerset Council v A Mother & Ors [2008] EWHC B10 (Fam) (22 December 2008). Here is one recent example of where a recording was crucial : Man Wins Compensation After Recording Saves Him From Prison.

So, what I have been thinking is that there is an easy way of dealing with all of those cases where a parent denies making a particular remark to the social worker, or where they criticise the Guardian or social worker for failing to report something important they did say. And that is to record those conversations.

So. When I intially started writing this post it was because I was pondering why a parent should not be permitted, if they wish, to record an interview or meeting that they are required to attend? I see few reasons why they should not do so, providing they make the professional aware (I don’t see why they should need consent but I do not think that recordings should be covert – not least because it is subsequently impossible to have confidence that a recording represents the whole meeting). Those I can think of are that they might selectively edit the recording to mislead the court, or that they might distribute the recording, for example on the internet. Well. They might. But although that is undesirable it isn’t in principle any different to all the other vast amounts of material put out there by parents. And just as with other sorts of information orders can be made to prohibit such action.

And at any rate, I think that there are bigger issues at stake. Like tackling the widespread belief that social workers all tell lies, that they are all corrupt, and that it is dangerous to talk to them. I have dealt with a number of cases recently where this sort of belief has materially affected the trajectory of a case because a parent’s engagement has been adversely affected. We have to find ways to help parents feel safe working with social workers and CAFCASS so that we can see past their apparently inappropriate reactions to authority or threat.

And so then I began to wonder why there couldn’t be routine recording of social work meetings and interviews of adults – not by parents but by the state? Again, there are resource implications. And I think there would need to be a system of written consent from the interviewee, a written record of the fact and times of the recording maintained and given to the interviewee and of storage of those recordings for future use (a bit like a PACE notice that you get at the end of an interview under caution). If the police can have helmet cams why can’t social workers have some equivalent audio recording system? A parent would then be able to elect not to be recorded (at their risk) or would have a record that a recording existed and how long the recording should last. It would obviate the need for the parent to record, and would remove the temptation of a parent disseminating a recording online before receiving legal advice. It would protect the social worker against allegations of inappropriateness or dishonesty (assuming they were indeed appropriate and honest). It could indeed provide evidence if necessary of a parent’s damning remarks or poor behaviour.

So yes, it is counter intuitive for professionals. But it is actually a form of protection for both professionals and parents. It should not make people nervous. It might be said that it will somehow represent a barrier to engagement or the building of relationships, but social workers purport to record interviews and engagement with parents anyway (and frankly in my experience are a bit rubbish at it much of the time – and don’t even get me started on the continuing LA practice of destroying contemporaneous manuscript notes on logging) – so parents know what they say is going to be scrutinised anyway. The more I think about the more I am convinced that a parent may well be reassured to know that they are not going to be “stitched up” (as many see it) by lying social workers. It seems to me that a social worker may be more confident in their evidence base if they know that in addition to their notes and recall a record exists of the complete conversation. And it seems to me that in the cases where there is a real and material dispute about a conversation of significance the recording could be sought by any party. It would not need routinely to be produced (just as social work logs are not routinely produced but can be produced necessary).

And perhaps most importantly – if there are dishonest social workers out there (and I am sure there must be some) they will either be compelled to play fair or will be caught out. That surely can’t be bad.

I can see a counter argument here about the possibility that it will become expected that a parent would submit to recording of an intrusive interview in their own home – that does worry me. But equally it worries me that at the present time a parent who records an interview covertly or who seeks to record will have it likely held against them and may be told they cannot rely on it –  either by their own lawyer or the court. And I think that is unacceptable. I wonder also if recording were de-stigmatised we might reduce the risk of lawyers advising against use of a recording whilst on “auto-pilot”. Perhaps it is to toss the poor parent from the frying pan into the fire to suggest the state should routinely record interviews with them? There are some big issues here…I don’t know what the answer is – but I do think that CAFCASS and LAs should be thinking about these things. I think that at the very least CAFCASS and LAs should have policies or guidance for practitioners on when recordings should be made, and what a practitioners response should be to a request to record.

I’ll leave you with this thought. There was a rather striking judgment of the President’s out today (Re A (A Child) (Rev 1) [2015] EWFC 11 (17 February 2015) which Suesspicious Minds has already covered here : A tottering edifice built on inadequate foundations. Think about that case. Think about what it tells us about the importance of the primary evidence, about the importance of analysis of the actual facts and where they lead, and about the risks of building an edifice on the “lack of honesty” or “failure to engage” or “failure to acknowledge”. Imagine if the interviews upon which that tottering edifice had been recorded. In that case the dynamite of an audio recording was not needed to topple the building, but in other cases such evidence of inadequate foundations might be critical.

Take me to your Leadership Board

Last week the Adoption Leadership Board published a “Myth Busting Guide” aimed at dispelling misconceptions of what Re B and Re B-S tell us about the correct approach to adoption. “The law hasn’t changed!” trumpets the guidance from a “top QC” (who was strangely anonymous, but who has now been confirmed as Janet Bazley QC). You can read an article about it here. You can read the Myth Busting Guide here. You can read Sir Martin Narey’s explanatory letter about it here. You can read an entirely unconnected *cough* article in the Telegraph in which the former Childrens’ Minister says that its all just because the judges are a bit minty.

I didn’t even know there was such a thing as an Adoption Leadership Board until last week. But I could guess who was heading it up without too much scratching of head. Yes, Sir Martin Narey has been elevated from Tsar to Chair. And is now issueing guidance for the lawyers and social workers amongst us who are persistently not getting the message about adoption. Next we’ll be getting “A View from the Tzar’s Palace” bulletins…

So what sort of beast is the Adoption Leadership Board? Well, it’s terms of reference are here and are pretty unobjectionable. It is not a body designed to promote adoption as an end in itself : only for those children for whom it is the “best way of achieving permanence”. It is not “adoption is a good thing” dot com. And yet…it strikes me that the title “Adoption Leadership Board” somewhat loses the nuance of the terms of reference and tends towards the idea that adoption is a good generally to be promoted. And the impression created is important. Coupled with the plain assumption that a fall in adoption numbers must be “a bad thing” the impression ain’t great. If you wanted to feed the “adoption targets” / “babies for sale” conspiracy theories this would be a good starting point.

Anyway, I’ve read the myth buster. It’s kind of a long winded way of saying that nothing else will do. But hey, what could help hard pressed social workers more than to give them more guidance and more verbiage? I don’t disagree with most of its statements about the meaning of Re B / B-S which are, as you would expect from a “top QC”, a clear and correct explanation of the law.

I do take issue with Myth number 5 though. Although it is correct in law to say that the 26 week statutory provisions brought in by C&FA 2014 do not apply specifically to placement applications, it is wrong in reality to say that 26 weeks doesn’t apply to placement proceedings. In effect it does because by the conclusion of the care proceedings the Local Authority must have formulated its care plan, and if that care plan is for adoption must have issued placement proceedings. There are cases where care and placement proceedings are uncoupled, but this is rarely appropriate and is not common practice for a number of good reasons of both principle and pragmatism. It isn’t just a question of ruling out parents and worry about what else you could put in their place later on. All realistic options need to be holistically evaluated. Ultimately, if a Local Authority is going for adoption it needs to know that within 26 weeks and so the imposition of a time limit profoundly affects decisions about adoption and placement proceedings also.

Leaving aside the actual “counsel’s advice” meat of the document, I do disagree with aspects of the underlying message and some of the comments made in the wake of the Buster.

Here is paragraph 2 of the preliminary remarks, where it is stated that :

..in the last 12 months we have witnessed a significant reduction in the number of placement orders made and in the number of decisions made by local authorities to pursue care plans for adoption. These changes risk reversing the substantial progress made. 

What I immediately wondered was whether the reduction in the number of placement orders was matched by a reduction in the numbers of care applications made or the numbers of placement applications made. Because insofar as its a trend, it doesn’t tell us much unless you put it in context. I thought that perhaps there was some better evidence than this quote, that for some reason hasn’t been published alongside the myth-busting document. Personally, I think that evidence is quite a handy tool when you are trying to myth-bust but perhaps I’m missing something. Anyhoo, the official statistics show this :

 

[NB Amended Table – original one is attached to the comment thread below. Here is link to downloadable version if your browser won’t show this]

I’m not the best with tables, but this is my stab at a comparison of the various trends, based on the stats I’ve been able to find. Given what a big deal adoption is politically, I was surprised that I could not find more than the odd figure for the numbers of placement orders made – I could only find Q3 13 and Q2 14 figures. The MoJ quarterly stat releases on the MoJ tell you how many children are the subject of public law proceedings and how many care orders / supervision orders are made (I’ve counted final disposals only), and how many individual children are subject to public law proceedings (including things like discharge applications and EPOs). I could find no figures for the number of placement applications versus the number of orders made, so it is impossible to tell how often adoption is being ditched because of judges (correct or incorrect) interpretation of Re B / Re B-S. [Found them – don’t know how I missed them really! Thanks Andy Lee. I think the stats are consistent with what I was saying in the original post – Andy has linked to them in his comment.]

It’s important to appreciate some of the stats are disposal stats and some are “work in progress” figures. So when you see the apparent divergence between the numbers of public law applications (for care or supervision orders) and the number of both care orders and placement orders being made (see those lines parting?) you have to factor in that when a case is issued the disposal for that case will not show in the stats until some time later, now most often about 26 weeks later. So in fact what the stats seem to show is that broadly the drop in placement orders is exactly what you might expect as a corollary and consequence of the dip in issueing in late 2013 / early 2014 – it looks to me as if (broadly speaking) the drop off in placement orders is a result of a dip in issueing. And that folks is just as likely to be an entirely predictable side effect of tinkering around with the system (revision of PLO and introduction of 26 weeks etc) and distorting LA behaviour rather than as a result of B-S. The little pink line at the bottom does suggest a slight dip in the ratio of placement orders compared to numbers of children in public proceedings (from 23% to 18%) but I’m not sure how meaningful a figure that is bearing in mind the children in proceedings now are not the same cohort in respect of whom placement orders now are being made. I’d like to update my table to show better stats for placement orders made so if anyone can send me a link to them I will do so. Similarly i If I’ve glaringly misinterpreted these trends please let me know.

So that’s where I *think* we are on the stats front. It’s a bit irritating that this sort of thing is announced with great fanfare and criticism of professionals and without proper reference to the relevant stats, leaving those of us who can be fagged to trawl through the statistics (hence the delay in publishing this post). As a gut reaction I wasn’t satisfied with the wooly “Some of this feedback suggests a degree of misinterpretation of these judgments” and the “this appears to have resulted in…”. So I’ve done my best with such of the publicly available stats as I’ve had the time and energy to digest whilst working 9-5 misinterpreting appellate authority for my day job. Far be it for me to suggest that some public body should have done this job…some body like, oh I don’t know, the Adoption Leadership Board…Anyway, I’m happy to be correct on my bodging approach to stats, but it doesn’t look to me like there is a drop in placement orders by proportion, only in absolute numbers. Oopsy. I seem to have inadvertently busted Myth Number 6 : That Re B or Re B-S or the interpretation of them have any causative connection with the trends in the numbers of adoptions.

Anyway, Sir Martin Narey went on the Today Programme to launch the Myth Buster. Because obviously a document intended for professional guidance (as opposed politicking) is best promulgated to the relevant professionals by means of the mass media. Anyway, for those of you who do not complete your CPD courtesy of R4 and thereby missed it, I’ve set it out in full at the bottom of the post, and you can listen to it on iplayer for another few weeks here, 1h10m in. Make of it what you will.

So. On to my real bugbear. It is disingenuous in my view to send out a message to social workers that nothing has changed, the law is the same (and implicitly you can all stop getting your knickers in a twist and go back to how things were). Because everything has changed. Not the law. Anon QC is right about that. It’s not changed. And Re B and Re B-S don’t actually set out new law, or anything we haven’t been told before. But I think that things have changed pretty radically. And generally for the better.

It is our understanding of the law that has changed – and with it our practice. The authorities that emerged like machine gun fire from the Court of Appeal in the summer and autumn of 2013 were a wake up call, a reminder that sloppy practice and poor analysis are not “good enough”. A reminder that nothing less than our best practice – as lawyers, as social workers or as judges – will do. Yes, rigour is de rigeur.

Because you know what? Before Re B and what flowed from it there was a tendency to give up on parents a little too quickly, to rule them out early on and to autopilot to a plan for adoption as the best opportunity. If we are honest the analysis of this was often poor, the challenge from lawyers and from guardians too was sometimes less robust than it should have been, and the judiciary did not always proactively probe or highlight evidential deficiencies. After all, that’s why the Court of Appeal threw their toys out of the pram in Re B-S in the first place, wasn’t it?

So when we say that adoption figures are falling, maybe, just maybe that’s partly because too many children were being adopted before Re B? Maybe, just maybe its because cases are going through so quickly as a result of 26 weeks that Local Authorities are unable to properly formulate a plan for adoption or jump through the necessary procedural hoops? Or maybe, just maybe its because everything is happening pre-proceedings and by the time of issue a child has been established in the care of a grandmother for so long it’s difficult to justify extracting them. Or maybe its just a delayed statistical result of the drop off in issueing last year. Or maybe, just maybe it’s because LAs (and Judges and guardians) are now being required to actually give proper consideration to extended family members or to support and services that might make rehabilitation possible rather than just holding up their hands and saying “She messed it up before. She’s bound to mess it up again. The past is the best predictor of the future” and other such platitudinous crap? Maybe, just maybe things have changed because people understand what Re B said just fine, thank you very much. I don’t know which of those, or which combination of those factors is the reason behind the drop – but with the greatest of respect to Sir Martin Narey I don’t see ANY evidence in what has been published this week that supports the proposition that social workers not getting Re B is responsible for the decline in figures. Unless you count the anecdotal evidence (that consists of random people who have had held forth to Mr Narey). In which case why is my view any less good a basis for some hypothesis or other about what’s going on?

Oh. And there are a couple of other sub-rants I need to vent here too…

Firstly, read carefully the carefully worded reference to the President in the cover letter – and ask yourself whether the President has endorsed this myth-busting? I would suggest that if he had it would say so. And it doesn’t. Make of that what you will. In the way of the President himself, I simply state that fact and make no comment upon it.

Secondly, by my logic this is implicitly a criticism of LA lawyers – insofar as it is a document aimed at social workers and social work managers who are making decisions about care planning and whether or not to go down the adoption route. In providing legal guidance for the benefit of those social workers Martin Narey is saying there is something pretty dysfunctional about the provision of legal support to social workers. Because (goes the logic) if they were doing their job it wouldn’t be necessary. As to the provision of legal advice to social workers my guess would be that it is not the quality of legal advice that is the problem (insofar as one exists) but the rationing of it, and the culture of acting first and taking advice later. In some LAs social workers have to make a case before a panel before they can seek legal advice. In some LAs social workers blithely crack on and continue to make daft mistakes like accommodating a child for a protracted period of child purportedly or actually pursuant to s20 without proper assessment or progressive case planning – and without the issue of proceedings. Who is issuing guidance for social workers about that? Nobody. And that is a bloody scandal.

But when it comes to adoption, which is “a good thing” it isn’t because the social workers are confused about the law. They aren’t confused. If they know anything about the law it is the law relating to public law decisions where adoption is on the table. They know what has to happen but they are overworked and under-resourced and cannot do superhuman amounts of work with rigorous evidence based analysis and comparative balancing documents within the perilously pressurized timetables under which we are now operating (And sadly a few have been told time and time again and just don’t get it). So yes, adoption stats have fallen. But not because social workers mistakenly think the law has changed.

Thirdly, the appellate courts are actually quite capable of issuing their own guidance about the law thank you very much. What do you think B-S was? It was guidance to those in the system who weren’t apparently cognisant of the law and evidential requirements as they should have been. I wonder if the Supreme Court or Court of Appeal think its a bit presumptious for the Adoption Leadership Board to be saying “Move over Judges. Let us help explain what you meant! You meant : adoption? Go for it!” And even more so when the Court of Appeal has issued some “refining” guidance of its own in the last weeks, as to which see Suesspicious Minds blog here : Why is there something instead of nothing (about Re M (A child : Long-Term Foster Care) 2014) and here : Nothing Else Will Do – Court of Appeal Clarification (about Re M-H (A child) 2014). So, whether or not the judges were minty before (or to use Tim Loughton’s term “resentful”, they might be a little more so now.

I mean, I concede that the fact that the Court of Appeal has had to clarify it’s own guidance gives succour to the argument that it perhaps wasn’t optimally clear, or that it was in some quarters being misunderstood (as does the fact that the Re B-S b*llocking was necessary in the first place) – but that’s part of the process of evolving understanding of the law and of our appellate system of precedent. They issue guidance, we work it through… I remain firmly of the view that what is happening in our proceedings in our courts is rigorous testing of options – sometimes (although still not often in my experience) that leads to a plan for adoption being rejected by the court. But anyone who attempted to argue that any option no matter how rotten is better than adoption will have been shut up pretty quickly after B-S. In the vast majority of cases LAs are still putting forward a plan for adoption where appropriate, but are putting forward better evidence and argument to support that outcome. And there are less knee jerk placement applications than there once were. What’s the problem with that?

All in all it feels like adoption is being inappropriately politicised here. And I don’t like it.

And if that longwinded rant wasn’t enough for you, you can read Suesspicious Minds rather more coherent post here.

 

 

Martin Narey on r4 Today, 11/11/14 (my own note, might have some minor errors in it).

What exactly are the court decisions and consequence of what you think is their misinterpretation? 

The first thing to say is that neither myself nor anybody else on the leadership board take any issue with the court judgments, they are entirely sensible but for reasons that I don’t quite understand they’ve led a lot of practitioners and Local Authorities to believe that the law on adoption somehow has changed and very many fewer children suddenly being put forward.

There has been a drop from end last year going into beg this financial year. The drop primarily is in Local Authorities deciding adoption is the best option for child, its then being compounded by the refusal of some applications at the court.

What are councils taking from judgments that is causing to put fewer up?

Two things primarily. There’s a phrase “Nothing else will do” and some councils seem to have taken that to suggest that if a child can remain in foster care then that will do.

…So councils can’t make a discretionary choice that this is the best?

Yes and actually the judgments and other judgments make plain that the best interests of the child must be pursued and an option which doesn’t meet the emotional or physical needs of the child mustn’t be pursued.

I think the other problem is that some Local Authorities believe that until every single alternative has been fully explored planning for adoption must not begin. Now it already takes twenty months after entering care for a child to be adopted.

So if you make last option its mean a lot of children miss out?

We could have children who even when they get adopted might have been in care move foster placement to foster placement for three or more years.

So what are you trying to point out? That the law has not changed. If councils believe best option for a child for that child’s physical and emotional needs is for the permanence that adoption can bring then they have to pursue that choice and they then have to argue that very coherently before the court. One judgment was properly critical of some analysis from Local Authorities which wasn’t good enough. They’re right to make that criticism. LAs must have the confidence of doing what’s best for the child.