I completely agree (not for the first time) with John Bolch at Family Lore about the Baby P case. Of course anything councils can do to improve child protection systems must be done – it must be done regardless of the Baby P case. But the truth is that no system can ever guarantee that it will catch child murderers before they kill. To some people, that may seem a hopelessly defeatist, uncaring attitude: it’s not. I suspect those who insist we must ensure this never happens again have not thought sufficiently about the difficulty of protecting children to this extent.
What can be done, though, is to shift the culture away from one that protects parents and their rights, towards one that leans towards child protection. That’s the kind of cultural shift that inquiry after inquiry has called for (and by the way, I never think an inquiry is the answer to any problem) but that doesn’t happen because it’s actually an extremely radical demand. It doesn’t happen because, if we really had a child protection culture of the kind that would even approach making sure there are no more Baby Ps, there would be an outcry about how the rights of parents had been curtailed. Does anyone remember Dr. Marietta Higgs? What about the Orkney abuse scandal? If you’re serious about this, either you realise it’s just too easy and glib to shout your mouth off about the failings of local government, or you take a clear stand about whether they should always err on the side of taking care proceedings, or always err on the side of leaving children at home. Most armchair critics want it both ways.
That’s why I’m reluctant to join in with calls that “heads must roll”. In part, it’s also because (perhaps as a former central government official myself) I despise the instinct that wants officials to fall on their swords to protect politicians. Councils, like central government, are led by elected politicians, and they should take responsibility for systemic failures just as much as their officials do. In part it’s because I think we are irresponsible in the extreme in the way we simply attack and scapegoat social workers, who do a job much more difficult than the ones most of us do, and who are neither well paid nor glamorised for it. In my view, before anyone is tempted to criticise a social worker’s “failings”, they should reflect on why social workers are not paid what footballers, pop stars or investment bank employees are paid (were paid, maybe, in the case of the City), and what difference it might make if they were. Actually, I’m tempted to propose a special £100 addition to the council tax for anyone who wants to have a go at their local social workers.
Finally, I must mention the temptation to scapegoat the lawyers involved, as in this distastefully personalised Telegraph article which somehow manages to imply that singing in a choir is shameful negligence contributing to children’s deaths. Of course, some people may think that because I’m a lawyer, I’m always going to defend lawyers. Not really true, but not an accusation you can ever satisfactorily rebut, so I won’t bother trying. The actual recommendations about legal services contained in the serious case review are either minor and bureaucratic – about filing, timescales and recording – or else fit in with my concerns about resources – saying it’s important that newbie lawyers’ work is checked and that sufficiently experienced lawyers are recruited. East to say, that last one; more difficult to afford.
If anyone’s going to criticise the individual lawyer who advised there was insufficient evidence to take care proceedings, they need to explain in detail, referring closely to the facts and evidence, why that advice was bad.
Oh, and perhaps it’s worth thinking about the child care lawyers, often underpaid women, who are giving good advice, often saying care proceedings are appropriate, every day. They’ll never get any public praise for that, or anything like the financial rewards that “funds” lawyers get (for what public benefit? – answers welcome in comments) but risk one day, when the tabloid mood changes direction, being pilloried as faceless functionaries too ready to snatch children from their homes.
Head of Legal – you have written a good item here. There is never going to be any such thing as a 100% proof system but we must be careful not to turn that into a counsel of despair. An investigation has to identify that which might have been done better and we have to seek improvement.
It is somewhat ironic that the child care system probably protected children somewhat better prior to the Human Rights Act 1998. I am normally a staunch supporter of the Act but we need to recognise that it has brought about greater recognition of Article 8 rights (respect for family life) and all public authorities have now to be aware of the possibility of claims for breach of Art. 8.
An example of the courts applying Article 8 is the judgment of MacFarlane J in Re X (Emergency Portection Order) which has, without doubt, made it harder to obtain EPOs from magistrates. It also makes Councils somewhat more reluctant to bring proceedings.
Recent changes introduced by government have not, in my view, helped matters. Under the “Public Law Outline” the local councils have now to take additional steps before a “public law application” can be made to the local family proceedings court. In addition, the fees payable to the court service (HMCS) were markedly increased and there is little doubt that this has put the brake on some Councils however much they or government may deny it. The increase in fees was opposed by the judiciary, the magistrates and just about every single family law practitioner I know.
With regard to the Council’s legal advice. Was the information now available made known to the advising lawyer? If it was, then I am afraid that the lawyer’s advice must be seriously questionable. The Children Act 1989 section 31 is not (and never was) intended to be an almost impossible test and to obtain an interim order the evidence does not have to be overwhelming. The test at the interim order stage is only one of whether “reasonable grounds” exist to believe that the child is at risk of significant harm.
Of course, even the granting of an interim care order does not necessarily remove the child from the family. That remains a matter for the local authority but there has to be a care plan and, thanks to judicial activism by judges such as Wall J, the care plan has to be approved by the judge (or magistrates). Good care judges question local authorities in considerable detail about their care plans.
I agree fully that Councillors should not necessarily be allowed to escape censure. Social Services Committees are responsible for resources and oversight of the work. Particularly where recommendations have been made against a Council then the councillors should be ensuring that there is a plan to implement those recommendations and monitoring progress. However, Councillors do not engage directly in particular child cases and so we need to be careful about any criticism. Having said that, it is a bit disturbing to read this morning that those asking what the Councillors discussed at a meeting held over the weekend are being referred to Labour Party Central Office. the Council is a legal entity in its own right and ought to speak for itself.
Thanks, Peter. I fear you may be right that this is one of those areas where the HRA may have led to an imbalance in practice – as the government concluded in its review of implementation of the Act a couple of years ago.
And that X case: is that the one about the family I think in Liverpool, where the police officer’s acting on an EPO was ruled contrary to article 8? I remember thinking what a bad and unhelpful ruling that was at the time.
I think you’re right, too, that the public law outline and the fees increases have probably not helped.
This is the case I was thinking of.
Head of Legal – my reference was to Re X (EPO) [2006] EWHC 510 (Fam) – judgment of MacFarlane J (then recently appointed to the High Court). Re X needs to be read with X Council v B (EPOs) [2004] EWHC 2015 (Fam) – judgment of Munby J.
Unfortunately, the Langley case has had the outcome that the police will now need to be very careful and will only remove a child (known to be subject to an EPO) from home if there are compelling reasons to do so. If the Police refuse to assist then the social worker may well have to return to the magistrates for a warrant under section 48. Of course, where the applicant for an EPO has reason to believe that access might be prevented then the applicant ought to ask the magistrates to include a power of entry and search to premises when they issue the EPO.