Damned if we do…
With the state’s abandonment of the right to impose capital sentences, orders of the kind which judges of the family courts are typically invited to make in public law proceedings are among the most drastic that any judge in any jurisdiction is ever empowered to make.
James Munby (Munby, 2005)
The world was outraged in November 2013 by the extraordinary story of Italian Alessandra Pacchieri who visited Britain in 2012 for a training course when 4 months pregnant and found herself sectioned under the Mental Health Act, detained in a psychiatric hospital, forcibly subjected to a caesarean section and had her baby taken by social workers and placed for adoption. Media reporting – and public opinion – were deeply critical of the decisions made by the courts, and the judiciary launched an unprecedented damage limitation exercise, releasing explanatory evidence and publishing not only the care judgement (Re P (A Child), 2013) and the Court of Protection judgement ordering the caesarean (Re AA, 2012), but also the brief proceedings, and sending out retired judges to be interviewed by the media.
It emerged that Pacchieri had suffered a relapse of a psychotic schizophrenic disorder because she had stopped taking her medication in order to protect her unborn baby; her parents had care of her two older children, but made it clear that they could not take on responsibility for a third, and that adoption seemed to be the best option. Nevertheless, the case raised grave questions about whether the state should wield such enormous power over peoples’ lives, whether it should be able to do so substantially unobserved and how it should go about doing so. Grave doubts were raised in many quarters regarding the correct observance of due legal process: Pacchieri was initially detained without the usual legal safeguards and with sufficient force to break her watch. The c-section application was hasty and involved incomplete and missing documentation; Pacchieri was ‘represented’ in court by the ‘Official Solicitor’ but he had never met with her and did not present her views to the court on the grounds that she lacked capacity to instruct him, he instructed the QC not to oppose the application. The brief half-hour hearing was conducted with no input from Pacchieri, who was an intelligent, articulate woman when taking her medication and possessed a fine mastery of English, and with no reference at all to her human rights; bizarrely the judge, Lord Justice Mostyn, described the alleged 1% risk of uterine rupture as ‘high’. Barrister Barbara Hewson concluded,
One cannot help feeling that [Pacchieri] was being treated more like an unexploded bomb, which required dismantling, than a vulnerable mother-to-be (Hewson, 2013b).
Hitherto we have only considered ‘private’ family law – that part of the family justice system concerned with resolving issues between couples; we now progress to discuss ‘public’ family law – the part which deals with child protection, the care system and adoption. The child protection system in the UK is a huge and amorphous arrangement of organisations run by central and local government. It comprises local social services departments, the family courts, CAFCASS, the police, the health service, numerous charities, an array of often self-appointed experts and a large body of legislation and rules. Its professed function is to safeguard children’s safety and welfare, and to protect them from physical, sexual and emotional abuse and neglect. Social services detest the attention they receive from the media every time a child they are supposed to be protecting is killed or every time a child is unnecessarily taken into care. Public family law affects only a fifth of the number of children caught up in private law proceedings, but it attracts far more publicity, and more political and journalistic support for its victims. The media are particularly absorbed by these stories, and those journalists who take up the issue, like Christopher Booker in the Telegraph and Cassandra Jardine in the Times, comply with the effective news blackout on private family law issues, despite the greater number of children affected.
Social work is based on a theory which seeks to profit from and control the family rather than strengthen it. Academic social work reinforces that control through the manufacture of ‘experts’; Southampton University was among the first to recognise this and cancel its social work course citing a lack of ‘credible and excellent international research’ (Laja, 2012). The 1989 Children Act created an explosion of social work by obliging local authorities to take responsibility for all children and not merely those in care; it dramatically changed the nature of social work, and began the transformation of the social worker from benign – if not particularly effective – family protector to predator. Your children are now on loan to you from social services for as long as their approval continues. The idea that the state can enter your home uninvited and take away your children if it thinks your parenting defective, allocating them to other, approved, parents, touches deep, primal fears that all parents have about losing their children. The media like to play on these almost folkloric elements of changelings and stolen children; the tale of the child ripped from its mother’s womb at the whim of social workers, though erroneous, was too good to leave unwritten.
Where the perpetrator of child abuse is a parent the ultimate sanction available to social services is to remove the child into its ‘care’, either temporarily or permanently. Children first entering the system are placed with short-term carers before a final decision is made on return to the family, adoption or long-term fostering. During this time there is little interaction between carer and child beyond feeding and nappy-changing. Although this is the carers’ way to protect themselves from the loss of each successive child it is damaging to the emotional development of the children.
Social services may only take a child if they have an Emergency Protection Order from the court, but these are provided on the social workers’ say-so and without judicial scrutiny. Social services are then able to employ the police as ‘muscle’ to remove the child by force. For social workers, lawyers and judges, the enormity of taking a child from a parent soon becomes humdrum and casual. It is difficult to believe that the enormous power handed to them does not tempt social workers to exceed their remit of protection from harm, and seek happier childhoods for children whose prospects in life are poor. While we might have some sympathy for this, it is the first step on a dangerously slippery slope. The only curb on social workers’ powers is the scrutiny of the judge, some of whom are forced to remind them of their obligations. In 2010 Nicholas Wall warned a London local authority,
What social workers do not appear to understand is that the public perception of their role in care proceedings is not a happy one. They are perceived by many as the arrogant and enthusiastic removers of children from their parents into an unsatisfactory care system, and as trampling on the rights of parents and children in the process (EH v London Borough of Greenwich, 2010).
Social services should perhaps adopt Lord Templeman’s dictum,
The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not endangered (Re K D, 1988).
Social workers begin their investigations by assuming the abuse alleged has occurred; they rely heavily on intuition and cling to first impressions of a family. As evidence mounts which disproves an allegation, they will be sceptical and slow to revise their judgement, and will seek evidence which supports the allegation and disregard, ignore or withhold exonerating evidence. Testimony from children will be accepted only if it corroborates what they already believe. Evidence may be dishonestly reported, embellished or even fabricated. ‘Malevolent and unprofessional’ social workers in 2006 removed a nine-year-old girl from her family on an impulse; according to Andrew McFarlane, they embellished facts, told untruths and misled a court after deciding to take the girl into care on the spur of the moment (Doughty, 2006). Their actions were endorsed by their managers. Whistle-blowers allege a climate of fear and pressure to take more children into care to boost Ofsted ratings (Jeory, 2011).
Social workers have a poor understanding of statistical risk factors, preferring their own interpretation of what constitutes risk; for example that fathers present a greater risk than mothers’ boyfriends, or that mothers who were themselves abused as children will abuse their own: it doesn’t matter if decisions are appropriate as long as they can be defended in court. The value of extended families is largely dismissed, despite the fact that grandparents and other relatives can provide both useful short-term child care while parents sort themselves out and longer term support for vulnerable parents.
Reflect, for example, on the well-publicised case of Fran Lyon, a 22-year-old woman with 5 A-grade A Levels who was in the third year of a neuroscience degree at Edinburgh University. She was expecting her first child, whom she had named Molly; it should have been a happy and positive time of her life, and yet Fran was so persecuted by Northumberland Social Services that she left the country and went into hiding in Sweden. Fran had been raped as a child, developed eating and self-harming disorders, and spent 13 months in a psychiatric hospital followed by 9 successful months of counselling. She became a balanced and level-headed adult. Unfortunately her local social services took a different view, and considered Fran to be a danger both to herself and to her unborn child.
Fran had a fist full of positive medical and psychiatric reports, including a letter from her former psychiatrist Dr Stella Newith, who said, ‘I consider the risk of harm to a child to be so unlikely as to be negligible’ (Sanderson, 2007). Fran worked in the charity sector; her colleague, psychiatrist Dr Rex Haigh, said, ‘I have no doubt that her diligence and capacity, particularly in dealing with complex emotional situations, will stand her in good stead for the rigours of parenthood. Your efforts to protect children would be better directed elsewhere’. Hexham Children’s Services, however, relied on a report by paediatrician Dr Martin WardPlatt who had never met Fran; in a letter he said: ‘If the professionals were concerned from the evidence available that [this woman] probably does fabricate or induce illness, there would be no option but to put the baby into foster care at birth pending a post-natal forensic psychological assessment’.
If. Despite the absence of any evidence that Fran suffered from Münchausen’s Syndrome by Proxy (a disputed condition we shall discuss in Chapter Twenty-One) social services had said that as soon as Molly was born she would be snatched and offered up for adoption. Notwithstanding an unprecedented publicity campaign including radio and television appearances and the full support of MP John Hemming, Hexham Children’s Services were merciless, and Fran was forced to flee abroad. Molly Linda Anna was born on 13th January 2008; a Swedish social worker’s report said,
Our assessment is that there is no need for support or any other programme with regard to Fran’s capacity as a parent.
We shall meet Ward-Platt again. Social services must persuade a court that taking a child into care is in that child’s best interests and that the child is at risk of ‘significant harm’. Despite the public outcry every time a child dies of neglect or abuse, most care applications rely on a prediction of future ‘emotional harm’. Campaigners sometimes argue there is no definition of significant harm: a leader in the Sunday Telegraph demanded,
Two steps should be taken immediately. First, a meaningful definition of “significant harm” should be inserted into child protection legislation and into the guidance that goes with it. That would at least give those who work in the system a clear idea of what they are supposed to be doing. Second, the veil of secrecy which at present shrouds the whole system should be lifted (Sunday Telegraph, 2010).
We don’t take issue with their call for openness, but ‘harm’ is in fact defined, albeit inadequately, in Section 31 of the Children Act as ‘ill-treatment or the impairment of health or development’; ‘ill-treatment’ is defined to include ‘sexual abuse and forms of ill-treatment which are not physical, including, for example, impairment suffered from seeing or hearing the ill-treatment of another’; ‘health’ is defined as physical or mental health; and ‘development’ means ‘physical, intellectual, emotional, social or behavioural development’. It is easy to see that these definitions are subjective and circular because the definition depends on the word defined; it isn’t hard to understand why judges simply rely on the local authority’s analysis. ‘Emotional harm’ has no legal definition, but a government paper described it as ‘abnormalities of emotions, behaviour or social relationships sufficiently marked or prolonged to cause suffering or risk to optimal development in the child or distress or disturbance in the family or community’.
The law does not define ‘significant’, though judges have interpreted it imprecisely as meaning ‘considerable, noteworthy or important’ (Humberside CC v B, 1993). If the harm is judged to be ‘significant’ the threshold will have been reached which allows removal of the children. There is a number of separate elements involved for the threshold criteria to be satisfied. Social services must demonstrate that if the court does not make an order then the care given, or likely to be given, to the child will not be what it is ‘reasonable’ to expect a parent to give (for a discussion of the meaning of ‘likely’ see Chapter Thirteen). The child must be suffering, or be likely to suffer in the future, significant harm. The standard of proof will be the probability standard. For an interim order at an early stage of proceedings the applicant has only to show ‘reasonable grounds’ for believing the threshold criteria are satisfied. The determinative test is to compare the health and development of the child with that which could reasonably be expected of a ‘similar child’ of equivalent intellectual and social development (Re O (A Minor) (Care Proceedings: Education), 1992). Significant harm can also arise from the cumulative effect of several minor harms.
Establishing ‘reasonable grounds’ necessitates putting together a convincing package of evidence for the court; predicting future harm, on the other hand, requires no evidence and is thus easier and less costly. This means a child can be taken into care when no harm has befallen him, but where it is considered possible that at some unspecified future date it may. If a parent has already abused an older child such a prediction might reasonably be justified, but all too often there is no evidence on which to base these actions. There are high profile cases, such as the trial of Louise Woodward in the US, in which expert witnesses have given diametrically opposed evidence, showing their fallibility and the lack of consensus: you can find an expert who will testify to almost anything and the courts have their favourites (protected by anonymity). The evidence of a good many, including Martin Ward-Platt, Roy Meadow, David Southall and Marietta Higgs has subsequently been called into question.
Consider the tragic case of Re W from 2009. A girl, A, was taken from a mother because her new husband had been a possible perpetrator of a severe head injury to his son by a previous marriage, notwithstanding the facts that the son continued to live with his parents and the father continued to have contact after separation (Re W (A Child), 2009a). Subsequent evidence cast doubt on the injury being non-accidental. The mother’s application for residence and a stay of the adoption order were nevertheless refused. The case shows how a decision based on the balance of probability – the original judge chose the evidence of one expert witness over that of another – can go on to become accepted as a certainty (‘where no certainty exists’) resulting in a child to whom no deliberate harm has been done losing a mother who has never been accused of wrongdoing. As the appellate judge, Nicholas Wilson, observed of the case,
Among its most haunting features is surely the fact that A’s mother, who sits before me today, has, subject to this proposed appeal, lost her child by reference to circumstances which, largely, do not relate to her.
For the court to be ‘satisfied’ the onus is on the local authority to prove their case, though only to the balance of probability standard; it is alleged that children are still removed even when the threshold criteria are not met. While the court considers whether the criteria are satisfied a variety of interim orders will be made, such as emergency protection and interim care orders, all of which make an unhappy outcome more likely. Once the fateful step of removing the child is taken, it is unlikely they will be returned; in Scotland two thirds of children leaving care are eventually returned to their families, but in England and Wales the figure is only 40%, the lucky ones will be adopted: that is, reallocated to different families. A large minority of returns are unsuccessful (Giovannini, 2011). 8,450 children were taken into care in 2010 (Ministry of Justice, 2011) but only 3,050 children were adopted out of care during the year ending 31st March 2011 (British Association of Adoption and Fostering, 2012). This figure is steadily declining, and even this hides the fact that a third of adoptions break down; a fifth fail even before the adoption order is made (Hannon, Wood, & Bazalgette, 2010).
We have created a culture, backed by inadequate legislation, in which taking a child into care is preferable to providing support to a needy family. Nearly half of children in care say they would not have ended up there had better support been provided (Morgan, 2011). The Children Act requires social services to support families to care for their own children and, if that fails, to house them with a relative. Care should be the last option. This is little more than aspirational, however, and while Denmark, for example, places 40% of children with relatives, in the UK the figure is a pitiful 4% (Hansard, 2008). This represents an inefficient and ineffective use of available resources and funding; transferring resources to family support would be more effective and would reach a greater number of children. The family courts pitch parent against parent and parents against social services. There is no provision within this system for a cooperative solution in which parents and social services come together for the benefit of the child. The process is invariably adversarial and both sides regard each other with distrust and hostility. Only one side can win, and in care and placement applications it is the side with the greater access to funding and lawyers.
Adoption is the transfer of all legal rights over a child from its natural parents to the adoptive parents. An adoption order transfers parental responsibility for a child to the adoptive parents and is said to ‘extinguish’ the parental responsibility of the natural parents. In many countries there is a policy of ‘open’ adoption in which the birth parents retain a degree of contact; only in the UK and some US states is there the complete severance of ‘closed’ adoption. ‘Forced adoption’ is the often violent removal by a local authority of a child from its parents so that it can be fast-tracked for adoption. Judge Richard Aikens described the actions of Devon County Council in 2010 as ‘more like Stalin’s Russia or Mao’s China than the west of England’; in another case Lord Justice Wall said the failure of social workers to support a mother would do little to dispel the perception that social workers were ‘arrogant and enthusiastic removers of children from their parents into an unsatisfactory care system – trampling on the rights of parents and children in the process’ (Telegraph, 2010).
The conditions for revisiting a judgement on the grounds of inappropriate procedure or fraudulent evidence were established in the case of Taylor v Lawrence (Taylor v Lawrence, 2002-03). The applicant must show ‘significant injustice’ has occurred by introducing new evidence, which must be both true and accepted by the court’s discretion. There must also be an effective remedy to the injustice which has occurred. In January 2004 Angela Cannings was acquitted of killing her two baby sons when the expert evidence provided by Dr Martin Ward-Platt and Professor Sir Roy Meadow was shown to be unsound; it was expected at the time that the case would provoke reviews of thousands of cases based on Meadow’s discredited theory of Münchausen’s Syndrome by Proxy, but Lord Goldsmith’s commission resulted in the review of only 6 cases. Another three cases of ‘shaken baby syndrome’ were later reviewed in 2006; one parent was still in prison (Hansard, 2006a). The former minister for children, Margaret Hodge, callously opined,
We can’t reunite thousands of mothers with children wrongly taken from them. If the child was adopted at birth, the sensible thing is to let it stay (Jardine, 2005).
More than 68,000 children are in care at any one time in the UK at a cost to the taxpayer of over £3 billion each year (Harker, 2012). The largest provider, Advanced Childcare Ltd, owned by US private-equity firm GI Partners, charges local authorities up to £208,000 a year to keep a single child in a residential home (Harper T. , 2013). Profits in 2012 were £2.6 million and its chief executive Rizwan Khan took home £206,000 of local authority money. Only a fraction of the money spent on care actually reaches the children and despite the huge expense, the outcomes for children are very poor indeed: children are shunted around between homes and between carers; the median length of placements in foster care is 4 months and in residential care it is only 3.5 months; 43% of moves are initiated by the LA with no thought for the children’s best interests (Ward, 2009). 57% of children leave with no academic qualifications of any kind (Department for Education and Skills, 2007); only 15.3% reach the minimum standard at GCSE, compared with 58% of other children (Department for Education, 2013); they are 7 times more likely to be permanently excluded (House of Commons: Children, Schools & Families Committee, 2009), and girls in care are three times more likely to become teenage mothers (Department for Education & Skills, 2006). Two children die in care each week from disease and neglect, 12,000 children in care (20%) receive no immunisations, 9,600 have no health check-ups and 8,400 never see a dentist (Department for Children, Schools & Families, 2008). The terrible 2013 Oxford case in which six pre-teen and teenage girls were subjected to years of sadistic sexual abuse and exploitation while in care by a gang of Muslim men revealed how vulnerable and poorly protected children are whilst in care; the authorities had failed to act for fear of being thought racist. Many children are actually better off remaining with quite abusive parents than being taken into care; the risk of abuse in residential care is 6 times higher than in the general population and in foster care 7 to 8 times higher (Hobbs, Hobbs, & Wynne, 1999).
The best hope for a child in care is to be adopted. In the 1950s and ‘60s most children available for adoption came from unmarried couples and single mothers coerced into believing that adoption was necessary to avert scandal. Three quarters of the children were babies, and they were, for the most part, healthy. A generation later the situation has changed dramatically: half of children are born outside marriage and a quarter are brought up by single mothers. Increased use of contraception, access to abortion and the erosion of stigma mean that there are very few mothers willingly making their babies available for adoption. Most of the children now are much older, and have been removed by social services from their parents because of alleged abuse or neglect. They are often physically or psychologically damaged, and most will remain in care: they are not attractive to adopters. For these reasons the number of children adopted each year has declined from about 13,000 thirty years ago to only 3,980 in 2012/13. There is now a shortage of the very young, preferably blond-haired and blue-eyed children whom adopters prefer, and who are favoured by the agencies and social services because they are too young to resist and more likely to be adopted successfully. Forty couples chase each child, and ‘adoptable commodities’, as social workers allegedly call them, have become very valuable.
Re K D,  AC 806 (1988).
Re O (A Minor) (Care Proceedings: Education),  1 WR 992 (1992).
Humberside CC v B,  1 FLR 257 (1993).
Taylor v Lawrence,  EWCA Civ 90,  QB 528 (2002-03).
Re W (A Child),  EWCA Civ 538 (Court of Appeal 2009a).
EH v London Borough of Greenwich,  EWCA Civ 344 (Court of Appeal 2010).
Re AA,  EWHC 4378 (COP) (Court of Protection August 23, 2012).
Re P (A Child),  EW Misc 20 (CC) (County Court February 1, 2013).
Booker, C. (2010, August 7). Britain’s forced adoptions: the hidden scandal we can’t ignore. Sunday Telegraph.
Booker, C. (2013, November 30). ‘Operate on this mother so that we can take her baby’. Sunday Telegraph.
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Doughty, S. (2006, March 18). Judge condemns council staff. Daily Mail.
Giovannini, E. (2011). Outcomes of Family Justice Children’s Proceedings – a Review of the Evidence. London: Ministry of Justice.
Hannon, C., Wood, C., & Bazalgette, L. (2010). “To deliver the best for looked after children, the state must be a confident parent”: in loco parentis. London: Demos.
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Harker, R. (2012). Children in Care in England: Statistics, Parliamentary briefing paper.
Harper, T. (2013, September 14). Revealed: Private equity firms are making millions out of failing children’s care homes – yet care for vulnerable is ‘unacceptable’. The Independent.
Hewson, B. (2013b, December 6). The inhumanity of a forced caesarian. Retrieved from Spiked-online.
Hobbs, G. F., Hobbs, C. J., & Wynne, J. M. (1999). Abuse of children in foster and residential care. Leeds: Department of Community Paediatrics, St. James University Hospital.
House of Commons: Children, Schools & Families Committee. (2009). Looked-after Children: Third Report of Session 2008–09. London: Stationery Office.
Jardine, C. (2005, April 20). ‘It’s a life sentence with no reprieve’. Daily Telegraph.
Jeory, T. (2011, December 11). Social workers ‘sex up abuse claims to snatch children for adoption. Daily Express.
Laja, S. (2012, January 06). University of Southampton to scrap social work courses. The Guardian.
Ministry of Justice. (2011). Judicial and Court Statistics 2010. London: Ministry of Justice.
Morgan, R. (2011). Children on the edge of care. Ofsted.
Munby, J. (2005). Jordan’s Family Law Conference.
Sanderson, E. (2007, November 26). I’ve fled the country to stop social workers taking my baby. Daily Mai.
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Telegraph. (2010, April 12). Social workers’ actions befitted ‘Stalin’s Russia’, says judge. Telegraph.
Ward, H. (2009). Patterns of Instability: moves within the English care system: their reasons, contexts and consequences. Child and youth services review, 31, 1113-18.