Dance of the synapses…

Brrr but it was a mighty cold one this morning [yesterday morning now – I got tied up!]. A morning of luscious oversleeping under warm duvets and a crunchy frosty frogmarch into school just before the 8.50 kettling bell. And then a long, hot, steamy shower to defrost my face and brain.

Radio 4 have been running various things about boredom and the creative process recently. Eddie Mair on PM played 2 minutes of what h considered to be “boring” yesterday to see if our synapses got jigging. However, this was clearly not a pop-experiment meant for lawyers. Because Mair’s 2 minutes of “boring” was someone reading the Ts & Cs for voting in Strictly Come Dancing – a fascinating piece of weird and imperfect legal drafting, which led me off onto a reverie about how on earth it could ever be enforced, before realising of course it is an exercise in box-ticking futility. As a boring person once said – only boring people get bored.

img_5894Anyway, back to that thawing shower. It got my synapses in a right tizz, firing off in all directions, joining dots here there and thither. And this post is the somewhat chaotic result. Having mentally formulated the gist I rushed out of the shower, hair still wet, to snap a picture of the side of my car before the evidence disappeared. They might be involved in more accidents (says my dad), but as I discovered this morning the beauty of a black car is the creeping frost-tinsel web that encrusts your motor on mornings like this (Made even more lovely by the swooshing finger doodles drawn by my gloved children as they raced to car at 8.43am). Like a frozen map of all those synapses, right?

So I’m pondering the latest depressing news as I apply detangler to my hair – but this morning it all seemed connected with stuff that is closer to home. Brexit, Trump, the far right in Europe. The Family Courts. Adoption Targets. Un-disentangleable…

Europe is an imperfect compromise. Some of us think (thought?) the pros outweigh the cons (a bit less than half), some think not (a bit more than half). Whoever is right, those of us who thought Brexit would never happen were not listening sufficiently carefully, or not engaging with the grumbling from those who were unhappy about the way things were. And – boom! I give you : Brexit. And – boom! The yanks gave us Trump…

Such is the way of things in Family Court disputes too. When people are pressed too hard into compromise that they can’t really live with (in court or in mediation) – it can break down further down the road, sometimes explosively. Although I don’t happen to agree with him about no fault divorce, Richard Balchin has a point about the need to build a cathartic release valve into any system dealing with wounded, anngry people – and the need to acknowledge anger or a sense of profound unfairness. We pretend we can fudge deep anger out of existence by telling them they ought to suppress their feelings and behave sensibly, pragmatically – and by intentionally or inadvertently pressurising people into compromise – it is not always possible and not always wise. Sometimes we’re just kicking the can.

screen-shot-2016-12-01-at-10-37-48I’m not sure we’re very good at listening to the grumbles about the family courts anymore than we really HEARD the pre-Brexit grumbles. People talk of not being listened to. It is too easy to say “Well, those are just the people who didn’t “win” or get the outcome they wanted – there will always be some of those”. There will, but we need to take care that this fact does not deafen us to messages we need to hear about how our system is not working. And how people are not prepared to buy into it.

It isn’t just individual cases. There are grumbles – loud ones – about the system itself. That victims of domestic violence aren’t listened to, that unsafe contact is permitted. That dads are discriminated against and marginalised. That social workers lie, snatch babies for targets and bonuses. That everything is corrupt.

One doesn’t have to agree with Brexiteers that they were right about Europe, and one doesn’t have to agree with Trump supporters that he has a fantastic sexy hairstyle, to see that it might have been a good idea if we’d engaged earlier with the grumbles.

So. Take adoption targets. The Transparency Project have tried to engage – we’ve listened to the grumbles and questions and tried to help find an answer. We haven’t got there yet. See : English councils confirm they set targets for the number of children to be adopted. But what response have we had? We’ve had a lot of people TELLING US that adoption targets don’t operate in the way the grumblers fear or suggest. And a few people offering anecdotal evidence that “I’ve not done x” or “I’ve not seen x done”. And I don’t doubt the authenticity of those accounts – but they fundamentally don’t answer the question or engage with the grumbling. See here on Community Care (comments) : My child was nearly adopted – here’s why adoption targets are wrong.

So. Who is going to step up and deal with this issue?
img_5896Because there is a groundswell. Those who look can see it. Those who choose not to carry blithely on telling themselves that this is the lunatic fringe, a few conspiracy theorists. They are wrong. These people are our clients, our family, our friends. These people are the parents of vulnerable children – who might, just might, be capable of being helped to be better parents – but who might shut out professionals who try to offer that help because they believe their child will be snatched if they open the door.

bolchAnd for the same reasons that people elected Trump, and for the same reasons that people voted in the confident but false belief the referendum was binding rather than merely advisory and that Brexit would somehow magically happen in a flash like the ripping of a plaster – people will start acting (do act) on the basis of the information that IS out there about adoption targets and our so-called evil corrupt secretive system of child snatching. Information like the documentary explored in this post : England’s Stolen Children? Plus ca change, plus c’est le meme chose. Because we’ve not bothered to listen or to give them anything better to rely on (You only have to look at this coverage by the BBC of Pizzagate for an illustration of how fast-spreading and powerful these narratives are – and how difficult it is to bring people back once they have leapt down the rabbit hole).

And they will start acting on this information through their engagement with lawyers, social workers, judges, their children. Don’t our professional and political leaders owe them a duty to give them some answers? We need to take a hot shower, join the dots and wake up.

A plea for thoughtfulness…

Two pleas for thoughtfulness actually.

Annie of Surviving Safeguarding spoke at the ALC Conference this week. She was like a female, geordie version of John Bishop, only with much darker material. And more swearing. She had a fan queue at the end. There was one thing I wanted to draw out from what she said (there was so much to take from it, but this one thing happened to resonate with my own recent experience) – it was her plea for professionals to think about how their chummy chats and giggles in corners look and feel to the client who is at court, bewildered and fearful of their children being taken – to the client whose only ally is gassing with the enemy”. We all do it. I do it sometimes, although I try to be very mindful of my client’s needs and perceptions. And, as Annie recognised, it is a natural and necessary part of our job – we have to communicate and we have to have functional working relationships with colleagues in order to do our job and achieve results for our clients – and black humour is something we need to get by in a stressful and depressing working environment. An opponent who trusts you is more likely to see your request as reasonable and respond to it, than an opponent who has experienced you as a miserable old cow day in day out*.

But the point is it has a really big impact on how a parent feels and on how they experience what is going on, what is being done to their family.

A client recently raised this very issue with me, having noted the guardian and her lawyer repeatedly spending time in the same conference room as the social worker and her lawyer. He was right to pick up on it, as all of us acknowledged. We were able to talk it through collectively with him and to reassure him. This was possible because the guardian in question was a fiercely independent guardian who is quite happy to give the local authority “what for” and who, I reminded the client, had done just that earlier on in the case, pooh poohing their ridiculous care plan. But actually, it is better not to provoke that anxiety about what’s going on because not all clients are able to articulate that anxiety or to respond to reassurance about it. And in some cases there IS too much cosiness between one team and another and it IS unhealthy. And from the outside both scenarios look and feel exactly the same.

As lawyers we do need to go and hole up with other lawyers to discuss and negotiate and draft, coming back to base to take instructions and inform our clients. But an explanation of what is happening and why, and regular check-ins with clients go a long way. Likewise, going into court on a “counsel only basis” is something I rarely do these days – and where I do I explicitly explain to the client why (usually : just to ask for time, because the judge has specifically requested it) and I often ask the judge to stop if I feel issues are being discussed that my client will want or need to be involved in.

So that is my first plea for thoughtfulness. To all lawyers involved in care proceedings. To social workers and to guardians. Please help parents to trust in the system and in your independence and professionalism. Don’t overdo the chummy thing or the private chat thing.

Second plea for thoughtfulness?

The Transparency Project published the results of a study on adoption targets this week. You can read about that on The Transparency Project blog or on Community Care. It’s tricky stuff. We don’t have all the answers. The study doesn’t lay to rest all those theories about babies being taken to meet targets or secure bonuses – but nor is it proof that those theories are right. It’s complicated innit? Some of the reactions to the study have been (predictably) to say that the study is “proof” of the distorting effect of adoption targets. It isn’t. This study REALLY requires reading beyond the headline. It IS proof that it’s a complicated topic and that more work is needed – and that’s all really. Thoughtful responses to the issues raised by the study are encouraged. How do we get more clarity? How do we reassure parents? How do we make sure that we aren’t inadvertently creating the system that the critics complain of, one that has systemic distortions in it?

 

*yes, I know I’m a miserable old cow much of the time. Moo to you…

Ellie Butler murder – some of the things the press haven’t told you

This is not intended to be an overview of what happened, what went wrong or what I think about the Ellie Butler murder. This is just me sharing some information that the media have neglected, for whatever reason, to foreground or include in their narrative of this case. An explanation of why I’ve not been able to do so before is here. The information I’m going to give you is information available to and in the hands of the Press, but not to the public at large – the Judicial Press Office have confirmed that they have been providing copies of these judgments to the press on request, and it is clear from many articles I’ve read that reporters are referring to and drawing from these judgments where they choose to do so. You may form your own view about why these things do not have more prominence online and in print.

Firstly, by way of preamble, it is apparent from the judgment that it took from June 2010, when the father’s appeal against conviction was allowed, until May 2011 for the mother to secure a rehearing of the findings. There seem to have been a number of reasons for this, but it is recorded that the Local Authority opposed the reopening of the findings in light of the quashing of the conviction (The court of appeal judgment on the appeal can be found here : Henderson v R. [2010] EWCA Crim 1269 (17 June 2010) (its a conjoined appeal so shows with a different case name and no one can ever find it). A very compressed summary of it is that the opthalmological evidence presented on appeal, confirmed unusual resolution of the retinal haemorrhages which gave rise to doubt whether in this case the presence of the “Triad” was the result of shaking or the result of an unknown cause). Once it was agreed the rehearing would happen it took a further year.

Secondly, the threshold. There has been much speculation as to the extent to which the focus was too honed in on the injuries without adequate consideration of broader issues.

The SCR says that Mrs Justice Hogg “required” the LA to send to agencies a letter which stated :

[The Judge] concluded that not only was she satisfied that [Mr Butler] had never caused harm to his child, in fact there was an innocent explanation for his child’s suspected injuries.

The judge’s actual words of exoneration are in her first judgment :

I do not blame him for causing injury to Ellie, while I accept that he may have done so with all good intention to help her.

I hope everyone will accept that I do not attach any culpability to him, and that in my Judgment he is exonerated from causing her any inflicted injury. If, in fact, he did cause her injury it was purely accidental.

It is clear from the context that the judge is referring to the injuries she has been dealing with rather than any broader canvas at this point. It can be easily seen that the letter is not an accurate transposition of the actual findings. The judge does not exonerate the father of causing any harm to his child. She expressly states he may have injured her, albeit innocently. Harm is broader than injury. “Never” is a further broadening of the exoneration. The injuries were not suspected but actual injuries. This stuff does matter. The letter suggests that the father is blameless in a broader sense than the judgment, whilst the judgment rules only on specific injuries. I can see how this may have contributed to a professional view that the father was teflon coated, although it can never have prospectively exonerated him of subsequent abusive behaviour. I would be interested to know where this inaccuracy crept in. I doubt it was a letter dictated by Hogg J herself or that she would not have seen the points I have raised. Instead I surmise it is a poor transposition by the writer of the letter. But we don’t know. My guess may be wrong. I note however, that the author of the SCR, Marion Davis, is reported as telling the guardian that the judge “permitted” the letter to be sent, which is materially different from the SCR. I would hazard a guess that the parents’ legal representatives may have suggested this. It is something I have suggested where my client has been wrongly accused of something and cannot weedle out all those prejudicial references on the file that keep coming back to haunt him or her.

This incidentally is the flip side of the phenomenon where someone “alleges” something about a person, and it gets repeated and repeated and morphed and firmed up across documents and across years and it will not go away. This is the effect of an unsubstantiated allegation or record of suspicion – it can often be revived again and again and is very damaging for parents who have done nothing wrong. It is this phenomenon that I suspect any letter was directed at – a legitimate aim in itself. The issue is with the wording, and we have no real sense of where that went wrong from the SCR. There is no reference to a letter in the judgment, but it is apparent that there was a hearing in December 2012 in respect of which we have no judgment (probably there is none as matters were dealt with by consent).

The exoneration judgment begins with a passage about threshold. I can’t set it out in full due to reporting restrictions (I’ve done my best below) but it makes clear that broader threshold findings were being pursued at that stage, which can be broadly categorised as a risk of emotional harm arising due to failures on the part of both parents but primarily the mother to cooperate / to be open and honest with the local authority.

In addition the Local Authority further state that [the younger sibling] is at risk of suffering emotional harm [in the mother’s care]  in that she has failed to show commitment and consistency towards contact, and had failed to co­ operate with the Local Authority, being secretive about her health, her contact details, employment and other aspects of her life which would be relevant to her having care of the sibling. The threshold document was amended towards the end of the hearing to include further matters which had been disclosed by the parents during their evidence, including concealment of the true facts surrounding the siblings birth and paternity, and the father’s involvement with [the child] before she went into care.

The threshold as such only applied to the younger sibling, since Ellie was by this stage already the subject of a final Special Guardianship Order made at the time of the original findings. Much of the remainder of the judgment is devoted to the rehearing issues : the evidence and conclusions in relation to the physical injuries to Ellie, the exoneration. But the Judge does record that she heard evidence from the LA and parents on these other threshold issues, including allegations of domestic violence within the relationship – denied by both parents but not ruled upon. Unusually, having heard evidence, the judge took the view she was not in a position to evaluate whether the dishonest and other behaviour of the parents (which was in large measure admitted) was sufficiently serious to cross the threshold. Mrs Hogg J at the conclusion of the first judgment is openly pondering how much of the parents’ behaviour is a product of having been wrongly accused of harming their daughter over a period of 5 ½ years. She is clear she holds concerns about the other issues raised by the LA, sufficient to warrant a delay in the proceedings before she makes her mind up. She says this :

I am not yet satisfied that those concerns bring me over the threshold criteria. I do have significant concerns and I wish to know more about the parents. They have carried an intolerable burden for the last 5 ½ years. They have lost one child. To them the father was unjustly accused, findings made, tried, convicted, and his conviction quashed; and their child wrongly removed from them following the findings. He has been treated and looked upon as a child abuser: they have felt persecuted and pried upon by social workers. They have not felt free from outside pressure….

Now they have been unburdened from the shadow of findings against them. They have unburdened much of themselves to me, admitted concealment and secrecy, and their determination to recover [the younger sibling] and avoid his/her adoption.

I have a sense that a process of ‘opening up’ has just started. Able now to admit to their relationship … must be a huge relief. Able to be free from the shadow of blame must be as big a relief if not bigger. They are going to change. There may be more they want to unburden themselves of. I think there is more to learn about them, their reaction to this Judgment, … their ability to co-operate with professionals. As the Guardian says there needs to be a fair and supportive assessment of them.

I need the context of their behaviour. On one hand it could be said they prioritised their own needs …but I ask myself would that be fair to them knowing as I do the burdens under which they have laboured for 51?2 years. I think it might be much fairer for them to be assessed and for more information about them to be gathered before I make any final decisions about the Local Authority’s threshold allegations… 

I do not propose therefore to adjudicate upon the threshold…

…currently they do not present as a couple. They do not cohabit; there is no plan to do so in the immediate future. The father wants to …play a fatherly role. 

I accept that the parents have no trust in the Local Authority. Any assessment or work to be done would be doomed to failure if it were to be managed by the Local Authority. The parents say they would work with an independent social worker and with the Guardian.

The Guardian proposes that there should be an assessment carried out by “Services for Children”, an experienced and well-regarded independent social work agency. I have had some experience of that organisation and am content they should be instructed. [my emphasis]

This passage gives us some important background then to the much criticised independent social work assessment. It was proposed by the Guardian, who we now know subsequently went off sick, meaning there was no opportunity for the guardian to work either with the family, or for that Guardian to oversee or troubleshoot the assessment. The agency were known to the Judge (and it seems counsel for the Guardian who was earlier this week shown giving a warm testimonial on their website). Having concluded that the father had been wrongly held responsible over many years of harming his daughter, the Judge attempted to see the parents’ behaviour in light of that wrongful conviction / blame. This is entirely logically consistent. It also tells us that whilst the intention was for the father to be around, it was not at that stage the plan for him to care for Ellie. By the time of Ellie’s death he was living in the home.

The passage in the SCR (page 8) which says that :

After the conclusion of the court hearing [the exoneration hearing] the children were not subject to any orders, and childrens’ services did not have a formal role with the family as the court had found that the threshold criteria were not met.

is not accurate. Proceedings concluded, one child was accommodated under s20 and the judge had specifically adjourned the question of the threshold findings. Ellie had not been under any public law order since prior to the making of the SGO back in 2008 so this represented no change. This error re threshold is also repeated at page 20.

By the time of the later 2012 judgment, Mrs Justice Hogg says this :

The Local Authority has obviously considered [a positive independent social work assessment] and the comments about both parents. As a result they have decided to withdraw their allegations against the mother and additional allegations against the father, and no longer seek findings against the parents. That approach has been welcomed and supported by all parties.

I too have considered the report and welcome the Local Authority’s decision to withdraw their allegations. Indeed, although in July I adjourned that issue until this hearing, on all the evidence now before me I would have been hard pressed to make findings against the parents, and even more hard pressed to make findings against them that would cross the threshold required by Section 31.

There is therefore evidence heard on domestic abuse, but no ruling is ever made on that evidence. The other matters in the threshold (the emotional harm arising from dishonesty type issues) were not factually contentious, but the judge’s clear indication was that in light of the assessment and seeing the parent’s behaviour in light of the miscarriage of justice that at that stage was thought to have happened, their behaviour did not cross the threshold – because it did not give rise to a risk of future harm now the miscarriage had come to light. That’s my reading of this passage. It is difficult to form a view about the soundness of this decision at the time. We know that it was not opposed by any party (the grandparents were not parties), and that apparently the assessment of the parents was positive – but we do not have that assessment and as such cannot see how thorough it was. And we do not know how much active scrutiny of it was provided by the Guardian (the SCR suggests this was limited / insufficient – page 14).

It is interesting to see this question and answer in the SCR :

Why was the judge so ready to accept the parents explanations, and to believe, once exonerated, that they would change?

It is difficult to respond to this question in the absence of any analysis that would have come to the SCR if there had been involvement from the judiciary or Courts’ Service via an IMR or attendance at the SCR Panel. [page 35]

In fact, to my mind the answer seems to be in the judgments of Hogg J. She was not ready to do so without expert assistance because she held significant concerns about it. She commissioned the assessment from the independent agency precisely because she wanted to know how confident she could be on this “future risk” aspect of the case, and wanted to test her hypothesis that past behaviour was largely a function of the climate of suspicion and wrongful blame. The assessment appears to have confirmed the judge’s provisional view that if the miscarriage were righted the matters of concern would resolve. I’d very much like to see that assessment. It is apparently not an assessment that any party or person challenged. Why was that?

Thirdly, with reference to the widely reported claims that Ellie’s grandfather (for whom I have immense sympathy) had warned the judge against returning Ellie, saying she would have “blood on her hands”. This report in the Independent is typical but there are many others :

The judge who decided to hand Ellie Butler back to her violent father,was warned: “You are going to have blood on your hands”.

Ellie’s maternal grandfather Neal Gray, who had cared for her since she was a baby, had strongly protested against the move made by Mrs Justice Hogg to award custody to her parents in the family division of the High Court.

Within months, his worst fears came true when Ben Butler killed his six-year-old daughter in a fit of rage. [my emphasis]

The clear import of the narrative that is driving this sort of media report is that the judge was warned by family members, but ignored the warnings – and that the grandparents resisted the return of Ellie. In fact, whilst it is recorded in the SCR that there was hostility to the proposed move from the grandparents during the assessment, the second of Mrs Justice Hogg’s judgments from autumn 2012 records that :

Both the parents are hugely grateful to the Grandparents for stepping forward to care for Ellie, and providing her with love and stability over the last 4 years. It has not been easy for the parents to know that someone else was caring for their little girl, but they know and appreciate that but for the Grandparents she would have been adopted, and lost to them. Without the Grandparents we would not be discussing Ellie’s future today.

It has not been an easy time for the Grandparents either. They are retired, of mature years and not always in the best of health [the grandmother has subsequently passed away, having suffered from cancer]. Their application for Special Guardianship incurred them in considerable expense. But, despite their own personal difficulties they have provided well for Ellie, and are devoted to her.

Inevitably the Grandparents will have heavy hearts, but they have recognised the parents burning desire to regain the care of their little girl; they recognise that age and health are not in their favour; they do not wish “to fight” to keep Ellie; they want the best for her, and for them now to play a more back seat role in Ellie’s life: to be supportive, loving Grandparents. With this in mind they have accepted and agreed that Ellie should return to live with her mother, with [the younger sibling] and with the support of her father.

It is a brave and appropriate decision, and one which I am sure the parents appreciate.

As a result it is agreed between the parties that Services for Children should undertake an assessment of how and when Ellie can be returned to her mother. …work needs to be done to understand Ellie, her wishes and feelings, and to consider the mechanics of a return to her mother…I am satisfied that this assessment and advice is vital to a successful reintegration of this family.

Thus … I am making directions in the parents’ proposed application to revoke the Special Guardianship Order. [my emphasis]

It is difficult to be too firm about how precisely this records the grandparents position, but it is reasonable to assume it correctly records that the grandparents by this stage did not actively oppose the return of Ellie to her parents. They were not parties and were not represented, and it is not clear if they were present and articulating their views, or if their views were reported by the local authority in their absence, or perhaps in their presence but on their behalves. Perhaps they had written a statement that these words are drawn from. At any rate, one can easily imagine that the grandparents may have agreed reluctantly, perhaps seeing the writing on the wall, perhaps feeling that the LA were capitulating by withdrawing their threshold allegations, no doubt the grandmother’s ill health and the financial pressures played a part. Alongside that the sibling was due to be returned to the care of the parents, a child that the grandparents had acknowledged they could not care for. Whatever the precise explanation this record of agreement is at odds with many media reports and the account given by the grandfather himself. It is easy to see that he may now bitterly regret not feeling able at the time to fight this decision, but fight it he did not. I feel for him. I don’t know when the “blood on her hands” remark is said to have been made to the judge, but it doesn’t appear to have been made at this important turning point, and he was certainly not “protesting strongly” at this point in time.

There are so many things I could write about this very sad case. Things have of course gone wrong, that is easy to see. More difficult is identifying how things could be made to work better in future. That of course is the most important thing and I would not want it to get lost in the melee.

When an article in the Guardian was published last week entitled Ellie Butler judge ‘took unwarranted steps’ to reunite her with violent parents – Mrs Justice Hogg criticised by case review for ‘extraordinary’ decision to return child 11 months before father beat her to deathI had not fully read the SCR, but I immediately said the accusatory tone was unhelpful. I would think that some may take a different view of the following matters in light of some of the things I’ve drawn out above. I don’t suggest there can or should be no criticism of the judiciary, but I do suggest we need to drill down a bit more before pointing the finger :

Marion Davis, a former president of the Association of Directors of Children’s Services, said: “I think the crux of the matter rests with Mrs Justice Hogg. The extra steps she took were unwarranted.”

She singled out for criticism both the judiciary and the two private social workers at Services For Children (S4C) Hogg appointed in place of social workers from the London borough of Sutton who had fought Butler’s campaign to get custody of his daughter.

The serious case review investigating what went wrong in the period before Ellie’s murder does not condemn the social workers at Sutton council, who consistently opposed her being returned either to her parents or the school and health professionals involved with her care.

Significant criticism is directed at Hogg, however, whose decision to send Ellie back to her parents was described by Davis as extraordinary.

“She [Hogg] gave permission for a letter exonerating Ben Butler of causing any harm to Ellie to be circulated to all agencies and said he was victim of a miscarriage of justice,” said Davis.

She said serious questions had to be asked about Hogg’s decision….

“This is the most extraordinary element of the whole case. To say it’s surprising is an understatement, it’s an extraordinary step to take. Once that court judgment from Mrs Justice Hogg was in place there was virtually nothing that could be done to affect the outcome for Ellie.”

I have written elsewhere about the constitutional reasons for the judiciary not participating in SCRs. Sadly, this approach makes it all too easy for them to be blamed in their absence, and so it is particularly important that their judgments, the core record of their work, are both publicly available and fully and accurately reported. I don’t think that has happened so far.