Family judges should not accept assessments from social workers on the impact of adoption in cases where children have experienced complex trauma, the Court of Appeal has confirmed.

The ruling stems from a tragic case in which a fire destroyed the family home, killing all but one child and his parents.

The family had been known to social services prior to the fire for alleged child neglect. The children had been placed on the Child Protection Register for suspected neglect, poor home conditions, inadequate supervision and an incident between the parents in 2017.

After the fire – the cause of which has not yet been determined – the local authority started care proceedings for the parents’ remaining child.

The boy was placed into foster care, but the carers, who had spent several months with the child developing a relationship with him, then decided they could not look after the boy long term. To the appeal judge’s credit, he mentions how this might impact the boy, at the end of the judgment.

The mother had been assessed, and was found to have mild to moderate learning difficulties, which the court said had become worse from the Post Traumatic Stress Disorder she suffered after the fire.

It is not clear from the judgment who assessed the mother’s cognitive abilities, diagnosed her with PTSD and came to the conclusion that her cognitive functions were significantly impaired by the stress she felt. It is also not clear from the judgment how those impairments impacted the mother’s ability to look after her son.

The mother was then given an Official Solicitor to act on her behalf.

At the pre-trial review in January, the Official Solicitor for the mother applied  for a child psychiatric assessment to be produced, to report on the impact of a placement for adoption on the boy. The application was supported by the father, but not the local authority or the child’s guardian.

The paternal grandparents, who initially felt unable to look after the boy, came forward and said they would like to be put forward as long term carers for their grandson. The local authority agreed to undertake a viability assessment of the grandparents to see if they were suitable carers for their grandson.

The judge went on to refuse the request to have a child psychiatric assessment on the grounds that assessments provided by the social worker and the child’s guardian were adequate in determining, “the role of his birth parents in his care moving forwards and in particular whether A [the boy], given his loss and trauma would be able to attach positively to prospective adopters; whether given the trauma he has suffered, which may be triggered at different points in the future, there is an increased risk of adoption breakdown, with the detrimental impact that would have on A, and whether the importance for A of preserving his birth parent relationships is magnified or enhanced in this case given the experience he already has of the significant loss of his siblings.”

The judge also took the view that an expert opinion on the effect of the boy of this “double loss”, was “highly speculative” or “academic”.

The mother decided to put in an appeal.

On appeal, Lord Justice Baker confirmed that while the judge in the lower court had set out the correct tests and case law for the hearing, she had come to the wrong conclusions in her reasoning.

Lord Justice Baker explained that in cases like these, where complex trauma was clearly present, a child psychiatrist was the only expert able to offer informed opinion and that the judge had been wrong to call such an opinion, speculative or academic.

He also says this, which is worth reproducing in full, for its awareness around the impact of foster care and adoption:

“There are three, possibly four, options for A’s future placement. Rehabilitation to the parents has not been completely ruled out, although it is seemingly unlikely. The realistic options appear to be placement with the paternal grandparents, a move to a long term fostering placement, or placement for adoption. A’s tragic experiences are almost certain to have a profound effect on him as he grows up and throughout his adult life.

I accept Mr Rowley’s analysis that this is likely to include the impact or effect of direct trauma having experienced the fire, the indirect trauma of witnessing the aftermath, the impact of the loss of his siblings, the possible impact of realising that his parents were to a greater or lesser extent responsible for the fire and therefore for the death of his siblings, and very possibly survivor’s guilt.

All these strands of loss and trauma are likely to have a significant psychological impact on A for the rest of his life. They will influence all the attachments he forms with carers and with others and will impinge on the consequences of every break of those attachments, for example, when he leaves his current carers, or, if adopted, he ceases to have direct contact with members of his birth family.

All these matters are plainly relevant to the court’s decision about future placement. In this difficult case, the court needs to have the best possible expert evidence of the likely effect of this complex web of trauma on his future placement.

The social worker and guardian are plainly well-qualified and highly-trained professionals, but their expertise manifestly does not extend to expressing a professional opinion as to the impact of loss and trauma of this degree and complexity. In my judgement, only an experienced child psychiatrist can advise on such matters.”

Lord Justice Baker and Lord Justice Popplewell allowed the mother’s appeal, and the instruction of the requested expert.

You can read the judgment in full here.

A deadly virus ravaging the world has managed to do in 24 hours what no judge in the history of the family courts has been able to do in over a decade: modernise the family courts.

New guidelines issued by Mr Justice MacDonald, a high court judge who specialises in child protection, call for the mandatory use of online video streaming platforms and electronic bundles in order to protect parties to hearings from the novel Coronavirus.

MacDonald has asked that the measures, which come as the UK government puts social distancing regulations in place to contain the virus, be implemented without delay after several successful remote hearings for child welfare cases were conducted.

Input from forward-thinking family judge Justice Mostyn and others have been combined to create the current rules inside the Remote Access Family Court guidance.

The guidance is a working document, meaning that it will be continually revised and updated when needed.

The document explains that the family courts continue to be fully operational during the outbreak, and offers the legislative background which enables the courts to conduct hearings using online platforms like Skype and Zoom.

The guidance also highlights the challenges the courts face in trying to ensure the hearings are carried out online, including getting judges to use online conference platforms, issuing applications and orders and recording hearings. Those who use technology will be aware that all of these issues are resolvable.

MacDonald also comments on the need to ensure transparency is key during the outbreak and that journalists should remain a feature of the family courts where appropriate:

“It is likely that FPR 27.11(3), which permits the press to be excluded if justice would be impeded or prejudiced is wide enough to permit the court to exclude the press from a remote hearing if the remote hearing could not, practically, take place if this step were not taken. It remains however, highly desirable, particularly at a time of national crisis, that the operation of the Family Courts is as transparent as possible in the circumstance.”

The guidance also offers extra support for Litigants in Person. MacDonald has asked that the courts intervene to ensure that they help LIPs with access to online platforms. Further guidelines have also been offered to court staff to help them provide access to LIPs through video and telephone conferencing sites. 

MacDonald sets down a comprehensive list of online platforms and how to use them, which should help family professionals who may be new to the technology.

It will be interesting to see how this modernisation affects daily practice in the family courts after the outbreak has come to an end. It is inevitable that there will be the usual tensions between legal professionals wanting to bill for their time and the cost-cutting impact of technology on the system.

However, our prediction is that this terrible tragedy will provide a much-needed technological jolt to the family courts, and we are likely to see a much more electronic court process in the future.

You can access the guidance here. 

This week’s cases were taken from the most recent set of Local Government and Social Care Ombudsman complaints, and they are compelling.

One of the biggest takeaways from these cases is the investigatory gap which exists between complaints bodies, resulting in important issues going un-examined.

For example, the Ombudsman can look at council process, but it cannot investigate matters being looked at in family courts, even if some of the elements in those cases also do not fall within the court’s remit.

The end result creates a loophole, in which families and children find they cannot seek relief for the most basic of injustices. The cases below highlight this point.

London Borough of Bromley (18 015 715)

This case features a complaint made by parents in relation to the way the council issued care proceedings for their son, who has autism. The parents said they had been treated badly by social workers and had been routinely ignored when they asked for information during the proceedings.

They had contacted the council to seek support for their son, but found that the council was more interested in issuing care proceedings, after discovering their son’s needs were complex and posed a substantial challenge to the council.

The parents accused the council of issuing unnecessary care proceedings and of fabricating risk assessments to meet the relevant thresholds for care applications.

The council then dropped its care application ten minutes before the hearing and provided no explanation for changing its mind.

Very much worth a read, for the several other awkward developments which prevented this family from having their complaint properly examined.

London Borough of Newham (18 017 840)

This case involved a couple who were informed by the council that their baby would be taken into care as soon as the child was born (the Ombudsman uses the word ‘it’ to describe the baby, we wish people wouldn’t), but were also initially told that would not be the case.

The couple’s relationship was marked by some domestic violence, but both parents actively took classes and assessments to try to address their conduct. The court noted the effort and set aside the adoption order the council requested to allow the mother to be assessed further.

The family were reunited, and lived under a supervision order until it ran out in 2017.

Unsurprisingly, the parents felt they had been badly treated by the council.

However, the case was set aside by the Ombudsman for exceeding the time limit to apply to the complaints body.

Birmingham City Council (19 002 217)

This complaint stems from the way a mother and her children were treated by social services, and the errors she said were prevalent in the council’s files about her case.

One of the concerns the mother raised was that social workers arrived at her children’s school to observe them. In a previous post on RR, we explain that this practice has no legitimate policy or law to underpin it, and that social worker visits during school hours whether to observe, interview or remove a child are not professional, nor are they appropriate. (And Ofsted agrees).

The case also involved surveillance of the family, the mother being questioned in the street by council officers, and allegations that the mother had committed criminal offences, which the mother said was not true.

The Ombudsman said it could not investigate what happened within schools, and that it did not have any evidence to find fault with the council, and so the complaint was dropped.

Sheffield City Council (18 015 263)

In this case, a father who alleged that the mother of his child had been emotionally abusive to their son complained that the council had used incorrect and outdated information about him during the proceedings.

That information was being transferred to other departments to be used for assessments, therefore perpetuating the errors which made the assessments inaccurate and flawed.

The father told the Ombudsman that if the assessments in this case had been carried out properly, he would not have lost contact with his children.

The mother made a number of false allegations against the father which were disproved by previous assessments but not taken into account during the final proceedings. There were also concerns that the children’s wishes and feelings were not properly documented.

The father asked for several remedies, most of which the Ombudsman could not offer, but the Ombudsman approved a small sum for compensation. This is what the Ombudsman said:

“The Local Government and Social Care Ombudsman does not give ‘compensation’ in the way a court might – we remedy injustice arising from Council fault. Our guidance says, in relation to payments for ‘distress’ and ‘time and trouble’, these are ‘more of a symbolic payment, which serves as an acknowledgement of the distress or difficulties’. I set out agreed payments below:

52. For the Council to apologise to Mr E, in particular for complaint d) which I consider should have been upheld within a month of the date of my decision.
53. For the Council to make a payment of £300 for the time and trouble experienced by Mr E. Mr E expected the matters he complained of in 2012 to be resolved so he would not need to make the same complaint again. The Council will also make a payment of £300 for the distress experienced by Mr E, which has, again, been prolonged because he has had to revisit the incorrect statements made about him. I note the Council has already made a payment of £500 to Mr E as a remedy to his complaints and will pay a further £100 within a month of the date of my decision.
54. For the Council to consider whether it needs specific guidance on emotional abuse for social workers who are carrying out assessments. It should tell me what action it plans to take within two months of the date of my decision.
55. For the Council to share information with the other council about matters that affect its assessment of Mr E’s other children within a month of the date of my decision.”

A mother whose children were removed from her care in 2012 is launching a law suit against the Ministry of Justice and Security, the Salvation Army Youth Protection, and the youth protection service of Gelderland province, in the Netherlands.

The mother, Ms Jelena Antonova, alleges that her children were removed from her without any legal justification. She was accused of neglect by social workers, because she spoke Russian to her children instead of Dutch and allegedly tried to alienate the children from their father.

The mother’s case was heard in the Dutch Court of Appeal, which ordered that the children should be returned to her care, but the order was overturned by the Ministry of Justice and Security.

The child welfare proceedings were then highlighted in the European parliament in 2014, where MEPs were shown a video of the two children being taken away from their home, filmed by their brother Ilja Antonova.

Ms Antonova was eventually reunited permanently with her children, Nikolai and Anastasia Antonova, in 2014, after a judge ruled that the children should never have been removed from her care.

The hearing included a report from a family psychologist who said that Ms Antonova had not been guilty of neglect.

The mother was given permission during the hearing to question social workers involved with her children, which revealed several failings in the way the case was handled.

Ms Antonova and her family are now suing the parties for “unlawful and careless removal of the children”, and, “for the damage suffered and to be suffered” by the family.

The case was originally raised by former Telegraph journalist and family court campaigner Christopher Booker, who passed away in July.

A High Court has ruled that three children taken to live in England by their mother must be returned to Germany where their father resided, after the father applied to the court for their return.

The mother had accused the father of physical and psychological abuse, and said she had taken the three children now 13, 11 and 8, to live in the jurisdiction of England and wales to avoid exposing them to harm. The mother and the children’s residence was unknown to the father until last December when he discovered their whereabouts.

Robert Peel QC, who was sitting as a Deputy High Court Judge in the Family Court, took the view that the allegations were no longer ‘live’, that the mother had been able to coexist with the father for some years after the initial allegations were raised and that her care of the children had not been affected.

While the children all said they did not wish to go back to Germany, the Cafcass officer speaking to the children took the view that their wishes had been coloured in part by the mother’s view of the father and that other matters took priority over their feelings. The Cafcass officer also took the view that the children’s wishes could not be determinative because they were too young.

The court ordered a mandatory return of the children to Germany, and also directed that protective measures needed to be put in place in relation to the practical consequences of their return to Germany.

You can read the judgment on BAILII.