by Pamela Neal (28 Oct 6.30pm, London)
Can we make happy families?
Can we impose identity on a child?
Do we need to ‘rescue’ children or should we be trying to support unhappy families?
What is really at the heart of our child protection system and adoption and why aren’t we talking about this?
A unique oral performance installation looking at some of the issues associated with child protection and adoption - informing public debate.
This is a piece of performance art created by Pamela Neil but performed by barrister Sarah Phillimore (@svphillimore). I attended the first performance in Bristol. I was a bit sceptical about how this format would work - but it did. It was brilliantly crafted to enable the message to come across at a digestible pace and with impact - and it made me reflect on familiar themes in ways I hadn't before. It was really powerful and provoked some genuine conversation afterwards. This London performance will be its second outing and I would really recommend going if you can - whether you are a family justice "insider", someone with experience of adoption in your own family, or simply someone with a general interest. I suspect that this second time around there will be more focus on encouraging responses and contributions at the end from the audience - the first time around I think people who did not know the performer or were unfamiliar with the subject matter were unsure if they could contribute.
The performance is free, but booking is essential. You can book tickets on eventbrite here.
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...
Since the conviction of Special Guardian Kandyce Downer for the murder of little Keegan Downer there have been reports that the government has tightened up the assessment process for special guardians in the hope of preventing this sort of thing happening again (see here for example in The Times [paywall]: Adoption Loophole Is Tackled After Baby's Death. In fact although Keegan died last September, the review of SGOs was already underway before then, probably in part as a result of the tragic death of another child under special guardianship (Shanay Walker), along with representations made by adoption organisations (BAAF).
The review led to the tightening of regulations in February of this year, some months before the conviction of Kandyce Downer. The Serious Case Review about Keegan Downer's death has yet to conclude, although it seems likely that the bulk of the work has been done and the reviewers have been awaiting the outcome of the trial before finalising their report.
Until the SCR has been published we don't really know where the blame lies (if indeed it can be laid anywhere other than at the door of Kandyce Downer). We don't know where the child protection system went wrong or indeed if this death was preventable in the sense of it having been possible for this to have been foreseen. Maybe the special guardianship assessment was weak, maybe not.
There has been a lot of rhetoric about the risks of SGOs in the wake of this case (not just in the wake of this case but especially so), for example :
Hugh Thornbery, chief executive of Adoption UK, has urged the Government to tighten the laws surrounding SGOs, which he said have increasingly been seen by local authorities as a “cheap option” even though it leaves children in “potentially risky placements”...
“Some may say SGOs are a quicker and less costly alternative to adoption at a time when councils’ budgets are cut to the bone but we believe this flies in the face of good practice and common sense,” said Mr Thornbery.
“By taking a child from birth parents and placing them with someone who is only ‘just good enough’ totally fails to understand the quality of parenting that these children will need.”
In the same article containing the above Adoption UK quote, we hear Coram BAAF making a similar complaint.
John Simmonds, director of policy research and development at Coram BAAF, said that a lack of time and resources leads to local councils making rushed decisions about placing children with special guardians. “There is a very real risk that by placing a child with a special guardian, the child can lose contact with the local authority very quickly after the order is made,” he said.
Whilst I welcome the tightening of the assessment process for SGOs these criticisms are criticisms of SGOs themselves not just the assessment process. I'm not sure of the logic in suggesting SGOs are inappropriate because they lead to a loss of contact with the LA very quickly - once an adoptive order is made the same applies and complaints about the lack of support for adoptive parents are commonplace (and acknowledged in recent government policy).
Although the subbie who wrote the headline for the Telegraph article I've been quoting initially made the slightly large mistake of referring to Kandyce Downer as a foster carer (thus rather missing the point of the article! It's now corrected), the article correctly places all this in the context of the supreme irritation of some in the Adoption establishment at the impact of Re B and Re B-S, saying :
The National Adoption Leadership Board warned that the two judgements “resulted in inaccurate assumptions” drawn by local councils about where to place vulnerable children. Following the judgements, the number of adoptions has halved while the use of SGOs has rocketed, with 3,330 issued between April 2013 and March 2014, compared with 1,290 in 2010. This rose again to 5,300 in 2015.
Which leads me to ponder about something that ministers did NOT do in light of the SGO review (which I confess I am not completely au fait with) : they amended the guidance on assessment but didn't amend the task set out in statute for the judges. This is interesting, because whilst an SGO assessor is now directed to have a more acute focus on the longer term capacity to care and meet a child's needs as a SG, there is no equivalent refocusing of judicial attention. Of course a judge will be looking at a more honed and robust SG report (one assumes) if it has been written post Feb 16 and one would hope that would help a judge make better decisions. But it would have been open to ministers to take steps to require a judge to apply the expanded ACA 2002 welfare checklist to decisions about special guardianship as well as decisions about adoption. But they didn't do that. And now I've thought of it I'm sort of wondering why...wouldn't it have closed the loop and forced everyone to sing from the same hymn sheet? Perhaps the answer is that secondary legislation to amend the regulations is easy and quick, whereas amendments to primary legislation are more complex and slow - the SGO Review Report promises that the government will "Actively consider whether further changes are required to the legal framework that underpins decision making around special guardianship". Perhaps that is not abandoned as much as it is just not yet actioned, but at the moment it seems rather anomalous.