It’s a common mistake for journalists (and others) to refer to the Children’s Act. Pedantic family lawyers bristle at this (it’s the Children Act). But pedantry aside, this error is often a clue that something has been written without much input from a lawyer. And so it seems with the Sunday Mirror’s various campaign pieces published today about the law on protecting children from violent parents, which feature far worse mistakes than punctuation.
This matters, because the campaign that the Sunday Mirror is backing is to change the law because, they say, the law doesn’t protect children. So you might think that an accurate summary of what the law currently does would be pretty important here.
Scandal of 63 children killed by parents after officials missed warning signs – EXCLUSIVE: The Sunday Mirror is launching our Save Kids From Violent Parents campaign after a nine-month probe into failures to prevent the deaths of children
The Sunday Mirror make a pretty compelling argument that there have been far too many cases where vulnerable children have been failed, where authorities who knew about a parent’s history of violence or abuse didn’t step in, and where ultimately children were killed – most often by fathers with previous convictions for violence. The gallery of 63 children killed since 2004 is chilling to view. Many of the names and faces will be familiar to readers, as most of them were reported in the mainstream media following their deaths, or at the time of the trial of their killers. In addition to the 63, reference is made to Victoria Climbie and Peter Connelly. It is unfortunate that in their main article the Sunday Mirror did not give Peter Connelly (Baby P) his full name, or spell his family surname correctly.
Nobody would argue that this is ok. Nobody would argue that we shouldn’t be taking steps to stop it happening, to find out what is going wrong, to make changes that keep children safer. The demand for more training around domestic abuse and for resources for therapy for children who have suffered trauma is also unassailable. But The Sunday Mirror also argue for a radical change to the law as well – and that is something that requires a calm debate based on factually accurate information about what is being reformed and why. If the debate is not based on facts, there is a risk that any reforms will not only be ineffective, but could put children at risk of harm.
The Sunday Mirror say that they are campaigning for :
a change in the law which would put child safety before human rights.
As things stand now social services have to fight to stop someone with a history of violence or child abuse or sex offending from seeing their child. We believe it should be the other way round.
A parent with that kind of background should prove he – for it is mostly men – is fit to be with children.
So, they want a sort of reverse presumption. I’ll come back to how that might work in practice. But here’s what they say about the existing law :
- …’the authorities were forced to honour dangerous parents’ human rights – despite knowing of their abusive behaviour.‘
- ‘…professionals knew each of the innocent kids was in the clutches of someone with a history of abuse. Yet there is currently no law to protect them. Under human rights laws, parents have a right to a family life which has to be respected by authorities.’
- ‘The legal blind spot means parents’ rights are continually put before the safety of the child, often regardless of what has happened in the past.‘
- ‘Until now, agencies and family court judges have simply been given guidance to help them make decisions in the best interests of a child.‘
Most of this is simply legal baloney. Authorities are not ‘forced’ to ‘honour’ dangerous parent’s human rights where they are aware of abusive behaviour. Child protection law places statutory responsibility upon various authorities to act if they are aware of abusive behaviour or consider a child is at risk – notwithstanding that they have human rights. Where a local authority considers that things have reached a point where they need to intervene to safeguard by removing a child or stopping contact they have a duty to act by issuing care proceedings and then it will be the court’s job to balance the risks against the child’s human rights. It isn’t automatic, but where there is clear evidence of danger, courts will sanction removal even at short notice.
It is right that a parent has human rights which have to be respected – but ‘respected’ doesn’t mean those rights override a child’s safety – rights to family life are not absolute and can be trumped where a child’s safety or human rights make that necessary. Otherwise, children could not be lawfully removed from their parents’ care. Every day in courts up and down the country, children ARE removed from their parents’ care because of the risks to their safety associated with a violent or risky parent. The law that enables this is s31 and s38 Children Act 1989. It is powerful and it can be exercised in an emergency (s42) and even where a child is left at home the order can include an exclusion requirement forcing one parent to leave. In addition, in cases involving disputes between parents, which often involve allegations of domestic abuse, the court can prohibit or restrict contact between a child and a parent, and can issue restraining orders. There is no lack of power to protect.
Looking at that heartbreaking gallery of the faces of murdered children, the real issue raised is why the authorities didn’t act – because most of them seem to be cases where the authorities knew of a risk. However, without trawling through the detail of each and every serious case review, it’s difficult to say whether this was because they didn’t take a past history seriously enough or didn’t feel able to act for one reason or another – but whilst some cases appear to have involved family courts, the majority of cases look as if they never reached the family court and something went wrong earlier in the chain. I’ve certainly never read a serious case review which identified the idea that social workers’ hands were tied by the Human Rights Act being a contributing factor to inaction that was followed by a child death.
Finally, it just isn’t right to characterise the primary legislation that places duties on a range of agencies to safeguard children and to act in accordance with their best interests as ‘guidance’. It is the law – the law that the Sunday Mirror say doesn’t exist.
The leader in the Sunday Mirror says :
…When children die in such circumstances scapegoats are sought. But our campaign is not aimed at social workers or the police, judges or lawyers.
They have to operate within the laws MPs give them. It is the system which is at fault and it is the system which must be changed.
Unfortunately Nazir Afzal doesn’t seem to have received this particular memo because even yesterday evening he was tweeting that it was down to lack of family justice transparency (which I take to mean family courts, because otherwise it doesn’t make sense) :
In fact, there is limited support in the Sunday Mirror’s study for there being a causal connection between the lack of transparency on the part of Family Courts (which I don’t deny exists) and children being killed. Although it has not been feasible for me to trawl source material for each and every one of the cases listed in the Mirror’s gallery, there are only a few which mention judges or family courts, the most notable probably being Ellie Butler (which is misdescribed as a ‘custody battle’).
I think that the Sunday Mirror’s assertion that they aren’t out to blame individual professions or professionals is disingenuous – we all know the history here, particularly with Baby P – and Afzal’s tweet is an illustration of how their emotionally charged material was always likely to be deployed by those with social media reach. What’s more, it just doesn’t square with the evidence presented once you properly understand the legal framework. Authorities AREN’T prevented from acting because of human rights. If they are not acting that is either because they are failing in their child protection duties, because they were acting on incomplete information or they have made a legitimate judgment call which has had tragic, catastrophic consequences – or possibly because the risk was not high enough to justify the alternative, taking all the options into account.
A conviction or history of domestic abuse callouts is most certainly a big red flag, but the reason we have serious case reviews is because decision making in real life situations is complex, and it needs careful unpicking when it goes wrong. It’s important to understand that whilst we read news items about dead children after the event, social workers and judges are making decisions about risk in real time, weighing up the risks and disadvantages associated with doing nothing against the risks and advantages of an alternative course of action and trying to work out which, in the long and short term is most likely to be safest and best for a child. Decisions about risk aren’t made in a vacuum – they sometimes have to be made on incomplete, changing information and often in circumstances where both parents present some degree of risk to the child. There is rarely a risk free, easy option to pick.
Most serious case reviews I’ve read cite a combination of factors, and often conclude that, whilst improvements could have been made, the death was probably unavoidable because the behaviour was unpredictable (Sadly, it is pie in the sky to think that any law could entirely prevent these awful killings from taking place).
So, I struggle with how the Mirror can in good faith effectively say ‘We’re not having a go at social workers’ – because the human rights guff is just nonsense, and they must surely know it to be so. And the Sunday Mirror must know exactly how incendiary this sort of hard hitting, distressing material can be in the hands of those who have a grievance against the system or the professionals within it. It is already being widely circulated and made use of on social media by some who do ascribe blame to social workers and judges, and who are adept at making sufficient noise to obscure the facts of their own cases.
The proposed law reform
This is difficult to comment on without seeing the proposed amendment to the Domestic Abuse Bill which it is said Carolyn Harris MP will introduce to bring this into law. I’ve contacted both Carolyn and Cris McCurley (the lawyer who drafted the amendment), to get sight of the draft and to try to find out how they propose it should work – and I’m hoping to be able to speak to one of them soon – but on the basis of the reform as described by the Sunday Mirror a number of questions arise, such as :
- how the law would be enforced and who would it be enforced against (convicted parent only or other parent too? and with what sanction?)?
- how the law would deal with situations where a parent with care received a relevant conviction – would they be required to give up care?
- how the law would deal with situations where the parents were still living together and where they said (for example) that the abuse was historic or resolved or where it was not intimate partner violence (e.g. a juvenile conviction for an affray type offence such as a fight outside a pub)?
- how does this reform relate to the criticism of local authorities for victim blaming when they try to protect children from abuse by removing children from the care of mothers who repeatedly become (re-)involved with abusive partners?
- how applications to court and the subsequent assessments would be funded and resourced (would there be extra resources for courts such as extra judges – and who would carry out the assessments, will there be legal aid)?
- how would any assessment on application be any better / different than the s47 (child protection) investigation that should be carried out by social services now anyway?
The drafters may have answers to all these questions. I hope to be able to read the draft legislation soon, to see whether that is the case, and how the proposed reform surmounts the very real difficulty (in my view) of making such an automatic system compliant with the human rights of the children in question, leave alone their parents.
As and when there is better information we will try and provide explanation and comment.
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Feature Pic : cracked mirror by Roland Tanglao on Flickr (Creative commons – thanks)