Cross posted from the Child Protection Resource blog
Post by Sarah Phillimore
On March 9th 2017, Lord Justice McFarlane delivered the first of the Bridget Lindley OBE Memorial Lectures. He began by paying tribute to the memory of Bridget Lindley who dedicated her career to the work of the Family Rights Group. She is greatly missed.
I am sorry that I never got the chance to meet Bridget Lindley. I have often expressed both sorrow and exasperation at the apparent dearth of intelligent committed people who wish to direct their energies into understanding the child protection system and making it better, rather than wasting time and energy on unfair and unprincipled criticism and attack.
But I am glad that I got the chance to meet Lord Justice McFarlane and to witness first hand a member of the senior judiciary who is genuinely concerned and interested about what happens ‘at the coal face’ in the day to day toil of the family courts, so far removed from the gothic splendour of the RCJ and ermine robes of the High Court.
The historical development of our understanding of what is child abuse?
He offers an interesting historical precis of how our understanding of what happens to children has developed over the years. What we recognise now as clear ‘child abuse’ would not have been seen as such by a time traveller from the 19th Century – or even from the 20th Century. As McFarlane LJ comments:
The ability of a society to acknowledge and begin to understand unpalatable truths, about how life is lived by some of its members, is a sign of maturity that only comes with time and the result of a long road carefully travelled. Thus it was only in the middle of the 20th Century that it came to be accepted that a parent might physically ill-treat their child….
In terms of what kinds of mistreatment we are willing or able to identify as ‘child abuse’, he notes that the ‘professional pendulum’ will inevitably swing between under and over diagnosis before coming to settle on a well-informed understanding of what the available evidence in any particular case might indicate. We see this process in the continuing debates about ‘shaken baby syndrome’ and ‘parental alienation’. We may still have some way to travel along particular pathways in the debate but what is clear is that our knowledge base is immensely more sophisticated than it was in the 1970s.
What happens in other countries?
In this we seem to be apart from other European jurisdictions; an interesting counter weight to the oft expressed (and erroneous) view that the UK is ‘alone’ in permitting ‘forced adoption’. McFarlane LJ recognises that other countries make the decision to take a child away from its parents as a largely administrative determination, overseen by tribunals. ‘Fact findings’ to determine if abuse has happened are rare; ‘permanency planning’ for children also appears not to feature in decisions about children.
So is the true picture that other European countries are less keen on promoting adoption because they simply do not have the court structures to enable them to determine the nature and degree of abuse children have suffered at the hands of parents? It would be ironic indeed for many campaigning groups if the true picture from abroad is that both children and parents are less protected in systems which do not promote ‘forced adoption’. But sadly, I do not have anything like the knowledge base necessary to continue this interesting line of discussion and absent Claire Fenton Glynn’s return to this field, I don’t think anyone has.
Better knowledge and understanding of what other countries do to protect children is urgently required. We are very different from other European countries. We need to understand why and we must not be afraid of finding out what long term outcomes look like for children in the different systems.
The current strengths of our system
The strengths are immediate and obvious, despite the crude propaganda from several campaigning groups. Robust challenge is not merely permitted of the state’s case; it is expected, it is demanded, and the state funds it. We have developed a sophisticated understanding of not only the child’s experience in a family, but of how and why that family can be supported to look after their child.
But there is no room for complacency. Lord Justice McFarlane identifies ‘six short points’ and three significant problems that give him continuing cause for concern.
The Six Short points.
- Neglect and resources – many cases involve low level neglect of children. At some point the balance tips away from trying to support the family into a decision to remove a child. So when is this tipping point? Who decides? What happens when the family has not been well supported as resources just aren’t available?
- Post Adoption Contact – there is still no ‘sea change’ 10 years on from the Adoption and Children Act 2002. Attitudes persist that adoptions should be ‘closed’ and there appears to be little creative thought about how to consider other options for a child. See here for further discussion of this issue.
- Interventions to support parents – why has it taken so long for initiatives such as FDAC and Pause to be made available, when they are so plainly beneficial in the right cases?
- Special Guardianship Orders – are they being over-used? Is the pressure of the 26 week timetable causing problems?
- Domestic abuse – are we really getting the balance right here? Isn’t it better for children to stay at home with protection and support? are the family courts keeping up with the criminal courts, and are they sufficiently alive to issues about coercive control? (NB the Transparency Project will be launching its Guide to understanding how issue of violence and abuse are dealt with in family courts at CPConf2017 on the 9th June – see here for more details)
- Independent Reviewing Officers – there has been NO occasion when an IRO has bought a case back to court, even though many cases have clearly required that kind of scrutiny. Is a key aspect of system thus falling short? What can we do about it?
The Three Big Reasons to Hesitate
Is adoption the best option?
McFarlane LJ makes clear this is a genuine question. He has no concluded view but it is important to ask. I wholeheartedly agree. It has been a frequent feature of my commentary and complaints over the years that successive Governments have simply churned out the ‘adoption is best’ mantra without much thought or examination of the evidence base for that, or the demands of Article 8 of the ECHR. He makes the clear and crucial point:
Adoption has changed in a number of important respects over the past two decades and a number of the characteristics of adoption, and the assumptions on which it hitherto has been based, have shifted.
Historically, when a child was adopted, both law and practice went to great lengths to achieve a total separation between the child and the natural family. That’s a much less achievable position with the exponential rise of social media. Also the ages at which children are adopted are rising – 20% of current adoptions are of children who are over 4 years old. Children are therefore more likely to have clear memories of their birth families, and have been exposed to more trauma within them. McFarlane gives a well deserved shout out to the work of the POTATOs – Parents of Traumatised Adopted Teens – who give striking accounts of the difficulties they have faced parenting teenagers traumatised by their earlier experiences, often being given only a partial account of the actual experiences of their child. Often these children end up returning to the care system via section 20 of the CA when their parents can no longer cope.
There is a very welcome recognition from McFarlane LJ that the nature of adoptive parenting is probably now shifting; rather than providing cute babies for couples who can’t have their own children, adoptive parents must now be recognised as needing to provide specialised therapeutic parenting, which has impact upon not merely the recruitment and training of adopters but the provision of support for adoptive families, for the rest of the child’s minority and even beyond.
We also need much better information about long term outcomes – courts have to make decisions about a child’s adoption based on his or her welfare for an entire lifetime. On what evidence does a judge currently make that kind of decision? This links to the second big question.
But how do we know it has worked out alright?
Family judges get almost no feedback on the outcomes of their decisions. Even when an adoptive placement breaks down, the Judge is not informed as a matter of course. McFarlane LJ does not suggest it would be appropriate for the Judge to play any part in a review of why a placement breaks down, but it could only be beneficial for the Judge to be made aware, by a short report. He recalls the incredulity of a business consultant, called into to review the family justice system, on being told that the key decision makers, being paid a high salary, were given ‘absolutely no information as to whether their decisions had been effective’.
So my first two ‘buts’ are related. Without sound, wide-ranging research as to outcomes, and without detailed individual feedback as to the progress of particular cases, it is difficult, indeed logically it is impossible, for judges to have confidence that the current balance between child protection and human rights, which favours a massive erosion of the right to family life because it is ‘necessary’ to do so to protect the child, is indeed justified
Third Big Question: Transparency and the need to shine a light on what we do
Of all the valuable and worthwhile issues raised by McFarlane LJ in his speech, it is this final part that brings tears of gratitude to my eyes. He generously recognises the efforts of The Transparency Project in this regard – ‘transparency’ is about so much more than just allowing passive public scrutiny of processes and outcomes. We must generate a far greater understanding amongst the public about what is behind the decisions made.
He recognises the chilling impact of the less responsible of the groups which campaign against the ‘evil’ family courts, an issue about which I have raged and agonised for many years now, increasingly incredulous at the apparent lack of interest in just how much damage these groups can do.
From what I have been told from a range of sources, and from my own exposure on a daily basis to litigants in person seeking to appeal child care decisions, there is a significant and growing distrust show by some parents in child care lawyers and judges. This is deeply worrying and needs to be addressed if it is not to lead to yet more parents disengaging from working with professionals and the process in a way which can, in my view, only damage their interests rather than enhance them.
Who holds the risk, how risk is assessed and how brave or risk averse those who make decisions for children at risk of significant harm may be are central issues in every child protection case.
We can’t respect human rights without engaging fully in the process where those rights are embedded. If parents are being prevented from engaging, either because they do not know their rights or they are being given ‘targeted advice’ NOT to engage, they risk losing their children. And their children risk losing their parents. It is that simple and that stark.
Judges need proper information on which to base their decisions about the rest of a child’s life. They cannot be left – in his rather terrifying metaphor – as if they are learning to play darts by throwing them randomly about, without sight of the dart board and not knowing if they had hit the board or the wall.
To this end, McFarlane LJ offers some suggestions for a solution:
- significantly raise the level of public education and awareness as to the way in which the family [justice] system operates
- ensure that parents are exposed to accurate and sound legal advice at the earliest stage, including pre-proceedings
- conduct extensive research into long term outcomes for children so Judges can have proper information on which to base decisions.
An example of an innovative and low cost solution to both is the Family Court Information website at the Bristol CJC, brain child of Lucy Reed. It is frankly disgraceful that this initiative has not been taken up nationwide. I struggle to think of a better example of such valuable information being provided at such a low cost. Setting up the website for each court area would cost less than £1,000. The analytics for the web site show it is being accessed regularly far beyond the local area it serves. There is clearly a need here for accurate, clear information.
I applaud the range and depth of this speech. It grapples head on with some of the most difficult issues I have been worried about over many years now. I do hope that something so clear and courageous in its willingness to both ask and attempt to answer some really important and difficult questions, now heralds a new Dawn in the long, dark night of woeful and compromised ‘debate’ about the child protection system. We can no longer leave the field open to those who spread misinformation and misery.
It’s time to reclaim our child protection system. To celebrate its many strengths. To tackle head on without fear or shame, its many weaknesses.
It’s been a long time coming.
The full text of the speech is on the Judiciary website.