Protection Proceedings Research Articles

Achieving positive change for children? Reducing the length of child protection proceedings: lessons from England and Wales

Court decisions are required to remove children, compulsorily, from their families, and approve permanent care arrangements which restrict or terminate parents’ rights. The children involved are mostly young, have experienced serious abuse or neglect and may require permanent placement away from their parent(s) for their remaining childhoods. In England and Wales, justice to parents has dominated the rhetoric about these proceedings; this has resulted in lengthy proceedings, long periods of uncertainty for children and reduced placement options. In order to reduce delays, reforms in England and Wales have set a time limit for the completion of care proceedings. The Children and Families Act 2014 limits proceedings to 26 weeks; approximately 60% of care proceedings are now completed within this period. This article will discuss the impact of these reforms on decision-making for children, questioning whether they achieve both good decisions for children and justice for families. It uses the findings of an ESRC-funded study: ‘Establishing outcomes of care proceedings for children before and after care proceedings reform (2015–2018)’.

A Qualitative Evaluation of Community Nurses' Experiences of Child Safeguarding Supervision

Key Practitioner Messages Safeguarding supervision was viewed as a child‐focused, helpful activity that has led to practice improvements. Negative comments were in the minority and related to perceptions of its intrusive and punitive nature, the time involved and competing priorities. Improvements advocated were that safeguarding supervision should include discussion about children whose care is problematic but who are not subject to formal child protection proceedings.

Custody Stalking: A Mechanism of Coercively Controlling Mothers Following Separation

This paper adds to our understandings of women’s post-separation experiences of coercive control through the introduction of a new concept—custody stalking. It is defined as a malevolent course of conduct involving fathers’ use of custody and/or child protection proceedings to overturn historic patterns of care for children. The experience of custody stalking is explored through three composite narratives derived from twelve mothers who participated in an exploratory, qualitative study on the involuntary loss of maternal care time following separation. The losses suffered caused these mothers tremendous grief, damaged their psychological wellbeing and had a detrimental effect on their mothering relationships. Yet custody stalking, as a form of malevolent attack, is not well recognised and mothers’ resultant losses are largely culturally invisible. This is in marked contrast to paternal filicides, another form of post-separation avenging attack committed by some fathers that also leads to maternal loss experiences, albeit more absolute.

Increased risk for mental illness, injuries, and violence in children born to mothers with intellectual disability: A register study in Sweden during 1999–2012

Several studies have demonstrated that mothers with intellectual disability (ID) have a higher prevalence of mental health illness, lower socio-economic status, and a higher risk of alcohol and drug use compared to mothers without ID. The children of mothers with ID are over-represented in child protection and legal proceedings but are generally a less studied group than the mothers. The aim of this study was to investigate if children born to mothers with ID had an increased risk of being diagnosed with mental illness, injuries, and violence compared with children of mothers without ID. The study comprised a population-based cohort of children born in Sweden between 1999 and 2005. Data were collected from the Medical Birth Register and linked with two other national registers; ICD-10 codes were used for medical diagnoses, including ID. The children were followed from birth to seven years of age. In total, 478,577 children were included, of whom 2749 were born to mothers with ID. Children of mothers with ID were at a greater risk of having mental health problems (adjusted odds ratio (OR)=2.02; 95% confidence interval (CI)=1.74–2.35) and ID (OR=4.14; CI=2.95–5.82) in early childhood. They had an increased risk for injuries due to falls (OR=1.15; Cl 1.04–1.27). The largest risk related to trauma was violence and child abuse (OR=3.11; CI=1.89–5.12). In conclusion, children of mothers with ID had an increased risk for injuries, violence, and child abuse. We therefore suggest that parents with ID should receive evidence based support so that their children receive the best care and protection.

Shifting power relations in New Zealand child welfare policy: The process and implications of the 2014 amendment to s13 of the CYP&tF Act

INTRODUCTION: The Vulnerable Children (VC) Act 2014 amended section 13 (s13) of the Children, Young Persons and their Families (CYP&tF) Act 1989 to re-emphasise the principle that the welfare and interests of the child should be the paramount consideration in child protection proceedings. This study examines the policy process behind the amendment, and investigates its possible implications, in particular its impact on the power relationship between the state and family/whanau.METHOD: Data was collected from semi-structured, confidential interviews with 10 key informants. Key themes were identified using thematic analysis. This was supplemented by document analysis of published and unpublished government papers, consultation papers and local and international research.FINDINGS: The policy process that preceded the decision to amend s13 of the CYP&tF Act was controlled by a small policy elite that failed to consult broadly on either the need for the amendment, or its impact on vulnerable children and families. Government gave little consideration to the implications of the policy change, and the policy process used to develop the amendment lacked the characteristics of rational, comprehensive, policy development. No evaluation or monitoring of the policy change has been put in place, despite the known risk that it may result in an increase in unnecessary removals of children from their families/whanau.CONCLUSION: The s13 amendment, while appearing minor, has significant implications for vulnerable children and families and is part of a fundamental re-balancing of power relations in New Zealand’s child welfare policy.

Dangerous Liaisons? Psychiatry and Law in the Court of Protection-Expert Discourses of 'Insight' (and 'Compliance').

A finding that ‘P’ (as the person who is subject to Court of Protection proceedings is known) lacks mental capacity is the trigger for exposing them to decision-making by others and the powers of the Court of Protection (CoP) which, in the words of Justice Hedley, can be ‘invasive and draconian’ (Hedley J in PC v City of York Council cited in [2013] EWCA Civ 478 [13]). Whilst the law asserts the upper hand in the assessment of mental capacity for persons who come before the CoP, it is the discipline of psychiatry, which dominates expert witness testimony in these proceedings. There are a number of implications of allowing psychiatry to dominate this terrain, not least that, as will be argued in this article, clinical discourse, which makes reference to non-statutory terminology such as ‘lack of insight’ and ‘non-compliance’ are imported into the business of capacity assessment. This terminology, if used lazily and without clear reference to the statutory criteria, has the potential to muddy the waters of assessing P’s capacity. At its worst, it can mask value judgements, which threaten to undermine the law’s ‘autonomy promoting’ provisions set out in the Mental Capacity Act 2005. Whilst it is not intended to discredit ‘insight’ as a concept in psychiatry, this article concludes that it has a proper context and that in the mental capacity context, decision-makers, lawyers, and advocates should exercise careful scrutiny of its use, and CoP judgments should carefully interrogate the language imported by expert witnesses.

Cross-border public care and adoption proceedings in the European Union

The free movement of persons within the EU has meant that children at risk of harm from family members may be living in a Member State of which they are not a national. The child may be made subject to legal measures under the national law of the host State for the protection of their welfare. This article explores the competence of the EU to protect children in these circumstances, and the scope of the Brussels IIa Regulation in governing jurisdiction over child protection proceedings. It discusses the difference between national child protection systems and the political controversy surrounding English law on adoption following care proceedings issued over a child who is a national of a different Member State. It suggests that further information sharing on national systems and cooperation between courts is necessary for the effectiveness of the law and to encourage understanding of legitimate variation in Member State national family law.

Expert Evidence and Assessments in Child Welfare Cases

Expert evidence from mental health professionals and medical doctors can play a central role in child welfare cases, and this evidence needs to be carefully scrutinized before it is relied upon in making critical decisions about the future of parent-child relationships. In Ontario, concern about the reliability of expert evidence in child abuse and neglect cases was heightened by the 2014 decision of the Court of Appeal in R v. Broomfield, where a mother’s conviction on criminal charges related to giving her infant child cocaine based on testimony by an expert from the Motherisk Drug Testing Lab at the Toronto Hospital for Sick Children. In overturning the conviction, the Court of Appeal noted that “the trial judge made her decision unaware of the genuine controversy among the experts about the use of the testing methods relied upon by the Crown expert at trial to found a conclusion of chronic cocaine ingestion.” In the months following the Court of Appeal decision in Broomfield, the Attorney General of Ontario appointed a former justice of the Court of Appeal, Susan Lang, to undertake a Review to assess the adequacy and reliability of hair analysis evidence used in child protection and criminal proceedings (report to be released Dec. 15, 2015).This paper reviews the principles of the law on the use of expert evidence in child welfare cases in Canada, highlighting the issues related to the judicial role as the “gatekeeper” for the admission of expert evidence in these proceedings. It considers some of the issues related to use of “hard science” evidence, like that from the Motherisk Lab, as well as the use of expert evidence from the social (or “soft”) sciences, which is more common in child protection cases. We argue that in order to ensure a fair trial process, in some cases s.7 of the Canadian Charter of Rights may require a court order that the State-funded indigent parents in criminal or child welfare cases to allow them to retain their own expert to testify.

Just Following Instructions? The Representation of Parents in Care Proceedings

The study, conducted in 4 court areas in England and Wales, explored the work of lawyers representing parents in care proceedings through observation of hearings (109); interviews with legal professionals involved in care proceedings (61); and focus groups with solicitors, barristers, judges and magistrates’ legal advisers. Sixteen cases, selected to reflect the different circumstances where care proceedings are brought, were followed from an early hearing to completion of the proceedings, with a researcher shadowing a parent’s representative in discussions with their client, with the other parties’ lawyers and in the courtroom. The study provides an in depth account of the task of representation and court processes in care proceedings.The report provides detailed findings on the culture in child protection (dependency) proceedings in England and Wales in 2008-9; the ethos of professionals working in care proceedings and its impact on their work; the lawyers undertaking this work and the practice of representation, including the impact of public funding for this work.

EU Law in International Arbitration: Referrals to the European Court of Justice

While the courts of Member States are enabled or even required to submit preliminary questions concerning the interpretation of EU law to the Court of Justice of the European Union such referrals have traditionally been held inadmissible where made by arbitration panels. The article highlights a gradual softening of the Court of Justice’s position on this matter which would allow arbitral tribunals in investment protection proceedings to address the Court of Justice already at present. It further outlines some fundamental changes in the overall environment of commercial arbitration which should lead to a reversal of the Court’s position also in this field.

A simple clinical coding strategy to improve recording of child maltreatment concerns: an audit study

BackgroundRecording concerns about child maltreatment, including minor concerns, is recommended by the General Medical Council (GMC) and National Institute for Health and Clinical Excellence (NICE) but there is evidence of...

Factum of the Intervenor: Charter Committee on Poverty Issues in J.G. v. Minister of Health and Community Services (N.B.) et al. (Supreme Court of Canada)

The Charter Committee on Poverty Issues (CCPI) submits that both child protection proceedings and the denial of legal aid disproportionately affect people in poverty, and marginalized women in particular. Section 7 must be read to impose an obligation on the State to ensure that disadvantaged members of society, who cannot afford counsel, receive equal access to a fair hearing in proceedings affecting their liberty and security interests. In the present case, it was fundamentally unfair to force the Appellant to defend herself in a child protection hearing. Without effective legal representation by counsel, the Appellant was denied the fair and equal treatment upon which the legitimacy of the judicial system and child protection proceedings depend. The denial of legal aid based on budgetary or administrative considerations alone cannot be justified under section 1 of the Charter. Furthermore, the categorical denial of legal aid to a poor parent in child protection cases does not minimally impair a parent's Charter right to liberty and security of the person.

Expanding the Engagement Model: The Role of the Specialist Advocate in Supporting Parents With Learning Disabilities in Child Protection Proceedings

The quality of the relationship between parents and professionals, during the child protection process, is key to ensuring the welfare of the children involved. This article discusses the role of the specialist crisis advocate when supporting parents with learning disabilities during the child protection process. It provides an insight into the hostile environment of child protection, as discussed by the child protection professionals, and the role of the advocate as a facilitator of positive engagement between the parents and professionals and in supporting improvements in practice.

Different Views? Children's Lawyers and Children's Participation in Protective Proceedings in New South Wales, Australia

Fierce debates about the appropriate role of children’s lawyers in child protection have erupted in Australia and overseas since the 1990s, with different models of legal representation for children incorporated into legislation. Given the pace of change and the variety of arrangements in Australia, there has been surprisingly little research into how lawyers think about these roles or put them into practice. This article examines how children’s lawyers in the New South Wales Child Protection system think about their practice and formulate their approach to the representation of children, with reference to their contact with children. It reports on the findings of a qualitative study undertaken in 2006 that asked 21 lawyers how they work with children and how they think about children’s participation. Lawyers reported that they represented children in very different ways, reflecting ambiguity about how to interpret these roles and involve children as clients or the subject of best interests representation. The author argues that an integral aspect of the lawyers’ role is to ensure that children are heard by the court, but that more needs to be done to ensure this is carried out in practice.

STANDARDS FOR GUARDIAN FEES

Probate courts nationwide have come under strict scrutiny, if not siege, in respect to their overall handling of protective proceedings. State judicial department audits continue to report the failure of probate courts to follow statutes designed to protect vulnerable adults and children from exploitation by court-appointed fiduciaries, particularly financial abuse and omissions and failure to provide proper care. Findings of insufficient staff and funding resources for the courts also remain a consistent feature of the audit reviews. In view of the evolving and expanding magnitude, concomitant with demographic trends, of the problem of protective-proceedings oversight, this article examines prospective standards and new strategies for arresting and reversing the decline in courts’ statutorily mandated services for those at-risk persons whose interests and well-being the courts are charged with protecting. In Part I, this Article generally explores the nature of the criticism and examines how governmental regulatory regimes, rather than the courts themselves, could be a better repository for statutory duties of monitoring and enforcement. Improvements that might be derived from the institution of professional and professionally certified guardians are examined. The Article also pays close attention to concepts and structures for setting and applying consistent standards of proper fiduciary compensation and conduct, as well as monitoring and enforcing compliance with such standards. Finally, in Part II, this Article explores various strategies for addressing issues of funding for monitoring and funding for capable, ongoing guardian services.

Different Views? Children's Lawyers and Children's Participation in Protective Proceedings in New South Wales, Australia

Fierce debates about the appropriate role of children’s lawyers in child protection have erupted in Australia and overseas since the 1990s, with different models of legal representation for children incorporated into legislation. Given the pace of change and the variety of arrangements in Australia, there has been surprisingly little research into how lawyers think about these roles or put them into practice. This article examines how children’s lawyers in the New South Wales Child Protection system think about their practice and formulate their approach to the representation of children, with reference to their contact with children. It reports on the findings of a qualitative study undertaken in 2006 that asked 21 lawyers how they work with children and how they think about children’s participation. Lawyers reported that they represented children in very different ways, reflecting ambiguity about how to interpret these roles and involve children as clients or the subject of best interests representation. The author argues that an integral aspect of the lawyers’ role is to ensure that children are heard by the court, but that more needs to be done to ensure this is carried out in practice.

Children's Lawyers: 'Seeing' Children

Lawyers’ attitudes to children influence the extent to which they offer children opportunities to participate in legal decisions. This article offers empirical insights derived from research undertaken with children’s lawyers who practise in New South Wales in family law, child protection and criminal proceedings. The research reveals that lawyers give different emphases to their relationships with children, and there are variations in practice within and between jurisdictions. There is currently no shared understanding of the rationale for children’s participation. The author proposes practical strategies aimed at resourcing, training and selecting children’s lawyers so that they facilitate children’s participation more effectively.

Indigenous Guardians Ad Litem are Needed in Child Protection Cases

The Australian Institute of Health and Welfare found that in 2010/11 indigenous children were: 8 times as likely to be the subject of substantiated abuse and neglect; 9 times more likely to be on a care and protection order; and 10 times as likely to be in out of home care than other children in the Australian community.In 2010 Bao-Er wrote an article published in the Law Society Journal of New South Wales (December 2009) titled Guardians ad litem are Needed in the Children's Court of NSW. In 2009, Judge Marien the then President of the Children's Court of NSW rejected the author's application on behalf of three Indigenous children for the appointment of an Indigenous guardian ad litem on their behalf in care and protection proceedings before the Children's Court (see Department of Human Services and “Kieran,” “Siobhan” and Robert Isaac NSW Children's Law News 11 November 2009.This paper argues that urgent legislative change is required to ensure that all Indigenous children taken before Children's Courts for their care and protection need themselves to be protected through the court process by the appointment in each and every case of specially trained Indigenous guardians ad litem. The paper was presented at the 6th World Congress on Family Law and Children's Rights held in Sydney, Australia in March 2013.

1574 – Münchausen syndrome by proxy - a case report

Münchausen Syndrome by Proxy (MSP) is a form of child abuse in which a parent induces real symptoms of diseases in a child, even leading to hospitalization. It was described in 1977 by the Pediatrician Roy Meadow. In Brazil, The Statute of the Child and Adolescent, passed in 1990, outlines the procedures for all abuse and neglect proceedings. To show the symptoms and evidences of this Syndrome in order to provide an early recognition of those cases. To prevent this kind of child abuse which can bring harmful effects in the child's life, even causing death. Evaluation of a case report that was studied by Psychiatrists in Rio de Janeiro, in which the prosecutor wanted to know whether or not the children could be released from protected custody, considering the suspicion of MSP and the fact that one of the child had already died. The woman didn’t show any Psychiatry Disorder by the time of the evaluation, but her behavior suggested psychological difficulties as being a mother. It was suggested that she and her husband needed psychological intervention and that the children still needed the Council of Guardianship's care and protection proceedings . The MSP can be difficult to be diagnosed and is still considered a controversial phenomenon. It doesn’t have a clear cause but occurs because of psychological problems in the adult, and is generally an attention-seeking behavior. The syndrome can be life-threatening for the child involved.

How can we protect children from abuse by carers working for charities, humanitarian aid agencies or faith-based organizations?

How can we protect children from abuse by carers working for charities, humanitarian aid agencies or faith-based organizations?