1. By way of introduction and to establish some credentials:
I am David Jockelson. I am a solicitor in private practice with Miles and Partners in London E1. I work mainly in public law cases. I have been qualified for 30 years and a member of the Children Panel almost from its inception.
I am writing almost entirely about the public law aspect of your Review.
2. Yes we have a problem.
The high level of cases may be slackening according to the very latest figures but for some months or years they have put such a strain on the system that it has been staggering. That is a question of the sheer quantity of social work that the system cannot cope with.
Yes we also have a problem facing massive cuts which will affect social services, the courts and legal aid. We must find ways of spending our money more efficiently.
This has shaken up our complacency and conservatism and is raising questions about the process which could make major changes in the quality and rationality of the work.
3. Easy answers?
When looking for ways to improve the situation our minds can go quite easily to certain cases which are obviously not well served by the present system.
For example in some cases social work drags on for a long time, months or years, with social workers trying to achieve change by ‘working together with the families’ while children suffer.
There may be vague threats of action which the family don’t believe or act on – and then wham! – care proceedings – plan to remove child from the home. Shock, promises of change – too late.
Then ensues a whole machine going into operation – Vast expense: the costs of lawyers and courts, experts and assessments, contact arrangements, social workers in court and not doing their main job. Etc etc.
and to be honest something of a lottery on the outcome:
If the kids go home – what support? Clients who have had a Supervision Order say they haven’t seen a social worker in months.
And if the kids don’t go home – foster care – very expensive. Multiple moves. Research indicates pretty poor outcomes for children in care. Fewer and fewer adopters etc.
So we have got to divert some of these families from the existing court system. I will suggest some ways we can do that in page 17 onwards where I try and suggest answers to your questions 4,7,9,10,18
Basically I suggest it is about designing a system of graduated pressure on parents. Not the sudden all or nothing step of care proceedings.
We already have some systems for that and I will discuss them below and what we can learn from and what we could build from. We can get busy with looking at the existing Initial Child Protection Conferences and Family Group Conferences and seeing their strengths and weakness.
And this need for graduated pressure starts long before we approach the threshold of legal action – it starts with the approach, skills, training, practice and support of the field social workers dealing with the families.
4. BUT – and it’s a big but – this simple case is easy to see and envisage and to provide solutions for.
Those solutions could be more humane, and more economic.
But there is a danger that we design a system suitable for these special cases and then apply to other types of cases which seem similar but where it should not be applied and would be a disaster.
“A disaster?” Isn’t that rather strong language?
Yes. As I have said many times before and do not apologise for repeating here:
with the abolition of the death penalty, care proceedings are the State’s grossest, most extreme interference in citizens’ lives. Taking away a person’s children is the most devastating step imaginable for the parent and the children and can only happen if it is totally justified, if there is no alternative and if it has been subject to painstaking and scrupulous examination.
How can I make that real? Please – Dare to imagine this yourself if you have children – or, if you do not, other members of your family with children: Dare to imagine taking your child to hospital, a child who has been injured falling off a swing. Dare to imagine a social worker there saying “we are keeping you child in – we are not satisfied these are accidental injuries.” Your child is terrified and needs to come home now. Needs your comfort. You are powerless. “You can see your child for one hour tomorrow – supervised by a social worker. We are going to court the next day. Your child will be in foster care….. the paediatrician here says there are reasonable grounds for believing these are not accidental injuries…. It’s only for 4 weeks initially….. “ Frankly my hairs are standing on end and I feel sick writing this. That’s how important this is.
And I have the deep belief that I am middle class and likely to be believed and able to handle things. And – and – and – ….. anything to avoid the horror of even thinking for a second of the possibility that my children will be permanently removed from me.
Is this the proper language of submissions to a government enquiry?
Yes. It is this important. This is what we are dealing with. This is why we need to be careful to retain the fullest possible safeguards in all cases and use new methods very selectively and only for suitable cases.
5. The question is which are the suitable cases?
Possible answer: 1. Ones of chronic, long term problems. 2. Where the facts are fairly obvious, undeniable and the only question is what is to be done? 3. Where parents are susceptible to graduated pressure.
But – what percentage of cases is that? Does anybody know? Has anyone ever asked these questions? Why not?
6. May we try to understand the range of cases?
It would be easy enough to say that there is a spectrum of cases – from these chronic neglect cases through to sudden, acute, emergency cases where children previously unknown to social services appear at hospital with suspicious injuries or sexual abuse is discovered.
In fact it is much more complex than that – they need to be mapped – at least on a two dimensional map: within the chronic cases there are different types of failure – usually neglect due to parents having learning difficulties / disabilities, mental illness, drug and substance problems. Personality problems – which can be specific to parenting issues. Ie attachment problems.
Chronic long running cases can be neglect of different types – missing school, children going to school dirty, hungry etc. lack of stimulation.
There is then a gradient with many intervening levels of neglect and abuse falling short of acute emergencies: families where there is emotional abuse, harshness, being ignored. Exposure to conflict which may be shouting or may be physical DV.
Chronic is not the same as obvious. Social workers may think so from the thickness of the file – ‘we know all about this family’. That can be wrong either way – the multiplication of concerns, the microscope the family is put under makes relatively common levels of dysfunction into unacceptable risks. And the other way – there are chronic cases where the long running nature is about low level concerns but in fact there are hidden serious problems – concealed sexual abuse, physical abuse, etc.
7. How much court do we need? Obviously for the disputed non accidental injury cases there needs to be a quasi-criminal trial – a fact-finding hearing.
It is tempting to think that is all the court is needed for. Many questions raised suggest that the forensic process can be restricted to just that. And the ‘welfare stage’ can be dealt with elsewhere – in a committee, tribunal, by discussions between social services and ? the Guardian?
(We used to call it ‘disposal stage’ but I think current fashion quite rightly has rejected that term)
That would be a dangerously simplistic approach – into which your panel will not of course fall.
In fact the two stage process of the court is not limited to this sort of forensic fact-finding about abuse and then the welfare stage.
The first stage is deciding if the threshold is crossed – definition of which is too familiar to need repeating.
What may need repeating however is that many cases the burden of the threshold is on likelihood of future harm. The court is in effect conducting a risk assessment exercise.
This is where differences of opinion are massive. We have all had cases where there is a change of social worker during a case and a tolerant optimistic approach is replaced with a punitive, pessimistic approach – possibly because the social worker is more anxious – and the view of the Local Authority is that threshold is crossed and the care plan changes from rehabilitation to permanent removal. And other cases where the opposite change has happened.
Or cases where the field social worker is positive about a case but senior management is more negative and restrictive.
These are crucial decisions being made it often seems on an arbitrary ‘which social worker do you happen to have this month’ basis.
The court has got to provide a forum for some consistent and scrupulous assessment of the reality of threshold in all cases.
8. Welfare stage. That is threshold. But you may ask – indeed you do ask – once that is disposed of can we not decide the welfare stage by some other, less formal or expensive method?
The answer is ‘maybe’. But it ignores what actually happens in court cases – and which everyone with any experience of the cases knows needs to happen.
The division between the two stages is not clear cut.
The formulation of the care plan is not a straightforward social worker decision. The threshold may be met. The court can decide that child did indeed suffer significant harm at the relevant time. Of at that time was likely to suffer significant harm, in the future.
But does that mean the child should be removed from the home? To imagine that this is automatic is to see it through a tempting but very simplistic assumption which your team will not fall into.
The questions have has to be: how serious was the harm? What has happened since? Is the risk of future harm still established at this time? Is that harm serious enough and cannot be avoided by appropriate protective arrangements such as Supervision Orders properly implemented? Ongoing monitoring of a new and more robust kind that could be devised.
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Now for a bit of modern / recent history. I do not apologise for this (although this paragraph is obviously a form of apology..) because many of the questions you raise have been raised and answered before….. and it raises the important question of why we sometimes do need proper court hearings…
9. The Carter report and the infamous Annexe B.
Almost exactly five years ago the Carter Enquiry tried to introduce some of the questions you are now asking about reforms to care proceedings. It did so in an unsatisfactory way, hidden in a one page ‘Annexe B’ at the back of their terms of reference which were mainly about legal aid reforms.
At that time I wrote a paper alerting the profession to this. Although I was not a representative of any organisation that paper did receive quite a warm welcome and was forwarded on to many members of the profession and judiciary and as a result I was invited to consultations at the DCA as it then was.
Most of my points remain valid now and I have adapted the contents of that paper to address a limited number of the questions you are now raising. My original paper was written to raise issues and explain matters to civil servants and politicians. Some of it may therefore be redundant for the very experienced practitioners on your team.
If you are impatient with any of this background material please skip to section 18 – calling in if you please at short and surprising section 15.
10. The length of this paper: I would dearly like to write a simple short paper which is easier to read (and perhaps more likely to be read?) However before making proposals I must respond to some of the pressures that your committee will be under and some of the views that will be expressed to you.
The terms of Annexe B of the Carter terms of reference were covert and phrased in highly prejudicial terms (literally – pre-judging). The cost saving agenda seemed hidden and therefore slightly dishonest. The document was clearly written by the consultant business accountants with no appreciation of the legal process.
11. Your terms of reference: I very much welcome the open and honest terms of reference of your enquiry and the fact that they and the composition of your team indicate a proper respect and understanding of the main fact about care proceedings that I have repeated many, many times and has become a part of the language: “With the abolition of the death penalty, care proceedings are the State’s grossest, most extreme interference in citizens’ lives. Taking away a person’s children and removing children from their own family is the most devastating step imaginable for the parent and the children and can only happen if it is totally justified and there is no alternative.”
The process for deciding this must be painstaking in the extreme. Mistakes either way are likely to be disastrous. Ie taking pains. And it may be that there is a tendency (conscious or unconscious) to avoid that pain and seek a cheap and quick solution.
12. Pressure from two major players:
Even more than five years ago the financial pressure on the system are enormous and none of us who work in it are ignorant of that.
The questions then and now can be seen as reflecting the interests and the representations of two important players.
12.1 The interests of the Treasury – and in some sense of all of us – is to save money.
The MoJ may wish to consider the respective costs of different areas of court process. Crime and lengthy criminal trials are an immense burden on the budget and yet seem to be sacrosanct. Is that because of the real merit of the call for resources or because of the well organised, well connected and skilful criminal Bar.
Some sacrifices may be looked for from civil proceedings. We are all aware that the main growth area in civil is care proceedings. That is where savings are looked for – but there is a danger of this being done with no analysis of what accountants would call the real ‘cost drivers’ within care proceedings.
Even less is there any awareness of the ‘downstream costs’ of poor decision making here: the massive impact on the health, police and prison budgets of children not protected to the very best of our abilities. It surely cannot be a question of ‘that’s a different budget’ ? That would be the antithesis of any joined-up thinking.
12.2. Local Authorities will also be making submissions to you reflecting the interests and views of Directors of Social Services and their Finance Officers.
Local Authorities may have two ambitions: the first is obvious – to save money.
But linked to this, the proposals shift into a far more serious issue: – their seeking to transfer power in child care – from the formal, regulated, scrutinised, painstaking and expensive process of the Court to the informal, independent, flexible, autonomous cheap actions of Social Workers and Local Authorities themselves.
This is the move that I wish to draw attention to and discuss.
Disproportionate use of resources.
Directors of Social Services may be saying that the Court forces them to spend a disproportionate amount of their Social Workers’ time and their budgets on care cases – in two ways:
“Firstly with elaborate and massively expensive assessments – often of hopeless cases”
(It is not hard to think what could prompt this backlash. s38(6) over the years decisions are a disaster for Local Authorities and the LSC. They represent an open cheque to experts and residential assessment centres.)
“And secondly, especially with pressure from the Guardians, the Court is forcing us to spend an unreasonable amount on care plans. They are perfectionist, unrealistic and rob resources from other families.”
“A disproportionate amount of Social Services budgets are being spent on the small number of families that come to court. The whole thing is bloated, over-elaborate.”
“Social Workers are therefore not able to do the preventative work that would prevent misery and be more cost effective.”
To an accountant that logic would be irresistible. Something must be done. We must cut back on these disproportionate costs. Use the money more equally, more efficiently, more cost effectively.
From the Social Work perspective and for the families: Why are we spending the resources so unevenly? Preventative work is far, far better than fire-fighting.
The previous of the terms of reference used phrases like – “to ensure all resources (including children’s services) are used in the most effective, efficient, proportionate and timely way” – and read them with this perspective – you can realise that we are in fact trying to answer an unspoken assumption and accusation that care proceedings are ineffective, inefficient, disproportionate and slow.
This is nowhere properly argued or any evidence produced. This is treated as a given. But that does not mean we can ignore the challenge. We need to answer: Are they? If not – why do they think they are?
No. But they may seem so to those who look at things from the outside.
We need to restate what really goes on in care proceedings and why they are different from other areas of law. The real reason why care proceedings are elaborate and lengthy.
That is not to say that there is not room for improvements and possibly some fundamental rethinking about child protection and the role of the law; when and whether the court should be involved at all. They are looked at in section 18 of this paper.
But for now let us deal with those situations where the court is involved.
13. It is not sensible to compare care proceedings with other cases.
Care proceedings cannot properly be compared with other forms of Court proceedings such as criminal or ordinary civil trials.
This is for three reasons.
13.1. Firstly, as I state above and do not apologise for repeating, they are simply the most important proceedings in terms of ‘punitiveness’ that come before the English Courts. This is both obvious and shocking.
I have said above that with the abolition of the death penalty, care proceedings are the State’s grossest, most extreme interference in citizens’ lives. Taking away a person’s children is the most devastating step imaginable for the parent and the children and can only happen if it is totally justified and there is no alternative.
The huge power and brutal intervention by the state explains why there has to be proportionate time and resources spent at this point. It is not a smooth increase in state intervention – it is indeed a sharp step, a move into a new league and the process has to reflect that.
A criminal trial with a possible prison sentence is a far, far less serious matter.
If someone offers you the choice of a few years in prison or the permanent loss of your children? Surely not a millisecond’s hesitation?
Yet there have always been millions of pounds spent on Old Bailey trials with QCs, forensics and trials that go on for months. The Government is now talking of reining that in – but from an incredibly inflated starting point.
Whereas removal of children is already done comparatively cheaply: mainly in the lowest level of court with unpaid magistrates, solicitor advocates and often junior counsel. On average – short hearings, few witnesses.
Surely this is an extraordinary situation; this is the true disproportion in the system. And yet we have been so used to it that it takes an effort even to notice it. In this context it is clear that care proceedings are not in fact very or disproportionately expensive.
13.2. The second point of uniqueness of care proceedings relates to the fact that care proceedings are the most important cases in terms of implications later for the individuals concerned and for society:
On the one hand – not to remove a child when necessary is to risk danger of harm, abuse, death.
On the one hand to remove a child unjustifiably is not only the grossest injustice to the family and the child, leaving a lasting grievance but it is no simple answer.
Those of us who work in the field know of the ever increasing difficulty in finding suitable adopters or even foster carers. This is especially true for children over a certain age, boys, and some ethnic groups. A point I have not seen acknowledged is that with assisted conception making incredible leaps forward there may be almost no childless couples in a few years time.
The cost of foster care is huge and for residential units is astronomical – sometimes in the order of thousands of pounds a week.
We also know how poor the outcome is for children removed into the care system. The government has commented on multiple moves within the care system and the poor educational and social outcomes for children in care. Less publicised but vitally important to the debate is also the breakdown rates for adoption.
For the parents; if removal is not seen as legitimate, the effect on their functioning is profound. One result is likely to be another swift pregnancy with all the attendant costs – human and financial.
These all have huge consequences further down the line – crime, health budgets; hidden costs. The idea of economising on decision making at this point is surely economic madness.
Simplistic thinking by one part of government will dump more serious and expensive problems on other parts of government for years to come.
13.3. Thirdly care proceedings are not like any other court proceedings
They are complex in a messy, human way that is outside the personal experiences of most people – including with all respect civil servants and accountants.
They deal in intimate detail with some highly dysfunctional families: with allegations often of mental health problems, drug addiction, chaotic lifestyles, physical and sexual abuse, neglect. Added to which there are often issues of learning difficulties, language and cultural problems.
This is all very unpleasant and hard for most people to think about. There may be disgust. There may be a need to assume there must be easy answers, tidy, cheap administrative answers. It is easy for that to become a basic impatience with the legal system; a simplistic approach tending unconsciously to the crude and authoritarian.
Most cases are in fact not clear cut abuse cases of the sort that are reported in the papers. The description above of extreme dysfunctionality is not universal. Cases are often about incompetent, inadequate parents – neglectful with perhaps some drug, mental health problems. Borderline cases. Parents who might be able to get better. Who may be able to change to being good enough given input and time. Who need monitoring. We have to ask – What can be salvaged for the children in this family? Parents may have improved but is it enough? Is it bad enough to remove the children?
The decisions to be made are the opposite of clear cut. They are matters of degree, of enormous difficulty and painfulness.
13.4 Care proceedings are not like any other court proceedings in terms of what is happening in the proceedings:
Almost all other proceedings in Court consist of an enquiry into a factual situation followed by legal analysis. This is most obvious in crime. The simple question is: did this person commit this piece of behaviour and is that piece of behaviour criminal and if so what should be the disposal? Similar issues arise with regards to civil proceedings.
Obviously the more promptly that these can be carried out after the event considered, then the better – both evidentially and from a point of view of the proper discharge of justice, penalty or remedy.
In care proceedings, clearly this is a model which is appropriate for split hearings in which the fact-finding first half is closely analogous to criminal proceedings.
However, as mentioned above, it is very rare for cases to be decided purely on the basis of such fact-finding hearings. There are a few cases of alleged sexual abuse or alleged non-accidental injuries of which this is true and, if the finding is that these allegations were unfounded, then there are no further grounds for concern or proceedings.
However, the majority of cases either do not have such specific allegations or are cases in which those specific allegations are simply embedded in a more general level of concern about significant harm caused by family dysfunction and poor parenting.
In these cases, the question before the Court is essentially one of risk assessment for the future behaviour of the parents or family.
13.5 Care proceedings are about risk assessment for the future, not about a retrospective investigation of what has happened in the past.
The entire enquiry in Court is actually directed at likelihood of future harm. This is why the proceedings are essentially a legal structure within which social work and psychological assessments are carried out.
Of itself, that would explain why the process is considerably more elaborate and prolonged than the simple fact-finding procedure in other sorts of hearings.
But the next layer of analysis is that these assessments are in fact not merely assessments of a static situation. They are almost invariably an assessment of a family with its dysfunctional aspects and the question is – can this family change? And if so, would that be within a time scale which is consistent with the need for the child or children to achieve some secure future placement?
13.6 Assessment of change. This is most clearly exemplified by residential assessments. It is quite clear and it is becoming recognised in a number of s38(6) cases, that these residential assessments are effectively assessments of parents’ ability to change. They contain psychological work, parenting work, and other work which may permit or encourage a parent to change to become a more competent parent.
This is also obviously true in situation where one of the main problems is a parent’s drug use. It is quite clear that the residential placement is as much about helping that parent achieve long-term drug-free status, as it is achieving improved parenting skills.
Therefore, in essence, what care proceedings are often about is Court directed assessment and processes to achieve change. It is for that reason that we repeatedly come up against the issue of time tables which involve assessments and work which takes place and has to take place over a matter of months, whereas the protocol and the expectations of the Court and statements regarding delay seem not entirely to have understood or to have accepted this fact about the nature of care proceedings.
13.7 Care proceedings are about Care Plans. We all know that care cases are now very often a question of the Court and the Guardian putting pressure on the Local Authority to create an acceptable care plan and delaying final hearings to ensure this is done. Care plans have become central to many care cases and this explains delays and costs. Examination of the care plan is not a minor bolt-on issue.
This is clearly the target of proposal 3.3.2 – “Examining whether the two stages of the court process in child protection cases (establishing the facts and determining the care plan) could be more formally separated with different attendees, procedures and levels of legal representation, and precisely where, and in what way, lawyers should be involved.” The implication is that this is wasteful, over elaborate. It is about removing care plans from rigorous, independent scrutiny of the court. This is fully answered below.
The discussion cannot simply end with asserting the importance and uniqueness of care proceedings. It would be a danger that we were asking simply for a blank cheque both as to the degree of elaborateness of the assessment, the duration of the assessment and negotiations regarding care plans and the degree of Court supervision. We could quite rightly be tested on those aspects and we should be self-critical about them.
14. But why involve the court?
The first challenge could be mounted to the question as to why any of this needs to happen under the supervision of the Court. That is in essence the question that was being asked throughout the previous terms of reference and is repeated in your questions.
The answer I suggest is three-fold:
14.1. Coercion. Firstly, as mentioned above, the difference between these assessments and other social work assessments is that the situation in the family is sufficiently serious that active consideration is being given to the removal of children from their birth parents.
This is in essence the escalating level of coercion in child protection and social work practice.
As the level of coercion increases, or as the level of threat increases, then it is correct for that process to be under the scrutiny of independent and experienced institution – namely the Court. The alternative model would effectively be the State through social services, exercising coercion on parents without an arena to ensure fairness and proportionality.
The human rights challenges to this only represent what any reasonably fair-minded person observing the rule of law would consider appropriate.
14. 2. Quality control The second, less obvious reason why this assessment process needs to be under the control of the Court is one of quality control.
The question of what would be a fair and full assessment is something that the Courts have considered and developed over the years. The Guardians are also generally very experienced social workers with a knowledge of resources and of practices in many different Local Authorities.
The social workers dealings with a case are not only subject to continuous change, but are often inexperienced, not aware of the range of possibilities and not necessarily as experienced as they need to be for this important work.
The result could be either an assessment which is brief and dismissive of parents, and gives the family no real chance to change, with the result the child is cheated of the possibility of being raised by their own family.
Alternatively, the assessment could be superficial and incomplete and allow a child to be returned to a family where further abuse or neglect then occurs.
Quality control relates also to care plans: The scrutiny of care plans can be seen in two situations:
Firstly with rehabilitation of the children home: Time needs to be spent on developing a care plan that will guarantee as far as possible adequate monitoring to ensure the children’s safety. Questions also need to be answered about what resources can be found and put in place in terms of support, special schooling, housing, medical check-ups and therapy arranged for the children etc. The input of expert advice in the case, psychiatric or social work, is often focused on these points.
The court should not attempt to control the future implementation of the care plan but can and should ensure that the plan is clear and secure and is likely to happen.
Secondly in cases where the children are removed from the family: the logic and justification for removing children from their families is based on the premise that the Local Authority can do better than the parents. To justify that the Local Authority needs to show what it will do with a Care Order if granted. Is the child going to be placed in a suitable home or residential unit? What does the child need? Will those resources be provided?
The detailed scrutiny that has developed is driven by the experience of Courts and Guardians who have so often come back to cases either when rehabilitation plans have failed or at the adoption stage and find Care Plans were inadequate.
Here again those of us actually working with cases see the hidden costs that are overlooked by those from outside. Most of us have been re-appointed on cases where a rehabilitation that could have worked has in fact broken down.
We find the vague promises of support made at the final hearing never materialised, the social worker left, the children never got the speech therapy or the respite care that would have allowed the family to survive. The family was left to drift into neglect again. The children suffered – which is the main issue from a human point of view – but from an economic point of view – eventually the children had to be removed again.
That is expensive in itself. If the children are not adoptable it represents a continuing huge cost – fostering for maybe 12 years at a few hundred pounds a week, on present day costs, and then leaving care services later . What is the total cost of all that? Hugely more than having a proper care plan that is delivered.
But this is precisely where the conflict arises with Local Authorities. To have an external agency exercising quality control is irksome in the extreme. The proposals could be seen as about Local Authorities wanting to escape from that control. This is totally understandable and we need to make it clear that this would seriously endanger children.
14.3. Implementation of care plans: We have to accept that the court cannot supervise the implementation of care plans. The need for some supervision is undoubted. Hence the saga of the starred care plans, which can be seen as the high tide of court control and which were rolled back by the possibly more politically sensitive House of Lords. This has been replaced with provisions for reviews with Independent Reviewing Officers. There are many criticisms of the poor quality of this system so far but that is a different issue.
The power and responsibility of the court may be properly restricted. But it must clearly be authorised and enabled to ensure that the children have the best possible clear and complete care plans to start with and for the IROs to monitor.
We need to argue that the court needs to remain involved in the formulation and checking of care plans. We need to explain that to remove this process would endanger children. And that such a failure would be in conflict with the most strongly held beliefs of the government in the need for the best deal for children.
This does however require us to emphasise the dire situation in Social Services explored below. This has to be done, but is politically difficult and potentially offensive to our Social Services colleagues.
15. Lawyers facilitate the process. The third reason why the involvement of the Court and of lawyers is necessary and productive at this stage may be a surprising one. The parents’ own solicitors do not in fact insulate their clients or over-protect them from the intervention of the state. They are actually the delivery point.
Social Services may see parents’ representatives defending them in what are considered indefensible situations or creating unnecessary delays. What social workers generally do not see is that one of the main roles of a parents’ solicitor is to act as the effective agent for that social coercion – however uncomfortable and unattractive that language sounds to us.
It is the parents’ solicitors who gain the trust of parents. They identify their solicitors as “on their side and worth listening to”. The solicitors then explain clearly and in a way that will be heard, the legal reality and the need for the parents to change their behaviour if they wish to retain the care of their children.
If this function were not carried out by the solicitors acting for parents, there would be many more contested hearings on hopeless cases. If parents and children can accept the legitimacy of decisions reached then there is a greatly increased chance of a successful outcome whether rehabilitated or removed. If that legitimacy is not achieved it is damaging for the children and for parents – whose lives are likely as a result to become even more dysfunctional with even greater risk to future children.
16. Why are these proposals being made? Response to a crisis.
I suggest we need to start from one stark fact: Social work, child protection and care proceedings are in serious crisis. It would be hard to over-state how dire this is.
We know that from inside the system. But the fact has not been acknowledged – certainly not in the report – nor is it yet full public knowledge.
1. Social Services. After years of cuts, recent child protection scandals have led to increases in spending. Large and probably unsustainable amounts of rate payers money are being directed to Social Services but social work teams remain desperately understaffed and the workers over-stretched and over-stressed to breaking point. The same is often true of their Legal Departments.
Many experienced staff have left. New staff are often agency staff. They are frequently from overseas, especially Australia, New Zealand and South Africa. It is a measure of the desperation that London Boroughs are going to these countries and signing up Social Work students while still at their universities.
Many of them are very good but need better induction than they get and they are usually on short term contracts with the resulting very high staff turnover.
We are all involved in cases where the Social Workers have changed two, three or more times during the case. It is rare to have the same Social Worker on a case for more than a few months. This is clearly not providing a good enough service to children and families.
2. CAFCASS: It is hardly necessary to highlight the terrible backlog of cases, the delays, the demoralisation of staff, the current financial problems and failure to allocate work to self-employed guardians.
3. Courts. The courts are also overloaded to breaking point. To be offered contested hearings six months ahead is an absurdity; it is disastrous for the family and for proper planning for children as well as being totally non-compliant with the HRA.
Delay is not always wrong as we all know. Proper assessments – particularly ‘in the community’ – take longer than the protocol would accommodate if it were ever strictly applied – but that is quite different from delays caused by overloaded lists.
Are care proceedings causing the problem? Are they helping as much as they could?
No and No. Care proceedings are not causing the crisis in Social Work. The fact is that care proceedings are a mirror that reflect and illuminate the existing situation. They are the messengers bringing the bad news and they are in danger of being shot and seriously damaged with dire consequences to child protection, children and families.
The real problem is that care proceedings are continuing to try to maintain and even improve the quality of state intervention – but at a time when social work is in crisis – some people would say is virtually collapsing.
The real reasons for the crisis in social work.
Are social workers leaving because of care proceedings? Or because of overload, stress, burn out, sometimes poor management and lack of supervision, endless re-organisations, devastating witch hunts in the media and the general social attitudes towards social workers.
A TV programme some years ago referred to social work as ‘the pariah profession’. Many examples, most obviously Baby P are examples of the vilification of social work. Existing social workers all over the country reading those reports are demoralised. Many prospective applicants are deterred.
But many social work teams that have very little to do with court proceedings are also in crisis on staffing levels. The problem cannot therefore be caused simply by involvement with care proceedings.
But here we are talking about the crisis or collapse of social work. And that is not acceptable language for central or local government to use, or even to hear. It is far easier to find some external source of the problem – like care proceedings.
Social work crisis reflects a social crisis.
And even more unsayably – the crisis in social work reflects the fact that to some degree society is also in crisis.
Perhaps we need to assemble those familiar, grim statistics – on the breakdown of family life, social exclusion, or describe the changes in values and attitudes, or the vast, runaway increase in drugs which are now at the heart of a majority of our cases? All these are generating almost impossible levels of demand and stress on Social Services Departments. This is the real reason why preventive work has become a thing of the past.
But here we are talking about the decline or collapse of social work and of society. And that is probably even less acceptable language for government to use.
Or perhaps for any consultant commissioned by a government to refer to. So it is easier not to mention this difficult, ugly, complicated and politically embarrassing truth. It is far easier to blame someone else. Blame the process, blame care proceedings?
One point that could however be properly made here: Courts and lawyers in their dealings with Social Services Departments can often act as if nothing was in crisis. We can be impatient, critical and reproachful. We can act as if there were plenty of resources.
We are not creating the crisis – but we are rubbing salt into the wounds. Maybe the attack in these proposals is in fact pay-back time? Maybe we need to listen and learn from that and be more sensitive and see ourselves as working with Social Services?
17. Is the present arrangement for involvement of court the very best we could contrive?
This is deal with in two parts: Firstly to ask are care proceedings and the assessments properly painstaking or are they over-elaborate, wasteful, over-lengthy?
Secondly to consider the more radical proposal to ‘identify good/innovative practice which enables children to be diverted away from court proceedings and, instead, to be supported in their families where this is possible’.
17.1. Are care proceedings and the assessments properly painstaking or are they over-elaborate, wasteful, over-lengthy? If there is waste, can it be eliminated?
The following are very brief notes about a very large subject.
There are three areas where we could consider improvements which would save money without compromising quality.
Firstly on a basic level of court procedure:
We could analyse carefully time spent and time wasted in a case.
One small example and an obvious area of improvement is in travel and waiting time in court hearings.
Some Directions Hearings could be conducted remotely. Video-conferencing seems fashionable currently. But the need actually to see each other is not obvious and the system still forces people to travel. Hearings by e-mail and by telephone conference calls are extremely efficient. Everyone stays in their offices, no travel, no waiting. It may be possible to save thousands of pounds with no loss of quality.
Ideas like this at least needs examining. The present DCA enquiry needs to propose a much more thorough and rigorous examination of these ideas.
Secondly we should look critically at the present assessment process. It is beyond the scope of this paper to study this in any detail but certain questions could be raised here for answering later in a full, open, detailed enquiry:
The most important question must be: How successful in predicting risk are the various sorts of assessment? What sort of assessment is best: psychiatric ‘snapshots with diagnosis’ or longer term social work assessments based on observation of behaviour? Are we getting real value from psychiatrists?
Why are we not more aware of outcome research? Is there enough information about outcomes?
How successful are drug rehabilitations? Surely that really needs looking at? Huge amounts of money are spent of drug rehabs but I am not aware of any systematic, trustworthy, long term follow up. Some units will say ‘50% of our clients are drug free after six months’. But they have an interest in saying so, their follow up methods may lose many of the failures and six months is not long enough.
This feeds into the really hard question: When would it be right to decide early on that a case was hopeless and the child should not be made to wait while a parent attempts yet another drug detox and rehab?
Thirdly the area of costs and alleged extravagance is the pressure to secure more complete care plans. This needs to be separated into two aspects: additional costs due to the process of further hearings against the actual cost to the Local Authority of providing the family or child with the resources needed.
The former is often simply about failures in the Local Authority’s planning, especially around parallel planning and different teams being involved. Time and money would be saved if a procedure could be agreed and enforced as to when and how care plans should be produced.
The question of the actual cost to the Local Authority of providing the family or child with the resources needed is in fact about rationing of resources. There is no honest discussion about how much we are prepared to pay as a society. Even in health, where the issues are clearer, there is no such debate about the value of a life, of certain interventions. We pretend there is no rationing but instead accept the ‘post code lottery’.
In care proceedings the lottery is often both post code based and whether the family is in proceedings. If Local Authorities feel courts are pushing them to spend ‘too much’ on some families, then it would be best to discuss what is too much, what is the budget, what is reasonable to ask for in terms of resources. This is a difficult, painful debate. By keeping care plans out of public scrutiny the debate is avoided.
Finally we should be emphatically drawing attention to the ‘down stream costs’. If a child does not receive correct resources costing a moderate amount now, and then goes on to develop mental health problems or commit offences, how many tens of thousands of pounds are spent in the psychiatric, criminal and prison systems in later years?
If the review or enquiry is being seriously business-like it should be doing this work and those who have commissioned it should be asking for that work. Perhaps we also should be finding or commissioning the research.
The role of the Guardian
The proposals include ‘using a more inquisitorial system’. This has its dangers but could reinforce the role of Guardians – ‘the eyes and ears of the court.’
The tandem model of children’s solicitor and Guardian has been under attack for many years and the phrase ‘Rolls Royce model’ will have been used. A Ford Fiesta seems the usual counter proposal. Some will say that the Guardian is an expert witness for the court and experts don’t need legal representation.
This is to misunderstand the role of the Guardian. S/he is not simply an expert witness. S/he is a key player in the whole case.
It has been explained above that the court has a very different role than courts in other types of cases. It has duties to check and direct the assessment process. It has a duty to monitor the progress of the case and the actions of the Local Authority.
This duty effectively falls on the Guardian on a day to day basis. S/he uses the court for reinforcement and to be accountable but the Guardian needs not only continuing advice about the law and what can properly be asked for but also strong representation in court if this is to be effective.
We have all been involved in cases where the Guardian is the only steady, reliable element in a case and the Court looks to Guardians for the pressure to maintain momentum in a case and the quality of the process. Guardians were introduced after the failure of the system and an early child death scandal. To curb their powers or influence would be retrograde and dangerous for children.
The system is not extravagant as the phrase Rolls Royce suggests. If we have to use motoring metaphors, it is more like a basic farm Land Rover; spartan, robust, and any extra cost is caused by the need for four wheel drive to drag difficult cases through the mud and up the hills. Try replacing that with a Ford Fiesta!
18. In answer to your questions 4,7 and 9:
From a lawyer’s point of view, in terms of general approach and procedure, we are all aware of the growth of alternative dispute resolution and mediation. Is there a role for those approaches here?
This is a huge and difficult subject and these are preliminary comments:
It is useful to note that there already two institutions which throw some light on this approach and from which we can learn a lot about the advantages and the dangers of this approach: Child Protection Conferences and Family Group Conferences.
They address slightly different but overlapping situations: the first simply with a family or parents who are seen as in crisis, failing and where the children are at risk of harm. The second is likely to have that element but essentially explores the wider family as a resource.
Coercion. We need to be clear that, as a family reaches the stage that involves these steps, especially Child Protection Conferences, we are talking about pressure from Social Services and the possibility of court action, the threat ultimately of the removal of the children.
We therefore need to put this whole question in a way that is very challenging for us and using language which may be shocking: What is the best use of coercion in child protection? What would be effective but legitimate?
We do use coercion. We all agree some children need to be removed. We all believe that the threat of removal can change some parents’ behaviour – sometimes. We don’t really know which parents or when and how it works because nobody has done the research. That is surprising as it might be thought to be fairly central to the whole business.
This question needs to be asked in this way because at present there is a form of disproportion with care proceedings. It seems like a clumsy ‘all or nothing’ business. Either there is there is no coercion or there are care proceedings. This is like an on/off switch – not a graded response like a brake or accelerator.
Ironically this is rather like the poor parenting that is criticised in some of the families involved: letting children push the limits with no response and then suddenly cracking down – crudely, harshly, in a heavy handed way. Which in fact further alienates the children and leads to further behaviour which is seen as difficult or challenging.
So often everyone in a case asks – why did Social Services wait so long before taking action? Leaving aside the problems of Social Services generally, there is also the fact that social workers have been urged to work with parents in partnership. The only coercive mechanism is the ultimate one of care proceedings, very hard to use skilfully. It would be like only having one, draconian sanction to use with a child in the home.
Graded pressure or coercion. We should be asking ourselves how can the use of coercion and threat be made more sophisticated and graded but still legitimate and accountable? Even better, to borrow from the parenting analogy, how can the process be one of ‘tough love’ – firm but fair and with warmth and support?
Child Protection Conferences are a form of graded pressure or coercion. They are slightly formal, ‘independently’ chaired meetings of all concerned with a family, which has power to recommend placing the names on the Child Protection Register.
It is possible that the consultants or the civil servants have sat in such a conference. For those of us who do so regularly, we can report that they are curious, unsatisfactory mechanisms. The ‘evidence’ in the form of reports is usually late, incomplete and cannot be challenged. Those attending are often a random collection of people involved with the family from different disciplines and many are reluctant to comment on registration. The chair can decide whatever s/he likes and is not bound by the ‘votes’ of those present. It is not clear to parents or often to the participants what is the significance of their child being on the Register.
If the purpose is to achieve constructive change then it is important to consider the reaction of the parents. Parents often either take the procedure too lightly and are dismissive, or they react with confused anger and aggression or they panic and over-react into anxiety. None of these are particularly effective to achieve the desired changes.
What outside observers may also not appreciate is the reality of working with parents who may have mental health problems, learning difficulties, huge cultural differences and language problems.
Child Protection Conferences precisely highlight the danger of less formal procedures and ‘under-representation’. It is necessary and far more effective for the longer terms interests of the children for the parents to be well represented and well advised by people they trust.
Ironically the Legal Aid system currently makes it less likely that parents will be well represented at this stage. It effectively ‘dis-incentivises’ early constructive solutions.
Another way of avoiding care proceedings arose some years ago with the move towards Family Group Conferences as a way of working with the family early on. If the family can be encouraged to ‘sort things out without the need for court proceedings’ that would save, time, money and conflict.
They are used where social workers think either the parent(s) might cope with more family support or where they are not going to cope and a home is needed elsewhere in the family. Those are in fact very different situations and the danger of running one into the other will be dealt with below.
But to deal first with the possible advantages: the FHB or ‘family hold back’ factor: In that second situation, where a home is needed elsewhere in the family, it would also in theory resolve one of the less obvious but very important causes of delay and expense that now exists in care proceedings: the FHB or ‘family hold back’ factor.
To explain: One reason we have considerable delays in the court process is that sometimes we have ‘serial assessments’ – first the mother; then when she fails, the father or grandmother or other family member come forward and want to be assessed.
And if the assessments do go ahead, and if they fail, then the child has been in foster care for longer than necessary, it will be harder for the child to move on and, at a certain point they may be too old to be adopted. They have missed the bus.
This is enormously frustrating for the Courts; but in cases where the mother fails, can we really say “No, sorry; there’s a perfectly good uncle or aunt or grandmother but they’ve come forward too late. So we are giving the Local Authority a final care order although their plan is currently for adoption. They may change their minds and look at the family but that’s up to them.” That would be totally unacceptable and could result in many children failing to remain within their families.
Usually this whole problem is simply a result of the fact that the person who is seen as the primary carer is given ‘the best shot at it’ – and everyone else in a family is holding back so as not to be seen as threatening or undermining her.
In theory getting everyone together could produce quick and practical solutions to this problem or, on the more positive situation of parent(s) coping with more support, then that can be arranged quickly and simply.
In theory. But the results in practice are not as satisfactory as the original glowing reports from New Zealand suggested. Or perhaps as the organisations or consultants who provide FGC services might wish to claim.
There are huge, messy emotional issues here that will not have been within the professional experience of those undertaking the present enquiry and need spelling out.
This is likely to be a dysfunctional family possibly with a long history of conflict, even abuse, neglect or violence and bullying. There may be learning difficulties and/or a long tradition of avoiding or manipulating Social Services.
Who wins? Family Group Conferences can simply be a formalised arena where the more dominant or domineering members of the family take even more power and oppress the weaker. The family appears to resolve the problem by voluntarily agreeing to take the child away from the mother. But old patterns are being repeated. The problem is brushed under the carpet.
It may not in fact be necessary for the child to be removed but if the family decide it is, then parents may well feel they have little choice. This can be a travesty of proper procedure. Children may lose their home with their parents on the decision of a dysfunctional family.
Because there is often no full and rigorous assessment, the child may end up with the most dominant member of the family – possibly aggressive or even abusive – not with the most suitable person.
This leaves aside any ulterior motive – from sexual abuse through to the value of a child as a ticket to increased benefits or a place on the housing list. This is a highly dangerous result.
Fooling Social Services and the long term results.
It could be asked what research there has been on the real long term results. FGCs often result in a family ‘resolving the problem’ which actually means ‘fooling the social workers that it’s safe. Then a few months later, once the social workers have all gone away, the kid goes back to mum.’ Looks good and will be reported as a success in research or brochures advertising FGCs but in practice is definitely another dangerous outcome.
These two procedures share all the classic dangers of processes which can be quick, cheap, superficial and dangerous.
We could still say that Child Protection Conferences and Family Group Conferences do have real dangers but maybe the parents need to hear about the serious stage matters have reached; maybe the family does need to be brought together and told strongly and authoritatively and advised by people they trust, that the whole family must now work openly, urgently to salvage the situation.
But the dangers remain so we need to ask what could be done to create a new model which is quicker, simpler but sufficiently painstaking to safeguard the children and create safe, successful outcomes?
One of the proposals in the Carter Annexe B review is for ‘early low-level judicial intervention’.
Taking this proposal as a challenge and viewing it as constructively as possible we could see this as amounting to suggesting a mechanism for a figure like a Judge or an Adjudicator or a tribunal, in a fairly formal situation, to articulate to the parents the seriousness of the situation and the reality of the coercive threat at a realtively early stage. Possibly they would supervise the Child Protection Conference and ensure its proper operation or encourage or even require the family to engage in a Family Group Conference and set appropriate terms.
There may be benefits for the family to see that holding back in order not to upset the mother is not going to work. “I, the Judge, am saying I want to hear about the wider family. The mother cannot reproach you for offering. This may be your only chance of keeping the children. ” This could well help resolve that disastrous, family hold back factor.
Proper systems: The aim must be for this to be done in a way that is fair, constructive and calculated to produce change in the family and improvements for the children.
It would require very careful thought to design such a process. It is a major project which needs not only careful thought, but information from research and the proper examination of models from other countries and cultures.
Will the civil servants have the courage to say that this cannot be rushed whatever the political pressure to come up with quick answers? That a full commission or enquiry needs to be set up – however unfashionable such an approach is. Will they see that to rush changes through would produce great future embarrassment of the government and all those involved?
Some basic requirements have to be met. The information justifying this level of coercion needs to be sound, offered in advance to the parents, and open to some challenge. If this is already beginning to sound like a court then it highlights the difficulty of finding any sort of innovative middle course between the two existing extremes.
Also it will only be fair and will only be effective if the parents and family are advised by people they trust for reasons explored above.
That is a really constructive role for solicitors and one that we in fact already do play in some cases, quietly in our office in discussions with our clients.
I and most other child care solicitors have diverted many cases from court proceedings by encouraging parents to co-operate with Social Services and sometimes to work with other family members to create a care package that will ‘satisfy the social workers’ – ie provide better care for the children. This is an area that could well be developed with better thinking, training and funding.
Resources. There is also no escaping the issues of resources.
Many of us have clients coming into our offices saying ‘I have tried to get some help from Social Services, I am not coping, I am in danger of hitting him, I need help, my son needs a nursery.’ They get brushed off unless they are seen to be in total crisis. Indeed more than one client has had to threaten to abandon their child in the offices in order to get a response. That damages the child and sets off relations with Social Services on the worst possible footing.
Some of this is simply resources. Social workers cannot necessarily offer the support or the nursery place. Many nurseries have been closed down. Youth clubs did great work but are now a distant memory. They did real, invaluable preventative work.
Any early low-level judicial interventions that are properly conducted will lead to the Judge asking what resources are to be available to the family if coercion is also to be applied. You cannot give people in that position power without them feeling the proper sense of responsibility that goes with it. It is not necessarily a cheap option.
One new more hopeful development is that parents are beginning to say ‘I want some parenting training’.
This is major progress. As someone who is a parenting group facilitator as well as a solicitor, I know that parenting training is an effective and cost-effective way of quickly and profoundly improving the situation for many families. It is an idea some of us have worked with for ten years but it now seems an idea whose time as come. Judging by the TV programmes, people are beginning to see the light on this.
One threat to the effectiveness of this is the danger that they will be seen as punitive, something to be done because of a compulsory Parenting Order, stigmatising. That would entirely undermine their effectiveness.
They need to be seen as respectable, smart, fashionable. If more role models in society could be heard to say they struggle with being a parent and have benefited from help or a course then an important new resource could begin to operate: an example of good/innovative practice.
But this strays way into the sky blue area outside of our immediate subject
Thank you for reading this far.
Happy to come and talk with you if that might be your modus operandi at any stage.
David Jockelson. 29 September 2010