On 9th March 2018 we wrote to the DfE about a concerning case. Much can be learned from individual cases such as this about systemic failings. Such cases show where children and families ‘fall through the gaps’ and offer important opportunities for learning. As Professor Peter Fonagy, co chair of the recent SCIE project on Mental Health of Children in Care – including Previously Looked After Children – has suggested, the system needs to be able to take account of ‘never’ cases. This should include cases where decisions have been made with the best of intentions, but the outcome has been extremely negative for those who live with the consequences of decisions.
The case pertained to an adopted child who had been removed from his adoptive family after his parents, who were kinship adopters, had reported and sought help. A Care Order was made. His parents tried in vain with this Order to support their child in care and get him the help he needed. Two years on and there were few foster carers willing to care for the child. None could be found that allowed his faith to be supported, and no one who spoke his first language or was of his race. Numerous foster care placements broke down, and when the application for discharge of the Care Order was put in by the boy’s parents, he wanted to come home. Nine months on and the final contested hearing approached. The parents, whose contact with their child was constrained and further restricted as soon as their application was put to the court, had not been able to have any input into the selection or instruction of experts in their application for discharge. They were not happy with the way assessors were instructed, or the way assessments were done. Knowledge was lacking on the part of the experts on whom the court relied, about matters of faith and cultural identity, as well as adoption issues. The parents tried to get experts involved who had this knowledge and could fairly assess. They had no legal assistance and were thwarted in their efforts. These assessments were not considered ‘necessary’ by other parties. The Court of Appeal refused the parent’s appeal, and it was the total resistance of other parties to involving suitable experts, and the refusal of the appeal, that we felt was of concern to the DfE. It did not sit well with the ‘forensic’ nature of court proceedings to prevent the experts proposed by parents from assessing. The experts proposed were both experienced court experts who could potentially shed light on aspects of the case where knowledge and understanding were lacking, in an impartial manner. Furthermore, the credentials of the experts proposed by the parents, and the reasons for seeking their opinions, were not accurately described (from the perspective of parents), by the Court, or the Court of Appeal. Without these experts involved, a contested hearing would be a fair accompli, and an extremely difficult ordeal for the parents who felt unable to rectify misunderstandings about them. Yet by withdrawing their application to discharge the Order, and avoid the ordeal, the appeal could not be considered at all. They were in an impossible situation.
A month before the final contested hearing the foster carer handed in notice. Neither the parents or the child were informed about the placement breakdown at this stage. When they were finally informed, the week before the final hearing, the boy told his parents he wanted to return home, and he divulged a recent suicide attempt to his mother when the contact supervisior was getting drinks and was together with the boys father. They were hopeful of a positive outcome from the case. But four days later the boy no longer wanted to come home and rejected his religion following a visit from the children’s guardian. He provided a statement to the Judge through the guardian. With this statement accepted, the Judge was only able to use the application for discharge to pressurise the LA into finding another foster care placement, which proved a great challenge. Understandably the parents were devastated and shocked.
Since the proceedings have concluded the boy has had several temporary foster care placements. He is now, temporarily, in residential care. He has been excluded from his school and is referred to a Pupil Referral Unit. His parents are extremely concerned about him. As a result of the proceedings, contact with family remains curtailed to monthly supervised contact, regardless of the child’s wishes and less frequent than before the application was put in for discharge of the Order. The child’s disabilities (not recognised by the LA), and mental health issues, mean that it is very unlikely he will cope with living independently, and his parents will no doubt have to care for him, and deal with the consequences of their help seeking, at a later point in his life. The child has no other relatives in the UK. Applying to discharge a Care Order has moved things in the wrong direction for this adoptive family. A child is more and more isolated and destabilised. He rejects his religion and seemingly turns to drugs and crime whilst his parents are victimised and powerless to assist their son.
We think this is an important case and have decided to publish the response recieved from the DfE, on 8th May 2018.
We are saddened with the way that the DfE has simply reiterated policies and procedures – making assumptions that a child’s parents will be unawareof them – and have not already tried all the avenues suggested. The point is surely that these policies and procedures may have failed to protect a child’s ‘best interests’, when the child’s parents sought the help of those with a ‘duty of care’ in good faith.
The DfE’s lack of interest in this case does not seem congruent with the rhetoric that is so often expressed about adoptive and special guardianship families being valued. We need to be able to talk about cases where there have been sad outcomes, and think together with policy makers and legislators about the reasons for this, so as to ensure legislation, policies and guidances were fair and supportive of those they are intended to serve.
To put the DfE’s response into context, our recent survey on parent/caregiver stress, showed that 146/389 respondents had cause to make a formal complaint to their LA or a Local Government Ombudsman. Not withstanding the issue of ‘respondent bias’ (more respondents with negative experiences may completed the survey), this finding suggests adopters and special guardians are having great difficulties.
We also draw attention to the fact that the ‘opinions’ of professionals are beyond the remit of a Local Government Ombudsman and once a case has gone to court the LGO will not investigate it further. With legal aid not accessible to parents in applications to discharge a Care Order there can be legal inequities in court proceedings – and there were in this case. There is a knowledge gap as to the true impact of these inequities.
We are hearing many concerning reports that LAs seek to discredit adoptive parents and special guardians through expressing derogatory opinions about working with them, and in regards to their capacity to parent and care for a troubled child, whom anyone would find hard to care for – as was the case here. It is deeply saddening to see parents and carers who are battling to achieve support for their family members taken back into care under S20 or S31 Orders, described as ‘difficult’ or ‘challenging’ for professionals to work with.
We are concerned that discrediting the parenting capacity of parents and guardians striving to do their best, and then permanently removing their children, with no commitment shown to the child in the context of their family – that this approach may deepen the problems for the child and family rather than resolving them. It is just not helpful.
“Thank you for your email of 9 March, addressed to the Children’s Commissioner, Minister Zahawi and the Chief Social Worker, about adoption. Your enquiry has been passed to me as the policy official with responsibility for adoption policy.
I appreciate your concerns but the department is unable to comment on or intervene in individual cases – either where an LA has instigated child protection measures or in cases that may come before, be before, or that have already been determined by the family courts in England.
It is important to be clear, however, that the law states that the best interests of the child should always be paramount in any decision regarding the care of a child – both by local authorities (LAs) and the courts. Linked with this, one of the key principles of the legislation which underpins the UK’s child protection system is that children are best looked after within their families. As a last resort, however, after other steps have failed, LA may apply to the independent courts for a decision to be made about removing a child from his or her family for the child’s safety.
Those involved with this case may find it helpful to seek further support. The Family Rights Group is an independent charity that provides information and advice to parents and carers whose children are in contact with children’s services. The Family Rights Group can be contacted via their Freephone helpline number, 0808 801 0366, from Monday to Friday, 9.30am – 3pm, or via their website at: www.frg.org.uk.
If those involved in the case are unhappy about any decisions made by the LA children’s social care department or by social workers, then they can ask the LA for a copy of their complaints procedure. LAs are required to have a complaints procedure and more information about this is available at:tinyurl.com/Pwmmm7o.
If, having used the complaints procedure, those involved in the case are unhappy with the result or the way the complaint has been dealt with, they can ask the Local Government Ombudsman (LGO) to look at the case. The LGO is a free service and its role is to investigate complaints in a fair and independent way. The LGO will decide whether children’s services has done something wrong which has directly affected the parents and caused them an injustice. More information about the LGO is available from their helpline: 0300 061 0614, from Monday to Friday, 8.30am – 5pm, or from their website at: www.lgo.org.uk.
I note your points about the use of expert witnesses. The court controls expert evidence and assessments used in children’s proceedings. For example, a person cannot be instructed to provide expert evidence for use in these proceedings or put such evidence before the court in these proceedings without the court’s permission (please see section 13 of the Children and Families Act 2014).
Where the court does give permission for expert evidence to be put before it, the expert has an overriding duty to the court (rule 25.3 of the Family Procedure Rules 2010) to help the court on the matters within their expertise. The duty to the court overrides any obligation to the person from whom the expert has received instructions or by whom the expert is paid. The overriding duty to the court is referred to in paragraph 3.1 of Practice Direction 25B, which is entitled ‘The Duties of an Expert, the Expert’s Report and Arrangements for an Expert to Attend Court’. Paragraph 9.1 of this practice direction sets out what the expert’s report must contain and this includes a statement that the expert understands their duty to the court and has complied with that duty. The expert also has to state that he or she has complied with the Standards for Expert Witnesses in Children’s Proceedings set out in the Annex to Practice Direction 25B. One of the standards is that the expert has a working knowledge of, and complies with, the requirements of practice directions relevant to providing reports for and giving evidence to the family courts in England and Wales. The expert’s report then has to be verified by a statement of truth given by the expert.
Practice Direction 25C (Children Proceedings -The Use of Single Joint Experts and The Process Leading to An Expert Being Instructed Or Expert Evidence Being Put Before The Court) states that wherever possible, expert evidence in children’s proceedings should be obtained from a single joint expert instructed by both or all of the parties. ‘A single joint expert’ means a person who provides expert evidence for use in proceedings on behalf of two or more parties (including the applicant) to the proceedings.
Changes to the Family Procedure Rules to implement the recommended changes came into force in January 2013, and new standards for experts were published in November 2013. These developments (supported in primary legislation by the Children and Families Act 2014) are expected to change practices in relation to the appointment of expert witnesses, and positively impact on their quality, timeliness and value. In addition, Practice Direction 25B was amended on 1 October 2014 to include the Ministry of Justice and Family Justice Council standards published in November 2013. Those standards now apply to all family law children’s cases from 1 October 2014 irrespective of the start date of proceedings.
Care Planning and Permanence Team
Urgent action is required to give better protection to the parents and special guardians of previously looked after children, and to support our relationships with our children if for no fault of the child or parent/caregiver, the child must re-enter care.
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