No one has the right to expect the State to make them better parents – Sarah Phillimore
18 September 2015
Kent County Council v G & others [2005] UKHL 68 involved an appeal by a local authority on a matter of principle.
In the course of care proceedings, they had been compelled to pay about £200,000 to provide a therapeutic residential placement for a family pursuant to section 38(6) of the Children Act 1989. The case had a happy ending; the family stayed together. But the local authority wanted to make it clear for the future that this had been an improper use of section 38(6) of the Children Act 1989 and argued that the court could not compel a local authority to pay for therapy for parents under a statutory provision directed at assessments of the child.The House of Lords – as they then were – agreed. However, they went further than simply restating the purpose behind section 38(6). Lord Scott is emphatic (see para 24):
There is no dispute but that both Ellie and her parents have the right under article 8 of the Convention to “respect” for their “family life”. Mr Cohen QC submitted, as I understood it, that this right placed the state, and the County Council as an emanation of the state, under a positive obligation to provide for Ellie’s mother to have the benefit of the proposed therapeutic and assessment programme at the Cassel Hospital in order to provide Ellie and her family with the optimum chance of being able to live together as a family. He submitted that if section 38(6) were to be given a scope that did not extend to a direction that that programme be offered it would have deprived Ellie’s parents, and would deprive other parents in a similar position, of the chance to demonstrate that fundamental changes could be made within the necessary timescale so that it would be safe for them to parent their child. That may be so but the proposition that the refusal of the court to make that direction, or the unwillingness of the Council, or, for that matter, the NHS Trust or the legal aid authorities, to fund its implementation, would have constituted a breach of Ellie’s or the parents’ article 8 rights cannot, in my opinion, be accepted. There is no article 8 right to be made a better parent at public expense.
There appears to be no way to compel the state to fund treatment for mental health problems. The Children Act does not identify on whom the cost of compliance with its directions falls. A judge in care proceedings cannot compel either a local authority or NHS trust to provide any particular treatment for a parent. Medical or psychiatric treatment of parents would ordinarily be funded by the local NHS Trust but waiting lists can be very long (and thus well outside the timetable for the child) and the particular therapy a parent needs may not be available locally..
The Family Court has no powers to compel the NHS to fund anything. The Legal Services Commission has long been very clear that they will not fund any element of therapy or treatment.
I have attempted to bring proceedings under the Human Rights Act 1998 for damages which would be used to fund therapy – which turned out to be futile because the statutory charge would have swallowed any damages whole. Damages under the HRA are purposefully kept low as they are to provide ‘just satisfaction’ not punishment and lawyers are strongly encouraged to make applications under the HRA within existing care proceedings – thus ensuring a large amount of costs have already built up on any existing legal aid certificate. I have discussed further the apparent futility of any application under the HRA in this post.
Judicial review of refusal to fund is inapt as it is a challenge to the merits of the decision making process, not the substance of the decision.
Comment
I have two fundamental problems with this position. First, how do we square that with our Article 8 obligations? Second, who is conducting a proper cost/benefit analysis of the consequences that flow from failing to provide mental health services to parents? Not all cases involved residential placements and many thousands of pounds. Many cases revolve about who will fund a six month course of therapy in the region of £5,000.
What about our Article 8 obligations?
Re B-S (Children) [2013] EWCA 1146 did not change the law. But it was a clear wake up call to all those lawyers and local authorities who had hitherto skated lightly over essential jurisprudence in their analysis of care proceedings. There is no doubt that Article 8 of the ECHR imposes a positive obligation upon states to keep families together (see para 18):
To this we need only add what the Strasbourg court said in YC v United Kingdom (2012) 55 EHRR 967, para 134:
“family ties may only be severed in very exceptional circumstances and … everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”
How do we square that circle? What are we saying to vulnerable parents who are unable to access support or treatment for their mental health difficulties and/or drug abuse, who are thrown into stressful care proceedings and expected to engage constructively with professionals picking apart every aspect of their lives? In particular, what are we saying to parents who are vulnerable because of their experiences as children, often as children in the care of the state?
Where is the cost/benefit analysis?
There is no doubt that care proceedings are both costly and time consuming for local authorities (see research from University of Bristol in 2011).
To refuse to fund treatment for mental health issues, is not only risking a breach of Article 8 but also to lose sight of the amounts that could be saved if troubled families are diverted out of the care system.
I have had experience now of several cases which appear to stall around an argument about who will fund a six month course of therapy costing in the region of £5,000. This represents a small fraction of the total cost of contested care proceedings.
I accept that there are difficulties in that those holding the purse strings in different organisations such as local authorities and the NHS, may have different priorities. But in sadly many of my cases, there appears to be a distinct lack of willingness for officials to talk to one another about what is or is not feasible, despite so many years of promotion of the underlying principle in child protection work, that we are all ‘working together’ to promote the welfare of children.
To refuse to fund treatment for mental health issues is therefore not only risking a breach of Article 8 but also to lose sight of the amounts that could be saved if troubled families are diverted out of the care system.
I am not aware who, if anyone, is conducting the necessary cost/benefit analysis. If it is not being done, it is urgently required.
Conclusion
I am not naive. I know that public funds are finite and fought over by many deserving causes. But it seems to me at least, that we now live in the worst of all possible worlds. Every effort is made to dodge funding therapy for parents in care proceedings whilst at the same time maintaining that care proceedings are a legitimate and lawful process and providing a lot of public money to keep them running.
This is turning into a farce. One that is very expensive to maintain, not only in terms of money wasted, but at great human cost and misery.
Sarah Phillimore specialises in family law at St Johns Chambers in Bristol
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‘The Child protection system has still been left to creak along in the same old fashion…’ Indeed. It is a mystery. There seems to be quite a lot of money in the system and most of it directed at entirely the wrong end, when it is too late to do much positive to turn the ship around.
I remember being baffled back in 2001 as to why we routinely ordered psychological AND psychiatric assessments in the most routine of care cases when we all joked we could easily predict the report’s conclusions ‘X has suffered trauma leading to personality deficits and would benefit from therapy for 1-2 years’.
That joke very soon wore thin because of course, the recommended therapy was rarely available and certainly unlikely to be funded by the LA.
And it has taken until the Children and Families Act 2014 to put a stop to that particular piece of nonsense.
I think this is an excellent analysis of the problems of failing to provide therapy to families who may be able to stay together.
In relation to the ‘cost-benefit’ analysis issue – it seems to me that if you speak to any clinician who has worked with adults with adults with complex mental health issues (particularly in the ‘grey area’ of personality disorder where the links between early disorder attachments and later severe emotional and relationship problems are pretty clear) they will be able to tell you that significant family problems in childhood, abuse and neglect, living as a child in Care who is left with a longing to ‘fix’ the failed family relationships – are the rule not the exception in the histories of their clients.
I have worked (as a Clinical Psychologist) with adults with mental health issues who have committed serious offences, adults with substance misuse problems, young people who are in the criminal justice system – and in all of these areas there is, in my view, an over-representation of people who have been through the care system or had significant contact with child protection services – but who have very rarely been provided with any therapeutic input, as children in the system or as part of a family in Proceedings, to try and resolve the problems that inevitably then dog them for the rest of their lives and risk repeating the cycle of abuse with their own children.
I have no doubt that it, if one were to cost out the multi-disciplinary services (including courts, lawyers, foster care, residential placements, secure residential placements and so on) which have to be provided through the life of a client with those complex, early trauma type problems, the figures would speak for themselves as being vastly more than it would cost to fund even 12 months of decent therapy at an early stage of family life when problems are evident but not chronic. It is easy to say that the money is not there, but is this true or is it that the money is being loaded into hugely expensive ‘out of area’ residential placements for teenagers who have broken down in every foster placement (for example) leaving no ‘budget’ for intervening at an earlier (less expensive and more hope of success) stage?
In the case of Youth Justice, when Youth Offending Teams were created (about 15 years ago), each stakeholder (education, LA, Health, Education, Probation, Police) had to contribute a post or a proportion of funding to create a multi-agency team dedicated to the specialist area of Youth Justice. I am not sure how these teams have fared in respect of public sector cuts but the point is that I imagine none of these agencies, left to their own devices, would have felt they had spare money/posts to dedicate to Youth Justice. Just as in the case of Care Proceedings, NHS/CAMHS/Adult Mental Health services, are unlikely to feel they have spare money or posts to offer to LA to ‘help’ them provide therapy for parents/young people, in a timescale suitable for the Courts, and delivered by professionals who have the expertise and experience to give the Court a view of whether the therapy has allowed the family to change sufficiently to safely stay together.
It would be cheaper, and quicker, to (perhaps) adopt a model where (like with Youth Offending Teams) key stakeholders are compelled to fund/provide a secondment or post to create multi-agency dedicated assessment and intervention services for families who meet a specific criteria of being at risk of Care Proceedings. I would guess with the growth in Social Enterprise and different models of service provision within the NHS (for example) to provide ‘Non Acute’ services – that there would be many creative and interesting ways to provide these kinds of services, just as there would be many professionals from different disciplines who would welcome the chance to work in a more therapeutic and integrated manner than the rigid
‘Court Report’ system allows.
I am sure the above is not rocket science and has been proposed many times before (certainly Multi-disciplinary teams being used to provide Court Assessments have been suggested, evaluated and found to be effective by Tucker and Doughty in 2011) and I am always left wondering why, despite multiple centrally funded ‘reviews’, the Child protection system has still been left to creak along in the same old fashion making the same old mistakes and leaving the same old gaping holes for kids to drop through?
The problem is one of respite. It’s all right for the Council to bleat on about the child and not the parents but it will be one up for The Sun if they don’t.
Sorry, I should have put this in the main body of the post – a group of lawyers, psychologists and doctors met at Bristol Civil Justice Centre on 9th July to discuss proposals for new initiatives for local schemes to break the cycle of recurrent care proceedings and to provide therapy at an earlier stage in the proceedings, when It might actually do some good.
We need funding for some of the schemes. If anyone has any ideas or suggestions, please do contact me and I will pass it on to the organisers.
More information about the Bristol initiatives is here http://www.childprotectionresource.org.uk/solution-finding-conference-9th-july-bristol-cjc/
I know you will have thought of this Sarah, but recurrent care proceedings are expensive and many agencies now have to protect their budgets, which as you so rightly point out leads to support being unavailable. There should be a central pot and it would save the government money ultimately, so would have thought there might be some funding there? Who funded the FDAC pilot?
Reblogged this on | truthaholics and commented:
I am not naive. I know that public funds are finite and fought over by many deserving causes. But it seems to me at least, that we now live in the worst of all possible worlds. Every effort is made to dodge funding therapy for parents in care proceedings whilst at the same time maintaining that care proceedings are a legitimate and lawful process and providing a lot of public money to keep them running.
This is turning into a farce. One that is very expensive to maintain, not only in terms of money wasted, but at great human cost and misery.
This is an interesting one to me. I had a case a few years ago; Mother was assessed more than capable ‘day to day’; but due to her developing a mental health problem (expert report: ‘her anxiety disorder was exasperated by the proceedings’) there was a course of CBT recommended and on going support from the LA and child to be returned home. The CBT never materialised. Mother raised the issue with the LA for 4 years; no response. She gave up. 6 years later a different LA wanted to initiate proceedings again. The issue of the recommendation never being followed up was raised. LA’s argument was ‘It was a recommendation; there was no financial obligation placed on us.’
This is the problem in a nutshell. To assess a parent but then not provide an easy route to the support identified as necessary by the assessment, is a waste of all our time and money. We can’t just say that the state has no obligation to help people be better parents, particularly when so many of those parents have been brutalised by their own childhood experiences (and some of them were in state foster care). As Desmond Tutu (I think) said so well: there comes a point when you have to stop pulling people out of the river, go upstream and find out why they keep falling in.