Costs, Targets, Paperwork: Why The System Fails Children At Risk

Ed Balls moved swiftly to remove Sharon Shoesmith from her post, and states that every local council must learn the lessons of Baby P’s death. But in many ways, Shoesmith was the perfect children’s director for the new-look Department for Children, Schools and Families.

Since 2004 two of the goals set by the department have been to reduce the number of children subject to formal or legal protection by the courts. The numbers of children in care and on the child protection register had to come down. And they did.

Last December, four months after Baby P’s death, an Ofsted report praised Shoesmith’s regime for this dangerous achievement. To any childcare lawyer or judge it does not seem credible that in December 2006, social workers could hand the nine-month-old to a young friend of his mother’s, when a paediatrician and police had decided that his head injury and bruising were suspicious. They allowed him to drift home after a few weeks because the police were unable to identify the perpetrator and charge anyone with a crime.

Baby P should have been the subject of a legal planning meeting between social workers and a local authority solicitor. An application for an interim care order should have been made to the family proceedings court. A judge or magistrates would then have been asked to decide if he should go home or not, including Baby P’s court-appointed guardian. But not only was Baby P not offered the protection of the court and a guardian, the social workers did not seek legal advice until July 2007. How could this have happened?

In 2004 Every Child Matters, a very important Green Paper, was published. The aim was to provide for all children by joining up services provided by education, health and social services. The focus was to be on early prevention and intervention. These services have failed to materialise.

The one clear effect has been to raise the threshold of risk to frightening levels before social workers will take legal action. The Department for Children, Schools and Families and the Ministry of Justice (MoJ) have ignored repeatedly the serious impact this policy has had on children at risk.

These were the national findings of the Commission for Social Care Inspection (CSCI) from 2004-07: “Access to family support for many families in need is severely restricted. Families in considerable distress on the threshold of family breakdown and serious harm are not getting the sustained support they need. Some services operate inappropriately high thresholds in responding to child protection concerns and taking action to protect children . . .” This warning went unheeded. In April last year responsibility for inspecting children’s social services was taken away from CSCI and handed over to Ofsted, diluting expertise and marginalising the role of in-depth inspection in child protection.

In the summer of 2007 a procedure for care proceedings, called the Public Law Outline or PLO, was piloted. It was designed by senior family judges with the intention of reducing delay in court proceedings by ensuring that social workers had assessed the family thoroughly before going to court.

However, it placed burdens on local authority social workers and lawyers for which they were completely unprepared. Social services departments had neither the people nor the resources to carry out the in-depth pre-action assessments required. They took fewer and fewer cases to court.

Last March the MoJ published findings of government research into care proceedings brought in 24 different courts in 2004. The conclusions were unequivocal: “There is no evidence that local authorities bring care proceedings without good reason . . . The expectations of local authority practice in preparation for care proceedings under the PLO far exceed what was undertaken or could have been undertaken before action to protect the child in most of the sample cases.”

On the first page of the summary of the research, led by Professor Judith Masson, there is an MoJ disclaimer: “The views expressed in this research summary are those of the author, not necessarily those for the Ministry of Justice (nor do they reflect government policy).” On April 1, with no attempt to evaluate its impact on child protection, the MoJ and the Department for Children, Schools and Families launched the PLO nationwide.

In May the ministry increased the court issue fee for care proceedings from £150 to £4,000. Five issue fees could pay for a family support worker for a year. Ten could pay for a senior inner city social worker. Ministers and the Association of Directors of Children’s Social Services repeated their bland assurances that this would not affect the protection of children, because local authorities still had a statutory duty to issue care proceedings. There was a further immediate drop in care proceedings.

The Government does not like care proceedings. Nor do local authority managers. The reason is cost, both to the legal aid fund and to authorities, who are ordered to carry out comprehensive assessments that have been needed for years but never done.

Each care case is a mini-inquiry into the welfare of the child, his development and needs, his family circumstances, the ability of his family to care for him, and the amount of support and assistance they have been offered or would accept. Judges are often critical of local authorities’ failure to intervene sooner and more effectively, even where the family has been known to them for years. In case after case, one reads of the alarm being raised by health visitors, schools and neighbours. After short-term intervention, there is the constant refrain “case closed”.

Children will come on to the child protection register, and then, when things improve slightly, come off. Support and monitoring is withdrawn. This is the trigger for another crisis, within days or weeks. But local authorities are now set targets to reduce the number of children on the register for more than two years, and to avoid children being put back on the register once they have come off. This source of protection for children is also actively discouraged. The ministry research has established that more than 90 per cent of families in care proceedings are already known to social services, and more than 45 per cent for five years or more, before proceedings are taken.

Care proceedings can also have an impact on parents who may have been lulled into a false sense of security by years of ad hoc and intermittent intervention. When they find themselves in a courtroom they know they are in serious trouble. They get automatic access to legal advice and robust advice from an experienced lawyer can change their understanding of the concerns. Finally, many parents will listen to a judge when they will not listen to anyone else.

Children’s social work is about managing risk. It is a complex and skilled task, requiring close observation, the ability to talk to people, time spent with the child and his parents in their home. It is extraordinary what a difference a good social worker can make. Good social workers will use the court process to share the responsibility with the judge and get help and resources for the child. But these social workers often achieve what they do in spite of, and not because of, their managers. Their judgments are often overruled by managers chasing targets who have never met the child or his family. They are under pressure to complete paper work assessments, churning out low-grade checklist documents. Time spent talking to the parents and observing the child is devalued.

Children need to be protected from harm, and parents need to be protected from the improper interference and the unjust exercise of power by public authorities. The judges, guardians and lawyers help to ensure that the child is protected, against further abuse, against social workers unable to see the danger in the plausible but deceitful mother, and also against the promotion of government targets over the interests of the individual child.

The author is a child law barrister at Coram Chambers and member of the Family Law Bar Association