Zenith Family Current Awareness

‘Getting your ducks in a row’ – the danger of deficient Local Authority assessments

17 March 2017

Nathaniel Garner

It is always extremely disappointing, frustrating and in some respects upsetting when a Local Authority’s assessments of parents and/or family members are patently not up to scratch.

Even in what are seemingly the most hopeless care cases; the court, the parents and most importantly, the subject children require proper assessments to be undertaken to ensure that justice is achieved as best as it can be. Failure of Local Authorities to do so can cause delay and further expense incurred by the already overstretched public purse.

It is often the case that Local Authorities can escape with just a ‘wrap on the knuckles’ when such deficiencies are identified. However, there have been ever increasing murmurings from the Bench that deficient assessments and non-compliance with orders will no longer be as readily tolerated.

In this regard, Mr. Justice MacDonald has very recently delivered a scathing judgment in the matter of Cheshire East Borough Council v NA and Others [2017] EWFC 20.

The matter was listed as a final hearing but this had to be adjourned to enable independent social work assessments, which the Local Authority were ordered to fund, to be completed in respect of two sets of prospective carers.

This was due to significant problems with the Local Authority assessments of the prospective carers, which were described by Mr. Justice MacDonald as having “patent defects....caused by social work that has, at best, been lackadaisical and, at worst, is in plain contravention of the applicable statutory guidance and long established good practice” (para. 5).

But how did we get to this point?

It is not necessary to rehearse the facts of the case within this brief synopsis.

Findings were made against both parents at a finding of fact hearing and neither put themselves forward as carers for the child at the final hearing.

The Local Authority proposed placing the child with the Paternal Great Aunt and her husband (“X”) under the auspices of a special guardianship order. All bar the Mother supported this plan. The Mother sought for the child to be placed with the Maternal Aunt (who was a party to the proceedings) and her partner (“Y”).

During the finding of fact hearing Mr. Justice MacDonald had also made findings against the Maternal Aunt in that either she and/or the Maternal Grandmother had allowed the Mother to have contact with the child without close supervision on at least one occasion in the period that the child sustained a serious injury at the hands of the Mother (para. 10).

The judge also made a number of very critical observations about the Maternal Aunt in which she was described, amongst other things, as having kept important information from the police and the social worker and colluded with the Mother to minimise concerns to social services (para. 11).

Despite these observations the judge also considered there to be “significant positives” in the Maternal Aunt’s parenting capacity (para. 13).

There were also positives in respect of the parenting capacity of the Paternal Great Aunt and X and the assessment of them was positive. However, there were also concerns, including that for some period between the finding of fact hearing and the final hearing they had been allowing the Father to stay with them. They also had failed to disclose X’s “very old” conviction for violence (para. 15).

It was clear that one of the key issues for the Local Authority to consider when assessing the respective proposed placements was the ability of each of the proposed carers to protect the child against the identified risk of harm presented by the parents.

Regrettably, this exercise had not been properly undertaken.

In respect of the assessment of the Maternal Aunt and Y, the social worker who conducted the assessment only had “very brief” conversation with Y on the telephone whilst he was at work. The judge found that it appeared that once the social worker became aware of the outcome of the finding of fact hearing the assessing social worker considered that proposed placement with the Maternal Aunt and Y was not an option, despite not speaking to Y about the findings (para. 19). The social worker had therefore failed to assess whether Y was a protective factor and whether his presence in the household would mitigate any risk posed by the Maternal Aunt’s possible lack of ability to protect the child from the parents (para. 20).

The assessment was accordingly “fundamentally flawed” as the social worker’s task was to assess the Maternal Aunt AND Y (para. 21).

It got worse for the Local Authority when Mr. Justice MacDonald considered the assessment of the Paternal Great Aunt and X. This assessment was undertaken by a different social worker.

The judge concluded that this assessment was of:

“extremely poor quality [and] comprises of little more than a collection of bare statements of fact with virtually no evaluation or analysis, leading to conclusions that are so simplistic and anodyne as to be little more than a statement that the Paternal Great Aunt and X have successfully raised children before and would be able to promote [the child’s] identity” (para. 22).

Further, key parts of the assessment dealing with the ability of the Paternal Great Aunt and X to protect the child from the identified risk posed by the parents, were the same in the addendum assessment completed after the finding of fact hearing as in the assessment completed before that hearing.  There was no reference to any work undertaken with the Paternal Great Aunt and X to ascertain their views in relation to the findings made against the parents or their ability to protect the child from such risk (para. 24).

In addition, the court’s findings were not set out anywhere in the addendum assessment (para. 24).

The addendum was, in short, a cut and paste job.

Things went from bad to worse to even worse for the Local Authority when it was discovered that the social worker had not discussed the findings with the Paternal Great Aunt and X. They did not even know the “precise terms” (para. 25) of the findings which had been made against the parents.

Mr. Justice MacDonald concluded that the assessment was “wholly inadequate and fundamentally flawed [with] no assessment of [the] cardinal issue before the court in relation to [the] proposed carers” (para. 26).

It did not get any better for the Local Authority as the social worker who gave evidence at the final hearing (who, incidentally, was a different social worker to the two different social workers who had completed the assessments of the proposed alternative carers) stated that it was “not necessary” for him to know the details of how many times the Paternal Aunt had had contact with the child in circumstances where contact had only recently been commenced with her and Y had himself only had one contact (para. 29). This was after questioning revealed that the social worker did not “recall even basic elements of [the] assessments relevant to the question of capacity to protect” (para. 28).

In these circumstances, the judge concluded that the assessments of the aunts and their partners were “inadequate and fundamentally flawed [and] do not permit the court to reach a properly informed or fair decision at this final hearing as to which of the placement options before the court best meet [the child’s] identified welfare needs or, indeed, whether either is capable of doing so” (para. 35).

The Local Authority was required to pay for additional independent social worker assessments as both sets of prospective carers could not reasonably be expected to have any confidence in a further local authority assessment (para. 38).

Further to this, the head of service for social care at the Local Authority was required to file and serve a statement explaining to the court “precisely how the highly regrettable mistakes…came to be” (para. 42).

What is needed in a proper assessment?

Mr. Justice MacDonald outlined the importance of following the statutory guidance in Working Together to Safeguard Children (HM Government, March 2015), which “makes clear that the aim of an assessment is to use all the information to identify difficulties and risk factors as well as developing a picture of strengths and protective factors” (para. 33).

Building on the guidance, the judge noted that assessments are to, amongst other things:

Be rooted in child development and informed by evidence;

Involve children and families;

  • Adopt an integrated approach;
  • Be a continuing process and not an event;
  • Be transparent and open to challenge;
  • Involve contact and communication with each of the carers who are, or it is proposed will be, responsible for meeting the child’s needs;
  • Contain information that is gathered and recorded systematically;
  • Ensure that information is checked and discussed with the child and their parents/carers where appropriate;
  • Ensure that differences in views about information are recorded;
  • Identify in clear terms the impact of what is happening to the child;
  • With regard to management of risks, social workers and other professionals should make decisions with the best interests of the child in mind, informed by evidence available and underpinned by knowledge of child development;
  • Having been made aware of the precise nature of the risk of harm, each of those being assessed must be the subject of a comprehensive evaluation of their understanding of and attitude towards that risk in order to establish the extent to which they have, or do not have, that capacity (para. 30-34).

Hopefully lessons will be learnt.

Nathaniel Garner

17th March 2017

Current Awareness

By the Family team