The guardian of standards

As it is many years since I did any public law work, I don’t usually comment upon child care cases. However, a recent one did catch my eye, initially because it involved my own local authority. The case turned out to have a lot more of note about it than that though, and has already led to a considerable amount of discussion elsewhere. Here, I just wanted to comment upon one aspect: the role of the court as the guardian of standards within the family justice system.

These days the family courts are often accused of operating a system of secret and unaccountable justice. This suggests that they will ‘protect their own’, by ensuring that the truth is never told about the work of the various people and bodies at work within the family justice system. The accusation is, of course, complete nonsense, as the courts will not countenance any part of the system, including the courts themselves, when cases go to appeal, falling below the standards required of them.

This was clearly demonstrated in Medway Council v A & Ors (Learning Disability; Foster Placement). In the case both the local authority (including the social worker) and the foster carer came under fire from the judge. It is not unusual for local authorities to be criticised, but as far as I am aware it is quite rare that a foster carer should be. Foster carers are, of course, generally dedicated caring people, to whom we all owe a great debt. However, they must adhere to certain standards, just like everyone else within the family justice system.

Briefly, the case concerned a child (‘A’) who is not yet one year old. He is a British child of mixed Indian and Pakistani heritage. His mother was born in England to a Muslim family of Indian origin. She has a learning disability and has an overall IQ score of just 54. She is married to a young Muslim man who was born and brought up in Pakistan and who arrived in this country in October 2010 on a student visa. His visa was revoked after two terms due to his studies ending and he is seeking leave to remain in the UK.

Originally, the local authority had various concerns about A’s parents, including the mother’s capabilities and the father’s allegedly controlling behaviour towards the mother. There was also an issue of the parents’ home being unsuitable for a baby. As a result of these concerns the mother and A were sent to a mother and baby foster placement. The local authority then applied for a care order and a placement order, with the plan being for A to be adopted.

The judge found that the placement with the foster carer was not appropriate. Whilst the foster carer was highly experienced, she was not a specialist foster carer with specific training and/or expertise in working in partnership with parents with learning disability. As a result, any comprehension she had of the mother’s difficulties was extremely limited. For example, she described the mother as ‘devious’, doing things that were calculated to provoke her and building up a case for the mother being removed from the house. The judge found that this implied “a degree of cleverness, cunning and forethought that it is clearly beyond the Mother’s abilities”.

But this was only part of the problem with the foster carer. The judge also had great concern about her records and statements. For one thing the notes she produced at court were not original notes written up at the time, but rather freshly written up before the court hearing, from handwritten notes she had found. For another thing, the foster carer at one point claimed to have shredded all her handwritten notes, but subsequently claimed that she had found some of them. These and other problems led the judge to find that the foster carer was dishonest and actively misleading about her note-keeping practices.

Further to this, the foster carer was found to have shouted racial abuse at the mother. This incident had been incorrectly characterised by the foster carer in her notes as a rude attack by the mother, to which the foster carer had mildly responded. However, the truth emerged because the mother had recorded the conversation.

There is more criticism of the foster carer in the judgment, but I will leave it there. As I indicated above, there is also criticism of the local authority, for example for their failure to investigate complaints about the placement made by the parents. The judge also stated that it ‘beggars belief’ that after an incident in which the foster carer claimed that she had been slapped by the mother and the mother claimed that she had been pushed and hurt by the foster carer, the social worker could then encourage the mother to return to the placement and her management sanctioned its continuation.

Part-way through the hearing, and in the light of the evidence, the local authority changed its stance so that it no longer pursued final orders at the hearing and instead agreed that it should fund a further assessment of the parents.

Obviously, there were aspects of this case that made it particularly difficult. However, it does demonstrate that, whatever the difficulties, the courts expect those involved in the family justice system to maintain the standards expected of them, and will not countenance anyone within the system falling below those standards.

Read the judgement here.

Photo of Chatham, Medway, Kent by Clem Rutter via Wikipedia