The role of the courts

The last biennial review of SCRs highlighted significant difficulties raised by the interaction between court processes and inter-agency working to safeguard children (Brandon et al, 2012, p.84). This again was identified in a number of the serious case reviews in this cohort. It is clear that the courts are well-positioned to identify and flag pertinent information relating to families and children. However, the way in which courts function and their independence from the wider safeguarding arena can present

challenges to professionals working to protect children.

In the court arena, the manner in which information is presented and interpreted has implications not only for the immediate outcome but the way in which individual actors are portrayed and perceived by agencies for the remainder of their interaction. In the following case in which the small child in question ultimately died due to the actions of his mother and her partner, the child’s father was seen as controlling and abusive in court and thus his contributions were not taken into account:

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“Father made a number of allegations about Mother to the court. This information included allegations of Mother’s misuse of alcohol, her lying about when she discovered that she was pregnant and that she had attacked Father physically and self-harmed with the intention of telling the Police that Father had hurt her. He also provided a large quantity of texts from her… Father was told by his solicitor that the evidence that he had provided was viewed within the court proceedings as further evidence of his controlling behaviour in the context of domestic abuse. It is of concern to the Review Team that the court did not ask for an assessment… to be undertaken, given the concerns raised about both parents.”

Throughout the course of a case, the wealth of information amassed within legal and forensic records places courts in a position to be a vital resource to other agencies. However, access to such information by other professionals is not guaranteed despite its potential use in informing how cases would best be handled, as in this case involving a father with known issues in relation to his mental health and violent behaviour:

“The most significant aspect of the history that remained inaccessible to any

professional who was working with [Mr X] or the children were the court and prison psychiatric reports prepared in 2006 and prison health records from 2006-2008. These were only used within the court and in the prison service and never made available to local professionals. It is not possible to know what effect it would have had if the GP, mental health trust and probation service had had these records. They showed what [Mr X] was like in a different setting at a particularly stressful time in his life and they offered a different opinion as to the nature of his mental health problem.”

This can result in incorrect assessments of risk and the individuals in question may be placed in a position where harm can take place. In the above case, although the

perpetrator was referred to a multi-agency risk assessment panel (MAPPA), the absence of relevant information may have led to a downgrading of the potential risks posed. This man went on to stab his eight month old baby, who suffered serious injuries as a result. In addition to the issues around sharing of information within and beyond the court arena, the manner of court investigations can have implications for the subsequent management and ultimate outcomes of a case. In the following case, in determining the nature of an injury to a child and the means of doing so, interpretation of information from the available sources was clouded by a lack of clarity in the interpretation of findings presented to the court; this in turn led to an apparently inappropriate judgement being made in the court, which ultimately appeared to limit avenues for future work, and disempower staff working with the family. In this case, a seven month old infant was killed in a violent assault by the father two months after the court case:

“The key event in this situation is the court case, and the key event within the court case is the finding of fact. The reason that this is fundamental is that it limited the

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avenues for future work and appeared to disempower the health, legal and social work staff who had been present throughout the court case.

The outcome of the case hinged upon the medical evidence presented by the doctors and it appears that they left enough doubt for the magistrates to refuse to make the order. “It is unusual for medical evidence to be completely diagnostic in child abuse cases…In family proceedings the level of proof is on the balance of probabilities… It is unfortunate that neither of the doctors giving evidence

articulated clearly and unequivocally that on the balance of probabilities they felt the injuries to be non-accidental”.

The complex issues surrounding the interface between inter-agency safeguarding and the role of the courts were explored in our last biennial review (Brandon et al, 2012). The persistence of these issues reinforces the need for further research and consultation:

This highlights some of the difficulties inherent in the interaction between court processes to protect children and wider inter-agency working to safeguard and promote their welfare. The principles of judicial independence and due process of law are inherent to a just system and provide important safeguards to all involved. This can, however, lead to frustrations among practitioners in the multi-agency arena. Misunderstandings of these processes and breakdowns in communication may at times lead to children being put at further risk of harm. These cases highlight the need for further research and consultation into how the courts and other agencies work together to effectively safeguard and promote the welfare of children, while maintaining these important principles. (Brandon, Sidebotham et al, 2012, p.86)

Learning Points

 Consideration needs to be given, at both a local and national level, of how local safeguarding agencies can more effectively work with the courts to ensure the appropriate sharing of information both ways; how the quality of evidence provided to the courts can be improved; how any assessments carried out in the court arena can be made more robust; and how judicial decisions could be made in ways that support ongoing inter-agency work to support families and safeguard children

 Such discussions could be facilitated by the Family Justice Council, whose remit is to promote an inter-disciplinary approach to family justice and to monitor the system

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