| Social workers antagonising parents: Experts cashing in by manufacturing risk?

PSYCHOLOGICAL ISSUES IDENTIFIED IN PARENTS – IS THERE ENOUGH UNDERSTANDING BY PROFESSIONALS INVOLVED IN CARE CASES? ~ Kirsty Richards, Jordan Publishing.

 

Since I wrote my last opinion piece in April 2013, I continue to practice in children law proceedings (both private and public) and read the article by Kitty Knowles in the Metroyesterday (2 December 2013) : ‘Social Services have a baby taken from mother’s womb’.

While it is inappropriate to comment on that particular case without being aware of the full facts and circumstances, it raises a very serious issue for practitioners involved in care work when psychiatric and/or psychological concerns are raised against one or both parents.

The article in the Metro reports that this particular mother had been taken to a psychiatric ward after failing to take her medication and suffering a panic attack. The local authority then had concerns for the welfare of her unborn child.  After a period of 5 weeks, it is stated they forcibly sedated her and performed a caesarean section, placing the child with foster carers and refusing to return the baby to its mother due to their fears she may relapse. See the response from the local authority at http://www.essex.gov.uk/News/Pages/Essex-County-Council-responses-to-interest-in-story-headlined-Essex-removes-baby-from-mother.aspx

My discussion here centres around the attitude towards any mental health diagnosis, not with regards to the specific case mentioned above.

One would usually expect to see some Expert Reports commissioned during public law proceedings and it is the attitude of some professionals as to the lack of empathy in considering a particular diagnosis, with the effect of “writing off” of parents which is a growing concern in care proceedings.

I have vast experience of public law cases whereby following the receipt of an Expert report, with a diagnosis of either a Psychological/Psychiatric condition, that particular parent is very quickly written off as a possible carer by the Local Authority and other professionals involved in the case when there is clearly scope to consider a more holistic approach as to what support and care package could be provided to enable that parent to provide good enough parenting to the child subject to proceedings.

The recent judgments in Re B-S (Adoption: Application of s 47(5)) [2013] EWCA Civ 1146, [2014] 1 FLR (forthcoming) and Re G (Care Proceedings: Welfare Evaluation)[2013] EWCA Civ 965, [2014] 1 FLR (forthcoming) have provided practitioners and the court with a much needed reminder that the premise of the Children Act 1989 is to afford children the opportunity to remain with their birth parents if it is at all safe to do so.

Further reminding us that if support is required to enable that parent to look after the child, a thorough analytical report is required setting out exactly what support is required, whether it can be provided and if not, why not.  A holistic approach is required in care proceedings, with thorough and in-depth planning so as to allow the court to reach decisions as to a child’s long term care arrangements with a sound evidential basis.

All too often, professionals will read a psychological/psychiatric report and all too quickly assume its conclusions render that particular parent unable to provide good enough parenting to their child/children.  We should keep it at the forefront of our minds that there is no such thing as perfect parenting and the test is one of ‘good enough’ parenting, which should be achievable with some support in place for particular parents that require it.

As an example, earlier this year, I had an expert report commissioned in a public law case which concluded both parents have personality disorders and the very nature of their particular disorders means they will struggle to deal with information from the local authority (and other professionals) if it is not presented to them in a particular way.

The expert recommended that parties acknowledge the diagnosis of the parents and ensure they communicate with them in an open and honest way, in order to achieve a good working relationship with them.  (It had also been a part of that report that there is clear evidence the parents are able to communicate with some professionals; those that speak to them in an honest way and so the presence of this particular personality disorder did not mean it was an unworkable situation).

Sadly, I did not see any other professional take those conclusions into account and saw an overwhelming attitude that there was no time to put in the extra support needed in terms of explaining things clearly to those parents – leading, inevitably to a poor relationship between the parents and local authority, in particular, who the parents considered would always make decisions and tell them about changes rather than engaging them in open communication and decision-making regarding their children, for whom they still held parental responsibility for – alongside the local authority.

The refreshing judgments coming from the Court of Appeal, such as Re B-S and Re G, are simply reminding practitioners of the basic point that every child deserves to live with his/her biological parent if it is safe to do so. Practitioners and other professionals dealing with care work are supposed to be involved in the careful planning for these vulnerable children and in writing off their parent(s) simply because a psychological issue has been identified is surely providing that child a disservice. A truly holistic approach requires all parties to challenge any linear care planning put forward by local authorities and for there to be, in my view, a better understanding of psychological issues and indeed an empathy towards those suffering personality disorders (for example), who will need more support than others to provide that good enough standard of parenting.

The Liberal Democrat MP John Hemming says he plans to raise the case discussed in the Metro in the Commons and I think that most certainly should be done.  He states that ‘[he worries] about the way these decisions about a person’s mental capacity are being taken’ and I too am concerned that unless there is a conscious effort by all involved in care proceedings to look beyond mental health issues, too many children will be stripped of the opportunity to live with their birth parents and that surely goes against the very premise of the Children Act 1989?

Kirsty Richards is a Senior Family Solicitor at GT Stewart Solicitors in London.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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Treason2

| State-sanctioned kidnapping: A must-read for anyone who cares about children lost in limbo!

State-sanctioned kidnapping:
A must-read for anyone who cares about children lost in limbo! 

| LANCASHIRE COUNTY COUNCIL seriously fails children in care!‏

A and S v Lancs CC [2012] EWHC 1689 (Fam)

Application, made by two brothers freed for adoption by Lancashire County Council in 2001, for a declaration that the council had breached the boys’ rights under Arts 8, 6 and 3 of the ECHR and the independent reviewing officer had breached their rights under Arts 8 and 6. Declarations granted.

 

This case identifies that nationally there are other children who remain under unsuccessful freeing orders or placement orders.

This case suggests

(1) that those cases may need to be identified and reviewed to ensure that these children are not being disadvantaged as a result of their incorrect legal status and

(2) there is a pressing need for the independent reviewing system to work more effectively than it did for these two boys.

There was a Freedom Of Information Act request made to 23 local authorities in the North West region on behalf of A and this showed that there were other children who remained under freeing orders.

Due to the critical issues this judgment raises, Mr Justice Peter Jackson has sent a copy of the judgment to the Children’s Commissioner for England to consider whether any action is needed to protect the situation of other children.

HUMAN RIGHTS ACT INFRINGEMENTS
113. Section 8(1) of the Human Rights Act 1998 provides that:

In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

114. The parties are agreed that this court should go no further than the granting of declarations, and that the relevant provisions are those under Articles 8, 6 and 3.

Article 8


115. A and S are entitled to enjoy the same Convention right to respect for their private and family life as anyone else.  This relates not just to the search for a substitute family, but to the maintenance of such birth family connections as were in their interests.  LCC had, as it now acknowledges, a continuing positive obligation to promote these rights.  It accepts that the early history and delays significantly damaged the prospect of the boys finding a permanent adoptive placement.  It further accepts responsibility for the lost opportunity for continuing contact with family members, such as their Aunt D and with N and S1.

116. The IRO accepts that he was in a particularly significant position to have asserted these rights on behalf of the boys.  In fact he was the only independent professional who could have done so.

117. Had the children been under a care order, LCC would have been obliged to permit and promote reasonable contact with their mother and siblings in accordance with their statutory obligations to a child in care under s.34(1) and Schedule 2 paragraph 15(1) of the Children Act 1989.  If it did not consider this in their interests, it would have had to justify this to the court by means of an application for permission to refuse contact under s.34(4).

118. What LCC instead did was to circumvent those statutory obligations.  Although it operated as if these children were under care orders, it remained positively resistant to family contact.  In effect, it gave itself an order under s.34(4) – to the point that the records often referred to such an order actually being in existence.

119. At times, LCC mulled over the possibility of exploring contact with M.  There are references to this in 2006 in particular.  However, despite resolving to set up meetings with M, there is no record of this ever happening.  As a further example, on 13 December 2010, Aunt D attended social services’ offices to ask for an update about S and A and was upset to hear that they were not in the same placement.  The social work note reads:

“D asked about direct contact with S and A. I advised D that at this time indirect contact would be more appropriate to begin to build up a relationship with S and A should they want this as it has been several years since S and A have had any direct contact with their birth family”.

120. D wanted to provide her address so that the boys could write directly but was advised that indirect communication through the social worker was more appropriate “at this time”.  In the end, in February 2011, the boys made contact with Aunt D in their own way.

121. Whether or not it would have been in the boys’ interests to have had contact with family members in earlier years cannot now be known.  What is clear is that A and S often asked for contact.  As examples of numerous references:

(1) At the LAC Review on 13 September 2005, S and A were asked who they would like to see more of.  S said “S1 and N” (his brothers, not seen for three years).  A said “Santa (more than at Christmas), S1, N, Aunty C, Mum“.

(2) During the LAC Review on 8 March 2006, A and S specifically asked to be allowed to see their brothers, and the social worker agreed to discuss whether direct contact could take place with their Aunt C, who was then looking after S1. There is no record of this being followed up.

(3) In October 2008, S filled out his LAC consultation form saying he would like to see “all of my family” and expressing dissatisfaction with his arrangements as he wanted to see his “mum and brothers”.  At the same review A indicated he too would like to see his mother, brothers and Aunt C.

 

Article 6


122. This revolves around LCC’s inadequate monitoring and reviewing procedures and, again, the failure to revoke the Freeing Order, amounting to a denial of access to the court process.  They were accordingly deprived of the entitlement to have:

(1) M consulted as a matter of right (as opposed to at the discretion of LCC) in advance of every Looked After Child Review;

(2) M informed of the conclusion and/or recommendations at the conclusion of every LAC Review and no later than 14 days thereafter;

(3) M being alerted to the need to make a further application to revoke the Freeing Orders, having read the recommendation at every LAC Review since March 2004 that the order should be (but had not been) revoked on an application by LCC;

(4) The protection and scrutiny of a having a Children’s Guardian appointed for them, and legal representation appointed to act on their behalf, during an application to revoke their Freeing Orders;

(5) Scrutiny by the court of an application to refuse contact with family members under s.34(4).

 

Article 3 


123. LCC had a positive obligation to protect A and S from inhuman and degrading treatment.  The abuse in the home of the Hs and the Bs was a violation of these rights.  The placement of the boys with the Hs was particularly unfortunate when LCC was aware of previous complaints against them.

DECLARATIONS


124. I declare that LCC and the IRO acted incompatibly with the rights of A and S, as guaranteed by Articles 8, 6 and 3 of the European Convention of Human Rights and Fundamental Freedoms 1950, in the following 10 respects.

125. LCC:

(1) Failed to provide A and S with a proper opportunity of securing a permanent adoptive placement and a settled and secure home life.  (Art. 8)

(2) Failed to seek revocation of the orders freeing A and S for adoption, made on the 19 March 2001 pursuant to Section 18(1) Adoption Act 1976, which effectively deprived them of:

(a) The protection afforded to children under the Children Act 1989;

(b) Contact with their mother and/or other members of their family;

(c) Access to the Court and the procedural protection of a Guardian.

 

(Arts. 6 & 8)


(3) Permitted A and S to be subjected to degrading treatment and physical assault and failed adequately to protect their physical and sexual safety and their psychological health (Arts. 3 and 8).

(4) Failed to provide accurate information concerning A and S’s legal status to the Independent Reviewing Officers.  (Art. 8)

(5) Failed to ensure that there were sufficient procedures in place to give effect to the recommendations of the Looked After Child Reviews.  (Art 8.)

(6) Failed to promote the rights of A and S to independent legal advice. (Art. 6)

(7) Specifically, failed to act as the ‘responsible body’ to enable A and S to pursue any potential claims for criminal injuries compensation, tortious liability and/or breach of Human Rights arising from their treatment by their mother, or by the Hs or by Mrs B.  (Art. 6)

126. The IRO:

(8) Failed to identify that A and S’s Human Rights had been and were being infringed. (Arts. 6 & 8)

(9) Failed to take effective action to ensure that LCC acted upon the recommendations of Looked After Child Reviews.  (Art. 8)

(10) Failed to refer the circumstances of A and S to CAFCASS Legal. (Art. 8)

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Child Pray