Family Law publishes a regular column by The Transparency Project. This blog post originally appeared in the December 2018 issue,  Fam Law 1590.
On 15 September 2018, The Transparency Project supported the third Child Protection Conference, at the Conway Hall in London, and organised by Sarah Phillimore. The first conference was in 2015 and posed a general question about whether or not the child protection system was fit for purpose. CPConf2018 posed a more particular question – how the future risk of emotional harm was used as a justification for removing children from their parents. This has consistently been an issue of serious concern for many over the years. The speakers expressed near unanimity. There are grave concerns not merely about how emotional harm is defined but how it is assessed. This is a particular concern when dealing with a risk of future harm.
Sarah Phillimore, barrister member of The Transparency Project, examined the historical context of the Children Act 1989 and the Supreme Court decision in Re B (Care Proceedings: Appeal)  UKSC 33,  2 FLR 1075 where Lady Hale was the sole dissenting voice against the decision to confirm the removal of a ‘much loved’ child on a future risk of harm in the care of her parents.
Lauren Devine, Professor of Law and Ethics at the University of the West of England. highlighted the origins of ’emotional harm’ – within the framework of harm that attracted ‘voluntary’ engagement with Child in Need plans rather than the coercive intervention that might follow a s 47 investigation. But now risk of emotional harm was fuelling more care proceedings – and how do we prove it? Her research into case papers at the Bristol Family Court was providing evidence of ‘expert’ reports of a very poor quality ‘that would make your hair stand on end’. This poses an immediate challenge to the lawyers present – how well equipped are we to challenge effectively such reports and their methodology?
Journalist Louise Tickle commented that parents could lose children on a future risk on such a low standard of proof feels ‘outrageous’ to those outside the system. She agreed that sensationalist reporting from some journalists wasn’t helpful but it was reflective of a wider societal fear and distrust of a system that was not transparent. Although we have policing by consent, we do not appear to have ‘social work by consent’ and people needed to have confidence that bad professional behaviour would be recognised and dealt with appropriately.
Lucy Reed, barrister and Chair of The Transparency Project, accepted that emotional harm was difficult for some parents to understand and we had to do a better job of explaining. It was part of life – as parents, we had all caused emotional harm to our children at some point. When did it become serious enough to intervene? She was troubled by the number of parents she encountered who were given bad advice about not engaging on the basis that ’emotional harm’ was just a ‘cooked-up theory’. Consequently, some parents who might have had a good prospect of being reunited with their children instead ‘stuffed up’ their chances.
Simon Haworth of the University of Birmingham offered the social worker’s perspective. He is now an academic but was previously a frontline social worker and was concerned about the continuing spectre of ‘muscular authoritarianism’ that meant family support was becoming overwhelmed by ‘protecting’ children from an often poorly defined risk. Issues of poverty and the impact of austerity had to be part of the debate. He posed the key questions for the profession. How can we promote collaborative analysis of risk and return to be confident with ‘safe uncertainty’?
Then ‘Annie’ spoke to give a parent’s perspective. She blogs at Surviving Safeguarding and works to help parents navigate and understand the system. This was her first speaking engagement since the death of her son Jonny and her ex-partner in 2017, who both took their own lives. Both had spoken critically about the impact of local authority (LA) intervention for their families. Three years ago, Annie fought and won to have her youngest son returned to her care after his removal at birth. She knew more keenly than most present the emotionally harmful impact care proceedings had on her and her family.
Emeritus Professor Andy Bilson discussed some recent statistics he had unearthed by making FOI requests of various local authorities. He had examined rates of removal from different LA areas and found a huge rise in rate of care proceedings and some worrying discrepancies – in some LA areas cases of emotional harm had increased significantly, in others decreased. Just what was going on? This strongly suggested that ’emotional harm’ was something nebulous. Andy didn’t think it likely that the different rates pointed to more or fewer children suffering emotional abuse, but more likely indicated the different cultures and practices of each LA area. He was concerned that children were being removed when they need not be. The LAs he identified (from those whose information he had) as having the highest increases in findings of emotional harm were Hackney, Hampshire, Sefton, Wirral and Wolverhampton.
This has interesting echoes with the report from the Nuffield Family Justice Observatory for England and Wales published on 10 October 2018: Born into care: New-borns in care proceedings in England. An alarming finding of that report was the marked difference between the regions in terms of new-born babies taken into care. The North West had the highest average rates at 30 new-born cases per 10,000 live births in general population, in contrast to London which had an average of only 18. A minority of LAs departed significantly from the expected average – the range for such outliers in 2016 was between 55 and 159 new-borns per 10,000 live births. This is clearly troubling, and we need to investigate more closely the reasons behind such regional disparity.
Finally, Dr Sylvia Schroer, the chair of Special Guardians and Adopters Together spoke. One of the group’s concerns was about a system with poor accountability removing children with disabilities from loving parents, that ended up in a power struggle where parents felt persecuted. There had to be a better way.
The conference provided clear impetus for The Transparency Project to consider a new Guidance Note to explain the purpose and ambit of risk assessments. There is clearly a need for all participants in the child protection system to have confidence that assessment of the risk of future harm is carried out consistently, and in a way that families can understand. For a more detailed discussion of the day and links to the speakers’ presentations, please see The Transparency Project website: www.transparencyproject.org.uk.
OTHER PROJECT NEWS
The Transparency Project has now appointed its first staff members. Alice Twaite (existing project member) and Annie (mentioned above) have been appointed Project Coordinators on a jobshare basis. They can be reached at: email@example.com. The Transparency Project is holding an event on 22 November 2018 to launch its new guidance note, ‘How do family courts deal with cases about children where there might be domestic abuse?’ The guidance note and details of the panel discussion (including links to the video of the event) will be available on the website.