https://publications.parliament.uk/pa/cm201213/cmselect/cmeduc/137/137we02.htmEducation Committee - The Child Protection System in EnglandWritten evidence submitted by John Hemming MP, Justice for Families
1. I founded the Justice for Families campaign in 2006 in a response to the number of people contacting me with problems which arose from care proceedings in England. Justice for Families assists people facing problems with the care system by offering advice on taking cases though the domestic courts and to the European Court of Human Rights. Justice for Families currently has over a thousand cases. These are my personal views.
2. England’s child protection system is in crisis. Perhaps the most obvious symptom of this is in the large numbers of vacancies in the profession and the anecdotal reports of burnout amongst practitioners. At the same time families have left the country to get away from the system and increasing numbers of children are dying from suspected child abuse and neglect. Ofsted’s records of serious childcare incident notifications went up from 47 baby deaths in 2008 to 75 baby deaths in 2009. This was accompanied by a substantial increase in the numbers of children being taken into care.
3. The problem is that the system takes the wrong children into care. Inherently the quality of practice will vary. Some practitioners may be very cautious before taking a child into care particularly given the outcomes for children in care. Others may take a more gung ho approach. If, however, the care system gets overloaded with children resource constraints will inevitably have an effect. The costs are also an issue. Similar sums could provide a lot more support.
4. Haringey, like many authorities, had a target for the number of children in care which was kept for budgetary purposes. The target for March 2007 was 365 and for March 2008 352. In part the objective of reducing numbers in care is laudable as well of that of trying to reduce the weekly costs which have run at higher than £800 per child per week. On 3 October 2006 it was noted that the deficit forecast for Haringey Local Council was £4.6 million which included a forecast overspend for Children’s Services of £2.3 million including a figure of £500K for Looked After Children. The Executive Member for Finance said “I will be working closely with the services concerned and I will be looking to them to identify ways to bring the budget back on target”. It was recognised at that time that the placements budget was running at 381 children and was very tight. The figure then crept up to 392 by November 2006.
5. By 31 March 2007 the financial situation had improved although there had still been an overspend of £500K on legal fees. The numbers of children in care had reduced and a new target was set of 352. In March at the end of the 2007–08 financial year, however, the numbers of children in care had increased back up to 373 (21 more than budget). It appears that controls on the number of care proceedings were tightened up in November 2006 with the 12 month rolling number from November 2006 going below 40 for the first time they were released in August 2007 and the number then went back up above 50 (where historically it has been in recent years) in September 2007.
6. From this can be seen how the care system can be influenced by budgetary constraints. At a senior management level the details of cases are not considered. Managers are instructed to get certain numbers to change. Whilst BV163 was in operation managers were instructed to increase the numbers of children adopted. This was a pressure from central government that occurred not taking into consideration what effect this had on children and families. Managerial success was determined on the basis of the numbers rather than how well children had been cared for.
7. The child protection system in England is particularly obsessed with adoption. What is worse is that not only was the system driven by financial targets for increasing the number of adoptions, but also that it was driven by a mathematical error in the calculations as to what proportion of children were adopted.
8. There are many reports that show the error made by the government, but a good example is Alan Rushton’s paper “Outcomes of adoption from public care: research and practice issues” published in Advances in Psychiatric Treatment (2007) 13: 305–311. In this paper he says “Adoption from care concerns just a small proportion (6%) of all looked after children in England (Department for Education and Skills, 2005) and so remains a relatively uncommon solution to the needs of these young people.”
9. The mathematical error made by the department is that they are comparing the number of children adopted (3,800 in 2004–05) to the number of children in care (about 63,000) rather than the number that came into care in that year (7,700). Of the 7,700 taken into care in 2005 1,700 were aged over 10. Those children are normally taken into care because their parents cannot cope. Hence of the 6,000 that could potentially be adopted some 3,800 are actually adopted. That is more like 60% than 6%.
10. Unsurprisingly a large number of these adoptions break down. Research by people such as Alan Rushton finds disrupted adoptions run at around 20–25%. These fail often because the children that are adopted exhibit very difficult behaviour. Anecdotal evidence also suggests that many adoptive parents are not given full understanding of the child’s background and behavioural difficulties before the adoption is completed. There also seems to be a perception among some adoptive parents that once they are abandoned by both CAMHS and the LA being left to cope alone with these behaviours.
11. What is particularly sad is that a large proportion of the children who are adopted are removed at a very early age from their birth family. Research by Professor Michael Rutter points to the key months for a baby being six to 18 months. In 2004–05 1,770 babies were taken into care before this period.
12. The evidence in terms of attachment disorders and particularly reactive attachment disorders, therefore, for these children is that this is caused by the way they are treated whilst in care. Professor Rutter’s research demonstrates that the children can recover from difficulties from a lack of love and attention in the first six months of life, but not so readily from that in the following 12 months.
13. Reactive Attachment disorder is often misdiagnosed as autism. Children who have this problem have difficult behaviour that the authorities provide little support for and then when the children get old enough their behaviour is so difficult that their adoptive parents cannot cope and they go back into care.
14. A figure of 20% of adoptions failing would give some 800 children every year who are coming back into care. What I find particularly dreadful is that a number of those are children whose problems are caused by their treatment in care.
15. At the same time we have children removed at birth for inadequate causes. It is obvious from the figures as to increasing numbers of deaths (sent to Ofsted) that the crystal ball used by practitioners to predict the future (such as likely emotional abuse) is not spotting the children at risk of dying as a result of abuse.
16. Before going into the issue of potential changes I will look specifically at the issues raised by the committee: Whether the child protection system allows for effective identification of, and early help to, children at risk of different forms of abuse and exploitation (including, but not restricted to: neglect, sexual and physical abuse, domestic violence, forced marriage, female genital mutilation, child trafficking and online exploitation)
17. The current system has low thresholds that allow a very large number of interventions. The interventions that actually happen, therefore, tend to be driven in part by a mixture of budgetary limits and chance.
18. The phrases “neglect” and “physical abuse” are far too vague. One constituency case I have relates to a debate as to whether or not a child has been smacked. The damage that has been done to the family as a result of the intervention goes much further than any potential harm to the child.
19. If low thresholds are allowed for intervention then this places a strain on the system and does not allow a proper triage system to operate.
20. “Emotional abuse” is far too much of catch all category. Children suffer some psychological trauma from being taken into care. Hence before a child should be taken into care for “emotional abuse” there has to be a very high threshold. It would be useful to have a longditudinal study of cases of children removed from families for emotional abuse to identify if this benefits the child.
Factors affecting the quality of decision-making in referral and assessment, and variations across the country
21. There are far too few guidelines for decision-making. This gives rise to a wide variation in thresholds. One mother who has had over nine children removed by one authority has recently been allowed to go home and look after her child by a different authority.
Appropriate thresholds for intervention, including arguments for and against removing children from their families
22. This is a matter that requires detailed work as referred to above and formal guidance from the government. Whether the child protection policies and practices of non-social work agencies and Government departments assist professionals to work together in the interests of the child
23. There are far too many compulsory referrals which means that the children’s services departments have to do a lot of triage work. There needs to be clear guidance as to when intervention is warranted and this should guide both social work agencies and non-social work agencies.
Solutions
Firstly, there need to be some general principles
Design a system for real people
24. We need to move away from an approach that looks for scapegoats and aims to punish people for making errors. Child protection is a complex environment where subtle judgments need to be made. Too much pressure on the individual making the judgments results in a number of unacceptable outcomes. Firstly, people decide they do not want to do the job hence lots of vacancies. Secondly, defensive decision-making occurs and finally there is a tendency to try to cover up mistakes rather than learn from them.
25. Care should add value to the child’s life and the parents are actually often the best people to monitor that even if they are not directly responsible for the care of the child.
26. The system should aim to be minimally intrusive with supervised parenting as a priority rather than to be avoided. Have checks and balances that actually work
27. The system has many so called checks and balances. However, because of the pressures there is a tendency not to correct early mistakes. This creates a culture in which once a decision has been taken an overwhelming effort goes into implementing the decision and too little thought goes into reviewing whether the original decision was right. At the same time it is important that if a decision is changed that no effort goes into punishing the person or people who made the original “wrong” decision. What is needed is that people learn from the process rather than feel they must justify their original decision at all costs.
Operate on an evidenced basis with guidelines
28. There are no real guidelines or law as to what warrants intervention, when parenting is “good enough” or how people fail or pass assessments. This results in an overly wide individual interpretation which is only marginally evidence based. The large numbers of disrupted adoptions show that the main policy underpinning the English system is failing for large numbers of children every year.
Don’t have too much bureaucracy and targets
29. Numerical targets for subtle issues of judgment don’t help. Even having a simplistic target for a timescale within which to do an assessment really doesn’t help. The systems used for recording information should be driven by the job rather than performance indicators. Targets have done substantial damage to judgment.
Given the general principles there need to be specific changes
Move away from a legally dominated system and strengthen the case conference
30. The case conference should be the key location in which decisions are taken. This should not require lawyers although parties may have advocates in meetings. The objective of the case conference should be to look inquisitorially for the best way forward for the children and the families with a view towards what potential solutions exist on a co-operative basis.
31. The practitioners of various disciplines should be allowed to cast a secret ballot as to the conclusion. There may be a merit in bringing in a small number of independent individuals as jurors to balance out the process. This could include members of the extended family. Furthermore proceedings should be video recorded and a copy kept.
32. The case conference, however, has to operate in a truly independent manner with a chair who is not financially dependent upon the local authority. It can also be used to control contact arrangements.
Independent has to mean truly independent
33. One problem area is that many individuals are described as being independent when they are in practice not independent. An expert appointed jointly by the parties depends upon all of the parties. The refusal of second opinions means that it is the decision as to which expert is appointed that generally the determinant of the outcome of the case. Contentious issues such as SBS are ones where specific experts are known to have specific views.
34. Social Workers regularly “advocate for the child” in lobbying experts as to what they expect the conclusion to be from a particular report. It would not be surprising if a local authority were to oppose the appointment of an expert with whom they had previously had difficulties. Hence experts have to keep the local authority sweet.
Have a merits review case conference
35. There needs to be one or two tiers of independent reviewing of the decisions of the case conference. This needs to occur outside the management of the local authority responsible for the original case conference.
36. The problem with the judicial processes is that they have substantial costs which do not exist and are not accessible for people without advice.
Scrap the adoption panels
37. It is unclear what added value arises from the adoption panels. Some evidence is needed as to whether they improve decision-making. Such a large proportion of adoptions are disrupted that it is clear that decision-making goes badly wrong. Adoption panels are made up of lay people who are presented with large quantities of often complex paperwork at a late stage. They normally rely on the social worker who wrote it to guide them through the report and although searching questions are asked this brings into question the true independence of the panel. Further the chair is usually an employee of the LAs children’s department.
Scrap targets and improve case handling.
38. If the performance indicators are scrapped then some of the problems with the ICS are resolved. Record keeping needs to facilitate the process whereby matters are taken to the case conference and through merits reviews. It is important that the recording process identifies allegations that are agreed by parties to the case and also those that are contested. Too many cases are based upon shifting sands and shifting arguments.
Have longitudinal research and feedback
39. The current system has a database called SSDA903 that could be used for more effective research. However the previous government refused to research the numbers of adoptions that were disrupted. Independent audit of a small number of cases on a longitudinal basis is needed for feedback as to changes in practice.
40. There are quite a few cases where children continually run away from foster care to get back to their parents. Detailed review of these is needed to understand whether the actions taken by the state are really any benefit to the children.
Have better categorization of cases for budgetary purposes
41. There will always be budgetary problems. In the current climate questions should be asked as to whether cases based upon “emotional abuse” warrant intervention. However, there needs to be a finer analysis of cases so that when budgetary decisions are made there is some understanding as to their impact.
Facilitate independent scrutiny
42. There needs to be more independent accountability as to what is happening in care cases. Judges should not have control over what is released in respect of the cases that they handle. This should be handled by the information commissioner’s office. Material that does not identify any human parties should be assumed to be to general publication with the permission of a party as long as the parties are kept anonymous. The process should require parties to tell other parties that which they wish to publish and to copy this to the information commissioner. After two weeks they should have deemed consent.
Replace “risk of significant harm” with Article 8.
43. The question as to when intervention is handled is better phrased in Article 8 of the European Convention on Human Rights than Section 31. Article 8 builds in a balancing act that is not built into Section 31 of the 1989 Act.
Review the merits of forced adoption
44. The existence of forced adoption as an option creates a major tension between parents and practitioners. Those countries with forced adoption also have higher levels of deaths from child abuse and neglect. Removing the option of forced adoption could align the interests of parents and practitioners and in doing so improve the outcomes for children.
Use standard of proof between balance of probabilities and beyond reasonable doubt.
45. Many practitioners use the “real possibility” standard of proof which is basically to try to disprove an allegation and if you fail to disprove the allegation then it is considered proven. This is a disastrous approach as it results in many matters being accepted as fact for which there is no evidence. Training needs to be given to stop this from happening.
Don’t increase the levels of qualifications
46. There is no evidence that requiring degree level qualifications in social work has improved the situation more important than qualifications are life skill gained over a number of years bringing to the practitioner a rooted common sense approach which is lacking in the current system. What may improve the position is extra on the job training before becoming fully qualified. There has been a deficit of suitable places available to degree students over the last few years and if the degree is going to continue as a necessity, then this needs to be addressed.
Don’t reorganize the departments
47. The initial Laming reform that completely reorganized social services has probably been counter productive, but reversing those reforms is probably not warranted.
Review specifically how to handle Domestic Violence issues
48. There needs to be a detailed review into how child protection issues are managed within situations which involve domestic violence.
Reading Parents their rights
49. Currently in care proceedings there is no vehicle for ensuring that parents are aware of their rights regarding the law and child protection. Nor are parents aware that when they have an argument with their spouse, then that constitutes “emotional harm” and can result in their child being adopted.
October 2011
