Legal expertise and fact-finding in children's social care

In family proceedings, legal experts are appointed to provide specialist evidence to the court on complex issues to help determine a child's best interests. 

Over the last year, I have written up a number of cases for the Research in Practice Case Law and Legal Summaries that have explored the role of experts in care proceedings. 

Case Law and Legal Summaries provide a detailed overview and analysis of selected cases, highlighting implications practice. An upcoming webinar on 10 February will explore how the summaries can be used to support practice with children and families. The session will discuss current issues gaining judicial attention, for example, delays in proceedings, children subject to deprivation of liberty orders, and the use of experts. 

Reflecting on the role of experts

An edition of the Case Law and Legal Summaries from September focused on five cases with significant developments on this topic. It explored whether judicial guidance on when to use experts is wrong, who pays when costs exceed standard legal aid rates, and when and how experts get it right, or wrong.

When analysing these five cases, it struck me that they all had other factors in common:

• The experts were contributing to a fact-finding.
• The fact-finding concerned injury to a young child.
• The threshold asserted that the injury was non-accidental.

The weight of the expertise was focused on proving what has happened in the past.

The legal threshold for protecting a child refers not to past harm, but to whether the child ‘is suffering or likely to suffer’ significant harm. Criminal law is about past wrongs. But care proceedings are ‘not of that nature. They are not there to punish or to deter anyone’.

Two things that clearly follow from that wording are:

Firstly, that you don’t need any past harm at all in order to prove that a child is likely to suffer harm in the future. For example, if you had to wait until the significant harm had occurred, you couldn’t remove a child at birth or protect them from future harms such as forced marriage or female genital mutilation.

Secondly, even if you can prove past harm, it still doesn’t follow that there is any likelihood of repetition. In many child protection cases, the case parents present to court is they accept responsibility for harming the child, have made steps to change their behaviour, and will work with the courts to keep the child.

Of course, social workers don’t necessarily agree with these assertions, but the focus of the dispute has changed from having to prove what happened in the past.

Focusing on the best interests of the child

And so, I reflected, these very expensive, very controversial, very high-stakes fact-findings are not even focused on the threshold question - the likelihood of future harm. Still less do they answer the welfare question - of what outcome or arrangement is in the best interests of the child.

There is a real risk that:

Firstly, framing in the language of ‘non-accidental injury’ unnecessarily raises the stakes. As one of the four cases points out:

Parents equate non-accidental with deliberate injury, since deliberate and accidental are seen as opposites rather than a continuum. They will be resistant to accepting deliberate harm. But parents may cause injury or be responsible for injury caused in many ways without the intention to injure. These fact-findings then progress with the experts opining on the likelihood of any explanations put forward by parents. And judges reminding themselves in judgment that parents are under no obligation to put forward explanations.

Secondly, having invested so heavily (in expertise, time and money) in proving what happened in the past, we don’t pay the usual attention to the likelihood of parents changing. We have programmes to address domestic violence rather than assuming that people can’t change. We have programmes to address drug and alcohol use rather than assuming that people can’t change. We can direct people to support and treatment for mental health problems rather than assuming that people can’t change, and so on.

Investing in change

Richard Devine, in an illuminating blog post on why his authority - Bath and North East Somerset - committed to paying for more work with parents, considered the cost-benefit question. Two points he made seem to resonate here also. One was that money spent on assessment could be spent on treatment ‘given that will be an inevitable outcome’. The point being, I think, that an assessment looks in from the outside to help form a conclusion, whereas treatment aims to bring about change. So why not invest in that? The other was that the highest rate of parental engagement incurred the highest costs but also made the most difference.

Of course, it is frequently the case that we will say there is no evidence of being able to sustain change, or no engagement with the support that was offered. But that is a very different argument, and a very different case.

It is one that the thousands of pounds we spend on experts can’t help with.