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

Judi Evans
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.