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Expert's Corner: Non-recent cases of child abuse in care

ISW Sylvia McKenzie on her work on cases of non-recent child abuse in care

Despite having successfully been running her own independent social work practice for six years following her retirement from local authority work, in 2016 Sylvia McKenzie felt she may have to take a step back from independent social work.

Awaiting a knee replacement operation, Sylvia found the driving to families for assessments too painful. However, following a discussion with Philip King, WillisPalmer’s lead on child abuse litigation (who at the time ran ISWA prior to WillisPalmer buying it and Phil leading the CALS work at WillisPalmer), Sylvia began working on chronologies, preliminary reports and full reports in, typically, non-recent child abuse litigation cases as the work is predominantly from home.

Naturally, Sylvia’s 30 years plus post-qualifying children's social work experience and six years independent social work expertise along with extensive knowledge of key social work legislation, research and practice guidelines made her a natural fit for the child abuse litigation work.

“The cases can vary and are usually very historical abuse or negligence, which occurred in care from the 1950’s or 60’s. However, recently there was a case where the children were still in care and the official solicitor was making the claim,” said Sylvia. The official solicitor helps claimants who are young or lack capacity to access services offered in the criminal justice system.

“The claimants, who can be aged between 15 and 65, may be seeking significant compensation. But recently a claimant was just requesting a modest amount financially which she needed to pay for therapy to help her to recover from what had happened to her,” said Sylvia, agreeing with a report by IICSA which found that some victims and survivors do not want any compensation; what is important to them is an acknowledgement of what happened, an apology or their day in court.

Chronology

There are three parts of work that Sylvia may carry out. The chronology is the basis of all the reports. The expert receives all files relating to the case which can sometimes be 10 lever arch files per case and often in paper form rather than electronically. The expert is then required to examine, file and sort the case bundles. Firstly, Sylvia organises the files into categories such as referrals, medical reports, school records, social work reports. These files are then arranged into date order and each category is analysed

An expert social worker is needed in this process to sift, analyse and sort the files into a manageable form. Critically, this professional eye is essential to constructing a fair and balanced chronology.
“Some of these children have been taken into care at birth and are now 60, with the abuse occurring in the 1950’s. A solicitor needs to be able to interpret the chronology to form an idea of the person’s life and experience of the care system. You also need to be mindful that many of the regulations that we have in place now were not introduced at the time of the case. Saying that, some of the social work practice, and in particular the management oversight at the time, was appalling,” said Sylvia.

After presenting the solicitor with a full idea of the claimant’s childhood in the chronology, it is paginated and complete.

Preliminary Reports


The purpose of preliminary reports is to assist solicitors and the decision-making process, clarifying whether a case has a reasonable prospect of success if pursued. There are two reasons for this. Firstly, lawyers do not want to raise unrealistic expectations with claimants and defendants.

Secondly, some claimant firms take cases on a ‘no win-no fee’ basis which therefore, represents a significant investment in legal fees. Furthermore, in order to allow claimants access to legal aid funding, the legal aid agency may need to see a preliminary report to indicate that there may be a reasonable prospect of success.

Again, Sylvia receives all of the files either in paper or electronically. Social work records can often form the bulk of the files, and they are often hand-written by a variety of people and difficult to read. The solicitor will send instructions about what they want the expert to assess, for example: “Please review the entire case and comment on whether the standard of care fell below what was expected, whether there were failures on behalf of the local authority and whether the child should have been removed from care earlier.”

“For the preliminary report, you need to read all the main documents. Sometimes the claimant may have spent their entire childhood in care whereas for others it may have been only a few months,” said Sylvia. “You take in all the main reports and records and make an assessment of what happened during the child’s time in care.”

The preliminary report starts with an executive summary of two to three pages and the expert sets out in their opinion a brief resume of how long the person was in care, what happened during their time there and whether or not, for example, enough was done by the local authority to protect the child.

In the main body of the preliminary report, Sylvia will firstly outline the pre-care history if it is available, then take one year at a time and summarise what happened each year from the records with her comments. Sylvia creates her own chronology which reduces the amount of content required and keeps the report, which is required to be paginated, to 15-20 pages.

Full reports


For the full reports, Sylvia has to read every file she is provided with. While for the chronologies, Sylvia has to redact every name or personal detail of any third party including siblings, parents or relatives, she is sometimes provided with redacted files for the final report. This can make it difficult to ascertain a full picture easily. The redaction process is a recommendation from solicitors, but as Sylvia said, “I think it is important and relevant to the case to have details of siblings, especially if a 12-year-old has two younger siblings who she has caring responsibilities for”.

Furthermore, many of the documents that Sylvia receives are illegible or poorly photocopied.

Sylvia said: “You have to use your knowledge from reading the files and your experience and understanding of legislation relating to the case. I find writing the report in time blocks is very helpful for me. You take each time period the child was in care and look at what was happening while they were in care. I produce a full chronology so I can then highlight the key information in the report.”

“If, for example, the solicitor has asked whether CSE occurred in their instructions, every time CSE is mentioned in the records I highlight it in the report to show that something was raised and therefore the authority should have been aware of it. At the end of each time period I make my comments about the points I have observed and outline what I think should have happened. In my conclusion I bring together what I have highlighted in the main body of the report and, in my opinion, what should have occurred. I will highlight if records have not been provided or if it is impossible to gauge what happened during a set period due to the amount of redactions.”

“For example, I may say, in my opinion, there were numerous occasions when social work practice at that time fell below a reasonable standard. It was noted that on several occasions, the claimant came home under the influence of drugs or alcohol and with possessions of value and red eyed, and this should have heightened social workers assessments of the situation,” said Sylvia.


Research and guidance must be time relevant


However, she warns that you have to judge the standards relating to the time of the allegations. For example, if there was a case of CSE in 2004, the crimes, investigation and reports into Rotherham and Rochdale had not come to light at that time. Yet CSE was well documented with the Home Office producing a draft report on CSE in 2000, so there was awareness, much more so than say if the crimes had occurred in 1990 when professionals may not have had as much knowledge and guidance on the issue.

“When you are providing a chronology, you are not asked for opinion,” said Sylvia. “But in preliminary and full reports opinion is needed, backed up by the issues raised in the files, the legislation at the time, the practice guidance available and research into relevant topics. It is important, for example, to take into consideration The Children Act 1989 and Section 20 when the child is taken into care under a voluntary agreement but the parents still have parental responsibility or Section 31 when care proceedings have occurred and the local authority has the right to make decisions.”

“You need to look at local protocols, policies and government guidance such as ‘Working together to safeguard children’ and see how that was applied. Research and guidance have to be time relevant so you need to undertake good research.”

Management oversight in the past has been poor


All reports have appendices including the expert’s CV to show they have experience and know what they are talking about. The appendices include a list of the legislation, guidelines and research referred to and include the chronology.

Sylvia explains that that the letter from the solicitor can be quite vague and ask for her opinion on whether she thinks there is culpable blame, whereas others provide detailed clear instructions around specific questions they wish to be answered. The report can be 25 to 40 pages long while the chronology may be 50 pages long.

The challenges with this type of work, Sylvia says, include redacted reports – some of which have many pages blanked out which can prevent you getting a good understanding of the case, hand written files, often by multiple people and often in illegible writing, and poor photo-copied files.

“To be fair, while I am appalled by some of the social work practice which has occurred in the past, frontline social workers are acting in good faith, but the management oversight may be poor. I’ve seen plenty of examples where managers should have been saying ‘we should be moving this case along’ – we’ve all been newly qualified social workers but you need the guidance from managers to ensure cases progress as they should. There appears to be a lack of good supervision in the past.”

Sylvia says that in order to complete this type of work you need:

- Experience of local authority work

- Expertise in relevant legislation

- Good critical analysis skills

- Sound reflective practice

- The ability to absorb and decipher a large amount of information.

“I aim that with the chronology, the solicitor can gain a good understanding of the case. For example, in one case, in the pre-birth period, the father was in the army and had gone AWOL for 18 months which shows the solicitor that he is not a reliable father figure. The mother had four children by the time she was 20 and the baby was in hospital four times by age 9 weeks showing it was clear the mother was struggling, and it emerged, she was constantly under the influence of alcohol or drugs. The child was under a child protection plan by 9 weeks old – that chronology should show the solicitor the case inside out.”

Sylvia has carried out 19 child abuse litigation cases now and only been called to the High Court once to a high-profile case where a huge amount of compensation was being requested. However, she does have to face the prospect of a potential conference where a barrister will question her to ensure she is a credible witness.

“WillisPalmer has really nailed the market and have a very professional service, led by Phil [Philip King, Executive Consultant and lead on CALS work]. All reports are fully quality assured to ensure that they meet the required standard. We have a good agency and professional lead as well as other professionals I can call upon if I wanted to discuss the case. I also know if I need to talk through a case I can speak to Philip and we have a mid-point review. Having a supervisor for this type of work is vital for good quality assurance,” Sylvia concludes.



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