Legal Update: How to tackle repeat removals


Kamena Dorling, head of policy and programmes at Coram Children's Legal Centre, explores the need to address the problems of parents who lose successive children in repeat care proceedings.

"Another truly wretched public law case" is how the judge described a recent case in the Family Court, highlighting the need for further action to tackle repeat removals of children from their parent(s). A Local Authority v The Mother & Anor [2017] EWFC B59 involved a mother facing, for the second time in six months, the removal with a plan for adoption, of her child. The five-month-old, G, was living with foster carers under an interim care order and the local authority had sought care and placement orders, supported by the guardian. G's brother, B (aged three), was already living with the foster carers, having been made subject to care and placement orders four months previously.

The mother was in her mid-20s, with an IQ of 66. She had experienced neglect, sexual abuse and emotional abuse throughout her childhood. While the mother had made some positive changes since her engagement with the local authority, it was concluded that if returned to the mother's care, there was a significant risk that G would be subject to the same abuse and neglect that B had experienced. She was not deemed able to meet G's need for permanency and stability.

While this type of case is not uncommon, the judgment highlighted the need for earlier, more effective intervention when a child has been removed from a parent. The judge questioned whether it was right that the mother had not yet been offered therapy given that she was a "prime candidate" for it, and that her first child was himself the subject of lengthy proceedings. He also pondered whether, if she had been offered therapy at an early stage, the outcome of these proceedings might have been different.

The judge expressed concern that: "Time and time again, I see a process whereby the following occurs: a) a local authority intervenes and begins making assessment of a family; b) months later proceedings are issued; c) an order is made for some form of expert evidence to be produced (often a psychological report); d) months later the psychological report is obtained which says, invariably and utterly foreseeably, that someone in the family needs therapy; and e) it is stated that, by then, the beneficial effect of therapy would be ‘outwith the timescales for the child'."

The extent of repeat removals

Research by the Nuffield Foundation found that one in four mothers whose children are subject to care proceedings faced repeat proceedings. This figure rises to one in three for those who became mothers in their teenage years. It found that women face huge difficulties in accessing vital services and follow-up support, despite often facing multiple challenges including addiction, mental health problems, past trauma and domestic abuse. Over half of the women who experienced repeat removals of their children had been involved in the care system themselves. Detailed analysis of the cases of 354 mothers who had recurrent care proceedings found that approximately half had mental health issues mentioned in their first set of proceedings; 65 per cent had domestic abuse mentioned; and approximately 90 per cent had experienced some form of neglect or abuse in their childhood.

Early intervention

There are some programmes in specific localities that aim to provide therapeutic support to parents who have had a child removed. One example is the Pause programme, which works with those who have experienced, or are at risk of, having children removed from their care. Last month, this was found to be "an extremely effective programme that has a positive and significant impact and saves money" by an evaluation commissioned by the Department for Education's Innovation Fund. It found Pause to be effective in reducing the number of pregnancies, resulting in significant projected savings to local authorities.

Early intervention must also be balanced with the parents' opportunity to challenge the factual matrix for removal, and to receive legal advice on their position. The use of section 20 as a pre-proceedings stepping stone has been condemned by the courts since Medway Council v M&T [2015] EWFC B 164, where the mother and child were awarded damages to compensate for a prolonged period of separation without judicial oversight where questions were raised over the mother's understanding of a section 20 agreement. Interventions must always balance the rights of the parents and the child to fair proceedings, and have regard to the need to keep families together wherever possible

Last year, the president of the Family Division, Sir James Munby, warned of a looming crisis as the number of care proceedings continue to rise. He said the single most important thing that could be done to tackle the crisis was a shift in the focus of the family courts towards tackling the causes of care cases, citing Pause, and the Family Drug and Alcohol Court (FDAC), and similar projects as "the only hope we have of bringing the system, the ever increasing numbers of care cases, under control".

POINTS FOR PRACTICE

  • Ensure that parents understand section 20 proceedings and that the limits of pre-proceedings work are clearly defined.
  • Where early therapeutic work is undertaken, ensure it is targeted to the needs of the parent.
  • Commit to ongoing support of parents who have had children removed, including continued social work support. Work with parents who have had children removed should be ongoing, not only where there is the potential for further proceedings.

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