Mounting a challenge to a negative connected person assessment 

This article is intended as a support to constructing an effective challenge to a negative connected person assessment, whether that challenge is coming after the viability stage, after the full assessment stage and perhaps in support of a part 25 application for an independent social work assessment or at the 11th hour in cross examination at a final hearing. It is often the case that the negative assessment is of a party who is not your client. You may be a parent supporting potential placement with that family/friends member as the family the back up plan to a placement with your client or as a way of trying to bat off a placement outside the family. 

If you’re acting for a parent supporting an assessment of a family member the first steps to take would be: 

• Write and check if the subject of the assessment has received a copy of the assessment and a letter from the LA explaining what they should do if they do not agree with the outcome of the assessment. 
• Ascertain, if you can, what they were told verbally by the Local Authority about challenging the assessment. Many people believe that a negative viability is the end of the road! 
• Check they do want to proceed and are committed.   
• Get in touch with some of your local solicitor contacts and see what they can offer in the way of an initial consultation/ fees etc and pass that information on to the connected person. 
• It is not your role to advise that person but you can signpost and broadly set out their options for them. 
• Remember – if that person proceeds and becomes involved there could potentially be a conflict of interest later down the line. 
• Early Action is essential. Procrastination is the beginning of all failure – and the 26 week timetable is commonly  used as the barrier. 

 If you are representing the parent, moving forward you may still have an active role to play to progress the challenge and many of the cribs below will be just as relevant to you as they are to a person instructed to represent the connected person. 

The quality, structure and content of these assessments varies greatly. Some are done on template forms, some are much more like free narrative reports. 

• Do not be deceived by format. 
• Template assessments may lack depth of analysis and key information because it is not prompted on the template 
• Free narrative assessments may lack structure and breadth of information 
• Always check the time that was spent with the subject gathering information and whether it was at the home of the subject, elsewhere or even remote. 
• Check the manner in which the assessment took place accords with the cognitive/reading abilities of the subject 
• Check what information the assessor believed the subject had access to before the assessment was started. 

All this seems obvious, but each of these can form a key point of challenge to the informative value and accuracy of the assessment which may advance your case for an ISW, an addendum assessment or even a direction at a final hearing that the LA reconsiders its final plans.  

Connected Carer candidates are often criticised, if they were close to the subject family, for failing to take protective steps, intervene or show insight. Proving those assertions on the balance of probabilities must be achieved, particularising risks and the harm  is required in order to properly undertake the “parenting assessment” aspect of a kinship carer assessment. That aspect of a kinship assessment follows the Common Assessment Framework in just the same way as for a parent. 

 Re: A (A Child) (2015) EWFC 11 Para 9 of the Judgment of Sir James Mumby states “It is a common feature of cases that a local authority asserts that a parent does not admit, recognise or acknowledge something or does not recognise or acknowledge the local authorities concerns about something. If The thing is put in issue, the local authority must prove the thing and establish that it has the significance attributable to it by the local authority”  

There is not place for “ speculation” / “concerns” / beliefs which are not evidence based. 

The next useful tool in the challenge arsenal is to scrutinise the assessment against the published guidances and standards. Whether they are referred to in the assessment or not they apply. Firstly go to the Fostering services: national minimum standards, Department for Education, 8 March 2011. Read the 12 Child Focussed standards and check how the assessment deals with them. These standards provide an ideal structure for cross examination, and similarly can be used to structure a part 25 application. 

It is not uncommon for a relative who is or has provided what appears to be functional care for a child during the currency of the proceedings to be deemed not a suitable long term option because they fail to meet some of these standards, despite it appearing o2 on the ground, they are doing a good enough job and getting little support from the LA! 

The LA are under a duty to provide support and training to try and shore up shortcomings if that will keep a child in a family placement, but all too often the LA has not applied itself to this in their assessment. 

The standard to be achieved, with or without some LA shoring up support is “ Good enough” for that particular child.  Remember there is no such thing as “More than good enough parenting” The standard is subjective for the individual child. 

With that in mind, look to: Family and friends care statutory guidance for local authorities, Department for Education 2011 

Section 5 is particularly useful 

5.14.The assessment and approval process for family and friends who applied to be foster carers for a specific looked after child should be covered in the local authorities family and friends policy, so that those to be assessed are clear about what is expected of them, how they will be judged, what support will be offered during the assessment process, and the reasons for this. Part 5 of the 2011 regulations sets out the legal requirements in relation to the assessment, approval, review and termination of approval of foster carers. The information which must be taken into consideration in assessing suitability of a person to become a foster carer is set out in schedule 3 to the regulations.  

5.16 Standard 30 of the national minimum standards says  “that when a kinship foster carer is being assessed for approval for a specific child, there is no need to consider their suitability to care for other children. In considering whether a relative should be approved as a foster carer, account must be taken of the needs, wishes and feelings of the child who it is proposed to place them with and the capacity of the carer to meet those particular needs. In order for the placement to be in the child’s best interest, the carer will need to have the capacity to meet his or her needs for the duration of the proposed placement. The likely length of the placement, the age of the child and the capacity of the wider family to contribute to the child’s long-term care should be taken into account. 

5.17 Where it is assessed that the family and friends carer could meet the needs but will require some support or services to be able to do so, these should be specified in the assessment report required under regulation 26 of the 2011 regulations. A Subsequent report of the foster carers annual review required under regulation 28 should set out how the support provided assisted the foster care to meet the child’s needs and whether continued or additional support is required. The Child’s placement planned, required under the 2010 regulations were set out in detail how the placement is intended to contribute to meeting the child’s needs are set out in the care plan and should make clear any support or services that the family and friends foster care needs in order to meet the child’s needs 

5.18 Family and friends, foster carers will usually bring with them knowledge and experience of the child they are to foster , And in many cases they will have already been providing the child with a home prior to the child becoming looked after . Whether or not the prospective foster carers have direct prior knowledge of the child to be placed, the assessment should focus on the experience and strength that they bring, and the support that they will need to enable them to provide safe care for the specific looked after child. The assessment will need to balance the strength that they bring, and the support that they need to enable them to provide safe care for specific looked after child. The assessment will need to balance the strengths of the carers arising from their position within the family network against any aspects which may make them less suitable. The needs of the child should be kept central to the process as the assessment will of necessity also be a matching process of the child to the carer. 

5.30  – Accommodation Sometimes family and friends carers will find that taking a child or children into the home places pressure on their accommodation which would make it suitable in the case of another foster child. Children living with family and friends foster carers have the same rights to privacy and suitable sleeping accommodation as ever looked after children, but they should be seen as part of the total assessment of suitability to be balanced against other factors. The child who would be unhappy to share a bedroom with the child alone to them may not mind sharing with another child who is a relative they know well. They will already be living in the care home and happy with the overall situation. In approving the foster carer the fostering service Will need to be satisfied that there is adequate space to a suitable standard, as set out in standard 10.6 of the national minimum standards, or if this is not the case set out proposals as to how it will be met in the future. The wishes and feelings of the child will be an important factor in helping the social worker to assess the suitability of the accommodation. 

Utilising published standards and guidance and demonstrating failure to comply is a very powerful means of securing a concession from your professional witness that there is a failure to comply and thus an evidence gap. 

Lastly, is the local authority advancing a standard which is “a bar set too high” ?  

re: A above-mentioned cites Baroness Hale in the case of Re: B at para 15 “We are all frail human beings who come up with our fair share of unattractive character traits, which sometimes manifest themselves in bad behaviours which may be copied by our children . But the state does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, who suffer from physical or mental illness or disabilities, or who espouse anti-social political or religious beliefs.” 

The president continues by agreeing with the remarks , perhaps considered controversial, of His Honour Judge Jack in the case of North East Lincolnshire Council v G & L [2014] EWCC B77 (Fam)   

“…The reality is that in this country there must be 10s of thousands of children who are cared for in homes where there is domestic violence ( now very widely defined) and where parents on occasions drink more than they should. I am not condoning that for a moment, but the courts are not in the business of social engineering. The courts are not in the business of providing children with perfect homes. If we talk into care and placed for adoption every child whose parents had a domestic spat and every child whose parents on occasion had drunk too much then the care system would be overwhelmed and there would not be enough adoptive parents. So we have to have a degree of realism about prospective carers who come before the courts.”  

The words of  Mr Justice Hedley in Re: L ( Care: threshold Criteria) (Family division 26th October 2006) must be held at the fore: 

“ Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent.  It follows too that children will inevitably Have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the province of state to spare children all the consequences of defective parenting.  In any event, it simply could not be done ……it would be unwise to agree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.”

Written by Kristine Lidgerwood, Consultant Barrister, Unit Chambers