[NB This post was updated on 20 August following response from Childrens’ Commissioner’s office – updates marked in square brackets]
Last week, the Telegraph ran a piece from their social affairs correspondent Gabriella Swerling under this alarming headline (here). The piece is detailed and contains some quotes from lawyers and the Children’s Commissioner for England. In this blogpost we ask: what is really behind this headline?
A central component of the Telegraph piece is reference to
“disturbing” cases – which have remained unreported until now – where children have been physically injured and sexually abused while living in the units have prompted the Children’s Commissioner to call for a review into the controversial scheme.
a “shocking” case… in which an eight-month-old baby boy was sexually abused by his mother during her elongated stay at [a] centre.
We don’t know what the other disturbing cases are, but we think the case involving the 8 month old baby boy must be this one : L (Sexual Abuse: Applied)  EWFC B4 (1 February 2019), dated 1 February and first reported in May of this year (see for example here). Thus, not quite correct to say that this particular case was ‘unreported until now’.
Whilst the L case is indeed both shocking and disturbing, what readers of the Telegraph piece probably won’t appreciate without reading the judgment (which they have no easy way of finding) is that the sexual abuse that took place was by means of the mother masturbating in the presence of the child (which she admitted once caught out on CCTV), as opposed to direct abuse upon the child himself. I don’t say that to minimise what took place, but because this type of behaviour is not necessarily what most people think of when they are told there has been sexual abuse – as illustrated by the fact that even the judge had to explain at length why he thought this ‘non-contact’ abuse DID fit within the definition of sexual abuse, because the local authority were not actually seeking a finding that described the mother’s behaviour as sexual abuse.
There is a very short summary of some of the issues in L in the Swerling piece, but I’m not sure it is sufficiently clear that the sexual abuse was limited to the masturbation or that the children who the parents brought into contact with their grandfather (a sex offender) had been older children who had already been removed. L was a subsequent child, and this new assessment was ordered about the parents ability to protect L in light of what had happened in the past. There was no suggestion that the parents had allowed the grandfather contact with L or that he had sexually abused him.
A reading of the judgment shows that the sexual concerns were but one of a range of issues that needed exploration in this case, and that notwithstanding the discovery of the masturbation there had been active consideration of whether there was any way of keeping the child safely in his parents care. After hearing a wealth of evidence, the judge concluded not, and gave permission for the child to be placed for adoption.
What is NOT apparent from the judgment is how the masturbation was, apparently, allowed to take place on six separate dates before there was any intervention. It appears that the placement came to an end because a review of the CCTV uncovered this behaviour. The unit at which the parents were placed is not named. My experience of residential units is that they offer placements with 24 hour CCTV at upwards of £3000 per week, and my understanding has always been that the CCTV is monitored rather than simply being recorded and reviewed later to inform an assessment report. If that is not the case, one has to question what how CCTV monitoring can serve any useful purpose in keeping vulnerable children safe – but this case in itself doesn’t give us any information about whether this was an abberation, an example of a unit not following its own policy, or simply failing to spot what was on screen, or a consequence of more widespread practices of recording but not contemporaneously monitoring CCTV.
We’ve asked Gabriella for further information on the ‘other cases’ referred to but she tells us that ‘everything I can report is in the story’. We certainly can’t think of any other published judgments that raise similar issues so it’s difficult to know what to make of the assertion that there are other cases, including those where children have been physically injured or sexually abused in residential units, or whether any particular case is a result of culpable failure on the part of any individual or organisation.
As a barrister who acts in care proceedings I can explain some context of this issue although, like Gabriella, I am constrained in terms of what specific details I can give. What I can say is that, in my experience, the use of residential assessments where there are child protection concerns or worries about a parent’s ability to care for a child is relatively low. It is very difficult to secure a residential assessment and applications within court proceedings for such an assessment are made less often than they were when I first started in practice 15 years ago. There is now greater appreciation of the limitations on what they can usefully tell you about how well a parent will cope in real life once they leave. Most often they are used where a parent is young and inexperienced or has a learning difficulty that means they need monitoring and support to ensure that basic care is safe. This was the case with L – we can see the parents have learning difficulties because the judgment refers to a PAMS assessment model, which is designed for use with parents with these difficulties.
Although they may be longer or shorter, typically such assessments would last for about 12 weeks. In the L case, the judgment tells us the assessment had been ongoing for 22 weeks when it was terminated. That suggests (though we are not told) that the parents were making slow progress in the unit – enough to be worth continuing the placement but not enough for a clear recommendation about their long-term ability to care. The judgment isn’t explicit, but doesn’t read as if the 22 weeks was an extension of a shorter assessment – in my experience a planned 22 week assessment is a long one but it’s impossible to say without more information why this was thought to be warranted. Whatever the reasons, this assessment was one which the court approved at the start of proceedings, and the law requires such an assessment to be ordered only where it is necessary for the purposes of assessment. Particularly given that there is a 26 week time limit on proceedings, we can be confident that the court would not have sanctioned an assessment of this duration without good cause – there must have been both a need and a reasonable prospect that the outcome would be positive for the court to have allowed this in the first place. Of course we know that ultimately things went very wrong.
In my personal experience, units are generally vigilant and proactively monitor and report concerns as they unfold (although I do have some experience of Units which have failed to offer the sort of consistent support and feedback that is so essential to making this sort of assessment work, as a result of staffing turnover – so I can see that the quality of service is not always consistent). Where a unit observes behaviour that is of significant concern, it will usually intervene and call a meeting to discuss whether or not the placement can safely continue or if the parents will be asked to leave. I have dealt with a number of cases where the residential unit has taken the difficult but sensible decision that they must terminate the placement immediately because even with monitoring they no longer feel the child can be kept safe. Almost invariably, this results in the child being placed in foster care and separated from his parents. The L case is an outlier when compared to my experience, and as a professional who sometimes has to consider the suitability of a unit, it would be helpful to know more about the unit’s role and actions in this case.
My professional direct experience is just one part of a more complex jigsaw puzzle though. As a professional involved in these cases, one often picks up information ‘on the grapevine’ about which units are working well or having problems. I was aware that a particular unit in my locality had stopped being used, and in the course of writing this article, I tried to see if I could find out anything about that in an inspection report. Quite apart from the gossip I had heard about other difficulties this unit had been facing, the OFSTED inspection report I located documents one example of a baby suffering unexplained injuries in this unit that the unit failed to report. The unit is no longer taking families. So it seems that there are at least some other examples of direct injury (but in the example I found not, it seems, at the hands of abusive parents).
The Telegraph article doesn’t just rely on the L case or the Commissioner’s comments. It also cites various lawyers who, like me, have their own direct experience. Swerling says that :
[The Childrens’ Commissioner’s] calls echo those of family lawyers who accuse councils of putting the safety and welfare of children at risk in order to avoid “negative PR” for splitting up families. They also claim that CCTV is not constantly monitored which can lead to children being harmed.
Whilst not named at this point in the article, Swerling confirms that those unnamed lawyers are the lawyers identified and quoted later on in the piece. I’ve set out my experience above and it’s concerning to hear suggestions that failure to monitor CCTV is a pattern. I would be interested to know if the failures in question have been reported to OFSTED, but sadly the article does not give us any further information on this and it is impossible to identify from the OFSTED site whether or not any report relates to the L case. The quotes in the article from OFSTED are unhelpfully generic.
The article summarises the impact of Re B, a case in 2013 which is generally thought to have tightened (or reiterated, depending on your perspective) the test for removing children from their parents’ care. We assume that it is the same lawyers who :
now believe this landmark case has sparked an epidemic of “political correctness” among councils fearful of separating children from their parents – even when they need to be for their own safety.
Indeed later, Jacqueline Fitzgerald, Partner and Head of Family at Wilsons Solicitors LLP, is quoted as saying that :
the case [of L] represents an “abject failure” on behalf of the local authority which “failed to prioritise the needs of the children over adults”.
Whilst Jacqueline is entitled to her opinion about this, I am not at all sure what it is based on. Although the explanation appears nowhere in the article, the assessment of L’s family was approved by the court, not organised by the local authority off its own bat. It is not clear from the judgment whether or not it was proposed or opposed by the local authority, but whilst we can see a basis for suggesting failure on the part of the Unit (if, as appears to be the case, they failed to monitor properly) or the court (for sanctioning a lengthy assessment which, with the benefit of hindsight looks unlikely ever to have succeeded), I’m not sure what underpins the complaint that the local authority specifically have failed in this particular case – even if they did support its commencement.
Jacqueline is also the source of the ‘political correctness gone mad’ quote, and suggests that in essence courts are bending over backwards to keep children with parents to the point where they are harmed. I wouldn’t dispute the effect that Re B had on decisions to remove children from their parents, and I don’t doubt another lawyer if they say children have been harmed in such placements. (In all my cases, placements have been terminated before that happened but it is easy to see that might not always happen.)
However, it is surprising to see a family lawyer saying, as a general proposition, that ‘nobody is shouting out for the children’ in such cases – when in fact that is the task of both the local authority social worker and the primary function of the court appointed guardian. We don’t know (and nor presumably does Jacqueline) whether either of those workers opposed the assessment but, in my experience, social workers and guardians very often do vocally oppose such placements – either because they cannot be safely managed or because they are unlikely to advance matters much. In addition, local authorities in my experience only agree such placements when there are pretty good justifications for doing so because (as the article points out) they put such a whacking hole in their budget. Personally, I’m at a bit of a loss understanding where Jacqueline is coming from here, and I worry that the impression to the ordinary reader will be that parents are being placed in these placements on a whim when they are obviously pointless, costly and risky. I don’t think that is generally right, but if I’m wrong (perhaps because things are done differently in other ares of the country to where I practise) I’d like to see the evidence to better understand what is going on.
Sophie Humphreys OBE of Pause, is quoted asking the legitimate question about quite what the court and parties thought this parenting assessment was going to produce in terms of new information to inform the court. That is a question I’ve pondered myself, but it appears from reading the judgment that the court and professionals took the view that there were sufficient positive indicators to think the process was worthwhile and I am reluctant to be too critical of what we see via the judgment. Hindsight is a wonderful thing, and there will have been vast swathes of information that will have been important in understanding why certain decisions were taken at an earlier stage, but which I would not expect to see rehearsed in the final judgment.
Another lawyer, Jo-Anna Jellings, is more circumspect in her critique. She says that
given the high- profile criticism of the alleged ease with which local authorities remove children, one has to wonder whether fear of such criticism was a factor at play in this case.
“Resources must be allocated on a strictly needs and merits basis, and not according to politics or fear of negative PR”
Whilst it is legitimate to wonder, there doesn’t seem to be any evidence from the judgment or otherwise that these factors were at play in the case of L. Against the backdrop of the findings made in the previous proceedings concerning L’s siblings, it is hard to see that a local authority would have been so worried about adverse comment that they would have willingly forked out a sum in the region of 70k (I think the article probably underestimates it) just to avoid a hypothetical unfavourable headline. Whilst I’m reluctant on a comparatively uniformed basis to criticise those involved for allowing the assessment to proceed, this was also not ever an obvious candidate for headlines about injustice had the parents been refused a residential assessment and the child removed. I’m sure that in some cases the fear of criticism is a factor in decision making, but I’m not convinced it would obviously have been so in this case.
So, looking back at that headline – where does this leave us? Well, there is limited public evidence that there is any widespread or systemic problem here. Which is not to say that there isn’t, but it is unsatisfactory not to know more. The mere fact that these events took place on multiple occasions before being discovered / stopped suggests a serious failure at one unit that it would be helpful to understand better. It is sensible for professionals considering such assessments to keep an eye on the OFSTED website, but since they only conduct inspections once every 3 years, its not certain that a search of a proposed unit on the OFSTED site would bring up evidence of recent incidents.
Having seen that the Children’s Commissioner was ‘calling’ for a review of the issue, we went to her website to see if there was further information. There is none that we can find and no formal ‘call’ for a review in the media section. We enquired of the Children’s Commissioner but have had no response.
Based on our experience of how headlines are generated, we think that the headline was drawn from the main body of the article by someone other than the journalist herself, and is that editor’s interpretation of the gist of the article. The article itself reads very much as if Anne Longfield has been approached for her comment upon the troubling example of Re L, and her subsequent remarks relate to that:
Anne Longfield OBE told The Telegraph that a review of the centres was needed after this newspaper brought a “shocking” case to her attention in which an eight-month-old baby boy was sexually abused by his mother during her elongated stay at the centre.
She told this newspaper: “The details of this shocking case do beg questions. Where these Centres provide early parental support, I have heard good things, but the nature of these “assessments” both as a process, and how they practically work, combined with the length of stay and the costs involved suggest a valid case for reviewing how they continue in future.”
What the comments in the main body of the article don’t support is any suggestion that Anne Longfield has called for a review beyond the quoted response to the Telegraph approaching her with details of this case, or that she is suggesting knowledge of any other examples of such issues (from her own work or via the Telegraph). We also don’t know whether or not Anne Longfield would have read the judgment and therefore been aware of the detail of the case, specifically the non-contact nature of the abuse, when she gave her comment.
[The Childrens’ Commissioner’s Office has now responded to say that :
We did provide a quote to the journalist, but as you correctly deduced, we did not actually call for a review.
Our position is that given the costs, the long time periods of assessments and the apparent lack of appropriate oversight in the cited case, it called into question whether or not the assessment process should be reviewed. We took the view that there were some very concerning issues raised in this case (namely the apparent lack of oversight/intervention to prevent further harm), but that without all the facts we could not make a solid judgement on the use of assessment centres more broadly.
The Commissioner raised this case with the DfE Social Care team, asking them to look at the issues referenced in the cited judgement and the article more broadly, to assess/investigate whether or not it does form the basis for a review. We await their response.
We’re glad we asked about this, because it confirms our suspicion that the headline was overblowing a comment given in reference to a specific case into something altogether different. In light of the above quote we think it is now fair to say that the headline is misleading.]
In conclusion then, this piece raises an important issue. Whilst we have to be realistic about what any one news item can achieve in terms of detailed explanations or evidence, there are a couple of things I’d like to have seen clearer and which I hope are realistic asks :
- link to judgment or at least citation so it could be found
- reference to the fact that the assessment in L was court sanctioned after the court heard from all parties including representative of the child (there is a helpful explainer ‘What is a residential assessment?’ at the foot of the article, but it would have been helpful for this context to be woven into the piece – I read the article in full three times before spotting that explainer, a problem for many readers where newspaper web pages are so ‘busy’ with adverts and teasers that we learn to tune out.
- an explanation of the time-limited purpose of the placement, to counter the impression from the headline that it was a permanent arrangement
- a clearer explanation of the fact that the ‘sexual abuse’ did not involve contact abuse, and clarity around the grandfather’s contact with this child (none)
- assuming that the headline is a bit of spin on a responsive quote from the Commissioner about one case example – a revised headline
- I’d have liked to have seen identification of the unit if permitted (possibly not) and for the journalist to have made inquiries about the circumstances of the incidents not being immediately picked up (monitoring failure etc?), whether or not the incident was reported to OFSTED and/or any action taken as a result
We are grateful to Gabriella Swerling for responding to our request for clarification. We will update this post if we hear back from the Children’s Commissioner.
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Feature pic : CCTV by Nolifebeforecoffee on Flickr (Creative commons – thanks)