Keynote speech by Sir James Munby (Coram permanence event, Nov 2019)

What is permanence? The lawyer’s first reaction is probably to think of the different legal frameworks by which we seek to achieve permanence. But that is to miss what I suggest is the bigger picture. I want to focus instead on the definition used in Guidance for the Children Act 1989:

“The long term plan for the child’s upbringing … to ensure that children have a secure, stable and loving family to support them though childhood and beyond and to give them a sense of security, continuity, commitment, identity and belonging.”

Note, in particular, the reference to the “long term” and to “childhood and beyond.”

So the horizon is not when the child becomes 18. We must look much further into the future, fitting the child for adulthood and well beyond.

Five ‘big points’

These are themes capable of Parkinsonian elaboration, but I want to focus here on just five ‘big points’.

(1)       The role of the State – better care

The fundamental principle was explained by Lord Templeman in the House of Lords in 1988 (In re KD (A Minor) (Ward: Termination of Access) [1988] AC 806):

“Public authorities cannot improve on nature. Public authorities exercise a supervisory role and interfere to rescue a child when the parental tie is broken by abuse or separation … the court decides whether and to what extent the welfare of the child requires that the child shall be protected against harm caused by the parent, including harm which could be caused by the resumption of parental care after separation has broken the parental tie (emphasis added).”

The corollary of this is that the State has neither the legal nor the moral right to take a child into its care unless it can provide the child with better care. As I said in Re F, F v Lambeth London Borough Council [2002] 1 FLR 217, a shocking case of two brothers ‘lost in care’ (para 43):

“The State assumes a heavy burden when it takes a child into care. The least that the State can be expected to do is not itself to cause significant harm to the children whom it takes into its care … Indeed … if the State is to justify removing children from their parents it can only be on the basis that the State is going to provide a better quality of care than that from which the child in care has been rescued (emphasis added).”

This, unhappily, is a message that can never be repeated too often. If that seems an unduly bleak and pessimistic message, consider the equally shocking state of affairs exposed some 17 years later by Keehan J in Re BT & GT (Children: twins – adoption) [2018] EWFC 76.

(2)       Children in care have greater needs

Most children taken into care have suffered neglect and emotional harm. Many have suffered serious – sometimes very serious – abuse. So, their needs are greater than those of other children. They, and those looking after them, need more support, more services, than other children.

(3)       Failings by the State in the provision of support and services

It is, unhappily, notorious that the State – I say the State, for local authorities are not provided with financial support sufficient to meet their needs and the needs of the children for whom they are responsible – is failing far too many of the children in its care. These serious failings, by a country which is still one of the richest in the world, are the subject of increasing concern by the judges (as their published judgments so vividly illustrate) and increasing criticism in the media. Let me give four examples of what I do not shrink from saying are serious failings by the State, failings which increasingly put into question our right to call ourselves civilised and compassionate. I take them in no particular order:

  • First, there is the serious lack of adequate provision, residential and non-residential, for the increasing numbers of children with mental health difficulties: see Re X (A Child) (No 3) [2017] EWHC 2036 (Fam), [2018] 1 FLR 1054.
  • Secondly, there are the increasing difficulties in finding suitable secure accommodation and other therapeutic resources for some of our most troubled children. Over the last three or four years, this has been the subject of many judgments of judges at all levels, Circuit Judges, High Court Judges and the Court of Appeal, who, in desperation find themselves, far too often, having to put damaged children in unsuitable placements which are:
    • unregulated;
    • far too far away from the child’s family and other support systems; and/or
    • outside the jurisdiction, in Scotland.

The grim picture is exemplified by the fact that, over the last few years, there have been far too many judgments dealing with such cases to be found on BAILII and in the law reports. To illustrate the prevalence of the problems and the immense frustration and sense of outrage of judges unable to find, even with the most devoted assistance from the local authority, the residential resources appropriate for the proper performance of the duties imposed on them, as family judges, by Parliament, I draw attention to the judgments in three cases: Re M (Lack of Secure Accommodation) [2017] EWFC B61, Re K (A Child) [2018] EWFC B2 and Re O (A child: No Available Secure Accommodation) [2018] EWFC B60, decisions of, respectively, Her Honour Judge Rowe QC sitting at Barnet, His Honour Judge Scarratt sitting at Canterbury and Her Honour Judge Lazarus sitting at Bromley.

Time is limited, so l confine myself to what Judge Lazarus said in Re O:

“This case represents yet another sorry example of the state failing a child in need, and highlights the impact of there being far too few secure accommodation unit places for children like O … That is clearly a wholly unacceptable situation. He is a child in local authority care who is at risk from his disordered background and the depredations of gang life. This is the opportunity to help him and make him safe, and it is being lost. Like my colleagues before me, whose published judgments increasingly feel like heads banging against brick walls, I am dismayed, frustrated and outraged.”

  • Thirdly, and a more pervasive problem affecting far too many children, is the unfair treatment of kinship carers. May I quote what I recently said about this on the BBC? I referred to “the serious inadequacy of the financial, professional and other support available to too many kinship carers and to the children they are looking after, in stark comparison to the support available to foster carers and adoptive parents.” I went on: “This justifiably concerns and angers many of the carers … They could be forgiven for feeling exploited, and in a way that can only be detrimental to the welfare of the children they are caring for.” I said there is an “intractable problem … providing the financial and other support that kinship carers so desperately need. Substantial increases are essential in the funding made available by central Government to local authorities, which are under-resourced and gravely over-stretched.”

One of the most depressing aspects of the system is the assumption that, in relation to support, kinship carers should be treated in the same way – no better, no worse – than the parents of any child living at home. This is wrong, surely, and for two different reasons:

  • Kinship carers are not parents: often they are required to take over the care of children at short notice and, as in the case of grandparents, with unsuitable accommodation and inadequate resources.
  • Children who have passed through the care system into kinship care typically have greater needs than other children: they, and their kinship carers, need more support, more services, than other children.
  • Fourthly, there is the scarcity of suitable housing accommodation available for young people in care or as they transition out of the care system into adulthood.

In relation to this, we need look no further than the recent judgment of His Honour Judge Dancey sitting at Bournemouth in Dorset Council v A (Residential Placement: Lack of Resources) [2019] EWFC 62, a shocking case accurately epitomised by a journalist as the grim story of a child passed around the local authority care system like a bag of potatoes, ending up in a caravan park. I need not repeat the distressing details of a truly terrible case. What I should set out, however, are the considered conclusions of this very experienced judge:

“I tell this story simply to highlight the resource issues that local authorities face looking after young vulnerable people at risk of harm. For A the consequences have been: (a) no residential placement or any sense of permanence or stability; (b) by my count, excluding the initial foster placements, 10 placements over the course of a year, all bar two of them unregulated, and lasting from a few months to a few days; (c) still no formal education; (d) no real chance to address the things [the psychiatrist] was talking about in his report” … and so it carries on.

Judge Dancey, who is the Designated Family Judge for Dorset, went on:

“It is my experience in Dorset that the number of vulnerable young people who need to be looked after or otherwise supported by the local authority is increasing. There are growing concerns around child sexual exploitation, County Lines and other forms of criminal exploitation as risks for these young people … The problems are huge. That is why I have told A’s story.”

Only someone with a heart of stone could read Judge Dancey’s judgment without wanting to weep or to rage.

(4)       Siblings

Sibling relationships are immensely important, and for two quite separate reasons:

  • The sibling relationship lasts longer than any other; and though it inevitably changes down the years, as the sibling group grows older, moving from childhood, into adulthood and then into old age, it is immensely important, rewarding and enriching.
  • Secondly the sibling relationship means that children can have proper relationships – which again will last through the decades – with their cousins.

Does the care system do enough to maintain, nurture and support sibling relationships? I have very real doubts.

(5)       Outcomes

It is common wisdom that children who have been in care, and particularly those who remain in care until they are 18, suffer many disadvantages in adult life, that their life chance are not what they should be and not as good as other children’s life chances. Those who have been in care are disproportionately over-represented, for example, in prisons and mental hospitals and under-represented in universities and other places of higher education. I suspect – are there any reliable statistics? – that mothers who have themselves been in care are disproportionately over-represented amongst those involved in care proceedings in relation to their children.

Of course, the picture is not uniformly bleak; on the contrary, as very recently published research by Professors Judith Masson and Jonathan Dickens, Child Protection in Court: Outcomes for Children, demonstrates. But there is no room for complacency, as a recently published article in the Guardian on 11 November 2019 by the well-respected journalist and commentator Louise Tickle, We are failing children in care – and they are dying on our streets, so shockingly illustrates:

“If one in four young adults found themselves homeless once they turned 18, with 14% sleeping rough, we’d be asking where the hell their families were. But these figures are the reality for young care-leavers. After they cease to be the official responsibility of their local authority on their 18th birthday, the risks they face as a result of having nowhere to call home include ill health, violence, sexual exploitation and early death.

These are children who have been removed from their families precisely because they have suffered significant harm or are deemed to be at risk. So why do care-leavers so often end up without support, on the streets, camping out on friends’ floors and living insecure lives in unsuitable – and sometimes dangerous – accommodation?”

She quotes the children’s commissioner Anne Longfield:

“It seems unbelievable that you could take the most vulnerable kids and put them into independent living without a package of support.”

Who could possibly disagree?

What is wrong with us? 

Sadly, far too much of this seems to fall on deaf ears.

What this illustrates, yet again, and as so many family judges are so distressingly familiar with, is the shameful lack of housing and other resources, which impacts so adversely upon some of the most vulnerable in our society. It is a commonplace that we live in an era of austerity. But however great the temptation, in or out of Whitehall, to use this as a convenient explanation for the serious problems currently facing us, the truth is bleaker and more profound. For these problems have their roots in policies, seemingly shared by Governments of whatever political stripe, long pre-dating the banking collapses and ensuing financial crisis of 2008.

We are, even in these times of austerity, one of the richest countries in the world. Our children and young people are our future. As is often said, one of the measures of a civilised society is how well it looks after the most vulnerable members of its society. If this is the best we can do, what right do we, what right do the system, our society and indeed the State itself, have to call ourselves civilised? As I said in Re X (A Child) (No 3) [2017] EWHC 2036 (Fam), [2018] 1 FLR 1054, the honest answer to this question should make us all feel ashamed.

What is to be done?

Many things need to be done – and urgently. I mention just four.

  • First, we need much more research into and analysis of what is going on in the care system, including research into what we know are very significant regional and local variations, for example, in the differing legal frameworks used for kinship care. Such research would enable us the better to understand, as an essential precursor to improving the system, making things better:
    • what is going on;
    • the child’s journey through the care system and beyond – both individual children and children generally; and
    • the impact on the child’s journey of such things as
      • ethnicity,
      • deprivation (in all its forms),
      • the legal framework which has been put in place.

This research will be invaluable not merely for policy-makers but also for decision-makers, including judges, who will be better informed of the outcomes not merely for children in general but also, if they wish, for the specific children whose futures they have decided.

The new partnership between the Nuffield Foundation’s Family Justice Observatory [of whose Board I am the Chair] and the SAIL database at Swansea University (which is gathering information electronically about children from all available government databases – initially those in Wales and now also those in England), coupled in due course, one hopes, with the improvement of the family court’s IT systems for case-recording, will transform our ability to conduct such research and analysis. No longer will research be confined to selected case-files; whole system analysis will become possible.

  • Secondly, a serious re-vamp of the failed IRO (independent reviewing officer) system is essential. Although there have been some local successes, the overall picture is of a system which has never worked as effectively as was hoped and as it must if it is to achieve its vitally important objectives.
  • Thirdly, we must make a reality, rather than an empty promise, of the entire ‘leaving care’ system, essential to enabling children in care to transition into adult life but still too often a matter of mere rhetoric rather than practical help. How far have we really come since my decisions in R (J) v Caerphilly County Borough Council [2005] EWHC 586 (Admin), [2005] 2 FLR 860, and R (G) v Nottingham City Council [2008] EWHC 400 (Admin), [2008] 1 FLR 1668?
  • Fourthly, and most fundamentally of all, we need a drastic increase in the resources necessary if these problems are to be tackled effectively; but given the lack of compassion and political will in our society, how likely of achievement is this in contemporary Britain? This is not a cry for some distant and unachievable utopia. It is a call for decency, humanity and compassion to be afforded their proper place in a very affluent society so that this affluent society can properly claim the right to be called civilised.

If we, as a society, are not prepared to provide the necessary resources, then we face a very stark, and fundamentally moral, question: How can we go on as we are at present? On one view there are, objectively analysed, too many children in the care system – how, after all, can we explain, let alone justify, the astonishing increase in the care population over the last ten years since, I emphasise, the Baby Peter ‘spike’? Be that as it may, it is surely indisputable that the present systems – both the local authority systems and the court processes – are incapable of dealing properly, and in a manner compatible with children’s welfare, with the current numbers of children in the system. If society is not willing to provide us with adequate resources, should we not be significantly reducing the number of children we bring into a failing system, so that those reduced numbers might actually benefit from a system which would then be able to cope; should we not be considering, for example, how to re-set ‘threshold’, not as a matter of statute but as a matter of understanding and practice?

Publication Date Monday 25th November 2019