A case for a presumption of relational harm. Dr Vanessa Richardson, Department of Law University of Keele

1. Free paper presentation for the BASPCAN
Congress Edinburgh University, 13th
April
2015.
‘The harm denied in care proceedings:
a case for a presumption of relational
harm’, ref’ce 0123.
By Dr. Vanessa Richardson, Department of
Law, University of Keele. Contact:
v.l.a.richardson@keele.ac.uk
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2. Introduction.
This paper introduces a psycho-social
study about the test of harm in care
proceedings in England and Wales under
the Children Act 1989. It makes an
argument for a presumption of relational
harm in the threshold and welfare tests
(section 31 and 1(3)) and in the local
authority’s duty to safeguard and promote
the welfare of the child in care (section 22).
Relational harm includes the child’s
experience of parental harm appearing and
re-appearing in their relationships with their
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3. birth family into young adulthood. The
study concludes the likely problem of
relational harm should be highlighted in the
court and social workers’ decisions about
the child's contact with their birth family
and the arrangements for the child leaving
care.
The test of harm in care proceedings: a
psycho-social study.
This doctoral study was conducted with
fourteen young adults, between the age of
eighteen and thirty, who had lived in care
(Richardson, 2014 and 2015). It is akin to
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4. a humanistic approach to legal criticism
which sets out to privilege the accounts of
those whom the law has set out to protect
(West, 1997). The study uses a psycho-
social methodology (Hollway and
Jefferson, 2013).
The study highlights the fractured
relationship with their mother. This is a
complicated harm. The harm of being
taken into care may include a gradual
realisation by the child, of their mother
hurting them, and/or allowing others to do
so. Mitigating this harm may include
requiring the local authority to help the
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5. mother with her own difficulties, cope with
contact and help her prepare for the child
wishing to be reunified with her in young
adulthood.
In summary, the threat of removal requires
the child and mother to hide from the
authorities. The court and local authority
take the child into care suddenly. The time
that the family is able to spend together is
determined by the local authority's
arrangements for care and contact
(Children Act 1989, section 31, 33 and 34).
The court and social workers approach the
mother's failings as though they are her
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6. choice or a fixed maternal inadequacy.
The mother appears to continue to be
preoccupied with her own problems so the
child has to stay in care and the harm
suffered by them both is compounded.
The contact with the mother is stopped or it
is reduced until it is so infrequent it
becomes not viable. The local authority's
plan for long-term separation progresses,
seemingly relentlessly, so that the child
stays in care and they gradually lose
contact with their siblings and extended
family. The child’s birth family relationships
break down inhibiting reconciliation and
seemingly negating the mother's incentive
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7. for change. The child begins to blame the
mother, the social workers and
themselves. Relationship problems arise in
care and young adulthood, including
emotionally painful estrangement from the
birth family. In young adulthood, the child
attempts to make sense of the mother's
difficulties and the role she may have had
in causing them to be taken into care. The
young person attempts to re-build a
relationship with the mother and the
siblings.
In order to illustrate the findings, this paper
now presents extracts from two cases. The
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8. first is the case of a twenty four year old
woman called Helen, and the second is the
case of a nineteen year old woman called
Frances.
Helen had been on a care order since the
age of six. Her mother was a woman with
very significant difficulties of her own,
including a succession of partners who
abused her and her children. Helen
became a co-parent to her younger
siblings, (the youngest ‘called me mum’) all
of whom were abused; she was a
confidante for her mother’s problems
(Helen called this ‘horror stories’) and she
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9. helped her mother hide the family from
‘interfering’ social workers and the
‘vampire’; ‘social work informers’. She said
that she had 'the bloody freak family from
hell'. ‘Social services should not have let it
happen’. When the children were removed,
'It blew the family apart. None of them
speak'. She called her mother 'a bully' and
'selfish'. She said 'She kept asking for
contact; silly cow'. She called her 'a poor
excuse for a mother'. 'The egg donor'.
'Unfit to be called a mother'. Helen said 'I
felt so much anger....'. She said 'We are at
war'.
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10. Helen had a number of disrupted
placements, including residential care.
Helen gained no qualifications, committed
offences and became involved in a violent
relationship. She tried to kill herself,
‘maybe once or twice’. She described
herself as 'the new Helen' but she suffered
from 'thunder moods' and still felt unable to
study and work. She considered that she
had few friends and she worried that her
husband (whom she called 'my knight in
shining armour') would leave her.
In the study we see the complexity and
power of Helen’s experience of harm in
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11. parental care arising from the mother’s
own difficulties, like an intersubjective
harm. This parental harm appears and re-
appears in relation to others into young
adulthood.
Second, I turn to the case of Frances.
Frances was taken into care with her
sister, Mary, at about the age of six. She
said that she was ‘always the favourite’ in
her birth family. She was ‘close’ to her birth
mother which enabled her foster mother to
‘take over straightaway’. She said, ‘I
thought everything was alright; like I was
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12. oblivious to everything but obviously it was
not because my mum’s partner had
abused my elder sister. And that is why I
got taken away’. She said about her foster
carers, ‘I adore them’; ‘they are like my
mum and dad now’. ‘They used to have
two daughters of their own but they died
which is why I think I am so close to them’.
‘When you are eight, you do not really
think about any of it. You think social
services are the bad people and you just
believe what your mum says...But now I
have grown alot closer to like my mum now
and she has taught me really about how
things were, like opened my eyes’.
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13. Frances beginning to ‘believe’ about the
abuse was intrinsic to this new closeness,
both a product of it and necessary to
achieve it. When she was in care contact
with her mother and siblings came to an
end. Her sister, Mary, was moved on from
the foster placement because ‘We just
used to fight all the time because we did
not know how long we would be staying
there’. Frances stopped contact with her
mother because she was ‘sick of it’ and ‘it
will bring your past back again’. The
contact with Stacey ‘died out’ after Stacey
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14. told Frances about the abuse and Frances
said she ‘did not believe her’. She said ‘I
asked last week to see if they [the leaving
care team] knew where she [Stacey] lived
or anything just to make sure she was
alright not because I want to see her or
anything because that just interrupts my
life now but just to see if she is alright or
still alive at least’.
Between our meetings, unexpectedly,
Frances was back in touch with Stacey.
She said ‘She was the one who got
abused. I said I felt guilty. I said sorry for
that. And that I believed her’. ‘I am
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15. definitely going to see her again’. Frances
worried about telling the foster mother
about this.
Frances seemed to have been left viewing
herself as a cause of harm to others.
Summary.
In ways such as these, the study highlights
the child’s relationship difficulties,
especially with their mother and siblings,
when the court separates a child from the
birth family. It highlights that relational
harm, including the impact of the
15

16. entrenched nature of the difficulties of
children's birth families, is likely to be
complicated and ongoing (Bowlby, 1988;
Quinton et al, 1997; Rutter, 2000; Sinclair
et al, 2007; Biehal et al, 2010; Holland et
al, 2010; Tarren-Sweeney, 2010; Daniel
and Bowes, 2011; The Care Inquiry, 2013;
Re B (Care Proceedings: Appeal) 2013 2
FLR 1075; Re G (Care Proceedings:
Welfare Evaluation) 2014 1 FLR 670 .
A new harm arises (like a 'double harm'
(West, 1997)) through the law's
intervention in the complex lives it is
seeking to protect. Whether this has any
16

17. implications for the test of harm in care
proceedings is less clear. The importance
of consideration of ongoing relationships is
supported by the welfare principle in the
Adoption and Children Act 2002 but this is
only in decisions about adoption.
Assessing relational harm involves an
analysis that is, by its nature protracted.
One standard argument used when
considering the assessment of children in
these kinds of situations suggests that
decisions have to be made relatively
quickly, if harm is to be mitigated (Family
Justice Review, 2011; Children and
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18. Families Act 2014). The harm for all those
family members involved in care
proceedings may involve a wider and
deeper range of matters than will ever be
understood by traditional legal approaches.
The main finding in this study is that
orienting towards a concept of relational
harm in care proceedings, may enhance
the court's welfare approach by
highlighting the child’s close relationships,
into young adulthood. It identifies a
significant welfare issue which turns on the
child's changing experience of their
parents', siblings’, and carers’ own
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19. experiences of harm. There would be new
conceptual and definitional problems for
lawyers but harm will be treated more
meaningfully if it takes account of these
matters. This may be in the child's care
plan, the decisions about contact, the
Independent Reviews and the preparations
for the child leaving care (DCSF, 2010).
References.
Batmanghelidjh, C. (2006) Shattered Lives.
Children who live with courage and dignity.
London. Jessica Kingsley.
Biehal, N., Ellison, S., Baker, C., and Sinclair, I.
(2010) Belonging and Permanence: outcomes
in long-term foster care and adoption. London.
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20. British Association for Adoption and Fostering.
Bowlby, J. (1988) A Secure Base: Clinical
Applications of Attachment Theory. London.
Routledge Classics edition. 2005.
Daniel, B. and Bowes, A. (2011) Rethinking
Harm and Abuse: Insights from a Lifespan
Perspective in British Journal of Social Work
2011 vol.41 pages 820-836.
Department for Children, Schools and Families
(2010) The Children Act Guidance and
Regulations. Vol.2: Care Planning, Placement
and Case Review www.dcsf.gov.uk
Family Justice Review (2011) Final Report,
November 2011.www.justice.gov.uk.
Holland, S., Floris, C., Crowley, A. and Renold,
E., Voices from Care Cymru and Cardiff
University School of Social Sciences (2010)
‘How was your day?’ Learning from experience:
informing preventative policies and practice by
analysing critical moments in care leavers’ life
histories. Funded by: Wales Office of Research
and Development for Health and Social Care.
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21. Grant ref: SCSM 08-021.
Hollway, W. (2006) The Capacity to Care.
Gender and Ethical Subjectivity. London.
Routledge.
Hollway, W. and Jefferson, T. (2013) Doing
Qualitative Research Differently: A
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edition.
Quinton, D., Rushton, A., Dance, C. and Mayes,
D. (1997) Contact between Children Placed
away from Home and their Birth Parents:
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Psychology and Psychiatry vol. 2(3), pages
393-413, 1997
Richardson, V (2014) The test of harm in care
proceedings: a psycho-social study
Unpublished thesis University of Keele
Richardson, V (2015) Whose expectations?
Care orders: Towards a relational harm
approach in the test of reasonable parental care
in Journal of Social Welfare and Family Law
forthcoming.
21

22. Rutter, M. (2000) Children in Substitute Care:
Some Conceptual Considerations and
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703, 2000.
Sinclair, I., Baker, C., Lee, J. and Gibbs, I.
(2007) The Pursuit of Permanence. A Study of
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Jessica Kingsley.
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mental health services for children in care and
those adopted from care in Clinical Child
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613-626, 2010.
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Building relationships for our most vulnerable
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and London. New York University Press.
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