The harm denied in care proceedings.

Free paper presentation for the BASPCAN

Congress Edinburgh University, 13 th April

2015.

‘The harm denied in care proceedings:

a case for a presumption of relational

harm’ , ref’ce 0123.

By Dr. Vanessa Richardson, Department of

Law, University of Keele. Contact:

[email protected]

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Introduction.

This paper introduces a psycho-social

study about the test of harm in care

proceedings in England and Wales under

the Children Act 1989. It makes an

argument for a presumption of relational

harm in the threshold and welfare tests

(section 31 and 1(3)) and in the local

authority’s duty to safeguard and promote

the welfare of the child in care (section 22).

Relational harm includes the child’s

experience of parental harm appearing and

re-appearing in their relationships with their

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birth family into young adulthood. The

study concludes the likely problem of

relational harm should be highlighted in the

court and social workers’ decisions about

the child's contact with their birth family

and the arrangements for the child leaving

care.

The test of harm in care proceedings: a

psycho-social study.

This doctoral study was conducted with

fourteen young adults, between the age of

eighteen and thirty, who had lived in care

(Richardson, 2014 and 2015). It is akin to

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a humanistic approach to legal criticism

which sets out to privilege the accounts of

those whom the law has set out to protect

(West, 1997). The study uses a psycho-

social methodology (Hollway and

Jefferson, 2013).

The study highlights the fractured

relationship with their mother. This is a

complicated harm. The harm of being

taken into care may include a gradual

realisation by the child, of their mother

hurting them, and/or allowing others to do

so. Mitigating this harm may include

requiring the local authority to help the

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mother with her own difficulties, cope with

contact and help her prepare for the child

wishing to be reunified with her in young

adulthood.

In summary, the threat of removal requires

the child and mother to hide from the

authorities. The court and local authority

take the child into care suddenly. The time

that the family is able to spend together is

determined by the local authority's

arrangements for care and contact

(Children Act 1989, section 31, 33 and 34).

The court and social workers approach the

mother's failings as though they are her

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choice or a fixed maternal inadequacy.

The mother appears to continue to be

preoccupied with her own problems so the

child has to stay in care and the harm

suffered by them both is compounded.

The contact with the mother is stopped or it

is reduced until it is so infrequent it

becomes not viable. The local authority's

plan for long-term separation progresses,

seemingly relentlessly, so that the child

stays in care and they gradually lose

contact with their siblings and extended

family. The child’s birth family relationships

break down inhibiting reconciliation and

seemingly negating the mother's incentive

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for change. The child begins to blame the

mother, the social workers and

themselves. Relationship problems arise in

care and young adulthood, including

emotionally painful estrangement from the

birth family. In young adulthood, the child

attempts to make sense of the mother's

difficulties and the role she may have had

in causing them to be taken into care. The

young person attempts to re-build a

relationship with the mother and the

siblings.

In order to illustrate the findings, this paper

now presents extracts from two cases. The

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first is the case of a twenty four year old

woman called Helen, and the second is the

case of a nineteen year old woman called

Frances.

Helen had been on a care order since the

age of six. Her mother was a woman with

very significant difficulties of her own,

including a succession of partners who

abused her and her children. Helen

became a co-parent to her younger

siblings, (the youngest ‘called me mum’) all

of whom were abused; she was a

confidante for her mother’s problems

(Helen called this ‘horror stories’) and she

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helped her mother hide the family from

‘interfering’ social workers and the

‘vampire’; ‘social work informers’. She said

that she had 'the bloody freak family from

hell'. ‘Social services should not have let it

happen’. When the children were removed,

'It blew the family apart. None of them

speak'. She called her mother 'a bully' and

'selfish'. She said 'She kept asking for

contact; silly cow'. She called her 'a poor

excuse for a mother'. 'The egg donor'.

'Unfit to be called a mother'. Helen said 'I

felt so much anger....'. She said 'We are at

war'.

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Helen had a number of disrupted

placements, including residential care.

Helen gained no qualifications, committed

offences and became involved in a violent

relationship. She tried to kill herself,

‘maybe once or twice’. She described

herself as 'the new Helen' but she suffered

from 'thunder moods' and still felt unable to

study and work. She considered that she

had few friends and she worried that her

husband (whom she called 'my knight in

shining armour') would leave her.

In the study we see the complexity and

power of Helen’s experience of harm in

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parental care arising from the mother’s

own difficulties, like an intersubjective

harm. This parental harm appears and re-

appears in relation to others into young

adulthood.

Second, I turn to the case of Frances.

Frances was taken into care with her

sister, Mary, at about the age of six. She

said that she was ‘always the favourite’ in

her birth family. She was ‘close’ to her birth

mother which enabled her foster mother to

‘take over straightaway’. She said, ‘I

thought everything was alright; like I was

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oblivious to everything but obviously it was

not because my mum’s partner had

abused my elder sister. And that is why I

got taken away’. She said about her foster

carers, ‘I adore them’; ‘they are like my

mum and dad now’. ‘They used to have

two daughters of their own but they died

which is why I think I am so close to them’.

‘When you are eight, you do not really

think about any of it. You think social

services are the bad people and you just

believe what your mum says...But now I

have grown alot closer to like my mum now

and she has taught me really about how

things were, like opened my eyes’.

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Frances beginning to ‘believe’ about the

abuse was intrinsic to this new closeness,

both a product of it and necessary to

achieve it. When she was in care contact

with her mother and siblings came to an

end. Her sister, Mary, was moved on from

the foster placement because ‘We just

used to fight all the time because we did

not know how long we would be staying

there’. Frances stopped contact with her

mother because she was ‘sick of it’ and ‘it

will bring your past back again’. The

contact with Stacey ‘died out’ after Stacey

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told Frances about the abuse and Frances

said she ‘did not believe her’. She said ‘I

asked last week to see if they [the leaving

care team] knew where she [Stacey] lived

or anything just to make sure she was

alright not because I want to see her or

anything because that just interrupts my

life now but just to see if she is alright or

still alive at least’.

Between our meetings, unexpectedly,

Frances was back in touch with Stacey.

She said ‘She was the one who got

abused. I said I felt guilty. I said sorry for

that. And that I believed her’. ‘I am

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definitely going to see her again’. Frances

worried about telling the foster mother

about this.

Frances seemed to have been left viewing

herself as a cause of harm to others.

Summary.

In ways such as these, the study highlights

the child’s relationship difficulties,

especially with their mother and siblings,

when the court separates a child from the

birth family. It highlights that relational

harm, including the impact of the

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entrenched nature of the difficulties of

children's birth families, is likely to be

complicated and ongoing (Bowlby, 1988;

Quinton et al, 1997; Rutter, 2000; Sinclair

et al, 2007; Biehal et al, 2010; Holland et

al, 2010; Tarren-Sweeney, 2010; Daniel

and Bowes, 2011; The Care Inquiry, 2013;

Re B (Care Proceedings: Appeal) 2013 2

FLR 1075; Re G (Care Proceedings:

Welfare Evaluation) 2014 1 FLR 670 .

A new harm arises (like a 'double harm'

(West, 1997)) through the law's

intervention in the complex lives it is

seeking to protect. Whether this has any

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implications for the test of harm in care

proceedings is less clear. The importance

of consideration of ongoing relationships is

supported by the welfare principle in the

Adoption and Children Act 2002 but this is

only in decisions about adoption.

Assessing relational harm involves an

analysis that is, by its nature protracted.

One standard argument used when

considering the assessment of children in

these kinds of situations suggests that

decisions have to be made relatively

quickly, if harm is to be mitigated (Family

Justice Review, 2011; Children and

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Families Act 2014). The harm for all those

family members involved in care

proceedings may involve a wider and

deeper range of matters than will ever be

understood by traditional legal approaches.

The main finding in this study is that

orienting towards a concept of relational

harm in care proceedings, may enhance

the court's welfare approach by

highlighting the child’s close relationships,

into young adulthood. It identifies a

significant welfare issue which turns on the

child's changing experience of their

parents', siblings’, and carers’ own

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experiences of harm. There would be new

conceptual and definitional problems for

lawyers but harm will be treated more

meaningfully if it takes account of these

matters. This may be in the child's care

plan, the decisions about contact, the

Independent Reviews and the preparations

for the child leaving care (DCSF, 2010).

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