Louise Tickle (award winning journalist and Transparency Project member) on applying to report the grandmother’s experience from ABC (A child) Re [2017]  B75 (30 October 2017) and to name the council concerned. (Her original news piece commissioned by the Guardian that wasn’t published is included at the end of this blog post.)

In the lead up to the Transparency Project’s debate “Should privacy trump accountability?” (to be held in Bristol on 5 December), it was fascinating to find myself in a family court last month facing a local authority that was strenuously resisting being identified in any press reporting of a grandmother’s criticisms about how children’s services had treated her family.

A few weeks previously, the grandmother had been granted a special guardianship order for her grandchild, a baby of less than a year old who had been taken into care soon after birth. A professional with extensive experience of working with children and who had successfully brought up her own family – substantially as a single parent – this grandmother was deeply unhappy at the way social workers had conducted their assessment of whether she could become a special guardian for her grandchild.

She had written a statement that she wanted to publish, detailing her criticisms. It did not make for edifying reading, and in a contextual statement written by the child’s Guardian and agreed by the parties, it was noted that the difficulties and distress this woman felt she had experienced raised “important questions about about whether there needs to be a re-evaluation by local authorities nationally (my emphasis) of how family members putting themselves forward in these situations can be better prepared, informed and supported through the process.”

Though the local authority in question, Gloucestershire County Council, agreed in court that the grandmother should be allowed to publish her statement – so exercising her right to freedom of expression – it made considerable efforts to prevent the media from publishing its name, both on that day in court and in subsequent submissions to the judge.

This was despite the grandmother clearly stating that though she did not wish to be identified, she wanted people to know which local authority was involved, and the mother of the baby feeling the same way. (The child’s Guardian opposed identifying the council; the baby’s father did not object).

There were three journalists in court on the day of the hearing: Emily Dugan from BuzzFeed UK, Francesca Osborne for BBC Gloucestershire and me. (It’s worth noting that this is a considerable investment of the media’s time on a story that is not ‘sensational’ at all, but deals with a more subtle issue of a citizen’s perception of her treatment at the hands of the state).

We all stood up – this is pretty nerve-wracking – to argue that there was a significant public interest in naming Gloucestershire, not least because if we couldn’t, then BBC Gloucestershire would be utterly hamstrung from reporting the case at all: they simply could not publish anything without using the council’s name, else their local audience would have no clue as to why they were being told about it. The result would be that – without being able to identify Gloucestershire council – residents of the county would have been prevented from knowing about the serious complaints of a fellow citizen regarding a children’s services department that only four months previously had been rated “inadequate” by Ofsted.

We were in and out of court for around two hours. At the end, the judge asked all the parties for submissions on the issue of identification of the council, and requested that the press make a joint media submission of our arguments in favour.

That Sunday, I spent three hours writing a draft submission. The BuzzFeed UK lawyer spent Monday working on it, then the Guardian lawyer added some material and the BBC lawyer read it and commented. Then I did another couple of hours on it before sending it off. I would estimate that the media submission took over a day’s work from four people.

Gloucestershire council argued that they should not be identified because this risked identifying the family. They also argued that given there were no judicial findings in the case, recruitment and retention could be affected if it was named. A further argument was that being prevented from identifying the local authority she felt had treated her badly would only be a minor infringement of the grandmother’s article 10 right to freedom of expression.

The latter point was perhaps unsurprisingly ripped to shreds by the judge, and I’ve referred to that in my article, below. (The entire ruling can be seen here).

The “recruitment and retention” point, worryingly, seemed to indicate a concern about protecting the local authority’s reputation. This is an argument that the media submitted should simply not be a consideration in such a decision, and we quoted Mr Justice Munby (as he then was) in Re B (Children) [2007] EWHC 1622 (Fam):

17. The real reason why the local authority seeks to perpetuate its anonymity is more to do with the interests of the local authority itself (and, no doubt, the important interests of its employees) than with the interests of the children. That is not a criticism of the local authority’s stance. It is simply a statement of the realities.
18. I can understand the local authority’s concern that if anonymity is lifted the local authority (or its employees) may be exposed to ill-informed criticism based, it may be, on misunderstanding or misrepresentation of the facts. But if such criticism exceeds what is lawful there are other remedies available to the local authority. The fear of such criticism, however justified that fear may be, and however unjustified the criticism, is not of itself a justification for affording a local authority anonymity. On the contrary, the powers exercisable by local authorities under Parts IV and V of the Children Act 1989 are potentially so drastic in their possible consequences that there is a powerful public interest in those who exercise such powers being publicly identified so that they can be held publicly accountable. The arguments in favour of publicity – in favour of openness, public scrutiny and public accountability – are particularly compelling in the context of public law care proceedings: see Re X, Barnet LBC v Y and X [2006] 2 FLR 998 at para [166].
19. Moreover, and as Lord Steyn pointed out in R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115 at page 126, freedom of expression is instrumentally important inasmuch as it “facilitates the exposure of errors in the governance and administration of justice of the country.” How can such errors be exposed, how can public authorities be held accountable, if allowed to shelter behind a judicially sanctioned anonymity? This is particularly so where, as in the present case, a public authority has been exposed to criticism. I accept, as the local authority correctly points out, that many – indeed most – of the matters in dispute in this case were never the subject of any final judicial determination, but the fact remains that in certain respects I was, as my judgment shows, critical of the local authority. And that is a factor which must weigh significantly in the balance: see Re X, Barnet LBC v Y and X [2006] 2 FLR 998 at para [174].
20. In my judgment the balance here comes down clearly in favour of the local authority being identified.

I also did some research to try to assess how likely it was that identifying the local authority would risk identifying the grandmother, baby or wider family to anyone other than people who already knew of their situation.

Gloucestershire is a relatively large local authority, with a population of 623,000 as at mid-2016 (https://inform.gloucestershire.gov.uk/viewpage.aspx?c=page&page=Population). We also argued that the fact that the baby would be in the care of its grandmother was not significant enough to identify the family. The 2011 census puts the number of children in England being cared for by a family member at 153,000, and of those, around 76,000 are being looked after by a grandparent (https://www.grandparentsplus.org.uk/kinship-care-state-of-the-nation-2016). Special guardianship is also on the rise: in 2017, it was reported in Community Care magazine that since 2010 there had been a 220% increase in special guardianship orders. It was, we suggested, safe to assume that a good proportion of those being appointed as special guardians are grandparents.

We got judgement in favour of being able to identify the council in the end. The judge stayed its publication to see if any of the parties wanted to seek leave to appeal. It turned out they did not. The judgement was issued late on Sunday 5 November. Emily Dugan’s piece ran the next day. The Guardian decided not to run a newspiece immediately, but I am now looking at doing an article that explores the issues facing kinship carers, and will explore the grandmother’s experience as well as looking at the difficulties kinship carers encounter in getting support that allows them to consider looking after a child long term. (I’m unsure if BBC Gloucestershire has run anything yet but will find out and update this blog when I know).

The observation I’d make, nearly a week on from getting permission to report, is that the effort required to secure this was considerable, and not just from the media – I have no doubt the judge spent many hours on reading and considering submissions, studying case law and writing the ruling. This story has only been reported at all because reporters turned up and made the effort, and because their editors released them to do that.

The issues it raises are important – understanding people’s experience of how they’re treated by the state matters to us all – but they are not, in terms of news values, top of the list of what an editor will want to make space or airtime for. This sort of story is not instantly dramatic or an obvious miscarriages of justice. The special guardianship order was made, in the end. The baby was not adopted, in the end. The grandmother secured much of the support she needed – in the end. But she has had to fight for it, and as she points out, some people will not have the education or the personal resources to do that. And the human toll of getting to this point has clearly been huge.

I hope in future that though the ruling in this case is not binding on any other judge, local authorities will think very hard before trying to prevent citizens from holding them to account, and before arguing that the press should not be able to report what they want to say.

Report: by Louise Tickle

A woman has condemned her local authority after battling for months to be allowed to care for her infant grandchild after it was removed from its parents at birth. Social workers chopped and changed their mind on the grandmother’s suitability to look after the baby, before recommending it should instead be adopted and all links with its birth family severed for good.

The grandmother, who works with children and has successfully brought up her own family, had no entitlement to legal aid and had to fight Gloucestershire county council on her own in court.

Last month a judge finally ruled that she could care for the baby, but the grandmother says that the obstacles put in her way by social workers left her “utterly exhausted and feeling shattered by the lack of kindness and understanding.”

The council’s delays, she said, prolonged the making of the special guardianship order that was eventually granted last month beyond the statutory 26 weeks set by the government. It is well known that delays are damaging to children in care who need a decision to be made for their futures as early as possible. “This baby has remained for longer than was justifiable in foster care,” the grandmother said, and a result, “its parents have experienced a protracted agony of uncertainty.”

Weeks would pass, the grandmother said, “without explanation or even communication” from social workers to her ever more anxious enquiries as she struggled to convince them that she could care for the child.

During the months in which she was being assessed, the grandmother says she was asked to commit to the baby before the local authority had made any decision on whether she was eligible for financial support to bring up the child. She recounted how social workers told her – incorrectly – that she would get no financial help because she had some savings.

“I had to use voluntary agencies and research online for the facts,” she said. She had to find out for herself that government guidance says that while interest on savings may be taken into account in such circumstances, capital is disregarded.

The grandmother continued: “It has seemed that the local authority is unused to being questioned or called to account for their conduct, decisions or even their misinformation. Emails are not acknowledged, questions not answered most of the time. When false information is given, it leads to a great deal of anxiety and sometimes extra costs. This has happened throughout this process. Yet no one takes responsibility for their actions.

“It struck me that social workers are unused to the clients they work with demanding to be treated with respect, honesty and efficiency.”

Gloucestershire county council argued that it should not be named in any reporting of the grandmother’s statement on the basis that this risked identifying the baby. Gloucestershire also argued that although the grandmother wished the name of the council to be known an order preventing her from naming it would be only “a minor infringement” of her Article 10 right to freedom of expression.

This was rejected by judge Stephen Wildblood QC following a joint submission by the Guardian, BuzzFeedUK and the BBC, saying, “in my opinion, the arguments in favour of naming the local authority are overwhelming… I do not think the local authority has got anywhere near justifying the non-disclosure of it’s identity” he said. His judgement emphasised that, “it is utterly wrong in fact in and principle to say that the non-disclosure sought [of the local authority’s name] is only a minor interference with the grandmother’s Article 10 rights…. It would be a very major interference.”

As the number of special guardians rises (http://www.communitycare.co.uk/2016/04/01/record-number-special-guardianship-orders-made-last-year-figures-show/), the difficulties and distress this grandmother has experienced,  “raises important questions about about whether there needs to be a re-evaluation by local authorities nationally of how family members putting themselves forward in these situations can be better prepared, informed and supported through the process,” wrote the child’s CAFCASS appointed Guardian, in a statement agreed by all the parties to the court case.

The grandmother’s experience of Gloucestershire children’s services department comes in the wake of fresh criticism by Ofsted after its ‘inadequate’ rating published in June. Following an interim inspection, a letter leaked last week showed Ofsted stating: “Children in need of help and protection in Gloucestershire continue to experience delay at every point of their involvement with children’s services.” (http://www.gloucestershirelive.co.uk/news/gloucester-news/exclusive-shocking-findings-ofsteds-latest-723009)

Although Gloucestershire council had promised that social workers’ treatment of families would improve after the scathing Ofsted report, decisions about this baby’s future have been made in the time since Ofsted’s ‘inadequate’ report was published.

Neelam Bhardwaja, interim improvement and operations director at Gloucestershire County Council, said: “The council’s only motivation has been to protect this child’s right to privacy. Our concerns are also shared by the child’s independent representative –  the voice of the child in court. We know that taking responsibility for a young child is a huge decision and can be very stressful. We acted with integrity and kindness towards everyone involved in this case, as well as providing financial support including paying for some independent legal advice. The council would like to go into more detail on the issues raised as we did in court, but we don’t believe this is in the best interests of the child. Also, the judge made it very clear that he was not commenting on these issues, but on what information could be reported by the media.

“We feel confident this child has the loving and committed family they need and we support the special guardianship arrangements.”

The charity Grandparents Plus says that financial support for grandparents taking on the care of grandchildren is a postcode lottery.

“While local authorities may have [financial] allowances for special guardians, they can be very difficult to access,” says Dr Lucy Peake, chief executive of Grandparents Plus.  “We regularly hear of cases where families have been denied support because a means test takes into account retirement savings or home ownership, despite a lack of regular income.” A basic requirement, Peake says, should be for local authorities to provide grandparents with financial support to cover the costs of raising a child. “The truth is becoming a kinship carer is propelling families into poverty.”

The baby is now living with her at home, but the grandmother notes pointedly in her statement that she wonders how her grandchild’s life would have unfolded had she been less vocal or determined in her battle with the council.

“I am under no doubt that this baby may have been adopted,” she said,” [and] that others may be, because many people who find themselves in this position do not have the personal resources to cope.”

Image – Mask by Sybil Liberty on Flickr.jpg – With thanks