The portal of doom cometh…

I’ve had my first taste of the new public law case management portal this week. By a process of trial, error, clicking, clicking, unfurling and furling, clicking, scrolling and yet more clicking – I have established that this is in fact an inter-dimensional portal into a parallel universe where logic does not apply, and where the three click rule has been inverted so that every action requires a minimum of 3 clicks, and every fifth action opens a new browser window, just for larks.

I’m sure it will improve with user feedback, but it is fair to say that my first journey around a case in portal world left me feeling a bit like the girl with a crush on Morten Harket in that ‘Take On Me’ video… (yes, yes we all had a crush on Morten Harket. I mean the girl who is taken by the hand and inside the comic book through a bright white maze of confusion).

Sadly, I did not find Morten Harket.

I did manage to upload a case outline. I’m not sure I put it in the right place or that anyone will ever find it, but it is there, listed under a heading where nobody would think to find it because I couldn’t find a more suitable location to put it. I am idly imagining that if the judge successfully navigates the maze and finds my case outline he will cry ‘Aha!’ triumphantly, in a style perhaps more reminiscent of Alan Partridge than of Morten…

Anyway, its been a long and surreal day here at Pink Tape towers. I just dropped by to say : welcome to the future, my fellow comic bookers… the portal is coming to a screen near you this autumn…

 

 

Choose your words with care, listen as if with someone else’s ears…

I want to talk about language. About the gap between how it’s meant and how it’s received. About what happens when our words are heard by someone standing in a different place to us, and who is wearing very different shoes.

‘Wrongful’

News stories about parents who are suspected of hurting their babies but who are later exonerated often use words like ‘wrongly’ or ‘falsely’ accused. That language, I know, is the language of the parents, although perhaps it suits the purposes of the media too. But I’ve noticed that by the time ‘wrongly’ or ‘falsely’ reaches the ears and eyes of those who are part of the system, it is often received as a direct, personal criticism of individuals as much as it is a way of describing the parents’ experience.

Whilst some of these exonerated parents are aggrieved at their treatment by individuals, others are merely describing what the child protection system has done to them – they are describing that, whilst the outcome was (eventually) right, the process did them wrong. To a parent who has irretrievably lost many months of their child’s early days, who has spent nights worrying whether they will be blamed for something they know they didn’t do, there is no other way to describe it than ‘wrong’. The parent has always known the suspicions were without foundation (false, wrong), and that the protective action was unnecessary. It is no less awful, perhaps harder to bear, to be told this pain was caused for all the right reasons and was well motivated.

For a professional with child protection responsibilities however, the action was necessary because of risk – even though by the end of the process it could be seen that the risk was never in fact there at all.

It’s no comfort to parents to say (as lawyers often do) that well, the process reached the right outcome in the end or (as social workers often do) that we had to act based on what we knew at the time. Those two things may both be true, but they do not erase the wrong done in the meantime, as experienced by the parents – and  by the child.

The problem is, we struggle to find words to differentiate between process and outcome, and between procedural necessity and substantive necessity as understood with the benefit of hindsight. Perhaps the media capitalise on this double meaning of ‘wrongly accused’ to grab a headline. But on another level, we as professionals might do better at acknowledging the consequences for those families who never needed the intervention we thought they did by accepting the description of the intervention as a wrongful accusation, even a false one (‘false’ does not only capture intentional falsehoods (lies), it can also mean unknowingly false, or a false premise).

In some cases the labelling of action ‘wrongful’ may reflect a failure on the part of individuals or the system, but in other cases will simply be those where a responsibly-run child protection process has just turned out to have got it wrong. There will always be some cases where, on the basis of the available evidence at the time, a child needs to be temporarily removed to ensure safety pending investigation, and where it later becomes clear the parents have not harmed the child. I dare say those parents still feel profoundly wronged, even if they may intellectually understand the ‘need’ (procedural necessity) for the professionals.

The cries of ‘damned if we do damned if we don’t’ I’ve seen lately are predictable – and true enough. Social workers in particular are given a great responsibility and, frankly, not a lot of support. They are often criticised for things that are not within their power to change, or where others should bear the blame. But we should be able as professionals to acknowledge the wrongness of the situation, and to accommodate and understand it when those wronged wish to express their pain and anger – without it triggering our defence mechanisms. All society can ask of those who carry out child protection functions is for them to do their best and to be thoughtful when exercising their power, and to acknowledge the unavoidable impact of their actions.

‘Lucky’ and ‘grateful’

So much for the language of injustice used by those observing it or subject to it. I’ve noticed too that our own language as professionals deserves some thought – and that it often has the same quality of meaning one thing to us and another to the families who are receiving it. As if perhaps we are speaking a language where the same word is code for something different depending on the intended audience.

By way of example, in a recent article in The Sunday Times we read that the parents of a baby accused of injuring him, but who were subsequently cleared (as a result of expert evidence adduced in family proceedings) were told by the social worker that they should feel ‘lucky’ that they were given contact to their baby five times a week whilst they were under investigation. Emily Dugan writes :

At first the couple were allowed to see Brody [the baby] four days a week in supervised 90-minute visits. The court eventually granted Amy [the mother] one extra visit a week. She said: “I got told how lucky I was to see my son Monday to Friday for an hour and a half a day. But that’s not lucky.”

The article also tells us an apology was given, by the way, although it doesn’t specify if this was one of the specific things the apology covered.

To give another example, in a recent judgment approving the withdrawal of care proceedings, a judge told another young couple who had been suspected of injuring their baby and who had, as a consequence, spent several hard months separated from him (including their first Christmas) that, whilst he was sorry for what they had been put through, they should be ‘grateful’ for the expert evidence that cleared their name*. The Sunday Times wrote about that case here. Louise Tickle (a journalist) was outraged at this language, saying that the language was “jaw-droppingly ill conceived, offensive + upsetting. Imagine being parents of young children removed unnecessarily and being told by a family judge you “should be grateful” for the medical evidence that exonerated you.”

https://twitter.com/louisetickle/status/1394349829430591493?s=20

I can see her perspective, because I winced when I read it – but I am also able to see it can be ‘read’ it in a different way from my own perspective as a lawyer within the system. Reading those words, originally spoken but now fixed on the screen, from the perspective of a parent, it is obvious better language might have been chosen.

But I also understand why the language of ‘luck’ and ‘gratitude’ is used : I am sure I’ve used it myself – albeit in some caveated, contextualised form whilst trying to help a client understand what is happening in the case and why everything is taking so long, and how things could frankly be (even) worse. I’m sure I’ve used it when discussing matters with colleagues – for professionals. It’s not unusual for there to be a struggle to find a decent expert who can report within a sensible timescale. I dealt with a hearing recently where the solicitors had been unable to find any expert at all in time for the hearing, and in the same week attended a webinar about the work of the Experts Working Party – so I have had two reminders of how much this is a current issue. And on contact levels, it is fair to say that contact at a frequency of five times a week is probably as frequent as it ever gets whilst a child is in foster care: contact two or three times a week is probably more typical even for babies, for a range of reasons. Whilst we professionals are well aware of the pressures on social workers to find contact centre venues or supervisors, these are neither obvious to parents unfamiliar with the system, nor are such ‘resource issues’ likely to feel to them to be a good enough reason for severe limitations on contact with their little baby who is changing and growing on a daily basis.

Let’s be frank: there is nothing ‘lucky’ about having your baby taken away from you when you have not hurt him, nor in having to snatch short bursts of time with him, missing his firsts and all the time never knowing if he will be coming back. And there is no need to say ‘Thanks’ when he is rightly returned. On the contrary, the whole process is traumatising and scarring, and particularly for first time parents it takes away something that can never be given back (both the Sunday Times pieces contain quotes from the parents spelling out the enduring impact on their relationships and family.

It is sadly inevitable that any system of child protection will sometimes do harm in trying to protect, and that sometimes it will turn out that intervention was unnecessary. That does not mean that we should shrug our shoulders or be surprised when those who are casualties of that inevitability are angry or distressed. This is not an omelette and families are not eggs. It does not mean we can tell ourselves ‘we were just doing our job’ and turn our backs to their complaints to avoid discomfort. To these families, what has happened is an injustice, notwithstanding the good faith and hard work of professionals, and notwithstanding that, formally, the ‘right’ outcome has been ultimately achieved through exoneration and return. The family’s lived experience will not have been be one of justice being done even if procedural fairness has been achieved.

Can we do better?

I’m sure I’m not the only lawyer who slips into using language that may inadvertently and thoughtlessly cause pain or offence, just as much as I’m sure it’s not just the one judge nor the single social worker referred to in the second Sunday Times article. These highlight a need for reflection on our collective responsibility as professionals to think hard about how we choose our language, to think about what presses buttons, and to think about what might insult or upset others.

I think, too, that what this language also masks is that we have become inured to the failures of a system which has normalised delay or resource-led decision making, and is – sometimes – too ready to default to the use of brutal solutions to the apparent risk. These include removal into foster care even where (as appears to be the case in the Sunday Times example) other options such as kinship care or supervision have not been fully explored. The fact that many of the parents who find themselves suspected of inflicting fractures or injuries, have in fact done something that they know or ought to know has caused harm, does not justify such cavalier and callous treatment of all parents. We have to protect children who might have been hurt, but we also have to remember at all times that these parents might well be completely innocent, that an apparent injury may be no more than a chimera on an x-ray plate or an injury caused by normal or perhaps inexperienced clumsy but non-malicious handling – and that this is all a terrible mistake. We need to remember the harm that removal itself can do and the indelible marks it can leave on families even once children are returned home. While we are protecting children from potentially harmful parents, we need also to be trying to protect the family from the worst consequences of what may ultimately turn out to be an unwarranted separation.

I would venture a guess that the judge’s ‘grateful’ was a reference to the fact that in that case the expert evidence that vindicated the parents came in far more quickly than it often does due to a chronic shortage of such experts – and to the fact that the parents were ‘only’ forced to endure being accused and separated for a couple of months when often it is far, far longer. Most suspected NAI cases (and most care cases generally) take many, many months more than that. In the webinar I attended recently on the topic of expert evidence, it was frankly acknowledged that the difficulties securing expert reports in suspected NAI cases may well mean a case comes out of the 26 weeks track, meaning cases will take longer than 6 months to complete.

Judges and practitioners are very used to seeing many months of delay in suspected NAI cases, waiting for expert evidence, for disclosure, or for a trial date – one’s perspective can become jaded when this is how it is in every case. How do we say to a parent, without diminishing the pain of a 2 month separation, that most parents must endure 6, or 12 months before a decision on whether they will get their children back at all? If we use a shortcut under pressure and don’t stop to think, we might say the 2 monthers are ‘lucky’.

The judge rightly acknowledged what the parents have been through :

My apologies from the Court for what they have been through. It is not the Court’s fault, it is not the Local Authority’s fault, and they should be grateful for the expertise that has come in the medical reports which have now been provided.

but the value of the apology was unintentionally undermined by him telling the parents how they should feel about the last awful 2 months.

To us ‘grateful’ and ‘lucky’ (whether about how often contact is facilitated or how long it takes to get an expert report) is really an acknowledgment that the system is broken. Perhaps it is our clumsy lawyer-speak backwards way of trying to tell parents that we know it’s all a bit sh*t but we can’t help it, and of trying to make ourselves feel a bit better about it because we’ve got them a comparatively good result. But for me, seeing those phrases in print, forced me to think about how they may be received, and the truth is that they jar, and they make me pull a face because they are (unintentionally) disrespectful, even if we in passing acknowledge the pain of separation. And for every one of those jarring phrases that has been transcribed and made public, there will no doubt be many more that were spoken, perhaps captured on a court recording or in a blue notebook or in the memory of someone who noticed it. Some of them will be my words. Some will be yours.

There are lots of other examples of loaded or lazy language that we use habitually, either for our own convenience or without thought. Use of the label ‘mum’ and ‘dad’ by professionals instead of names  might sometimes be an important acknowledgment of the legal status of a participant in a hearing or in respect of their child’s life, but may also sometimes feel reductive or diminishing – as Malvika and Maddie discuss in their recent podcast. More controversially perhaps, the use of phrase ‘failure to protect’ to describe the behaviour of victims of domestic abuse may feel oppressive.

Small things have impact and words have power. We can all always improve our use of language, including those who make our living from our skill with words. I am going to work harder at making changes on this front and invite my professional colleagues to do so too. I expect we will all slip up from time to time, but we can make a commitment to think about how our words may be felt and received.

Post Script :

I’ve used examples throughout this post of exonerated parents – but of course these are in many respects atypical. Many, perhaps most, cases are far more nuanced and messy – not only is there no such thing as a perfect parent, but almost every parent’s weaknesses and failings are offset by strengths, and many parents struggle to meet the needs of their children not through lack of effort but for reasons outside their control. In my experience, the unredeemable parent is almost as rare as the entirely vindicated one. Most parenting is on a spectrum of imperfection somewhere, mine included.

 

*disclosure : although I wasn’t involved during the care proceedings, I was subsequently briefly involved in the application for permission to publish details of that case, acting for the child. At that stage the judgment had not been transcribed or published.

 

 

 

When Crime and Family Collide

This is an interesting judgment. The facts of it are very sad (vulnerable, isolated teenaged brother and sister who somehow manage to end up as mother and father of a baby at the age of 14) – but I’m more interested in the bells it rings regarding the interplay between family and criminal process : Y (disclosure to MPS) [2021] EWFC B33.

As is usual for HHJ Atkinson the judgment is well crafted, thorough and poignant. It is not obvious at the outset just how cross she is, but by the end you certainly know it, even though she remains fair and polite throughout.

Because what happened in this case is something I’ve seen happen in a number of my own, and to me it feels like HHJ Atkinson is highlighting something that may be happening more widely :

  • Firstly, the police and / or CPS seem to be waiting for a decision in the care proceedings or disclosure from them before making a charging decision – sometimes the police just won’t send the case for a charging decision until any application for disclosure has been dealt with, based on their expectation that the CPS will decline to make a decision.
  • Gone are the days when a criminal trial could be expected to take place before we can set up a fact finding hearing meaning that in some cases the need for a fact find would be obviated entirely, and in others the criminal evidence could inform the care process (long gone to be honest).
  • Secondly, the police are increasingly likely to fail to meet disclosure requests of their own material – sometimes because they are too busy – and sometimes because they have an open investigation. If I was a cynic I’d say there is a distinct whiff of the Police or CPS hoping something will turn up in the care process (perhaps in oral evidence) that will short circuit things and make their job easier – police are under huge pressure, and whilst we are running around trying to analyse phone records and ABE interviews and gathering expert evidence, it often feels like not a lot is happening on the criminal side of things. That may be unfair to the police – it is probably only half the picture – but that is how it often feels in the face of inexplicable delay and radio silence.

Anyway, the upshot of all this is that cases are delayed, the parents in the care proceedings are left in limbo – worried about potential future criminal charges hanging over them, probably often too scared to be frank about what has really happened. And often not knowing whether there is a risk of prosecution, conviction and imprisonment or deportation may mean the family court will struggle to resolve care planning too – how can you place a child with someone who might be detained at Her Majesty’s Pleasure within the year? It can be very chicken and egg. And if the police are tardy with their own disclosure the fact finding process in the family court can stall too.

Charging decisions are two pronged of course – its not just about the evidence and whether they could secure a conviction. It’s also about whether they should try in the first place (the public interest test). Sometimes, as in this case, the public interest arguments against prosecution are really clear and obvious, and ongoing proceedings are no reason to delay a charging decision – but in others the outcome of the case may be materially relevant to a decision whether or not to prosecute: for example in a case where a child is rehabilitated to the care of a reformed parent, jeopardising that by prosecution might not be in the public interest. In those cases it can really be difficult to reconcile the tensions.

But in this particular case HHJ Atkinson is describing a police service (the Met), which was causing delay to both processes, was wasting its own time and money – and that of the family court and the professionals working within it – by making sweeping disclosure applications for family court papers that served no purpose and would not help them with the public interest decision (the evidence of an offence was pretty clear cut in that case so it was all about the public interest in prosecuting the parents who the judge considered were both vulnerable victims rather than perpetrators).

The judge made her view pretty plain way back in October 2020 and yet the Police were still persisting well into 2021. HHJ Atkinson’s post script to her judgment tells you all you need to know about how the amount of energy and resource the family court had to expend in order to get the MPS to see sense :

I handed down a copy of this Judgment on 27th October 2020.  On the same day the MPS made a further application for disclosure of documents; this time specifying the documents so as to narrow the focus but by very little.  The application included a request for documents that I had made clear, in my Judgment, contained nothing of additional value for the police or CPS. 

The MPS attended the Issues Resolution Hearing on 4th November but there was insufficient time for a further argument on disclosure and so I had to earmark more court time for a full contest a little over a week later. By then there had been a further petition on behalf of the child-parents from the NSPCC expressing concern that in the view of that organisation any prosecution was very obviously not in the public interest and the failure to make a swift decision, one way or another, on the ample information available was contrary to good practice in matters involving sibling sexual abuse. Keen to ensure that this Judgment had been read, and to understand what more the CPS needed to make a swift decision, I directed the attendance of the officer in the case and the CPS reviewing lawyer.

Three days before the listed hearing the MPS withdrew its application indicating that the CPS lawyer had marked the case as ‘finalised’ and without the need to view anything else. It was confirmed that by ‘finalised’ it was intended that there would be no further action taken against either of these child-parents. 

This chronology speaks for itself.  In the space of a matter of days a decision was made by the CPS on the merits of pursuing a prosecution in this case without the need for any further documentation from the family proceedings.  It must follow that this is a decision that could have been made many months before.  It is unfortunate and indeed a terrible waste of court time and effort that the impetus to reach this decision seemingly required my intervention.  That is to say nothing of the impact of such additional delay on the three children at the centre of these proceedings.

 

The Judgment also records this (pa 57 onwards) :

This is not the first time that I have had to devote precious court room time and resources to this sort of application, but I am pleased to observe that it is a rare occurrence.  In most cases, I deal with disclosure to the police on paper, without the need for a hearing and in the face of no or negligible objection.  However, there has been a noticable [sic] increase of late in applications for blanket disclosure by the MPS made at the behest of the CPS who refuse to make a charging decision until they have in their possession every piece of paper relating to the individuals under consideration, or so it seems.

I completely understand that this approach has grown out of a series of cases in which the late discovery of evidence which should have been considered at the outset has very publicly undermined confidence in the process.  However, the need to investigate thoroughly does not mean that investigation should proceed blindly.  A tick box approach in which there is no charging decision is even considered until all social services records have either been secured or refused by court order is unhelpful and has been a waste of my very limited and precious court time.  It is an exercise which is focused on ensuring that no criticism will be made further down the line and has replaced the exercise of professional judgment.

Delay

Finally, in the interests of the child who is the innocent product of this ‘incident’, can I politely remind the MPS and the CPS of the potentially devastating impact any further delay in the decision making is likely to have on Y?  Although I have yet to see evidence from the family finders, it seems obvious to me that the fact of her parentage, together with possible genetic uncertainties, will narrow the pool of people prepared to care for her.  A continuing criminal investigation and, worse, the spectre of a criminal trial looming may only serve to narrow the pool even further; possibly even empty it.  It may not be possible to conclude the processes in relation to her until after the conclusion of a trial, if there is to be one.  The older she is, the harder she will be to place and the harder it will be for her to settle in a new placement. In short there is the potential for further damage to be done here by reason of the unforgiveable delay in the process.  Not just to A and B through their inability to access their much needed therapy, but also to Y.  I would respectfully invite the decision makers to bear that in mind.

 

I don’t know if there is some sort of policy or organically evolved practice within the CPS of requiring the chasing down of family court disclosure for the sake of completeness as some sort of default – but I really hope not. Perhaps there isn’t and the problem is with the Officers in the Case misinterpreting what the CPS actually want from them (though I have to say that based on my experience and reading of many many police logs I’m pretty sure the police are sometimes TOLD by the CPS ‘you must have x,y,z before we’ll consider the case’). HHJ Atkinson may use the phrase ‘rare’ but she doesn’t appear to be describing a one off either – this seems to be the particular case that has tipped her into publication, having tried more diplomatic means before without effect. Is there a pattern emerging? What HHJ Atkinson is describing is definitely not unfamiliar to me, a barrister practising in an entirely different part of the country (with various different police forces coming across my radar), but nor is it a feature of every case – but I wonder if this phenomenon is also familiar to others? It doesn’t need to be happening often for it to be to be both causing harm to individual families and adverse impact on the family court system as a whole.