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Care Proceedings: Who is Best Placed to Provide Best Evidence?

Eleanor Battie, barrister of Crown Office Row, Brighton, asks whether the demand for speed in care proceedings is at the cost of best expert evidence.

Eleanor Battie, barrister, 1 Crown Office Row, Brighton

Eleanor Battie, barrister, Crown Office Row, Brighton

It is repeatedly recognised within the family courts that placing a child for adoption, without the parents' consent, is the most draconian of orders a court can make.

Such an order will have profound consequences on parent and, most importantly, child, for the rest of his or her life. It will sever the relationship with the birth parents and wider family for at least the duration of childhood and likely considerably longer.

Therefore, it is vital that the courts are presented with the best possible evidence upon which to make the decision. This has been highlighted often and is clear from the Supreme Court case of Re B (A Child) [2013] UKSC 33 in which it was emphasised that the severance of family ties inherent in an adoption without parental consent is an extreme step and one that requires the highest level of evidence.

The President of the Family Division, Sir James Munby, was also clear, in Re B-S  [2013] EWCA Civ 1146, that there must be proper evidence, which must include a thorough analysis for and against adoption.  This is essential to meet the test set out in Re B and the obligations imposed by Articles 6 and 8 Human Rights Act 1998.

His Honour Judge Bellamy reiterated this in the recent case of Re Z (A child: Independent Social Work Assessment) [2014] EWHC 729 (Fam) in which he notes:

"In any case in which a local authority applies to the court for a care order, the assessment of a parent is of critical importance. That assessment will be a key piece of the evidential jigsaw which informs the local authority's decision-making, in particular with respect to the formulation of its care plan. If the assessment is deficient then that is likely to undermine the reliability of the decision-making process. It follows, therefore, that any assessment of a parent must be, and must be seen to be, fair, robust and thorough." [para 130]

The case law is clear, therefore, that when considering adoptions, in particular, the court must have before it the best possible evidence upon which to determine such application.

It is, of course, also vital for children, who are the subject of proceedings, that decisions are made expeditiously. The importance of avoiding delay is repeatedly highlighted in the Family Justice Review which has encouraged the current court practice of concluding cases as speedily as possible.

For many years, courts have been assisted by a combination of assessments from social workers (those employed by the local authority and those independent of it), psychologists, psychiatrists, paediatricians and children's guardians. Such professionals provide reports for court which detail the family backgrounds, parental capacity, risk assessments and the particular characteristics of the child and, thereafter, may make recommendations to the court with regards to the best placement options for that child for the rest of his childhood as well as any ongoing contact he may have with his immediate and extended family post-placement. 

However, there has been a dramatic shift in recent months to reduce the number of independent experts who provide reports for the court. Guidance has been provided to judges that the instruction of such experts in a case is to be the exception. This is primarily as a result of the recommendations made by David Norgrove in the Family Justice Review and the resulting guidance by the President of the Family Division. Within the Norgrove proposals, judges are specifically directed to "order only those reports strictly needed for determination of the case. We recommend that primary legislation […] should assert that expert testimony should be commissioned only where necessary to resolve the case" [para 86]. Indeed, s. 13 of Children and Families Act 2014 prescribes that the court may give permission for an expert report only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly.

David Norgrove's concerns in respect of experts relate both to the cost and delay of instructing them and also to the quality of such reports and the qualifications of those carrying them out. He recommends that there be agreed quality standards for expert witnesses in the family courts [para 92]  and that the court must ensure that the experts appointed to advise on cases have the relevant experience and skills. This, of course, must be correct in light of the significance of the decision of which they are a part. But this principle must surely apply to all those who advise the court, including social workers?

Mr Norgrove's solution to the perceived problem of costly, time-consuming and inadequately qualified experts' reports is for the courts to have greater faith in the local authority social workers who, he says, should, in the majority of cases, be the sole individual to carry out the parenting and risk assessment and make the initial recommendation to the court. He asserts that "one of the first priorities for local authorities and the judiciary is to address the reluctance of courts to rely on local authority assessments" [para 80], critical as he is of the mistrust for social workers, a status which, he asserts "does not match the level of skill and commitment." He observes that "it cannot be right to allow the legal system to function on a starting assumption that local authorities are incompetent" [para 3.27]. This must be right, if such assumption is misplaced. However, there is evidence to suggest that, in some cases, it is not. It is fair to assume that some social workers are not appropriately skilled, qualified or competent to provide the best evidence to the court. 

There can be no doubt as to the commitment of social workers to their profession, nor as to the skills and abilities of many social workers. However, it is unarguable that some social workers are not sufficiently qualified or experienced to provide the "highest level of evidence" required when applying for a care and/or placement order. This may either be due to their inexperience or qualification, and yet they are frequently and increasingly being expected to do so. This is not fair on them, but most importantly, it is not fair on the child who is subject to proceedings.

Such concerns have been raised for many years. It is not news. Lord Laming reported in 2009 that:

"Social workers themselves do not think that their training is equipping them to take on the responsibilities for which they are being trained – two-thirds of newly qualified social workers felt that the degree prepared them just enough or not at all for their current role." [para 5.9]

Sadly, matters had not improved by the publishing of the Munro Report in 2011, which notes that

"Not all newly qualified social workers are emerging from degree courses with the necessary knowledge, skills and expertise; and they are especially unprepared to deal with the challenges posed by child protection work. Degree courses are not consistent in content, quality and outcomes." [para 6.43]

Most worryingly, however, matters have still yet to improve as is clear from Sir Martin Narey's recent Independent Review of the Education of Children's Social Workers.1   This was an independent report which involved thorough consultation, and which concluded that there remain universities and colleges where entry and academic standards appear too low and where the preparation of students for children's social work is too often inadequate. There is no single publication guiding the social work profession. Universities are left to construct their own curricula drawing on a number of sources, all of which Sir Martin Narey found lacking.2 

He concludes that employers cannot currently be confident that graduate social workers have even an adequate grasp of the basics necessary for them to develop into competent and confident children's social workers. The reality is, he says, "although we continue to produce some very fine social workers, we are producing too many ill prepared for local authority employment." And yet, the courts have been directed to entrust them to produce reports and make profound decisions in respect of a child's future care save in exceptional circumstances.

And therein lies the very worrying contradiction. The courts are, on the one hand, making clear that only the very best evidence will do, whilst on the other hand only directing evidence from social workers who, we are told, are often insufficiently qualified to produce such evidence. 

Unfortunately, David Norgrove declined to postpone the implementation of his reforms until the courts and, indeed, the public could have confidence in the quality of the assessments produced, boldly stating that "any idea of waiting until local authority work is in a sufficient state for courts to 'let go' is, in our view, not sensible […] where it was plain in a case that a care order was needed and the core of the care plan was agreed…the court should assume that the child's needs, as identified during the case, could and would be addressed by the local authority. A care order should be made and the case concluded" [para 3.33]. Surely, a court whose overriding function is to act in the best interests of the child cannot be expected simply to "assume" that the child's needs will be addressed, particularly in light of the concerns regarding the abilities of some social workers? 

And yet, it seems that the family courts are being directed to conclude cases concerning children's future care in shorter timescales, with fewer assessments and to assume that all will be well once the order is made. They are being directed that the assessments of families, with all the complexities involved, in the great majority are to be prepared by social workers who, according to the most recently published reports, are often ill-equipped and under-qualified. Surely this is an extremely risky strategy and one which would not be advocated in any other legal or welfare decision? So why for children, the most vulnerable in society?

Of course, delay is inimical to the best interests of the child. The family courts, like every other, must bear their portion of cuts to the public purse. However, the courts should not be encouraged to rush cases to their conclusion, based upon inadequate assessments, which result in orders being made that permanently remove a child from their parent, legally severing that relationship forever. Nor should they be encouraged to make initial decisions which are bound to result in additional delay due to inadequate assessment having to be repeated.

The unanimous judgment in Re B-S (Children), therefore, must remain at the forefronts of the minds of childcare professionals and the judiciary. In applications as serious as adoption, proper and thorough analysis of the facts of the case is vital. 

Munby P considers how his comments fit into the current reforms of the family justice system and concludes that there is no incompatibility but that:

"If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied."

The issues are too grave. The stakes for all are too high for the only assessment before the court to have been prepared by a social worker whose qualification and experience cannot adequately equip them for the extremely serious responsibility of recommending adoption. If such social workers are allocated a case (it is not suggested this applies to all social workers), surely the courts should consider more actively the instruction of an independent assessor or expert? At the very least, consideration must be given at the earliest opportunity to the level of skill and experience of the particular social worker to deal with the nuance of the case, as would be the case for 'experts' and an informed decision (not an assumption) made as to who, fairly, is best placed to provide the best evidence.

[1]   'Making the Education of Social Workers Consistently Effective' – published January 2014.

[2] The Health and Care Professions Council (HCPC): Produced threshold standards – considered to be an incomplete and adequate summary of the things a children's social worker needs to know. Standards are "lost in a sea of genericism." Publications by HCPC are "general in nature and undemanding."
The college of social work: Produces a number of curriculum guides for about 12 subject areas. The quality of the guides is variable, and there impact on universities seemingly limited.
The benchmark statements for Social Work (produced by Quality Assurance Agency): Provides an unbalanced description of what social work is, and the skills which a successful children's social worker needs to have.

Eleanor Battie, Crown Office Row, Brighton, with thanks to Martin Downs, Crown Office Row, Brighton.