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The Value of Independent Social Work Expert Witnesses in Contested Care Proceedings

Peter Dale, John Gumbleton & Colin Luger, all independent social workers, explain the value that their profession brings when appearing as expert witnesses in care proceedings


     Image of Peter Dale independent social worker     Image of John Gumbleton independent social worker     Image of Colin Luger independent social worker
Peter Dale, John Gumbleton & Colin Luger

The role of independent social workers in contested care proceedings is under threat from the joint proposal by the Ministry of Justice and the Legal Services Commission to restrict the fees charged by independent social work expert witnesses to the nominal Cafcass cost for children's guardians of £30 per hour [Consultation paper 19/09, published 20/8/09]. The hourly rates being proposed for independent social workers are less than one-third of those being mooted for some medical consultants, psychiatrists and psychologists. However, the reports of expert witness independent social workers and their role in experts' meetings have equivalent status and impact as such other experts. It is not unusual for courts to accept expert witness independent social work recommendations in preference to those of other such experts, given their specialised knowledge and experience of child protection cases.

This proposal on fee reductions has been made without any evaluation of the cost effectiveness of the expert witness independent social worker role in complex care proceedings. The disparity in rates between social work and other experts is unjustified and runs contrary to the Government's stated intention to raise the standing of the social work profession.  If implemented, it will render unviable the work of many highly experienced social workers who work independently. This proposal does not appear to have been clearly thought out by the MOJ/LSC, particularly with regard to the additional costs that will arise in an increased proportion of cases that experience significant delays, and the need for high cost contested final hearings in the absence of independent social work expert witness input.

Independent social workers provide a wide range of services across health and social care, but this paper concentrates on the expert witness role in complex (and usually contentious) care proceedings concerning child protection and child welfare. In such cases the local authority will have intervened in a family because of concerns about child protection and/or neglect, and the children involved are likely to have been placed in foster care on the basis of emergency protection orders and interim care orders. Parents often dispute the validity of the concerns of the local authority, and are often highly defensive and/or hostile to the local authority social worker and the local authority as a whole. Many cases are complicated by the parents having complex psychosocial histories including combinations of: being abused as children, adverse experiences themselves of the 'care' system', learning difficulties, volatile interpersonal relationships, and drink/drug problems. (However, a significant minority of parents who become involved in contested care proceedings manifest few or none of such problems.)

Disputes arise at both stages of care proceedings: at the 'finding of fact' hearing there are often challenges from parents with regard to whether medical evidence demonstrates that 'significant harm' has occured. At the 'welfare' stage crucial evidence is heard regarding the prospects for safe reunification of the child(ren); whether a specific kinship place is appropriate; or whether the child(ren) is to be subject to compulsory adoption by strangers. This latter outcome has been noted to be draconian: "What other area of forensic activity, since the abolition of the death penalty, empowers the state to intervene so drastically in the family life of the private individual?" [Coleridge, J. 2003 Comment: Another big bang. Family Law ].

In this context it is vital that family courts are fully informed through expert assessments by independent social workers regarding a) the viability of reunification and the management of risk, b)'potential for change' in the parents, c) the opportunity for kinship placements, d) if the child is to be adopted, the prospects for positive direct post-adoption contact; and e) social work peer review of the overall 'reasonableness' of the local authority care plan and its  actions (and inactions) during the process (and prior to) the care proceedings. Such a focus is crucial with regard to compliance with the European Convention on Human Rights (e.g. right to family life, and the right to a fair trial).

It might be argued that this is the role of the children's guardian. Indeed from the time of the establishment of the guardian ad litem service in 1984, the first author served as a part-time guardian for several years, and the role at that time did include some of what is described above (although never intensive and extensive therapeutically-oriented assessment). However, the role of children's guardians (as they are now called) has changed dramatically since the early days of the service, and is now one predominantly focused on case management and commissioning assessments by other professionals. Most significantly Cafcass (established in 2001 to manage the guardian service) is now under extreme financial constraints, and Ofsted reports indicate that the quality of the guardian service has suffered significant decline. The reality now is that children's guardians often do not have the continuity of involvement, the time or the family therapeutic expertise to undertake the independent social work assessment (of families) or scrutiny (of local authority practice) that is required to ensure fair process for parents and children in the complex care proceedings arena.

In recent years (at least over the past decade) experienced independent social work expert witnesses have undertaken a range of assessments in complex care proceedings cases. These have been commissioned via solicitors (representing parents or the guardian), by local authorities; and often jointly across all parties (the cost being divided proportionately between the Legal Services Commission and the local authority concerned). Such independent social workers are likely to have extensive experience in child protection practice. For example, the authors of this paper have a specific special interest in child protection assessments following serious injuries to infants and have provided a large number of assessments (with similar but different approaches) in such cases over the past 30 years in a range of settings. The experience in providing these services developed initially as part of the NSPCC in the 1980s (Peter Dale in Rochdale and East Sussex, and John Gumbleton/Colin Luger in Bristol). Following the NSPCC's withdrawal from providing independent assessment services, all of the authors continued and developed their services in complex cases before the courts in private practice.

Two case examples
Dr Peter Dale & Associates Ltd:
An independent social work assessment was jointly commissioned by all four parties in a case where a three-month old baby was found to have a number of rib and limb fractures at different stages of healing. The medical evidence was unanimous that the injuries could only have been inflicted by a parent/carer; however both parents were adamant that neither of them at any time had harmed the child (and initially hoped for a 'Brittle Bone disease' diagnosis that was not forthcoming). The baby was placed in foster care during extended care proceedings during which time the parents separated (but without incriminating each other). The 'finding of fact' at the causation hearing ruled that the baby had been subject to significant harm by one of the parents, but the court was unable to determine which. Both were left 'in the frame' as potential perpetrators of very serious injuries.

The independent social work risk and parenting assessment involved 14 hours (over a period of one month) in interviews with the mother, extended family members, and observations of mother-baby contact sessions. The risk analysis presented in the final report recommended that the baby be allowed to return to the care of the mother on the basis of a specific risk management and family support programme. During the course of the assessment it had become apparent that senior management of the local authority concerned had a policy not to support reunification in any case where there was continued 'denial' regarding responsibility for serious injuries to an infant. However, the risk assessment provided by the independent social worker was sufficient for the local authority senior management to come to support reunification in this particular case. This was the outcome of the court hearing (all parties in agreement) and there was no need for a contested and costly final hearing. This would not have been achieved if the social work intervention and evidence in the case had been restricted to that of the local authority and the children's guardian. Without the independent social work expert witness assessment it is likely that the baby would have been subject to compulsory adoption following a very costly contested final hearing. 

John Gumbleton / Colin Luger – Resolutions Child Protection Consultancy:
We were asked to undertake a risk assessment in a matter before the High Court. The case involved twins, one of whom had sustained serious shaking injuries at three months old, including significant haemorrhaging both to the front and the back of the brain and bilateral retinal haemorrhages. Blood tests were carried out to check whether the child had any rare metabolic disorder but the results were all negative and the opinion of the medical experts was that the injuries were non-accidental.

The evidence strongly pointed to the father being responsible for the injuries but he denied responsibility and the finding of fact hearing was not scheduled to take place for several more months. The children were placed with maternal grandparents with the mother living there as well but under the constant supervision of the grandparents. The father remained living in the parental home with his contact also being supervised by the maternal grandparents. The High Court judge wanted matters to be progressed as soon as possible in the children's interests and agreed to an assessment prior to the fact finding hearing. Our conclusions were that despite the very real concerns rehabilitation could be considered providing an appropriate programme of work was undertaken with the parents and members of their support network. This involved the mother being the lead carer and the father not being left alone at all with the children but able still to play a significant role in the children's parenting with the support of the 'helpful adults' around the family who were involved in the work. Our recommendation for rehabilitation was opposed by the local authority although the guardian and judge were in agreement.

As well as risk assessments regarding the possibility of rehabilitation we also offer ongoing assessment / treatment with families if requested. In this particular case the High Court judge asked us to begin the rehabilitation programme prior to the finding of fact hearing. Despite less than full support from the local authority the children were successfully returned home and have stayed safe. Findings were eventually made that father had caused the injuries despite his ongoing denial. The children returned to their parents' care over four years ago and recent contact with the family confirmed that the children have remained safe and well and are making good progress. 

Conclusion
The role of independent social worker expert witness assessments in cases such as these is under threat from the MOJ/LSC proposals. Without the input of independent social work expert witnesses in complex and contentious care proceedings, the quality of evidence available to the court in making profound decisions about the placement of children (e.g. reunification vs. compulsory adoption) is likely to diminish in a drastic way. Local authority interventions and care plans will not be subject to a sufficient level of peer review scrutiny and, particularly, the crucial 'potential for change' assessment issue will not be explored in a professional way independent of the parties to the proceedings (the local authority and the Children's Guardian). This is likely to result in challenges to the fairness of the proceedings by parents' representatives, increased delays, and applications to the European Court on the basis of an unfair trial (inequality of arms).

What the MOJ/LSC do not appear to have taken into account (and they provide no data on the issue) is the impact of constructive independent social work expert witness assessments on reaching agreements between all parties about court outcomes, thereby avoiding the high costs of contested final hearings. Not only is this a great saving to the public purse, it is also psychologically and emotionally beneficial for the children and families involved in the proceedings.

References
Dale, P., Green, R. & Fellows, R. (2005) Child Protection Assessment Following Serious Injuries to Infants: Fine Judgements. Chichester: John Wiley & Sons.

Essex S., Gumbleton J. and Luger C., Resolutions: working with families where responsibility for abuse is denied, Child Abuse Review, 1996, Vol. 5, p191-202.

Gumbleton J, (2004) The re-unification of children in serious child protection cases, Context, no. 74, pp 2-5.

Contact details:

Dr Peter Dale & Associates Ltd: www.peterdale.co.uk

Resolutions Child Protection Consultancy:
John Gumbleton / Colin Luger: www.resolutions-cpc.co.uk