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The child at the centre : rethinking child protection 1998

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THE CHILD AT THE CENTRE: RETHINKING CHILD PROTECTION by Margaret Isabel Hall B .A, Hons., The University of British Columbia, 1988 L .L .B . , Queen's University, Kingston, Ontario, 1991 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF M A S T E R OF L A W S in THE F A C U L T Y OF G R A D U A T E STUDIES (FACULTY OF LAW) We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH C O L U M B I A March 1998 © Margaret Isabel Hall In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. 1 further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of The University of British Columbia Vancouver, Canada DE-6 (2/88) 11 A B S T R A C T This thesis considers the central problems posed by child protection in liberal societies and how those problems have played out in, and are addressed through, the legislative and administrative reforms in British Columbia in the 1990s. Child protection brings two important social values into conflict: on one side, liberal (adult) individualism (including the autonomy/privacy of the family as a counterweight to the State) and, on the other, the communal interest in child well being (including humanitarian and civil/moral order interests) which, in liberal societies, is delegated to the State. This conflict is a feature of liberal societies and cannot be, truly, resolved; child protection requires choices and decisions about the values/interests on either side of the conflict. British Columbia's new "child centred" child welfare system is about making those decisions on an individual basis focused on the child. The new Ministry contains a range of options and approaches ("intervention" and "support") and does not, per se, endorse one over the other. The professional task is to choose the appropriate response; "child centred" practice means that "appropriate" is defined from the beginning with reference to the child. The conflict between family privacy and the communal interest in child well being has previously been managed, or contained, within the "liberal compromise" (Dingwall, Eekelaar and Murray, 1983) , that the State may inspect the family provided that its agents make the best of what they find. The most significant effect of the compromise had been to minimise identified mistreatment. By the 1980s, however, it was increasingly clear (to professionals and the public) that neither children nor family privacy were adequately protected within the compromise. "Non-interventionist" child protection, which appeared to reconcile the problematic by subsuming child protection within family support, became the modern reform paradigm (as a response to perceived failure, and as an idea with wide political appeal, resonating with liberal norms of privacy and conflict avoidance). However (as the Report of the Gove Inquiry would show) supporting families and protecting children are not synonymous. The legitimacy and coherence of the "non- interventionist" paradigm depends on the disappearance (explained as both respecting family privacy and the professionalism of child protection workers) of child deaths (the most obvious form of child suffering). After the Gove Report's publicisation of the sometimes fatal (for the child) consequences of family support and the disappearance of dead children inside "the system" (dramatically, and very publicly, cast as professional back covering, shockingly indifferent to the child at the centre) the non-interventionist paradigm appeared untenable. It is too early to tell how the Ministry's "child centred" decision making will better protect children (and family autonomy), however, several features of the post-Gove reforms- amendments moving the focus of the Child, Family and Community Service Act away from "non-intervention", the structure of the single Ministry and the regular inquiries and reports of the Children's Commissioner- do have the potential to preclude a comeback for the non-interventionist paradigm (despite the paradigm's political, cultural and professional appeal) and may also create an organisational and (professional) cultural context conducive to child centred decision making. iii TABLE OF CONTENTS Abstract ii Table of Contents iii Dedication vii INTRODUCTION 1 CHAPTER ONE UNDERSTANDING CHILD PROTECTION: CONFLICT, COMPROMISE AND RESOLUTION 10 The Liberal Compromise 17 Cultural Relativism and Natural Love 22 A Rule of Pessimism? Child Protection and First Nations Communities 27 The Rule of Optimism as Rule of Law 31 Resolving the Best Interests of the Child: Professionalising the Humanitarian Mores 34 CHAPTER TWO PROTECTING OUR CHILDREN, SUPPORTING OUR FAMILIES: LEGISLATIVE REFORM 40 Making Changes 42 First Steps 43 Unforseeable Consequences: Matthew Vaudreuil and the Gove Inquiry 50 The "Terrain of Struggle": Debates in the Legislative House 51 iv Looking at the Debates 56 About the Community 69 CHAPTER THREE SITUATING GOVE: THE INQUIRY REPORTS 76 The British Inquiry Reports: i973-1989 77 Authority 81 The Law: Pre-guessing Court Outcomes 86 What Can Be Known: Compiling Reports From Parental Accounts 88 What Can Be Known: Specialised Knowledge and Blocks to Recognition 89 Failure to Read Warnings and Signs 101 Failure to Assemble Complete and Accurate Information: Passivity and Credulity 106 Inappropriate Focus 108 Inability to Commit to a Course of Action 109 Failure to take Complaints Seriously 110 Circumstantial Elements 112 Maria Colwell 114 The Minority Report 131 "Whichever is More Convincing": Reading the Reports 140 Recurrence and Lasting Impact 144 CHAPTER FOUR REPORT OF THE GOVE INQUIRY INTO CHILD PROTECTION 147 V What Came Before 147 "Matthew's Story" 152 Situating Gove 160 Threats and Promises 164 Excuses and Justifications 176 The Wider Context: Child Protection with a Family Focus 178 Failure to Take Complaints Seriously 182 CHAPTER FIVE AFTER GOVE: THE CHILD AT THE CENTRE 185 "... because until that time nothing had been so private as social work": The Child Death Inquiry 186 Report of the Inquiry into Child Abuse in Cleveland, 1987 190 Political Events Force the Pace 193 A Ministry for Children 199 Designing the System 201 Working Together 202 Prevention 203 Protection 204 The Child Centred Perspective 208 The Children's Commissioner 214 Review of the Circumstances Surrounding the Death of Mavis Flanders 218 VI CHAPTER SIX CONCLUSION 226 REFERENCES 233 DEDICATION For Paul, and for Sean Xavier 1 INTRODUCTION The Social Services, of course, always have a thankless task. If they are overcautious and take children away from their families they are pilloried for doing so. If they do not take such action and something terrible happens to the child, then likewise they are pilloried.1 This insight from the Cleveland Inquiry in Great Britain is no longer fresh, or, as an observation, particularly interesting. The interesting point, and crucial to understanding child protection, is why this should be so. My interest in child protection as a problem began with a newspaper story about an infant known as Paul. 2 I was struck by the intense "official" activity around Paul and his family, spanning a period of more than ten years, at the centre of which Paul died, essentially abandoned within his home, of neglect. The perversity of the story stayed with me, and I began to conceptualise it as a puzzle: a contradiction. I assumed that the enormous cast of agencies and workers involved with Paul and his family over the years were not incompetent, or insensitive, yet Paul's still figure remained literally untouched within these layers upon layers of assistance. My return to Canada coincided with the Gove Inquiry into Child Protection in British Columbia. I was immediately struck by the many similarities between the story of Matthew Vaudreuil, the child at the centre of the Gove Inquiry, and baby Paul. A process appeared to be at work. I was also struck by the obvious discordance between the 1 Report of the Inquiry into Child Abuse in Cleveland 1987 (London: HMSO, 1988) at 85. 2 D. Brindle, "Baby tragedy after fifteen years of errors" The Guardian (UK) March 2, 1995. 2 findings of the Gove Inquiry and the new child protection legislation introduced virtually simultaneously, as if the two were parts of a unified strategy; what would be the outcome of such disjointed reform? And when that outcome ultimately took shape in the government's implementation of two Gove recommendations for a 'child centred" system- the Ministry for Children and Families and the office of the Children's Commissioner- I wondered how the process I first noted in baby Paul's story- the puzzle- would play out, and why. I am not going to walk through a 'review of the literature" from Dr. Henry Kempe and his "discovery" of 'child abuse syndrome" in the 1960s onwards. I am not concerned here with trying to define what child abuse 'really is", how often it 'really happens", or who 'really does it", although each of these questions has its own wide, and interesting, implications.3 I am interested, rather, in the challenge posed by child protection to individualism and liberalism4 more generally. Child protection is problematic because it 3 i t should be apparent that, if mistreatment is to be defined... as part of a wider analysis of the nature of our society, then questions about its true incidence or true prevalence become meaningless. Attempts to describe the epidemiology of abuse and neglect and, from that, to make inferences about aetiology are refractions either of the moral judgements of the investigator or of the practical decision making of child protection agents. We do not wish to argue that nobody has the right to make such judgements, nor are we trying to discount the suffering of many children by treating our response as something which has its origins in the culture of our society. What we do insist upon is that abuse and neglect come to exist as socially recognisable phenomena, and hence as a cause of action, only as a result of processes of identification, confirmation and disposition within health, welfare and legal agencies. They cannot be discussed intelligibly without an understanding of the way in which such processes operate, an understanding which must necessarily be moral, rather than technical." Robert Dingwall, John Eekelaar and Topsy Murray The Protection of Children: State Intervention in Family Life (Oxford: Basil Blackwell, 1983) at 3. A The liberal values of individualism, freedom of expression, and freedom from both State and communal interference pull together in sharp focus in the context of child protection; whatever the coherence of a 'liberal paradigm" outside the child protection context, it has both meaning and relevance here. My interpretation of maximum parental autonomy/liberty as a 'high liberal value" arises from its explicit political (see the legislative debates, infra, Chapter Two) and legal (see B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315) identification with fundamental liberal freedoms and from my own identity and experience of the 'liberal way of thinking" within my world. Of course, the process I 3 brings into direct conflict two opposing, and important, social values: liberal (adult) individualism on the one hand, and the communal interest in child well being (including humanitarian and civil/moral order interests) on the other. 5 The welfare of children is a crucially social concern; all of us have an intense interest in children both as children and as future adults. 'Deviant" children frighten6, as hurt children harrow (of course children may be 'deviant" and 'hurt" at the same time, inspiring both reactions simultaneously). Incapable of functioning as adults, those once "deviant'/hurt children may be even more frightening, or merely anger and worry the communal group by their inability to live and work productively. am describing may not be uniquely 'liberal" (see J. Eekelaar, supra, note 7), but I suggest that these issues have a particular and profound resonance in a high liberal society such as Canada. 5 This 'communal interest", central to understanding children and child protection in the modern liberal context, refers to the non-official 'public"- 'civil society", perhaps. My use of these words- community, the State, the individual- is particular to their function within, and as the context for, child protection. Because of the particular 'communal interest" in children 'the community" in the sense of a 'hon-official public" whose shared interest groups them, makes sense here. The 'community" is a slippery fish, with many different meanings. Re the child's community this large notion of community is not useful; the child's community comprises those around him that are neither charged with his upbringing nor paid by the state to 'protect" him; a localised community in which the broad communal interest focuses on individual, known children (the broader interest remains, alongside as it were, and so we see that when a far away child's sad tale becomes known, that focus may then pull him or her into this tighter community). There is also an official way in which the word is sometimes used in child protection, to mean State child protection whose organisation and membership is locally controlled and responsive to local conditions, as opposed to a more homogenous 'system" formed in the centre and merely implemented on the local level. This is not the meaning I give 'community" here; I use 'community" to identify group interests which are not official, neither located in or endorsed by the State. Crucial to 'community" as I use it here is the (self and official) perception that community members are not charged with the protection of children; it is not their business. 6 See Robert Dingwall and John Eekelaar, "Victims or Threats? Children in Care Proceedings" (1982) JSWL 68 at 71; 77. The connection of delinquency with the home environment (which, the authors argue, is not a 'niodern" or psychological realisation) is a key aspect of the social interest in child upbringing and child welfare: the communal interest in children. Child protection is about child victims but also, in this sense about "deviant" children. 4 Chapter One begins with an analysis of the child protection problematic: the conflict between communal and individual interests, and between the 'humanitarian" and 'liberal" mores. In liberal societies, this communal interest is delegated to the State.7 This delegation has transposed the conflict between the communal interest in children and (adult) freedom into a political question about the relative rights/powers of the individual and the State. The central issue in child protection has thus become the extent to which the State should be permitted to interfere in family life: the non/interventionist debate. The problem of acceptable State intervention in private family life for the protection of children has been accommodated within a 'liberal compromise" maintained by a "rule of optimism", that the State may inspect the family provided that its agents make the best of what they find.8 The most significant effect of the compromise has been to minimise identified mistreatment, but 'Failures" both to protect family privacy and children at risk are inherent in the compromise.9 7 The private nature of child rearing within the family may be understood as an arrangement to further this 'communal" interest, whereby the public interest in children is best met when they are well cared for 'privately" by their parents. See J. Eekelaar, "What is Critical Family Law" (1989) 105 Legal Quarterly Review 244 at 255 8 R. Dingwall et al, supra note 3 at 91. 'State agents will not find proven deviance, as opposed to questionable diversity, unless presented with overwhelming evidence to the contrary." Ibid., at 89 9 "Uninvited surveillance is possible only as a result of a compromise which minimises the likelihood of identifying malpractice. The result is a system which is fully effective neither in preventing mistreatment nor in respecting family privacy, but which lurches unevenly between these two poles. A degree of 'agency failure" is inherent in the compromise." Ibid., at 219. 'Persistent failure" is a significant problem for professionals, contributing to social worker 'burnout" and turnover (an additional, subsequent difficulty for child protection systems). If known, failure becomes a public, and political, problem; in Canada, acknowledgment of the child welfare system's negative impact on First Nations communities is a significant feature of child protection failure. 5 A system of non-interventionist legislation, in a 'family centred" policy/political context equating family support and child protection, developed in response to increasing public (including political) and professional awareness of these failures as systemic, rather than accidents or mistakes.10 I have called this reform trend, comprised of the legislation and its context, the 'non-interventionist paradigm". Child deaths are rationalised within the paradigm as regrettable, but not avoidable, accident-like events. The problem for this idea, however, is that the public does not read11 stories about the death (the most obvious form of child suffering) of children 'known to social services" in this way (returning to the communal interest in children, 'behind", as it were, the very existence of a State system for the protection of children: 'the system's" raison d'etre). The legitimacy and coherence of the 'non-interventionist" paradigm, therefore, depends on the disappearance (explained as both respecting family privacy and the professionalism of child protection workers) of child deaths inside 'the system". The disappearance of child deaths is part of the non-interventionist paradigm. Chapter Two considers the ascendancy of the non-interventionist paradigm in British Columbia in the early 1990s, a case study demonstrating the development of the paradigm as a response to perceived failure,12 the paradigm's persuasive political appeal, and its resonance with intuitive liberal values. The legislative debates during the passage of the 1 0 The paradigm's popularity and rapid ascension is also connected to its inter-ideological political appeal, and its resonance with liberal norms of privacy and conflict avoidance. 1 1 Using the word in the sense of interpretation, and in its more literal sense, as 'the public" learns about the death and suffering of stranger children largely through the media. 1 2 In British Columbia, the emphasis during this time period was on the failure of the system to protect families. 6 Child, Family and Community Act dramatically demonstrate the width and the depth of this appeal; they also signify (as do the Community Reports preceding the Act) the particular context in which the 'hon-interventionist'Mc/ was introduced, which is a crucial element in my analysis of the "paradigm".13 Chapter Three of this thesis considers in some detail the collected British child death inquiries (Chapter Four continues in this vein with a fairly close consideration of the Report of the Gove Inquiry into Child Protection) There are several reasons for this. Firstly, the inquiries illustrate the systemic nature of the 'rule" as opposed to a series of isolated, individual decisions or 'accidental" outcomes. The stories told in these inquiry reports demonstrate, and make sense of, a liberal system of child protection . My analysis begins, and remains situated in, a particular 'high liberal" context; therefore, I think it necessary to establish, prove, and, most importantly, show (hence the detail) patterns in liberal child protection: the "liberal compromise" at work. I also want to include these stories, with sufficient detail to suggest their power as stories, because I think their emotional effect on the reader is important; after the delegation of the communal interest in children to the State, public inquiries are the space in which the community's legitimate interest lives. The public interest in child protection is important and powerful; it has, to a considerable extent, determined the sequence of events in British Columbia's reform process, from legislative reform, to the creation of the Ministry for Children and Families and the Children's Commissioner. This public interest is both 1 3 The ,4c/ by itself does not create or, in a different context, sustain the "non-interventionist paradigm" 7 expressed in and informed by the stories of the inquiry reports. This Chapter considers the dual narratives (the 'minority" and 'rnajority" reports) of the Maria Colwell inquiry in quite close detail because the two stories dramatically illustrate the existence of a (professional) cultural 'rule of optimism" and the perceptual distance between social work 'insiders" and 'outsiders". This last point, in particular, is relevant to the Report of the Gove Inquiry into Child Protection and its aftermath (considered in Chapters Four and Five), when public exposure of the non-interventionist paradigm made that paradigm untenable, preparing the ground for British Columbia's new "child centred" structure. The repetition in the inquiry reports is itself extremely important, indicating systemic 'rules" and the apparent inability of the reports and their recommendations to change those 'rules" and the patterns they produce. Situating the Gove Report in the context of Chapter Three shows at once how the events recounted in the Report conform to general patterns and how the outcome of Gove- creation of the 'child centred" system- seems14 a quite startling departure. Most importantly, children are at the centre of this thesis, and I think the inquiry stories put them, firmly, there.15 It disturbs me to read about child protection and find the children are missing.16 This thesis considers in some detail the conceptual and political 1 4 The changes may, in fact, have little or no effect on these systemic patterns. 1 5 The stories, of course, are not the stories o/the children, but the stories of the inquiry reports; however, they bring the reader close to the child's story (as close, I suggest, as it is possible to get: given that, while the professional's focus or emphasis in 'telling the story" will be on the relationships involved, the "outsider's" inquiry focus will be on the child. 1 6 In which case the discussion, ostensibly about 'child protection", becomes about something else altogether. 8 aspects of child protection; the stories, in some detail, are necessary to bring the focus around. Chapter Four considers the Gove Report narrative (in some detail, for the reasons given above) as it is elucidated by: the conceptual analysis constructed in Chapter One;1 7 the particular, preceding context described in Chapter Two; 1 8 and the context of the inquiry reports contained in Chapter Three.19 Chapter Five considers what happened in British Columbia after Gove: why the dramatic structural changes recommended by Gove were quickly brought into being, the nature of those structural changes and the idea of 'bhild centred" protection, and the new system's potential for success, as a better way of protecting children without the unacceptably authoritarian intrusion of the State into private family life. Can it be done? This thesis draws quite significantly on the work of the British scholars Robert Dingwall and John Eekelaar.20 Their ideas have been very influential in the U K , 2 1 where their position has been characterised as "ht least a moderate state paternalist/protectionist position".22 Recognising the importance of protecting the family from authoritarian State 1 7 The conceptual analysis of a child protection problematic: the conflict, the compromise, and its "resolution" in a "non-interventionist" paradigm. 1 8 The ascendant non-interventionist paradigm, in which the death of Matthew Vaudrueil became a public scandal and the Gove Inquiry was initiated. 1 9 The inquiry reports patterns, and the seeming imperviousness of those patterns to change, and the Maria Colwell reports' dramatic illustration of the dissonance between the insider's" and 'butsider's" priorities and perceptions. 2 0 With Topsy Murray in The Protection of Children: State Intervention in Family Life, supra note 3. 2 1 See Chapter Three. 2 2 Lorraine Fox Harding, Perspectives in Child Care Policy (1991: Longman, UK) at 65. 9 intrusion, they nevertheless assert that the State cannot opt out of an active role in protecting the well being of children. Therefore, the ideas of conflict and balance are central in their analysis, and they reject an approach which purports to 'resolve" the conflict either by dismissing family autonomy as relatively unimportant or by equating child well being and family autonomy (as in the approach I characterise as the 'non- interventionist paradigm'). This approach is challenging, requiring a constant, delicate balancing and 'trading off' where the stakes on all sides are extremely high, but a 'successful" child protection system- built around a child centred perspective without an unacceptable level of professional authoritarianism- depends on such a conceptualisation. Reading the background papers prepared for the Gove Inquiry, I noted that a researcher had considered looking at The Protection of Children: State Intervention in Family Life but decided not to do so.2 3 This was an unfortunate missed opportunity which I hope to rectify, at least partially, with this thesis. 2 3 Jane Dawson, 'Systems of Child Protection Governance in Various Jurisdictions", Report Prepared for the Gove Inquiry (1995) at 22, describes The Protection of Children: State Intervention in Family Life as "an ethnographic study of a child welfare practice in 'real life' looking at the ethos and culture which guides social workers decisions. It sounds interesting but may be a bit off topic and too out of date to be useful." 10 CHAPTER ONE UNDERSTANDING CHILD PROTECTION: CONFLICT, COMPROMISE, AND RESOLUTION Uninvited surveillance is possible only as a result of a compromise which minimises the likelihood of identifying mistreatment. The result is a system which is fully effective neither in preventing mistreatment nor in respecting family privacy, but which lurches unevenly between these two poles. A degree of "agency failure" is inherent in the compromise.1 Public anxiety and hostility gathers as it becomes apparent that the child protection system is failing to meet its contradictory goals: preventing child mistreatment and supporting the "autonomy and integrity" of the private family".2 The child protection "pendulum" swings between the public's discomfort at these opposing points of failure.3 An important political task in child protection is thus explanatory: the apparent reconciliation, for the public, of this contradiction (and with it, the explanation for- or disappearance of- failure). The conflict between family privacy and a communal interest in child well being and the prevention of child mistreatment has been managed systemically within a "liberal compromise",4 that the State may inspect the family provided that its agents make the best 1 Robert Dingwall, John Eekelaar and Topsy Murray The Protection of Children: State Intervention in Family Life (Oxford: Basil Blackwell, 1983) at 219. 2 The social worker's "thankless task"; Report of the Inquiry into Child Abuse in Cleveland 1987 (London: HMSO, 1988) at 85. 3 Legislative reform following major inquiries in Great Britain and in Ontario (see C. Robertshaw, Outline of key legislative issues relating to child abuse (Ottawa: Health and Welfare Canada, 1981)) do not seem to have significantly altered the way child protection works; hence the persistence of the themes and patterns identified in the inquiry reports, through two decades and their legislative changes, and hence the recurrence of child abuse crisis and reform. 4 R. Dingwall et al, supra note 1 at 91. 11 of what they find. The most significant effect of the compromise has been to minimise identified mistreatment. By the 1980s, however, it was increasingly clear (to professionals and the public) that neither children nor family privacy were adequately protected within the compromise. "Non-interventionist" child protection, which appeared to reconcile the problematic by subsuming child protection within family support, became the modern reform paradigm (as a response to perceived failure, and as an idea with wide political appeal, resonating with liberal norms of privacy and conflict avoidance). The non- interventionist paradigm codifies the "compromise", with dangerous results for children, as the "compromise" and its "rule of optimism" work to frustrate the worker's (and, with codification, the public's) ability to see and comprehend child suffering. Child protection is "problematic" 5 because it brings two important cultural values into direct and irreconcilable conflict: individual freedom, including "basic" liberal "mores" and the idea of the autonomous private family as a "bastion of liberty"6 and counterbalance to the State, and the communal interest in the well being of children, involving the a public interest in civil, or moral7, order as well as the "humanitarian mores" of those wishing to alleviate the suffering of others. The problematic cannot be resolved by simply choosing 5 Developed from Waller's suggestion (W. Waller, (1936) "Social Problems and the Mores", American Sociological Review 1 922) that the perception of events as "problematic" arises from the interaction of two conflicting sets of mores: "the organisational or basic mores., 'those upon which the social order is founded, the mores of private property and individualism, the mores of the monogomous family, Christianity and nationalism' [and] the humanitarian mores held by those who feel an urge to make the world better or to remedy the misfortunes of others." Ibid. 6 Ibid., at 220. 7 See Robert Dingwall and John Eekelaar, "Victims or Threats? Children in Care Proceedings" (1982) JSWL 68. 12 one set of mores/values over the other (indeed, if such a simple solution were available the issue would not be problematic). Each is important, and known failure on either side of the conflict- (perceived) child mistreatment and (perceived) authoritarian State intervention - is unacceptable. This conflict between opposing and fundamental values makes the form of child protection problematic as the State struggles to avoid failure on either side yet, ironically, the conflict necessitates the existence of a State child protection "system". So long as this communal interest in child well being retains social power the high liberal value of privacy9 demands the creation of an overtly "neutral"10 public apparatus to watch over and protect children inside private families. The "liberal way of thinking", the internalisation of "moral minimalism"11 and the "public/private divide",1 2 structures normal 8 And here the "humanitarian mores" and civil/moral order issues discussed above are joined by the strong emotions aroused by stories about child suffering - the same response which "pillories" social workers, sells sensationalistic newspaper accounts of child abuse, motivates "child savers" and accentuates the modern strangeness of children in the liberal world. 9 Nikolas Rose has described the public/ private divide as one of many distinctions that together comprise the "liberal way of thinking"; "These oppositions shape our consciousness. When incorporated into legal discourse they induce beliefs that existing social arrangements are just, natural and legitimate." N. Rose, "Beyond the Public/ Private Division: Law, Power and the Family" (1987) 14 JLS 61 at 63; and see infra, note 12. Dingwall, Eekelaar and Murray described the liberal's aversion to interference with "parental rights" as "instinctual": "In a liberal democracy we almost instinctively reject both as authoritarian and dictatorial acts, infringements on the rights of adults to reproduce themselves on such occasions and in such fashions as they see fit." Dingwall et al, supra note 1 at 2. 1 0 I use this phrase in the sense that the State's action is arm's length, and can be subject to formal rules (see LaForest's suggestion that "family autonomy" be protected by the Charter, for example, B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 at 372), as opposed to the "community" (non-official actors- neighbours, friends, family, etc.); the use of quotes is intended to imply that this degree of neutrality is relative. 1 1 See M.P. Baumgartner, The Moral Order of the Suburb (New York, Oxford: Oxford University Press, 1988 at 90; 129. 1 2 See supra, note 9, and infra, note 16. 13 social relationship so as to make the "intervention" of non-household members into "private" family life counter-intuitive. Family privacy is a powerful inhibitor of personal action on behalf of other people's children, making it difficult even to know children apart from those inside your own private domain, yet the diffuse "public" interest in, and anxiety about, these hidden children remains. The delegation13 of this communal interest (and responsibility) to the (relatively) "neutral" and regulated State14 accommodates that interest within liberal social norms; a compromise, of sorts. The creation of an impersonal State mechanism for the protection of children recognises the limitations of family privacy for children, and for "outsiders"15 without confronting the internalisation16 of that idea (and the question of whether its costs 1 3 Cf. K. O'Donovan, Sexual Divisions in Law (London: Weidenfeld & Nicolson, 1985) at 57. O'Donovan describes the 19th century relationship between law and family in terms of a delegation of authority by the State to the husband; and see Nikolas Rose's critique of this conceptualisation of a delegation of power from the top down: "To suggest that these transformations originate in the state, and amount to allotting powers to husbands and to fathers, or to coercive welfarism benign by ideology, is to obscure the new types of powers and relations between individuals, experts, professionals and authorities which have taken shape over the last century, and the ways in which the subjectivities, responsibilities and aspirations of both women and men have been transformed." N. Rose, supra note 9, at 69. 1 4 Dingwall, Eekelaar and Murray make the point that children can't protect themselves and must rely on others to do so; originally voluntary organisations of concerned citizens did this, increasingly it is a matter for the State, Dingwall et al, supra note 1 at 12. I want to suggest that this movement, from the "unofficial" community (extended family members, neighbours, otherwise influential community members such as religious leaders- those not specifically charged with the protection of children) through voluntary organisations ("official" community members) to the State is connected with the increasing domination of individualism in social relations. 1 5 People outside the household for whom other people's children are not a professional concern. 1 6 "ideas which form the inarticulate core of social and legal systems have effects which are both subtle and profound. One idea historically unique to the West and embedded in the socio-legal system has deeply influenced state-parent relations, the social construction of child abuse and the purpose and threshold of state intervention. This is the private/public distinction... It is only in hard cases of severe failure and disclosed injury that the private becomes public. This too, confirms the validity of controls in place in those families not exposed to public scrutiny." Anne McGillivray, "Reconstructing Child Abuse: Western Definition and Non-Western Experience" in M. Freeman and P. Veerman, eds., The Ideologies of Children's Rights (Dordecht, Neth.: Martinus Nijhoff Publishers, 1992) at 213-214. I suggest that this 14 are worth its benefits). Indeed, child protection legislation which empowers the State to "intervene"17 in the family re-enforces the inappropriateness of "intervention" by non- officials18 and the normal Tightness of the closed family. And so this "hard case for liberal democracy" is isolated within the "neutral" State system and, crucially, re-invented as a problem for "expert"20 resolution. Both particular idea connects with other inarticulate "core" ideas, notably "moral minimalism" and the avoidance of confrontation described by Baumgartner in her study of the Moral Order of the Suburb (supra note 11 at 73; 90 and 129), to form the matrix of expectations and approved behaviour within which the socialisation of the "normal" liberal character takes place. 1 7 Bearing in mind Frances Olsen's argument that "intervention" and "non-intervention" are meaningless here. "As long as the State exists and enforces any laws at all it makes political choices" and the political choice between what is "private" and what is "public" structures consciousness, behaviour, and power relations. F. E. Olsen, "The Myth of State Intervention in the Family", (1983) 18 UMJLR 835 at 837; see also F. E. Olsen " The Family and the Market: A Study In Ideology and Legal Reform " (1983) HLR Vol. 96 1497. Dingwall, Eekelaar and Murray describe the irrelevance of "intervention" as the State's inability to "opt out" as a natural condition of the State's "collective interest" in its future citizens: the State cannot opt out without harming its own interests. Dingwall et al, supra note 1 at 220. But like "family privacy" and "the community" (discussed infra) if "intervention" is a fiction that fiction has its own power and purpose. 1 8 This realisation informs Justice Brennan's dissenting judgement in DeShaney v. Winnebago County Department of Social Services 109 S. Ct. 998 (1989) at 1011: "Through its child welfare program... the State of Wisconsin has relieved ordinary citizens and governmental bodies other than the Department of any sense of obligation to do anything more than report their suspicions to the DSS". Joshua DeShaney was beaten repeatedly by his father, suffering acute brain damage in a final episode at age four. The child, and his mother, sued the DSS for failing to protect Joshua despite strong evidence that he was at risk, depriving him of his liberty in violation of the due process clause of the 14th amendment. The Court found the purpose of the due process clause was "to protect the people from the State, not to ensure that the State protected them from each other" supra at 1003; "the State may have been aware of the dangers that Joshua faced... [but] played no part in their creation, nor did it... render him any more vulnerable to them", supra, at 1006. See T.A. Eaton and M. Wells, "Governmental Inaction as a Constitutional Tort: DeShaney and its Aftermath" (1991) 66 WLR 107; also Martha Minow, "Words and the Door to the Land of Change: Law, Language and Family Violence" (1990) 43 VLR 1665 for an interesting discussion of the DeShaney case. 1 9 Perhaps children are the hard case for liberal democracy; not only does their demand for collective care and concern conflict with the core liberal values of individual freedom, but their situational distance from "rights bearers", makes children's rights problematic, further isolating children within liberal culture and so increasing their vulnerability. See Martha Minow, "Rights for the Next Generation: A Feminist Approach to Children's Rights" (1986) HWLJ 9:1. Michael Freeman argues that rights are crucial "moral coinage": "Rights give their holder dignity and confidence. Benevolence is no substitute... Children's 15 professionals and public have an intense (and intensely covert) interest in the success of this delegation while, at another level, both sides acknowledge the impossibility of the arrangement. The mutual hostility and blame (directed at self and other) generated by this many layered subterfuge has created a sustained, secret hysteria in both the "system" and the public, which briefly flares into view in the public aftermath of high profile "lightening rod" child abuse scandals.21 The crucial point is that this process has already happened; it is dangerous to pose, without addressing the internalisation of personal non-intervention (or privacy) as a cardinal social value, the "return" of child protection to the community22, as this "community" (used here in the sense of a general population of adults willing and able to assume "public" responsibility for "private" children) does not exist.23. rights, or their absence, are very much key to the understanding of abuse and neglect. Children without defined rights are by definition vulnerable." M. Freeman, The Rights and Wrongs of Children (London: Frances Pinter, 1983) at 33. The child's position as a non-rights holder within a society of adult rights holder makes the child an "object" rather than a "human being, living outside the ambit of "human rights" and creating a cultural climate conducive to abuse and neglect. Ibid, at 104, 124. 2 0 Specifically, child welfare workers (if necessary, the law). 2 1 Anne McGillivray describes how "lightening rod" "child abuse cases concentrate concern and dissolve general responsibility for the young: a "seemingly swift and decisive state response in selected cases does little to challenge 'normal' practices but provides the appearance of a caring society." (supra note 16 at 213-214.) I agree with this analysis as far as it goes, but the relationship between the public and "lightening rod" child abuse scandals is, I believe, significantly more fraught than McGillivray suggests here. See also Michael Freeman, supra note 19 at 108 re the "lightening rod". 2 2 In frustrated response to the chronic problematic-ness attached to State child protection. I emphasise that I am discussing here definitively liberal ways of thinking and acting- other groups, specifically First Nations families and communities, stand apart from this framework. 2 3 M. Barrett and M. Mcintosh argue that the strength of the private family has an inverse relationship to community weakness; "The family sucks the juice out of everything around it, leaving other institutions stunted and distorted." The Anti-Social Family (London: Verso, 1982) at 78. I would argue that it is the 16 The "liberal way of thinking" 2 4 about the world makes a "community" of liberal citizens capable of effectively assuming responsibility for other people's children not only difficult but counter-intuitive.25 The State, then, becomes the only collective capable of protecting other people's children,26 complicating the underlying conflict between the communal interest in children and the freedom and autonomy of their parents, and posing the "liberal's dilemma": "For the liberal the unresolved problem is how child rearing can be made into a matter of public concern and its qualities monitored without destroying the modern iconic figure of The Individual, always sexualised, always consuming, which has "sucked the juice" out of everything around it; the family's power is vis a vis other groupings, and derived from its identity as the most "individual like" of social groupings. The tragedy, perhaps, is that Barrett and Mcintosh's analysis may be combined with Lasch's notion of the modern family as increasingly penetrated on all sides by "the world" and so drained of the psychological intensity Lasch considered integral to formation of the liberal personality: the fictive "strong family", socially valued for its relative resemblance to the individual, "sucks the juice" out of other social arrangements, but once inside the family, per Lasch, there is nothing there. See Christopher Lasch, Haven in a Heartless World: The Family Besieged (New York: Basic Books Inc., 1977). 2 4 To lift a neat phrase out of its context in D. Kennedy, "The Stages of the Decline of the Public/Private Distinction" (1982) 130 UPLR 1349 (used, supra note 9 by Nikolas Rose). I use this phrase to mean Anne McGillivray's "Ideas which form the inarticulate core of social and legal systems [and] have effects which are both subtle and profound" (supra note 16) in the particular context of child protection (the "liberal way of thinking" is quicker and as evocative). I make no wider assumptions about these concepts outside of the particular problem of child protection. 2 5 Indeed, as the absorption of potentially disruptive impulses of revenge and vigilantism is part of the police officer's social job, the absorption of community anxiety and/or concern about "private" children is part of the social worker's role. One pattern arising from the inquiry reports is the imperviousness of the "system1' to "civilian" complaints: it seems astonishing, obtuse, until one realises that this mere absorption in a crucial part of social work's job. 2 6 "The parent/child relationship is an unequal contract, which children do not enter freely. At the same time, both children and the society as a whole have a vital interest in the success of that relationship, in cultivating the capacity for responsible moral action. The only body with the legitimacy to survey the whole population is that which, in liberal principles, is accountable to the whole population- the state." R. Dingwall et al, supra note 1, at 220. 17 ideal of the family as a counterweight to state power, a domain of voluntary, self- regulating action."27 The Liberal Compromise The picture of decision making in child mistreatment that has emerged from this study clearly contradicts one fashionable view: that child protection agencies are rapaciously scouring the homes of the poor for children to seize. We have clearly shown that, at each and every stage, the structures...have the effect of creating a preference for the least stigmatising interpretation of available data and the least overtly coercive possible disposition. Officially labelled cases of mistreatment are, quite literally, only those for which no excuse or justification can be found.28 The conflict of "mores" and interests is contained, effectively sheared off from "everybody's" responsibility and "everybody's" life, but it remains, now the concern of child protection workers and their "clients" and those bystanders- neighbours, teachers, friends- who may find themselves unexpectedly and unwillingly involved in the kind of moral decision making officially designated to the State and its agents. Such a bystander, unprotected by the distancing of the State worker's official role, will be in a painful moral position, inhibited by very strong internalised social constraints while feeling the pain of her anxiety and fear for the child; experiencing the "liberal's dilemma" on an individual, internalised level. The delegation of responsibility from neighbour, or "community", to the State reduces intimate interference by intensifying its inappropriateness and, therefore, its problematic- 21 Ibid. 28 R. Dingwall et al, supra note 1 at 207. 18 ness. The authoritarian potential of State intervention29 requires its weakness: "Indeed, strong agencies are often regarded as the mark of an illiberal state... State agents will not find proven deviance, as opposed to questionable diversity, unless presented with quite overwhelming evidence. Parents may have problems or treat their children in ways other than those preferred by the front-line worker: they are not, however, so bad as to be conceived of as abusive or neglectful."30 This is the "liberal compromise" and its interpretative "rule of optimism": "the principle that, in a situation of uncertainty, child protection workers should favour the interpretation of signs and symptoms which least stigmatises parents. If you like, parents should be viewed as 'innocent until proven guilty'". 3 1 In 1983 Robert Dingwall, John Eekelaar and Topsy Murray published The Protection of Children: State Intervention in Family Life, an ethnographic study of "what the relevant agency staff considered to be child mistreatment and how this constructed a particular population of identified cases."32 The researchers chose three very different local authorities throughout England, excluding London. 2 9 The welfare relationship is a more "normal" state/individual relationship, and the rhetoric of "modern" child protection is, among other things, about trying to defuse or normalise the problem by recasting child protection as "welfare" (the provision of services with the "client" parent as voluntary- "supplicant" receiver). See R. Dingwall et al, supra note 1 at 91. 3 1 R. Dingwall, "Labelling Children as Abused or Neglected" in Child Abuse and Neglect: Facing the Challenge Wendy Stanton Rogers, Denise Hevey and Elizabeth Ash, ed. (London: BT Batsford in association with the Open University, 1989) at 162. 3 2 R. Dingwall et al, supra note 1, at 20. The authors made no claim to define what child abuse "really was". 19 Our basic hypothesis is that abuse and neglect are the products of complex processes of identification, confirmation and disposal rather than inherent in a child's presenting condition and, at least in some sense, self-evident. If this is correct, then we would expect to find areas of uncertainty where the appropriateness of defining a particular child as abused or neglected was a matter for debate. It may be possible to limit these areas by formalising decision rules. Some authorities, for instance, issue front-line workers with checklists of signs thought to be indicative of mistreatment. Nevertheless, at some point, someone must actually33 decide whether a child is or is not a member of the class of mistreated children. In designing the study, therefore, we sought to observe occasions on which such choices were made and to question the participants about their decision making procedures.34 The authors identify the "central fact to be explained by any analysis of decision making in child protection" as "the rarity of allegations of mistreatment"; " i f a strict liability approach based on clinical evidence was actually enforced, both accident departments and child health clinics would overflow with identifications of child abuse."35 Some children, of course, are identified and labelled as abused and neglected. "The central issue is not the actual condition of the child but the explanation of that condition, specifically the degree to which the child's parents can be formulated as the sort of people who could be capable of bringing such a condition about."36 3 3 Although, as discussed infra in Chapter Three, procrastination and unwillingness to take responsibility for such a decision is a significant filter and limit on State action. 3 4 R. Dingwall et al, supra note 1 at 31. 3 5 R. Dingwall, supra note 31 at 160. Prof. Dingwall goes on here to consider the exception, discussed in greater detail infra, which proves the "rule": Cleveland. "Something like this appears to have happened in Cleveland and precipitated the chaos which led to the subsequent inquiry. But since this is so obviously an exceptional state of affairs, a different analysis is needed to understand what is going on." I would suggest that Dingwall's analysis of Cleveland as involving an inversion of the "rule of optimism"-a "rule of pessimism"- may be important to understanding the dramatic over-representation of First Nations children in the child welfare system; see infra at 26. 3 6 Dingwall et al, supra note 1 at 179. The point of agreement with the "progressive" or "left wing" critique of children protection as the judgmental and punishing State manifest is fleeting and misleading. In this analysis, value judgements based on "social evidence" are structurally key to the weak, non- authoritarian child protection system which works within the liberal State, their purpose to avoid coercive intervention (as opposed to a characterisation of value judgements- the infamous "middle class values"- as a means of coercion). 20 If we were to test our findings about the clinical and social features of cases used as criteria by agency staff by turning them into operational rules from which we could make predictive statements about decisions in particular cases, we would vastly over- identify by comparison with the decisions actually made. The reconciliation, we have suggested, is accomplished by an additional assessment of parents' moral character as revealed partly through their demeanour and partly by inspection of those aspects of their life which can be seen to lie within their own control. That assessment, however, is conducted under what we might term a '"rule of optimism", that staff are required, if possible, to think the best of parents.37 Dingwall et al borrow from the "framing" analysis developed by P .M. Strong38 to describe the encounter between doctor and patient, in which Strong shows how parents are assumed to be honest, competent and caring and the disorders of their children to be natural events. Where the evidence for such assumptions was weak or absent, doctors engaged in various kinds of inter-reactional work which attempted to "reconstitute the parents' character within the principles of the frame."39 The authors found that this filtering process in the doctor's office or emergency room was continued within the "frame" of social work practice through a second, finer screening to limit cases which would require the State to act coercively. Cases which have made it to social services will virtually always involve a finding of parental "deviance"; the task at that level is to reconstitute, or explain, the adult as a plausible parental character. The consecutive frames through which an identified case of child maltreatment must pass are functional. The inquiry reports, discussed infra Chapter Three, identify lack of communication and co-ordination between the various agencies/individuals who may be R. Dingwall et al, supra note 1 at 79. P.M. Strong, The Ceremonial Order of the Clinic (London: Routledge and Kegan Paul, 1979). R. Dingwall et al, supra note 1 at 39. 21 involved with a child as a theme in child protection "disasters"40. This focus is correct, as the failure to "work together" is responsible for children "falling through the cracks", but this failure has a key function within the "liberal compromise"41; it is not a mechanical problem to be spotted and fixed. This accounts for its persistence, despite its identification, over and over again, in the reports.42 "The liberal compromise" describes the following rough accommodation: "that the family will be laid open for inspection provided that the state undertakes to make the best of what its agents find". 4 3 "The rule of optimism", the operational result of two institutionalised "neutralising" techniques or devices - cultural relativism and natural love-" makes the compromise work: 4 4 "Singly or together they provide, on the one hand, for a highly elastic approach to parental deviance and, on the other, for the charge of deviance to be a matter of such gravity that workers are understandably inhibited from making it". 4 5 4 0 From R. Dingwall's discussion of B.A. Turner's "disaster" analysis in the context of child protection, R. Dingwall, "Reports of Committees: The Jasmine Beckford Affair" (1986) 49 MLR No. 4 489. 4 1 The "division between autonomous agencies institutionalises a set of checks and balances which effectively restrict the identification of mistreatment" Dingwall et al, supra note 1, at 77. 4 2 "The division of information and inhibited flows between child protection agencies, which have been criticised by many reports... can be analysed as a significant structural barrier to over-zealous intervention. The division of regulatory labour is not an organisational pathology but an important restraint on damaging allegations or intrusions against families." R. Dingwall supra note 31, at 499. 4 3 R. Dingwall et al, supra note 1 at 91. 4 4 "The liberal compromise, that the family will be laid open for inspection provided that the state undertakes to make the best of what its agents find, is enshrined in these two devices. State agents will not find proven deviance, as opposed to questionable diversity, unless presented with overwhelming evidence to the contrary." R. Dingwall et al, supra note 1 at 89. 4 5 Ibid., at 89. 22 Cultural Relativism and Natural Love What we found... were two institutionalised devices- cultural relativism and natural love- which combined to eliminate the overwhelming majority of potential cases by allowing front line workers to prefer an optimistic reading of client behaviour. These neutralised deviance in advance of any particular challenge.46 "Cultural relativism" justifies behaviour or characteristics which would otherwise be classified as deviant by recasting them as "not abusive or neglectful but positive attempts to comply with alternative normative standards that would allow them to be recognised as appropriate parental behaviour."47 The more obvious the "cultural" difference the stronger the justificatory power but this device may characterise almost any behaviour as "cultural", and so has almost limitless explanatory application: "Cultural relativism has no internal limit... It is indefinitely extendable, so that any small group or articulate individual can find their own theories being elevated to the status of a culture and turned into a justification. What may seem like eccentricities or perversions are elevated into cultural statements".48 The "excuse of natural love" recognises "deviance" but with-holds moral liability;49 if there is any sign of emotional warmth parental conduct can be excused:50 "If it is assumed that 46 Ibid., at 82. 47 Ibid 48 Ibid., at 89. And so "cultural relativism" in this sense applies to the living conditions which eventually killed Malcolm Page, Steven Meurs and baby Paul, among others, as it does to Mr. Kepple's "Irish" sensibilities: see infra, Chapter Three. 4 9 Ibid., at 86. "An excuse is an means of discounting otherwise unacceptable behaviour because the people involved are, for some reason, incapable of acting responsibly." R. Dingwall, supra note 31 at 162. 23 all parents love their children as a fact of nature, then it becomes very difficult to read evidence in a way which is inconsistent with this assumption. The challenge... amounts to an allegation that deviant parents do not share a common humanity with the rest of us."5 1 This assumption also makes it difficult for parents who do not feel themselves to be "safe" with their children to be frank about their situation. "Withdrawal of parental compliance" and "failure of agency containment" are identified in Dingwall and Eekelaar's analysis as the triggering events for a "more investigative" approach.52 Parental opposition "undercuts the parent's moral character within the liberal compromise that trades the rule of optimism against co-operation with surveillance agencies" while (as agencies share the liberal preference for minimal intervention) social workers may be forced to use compulsory measures if "co- operation" is not possible.53 "Failure of containment" occurs when "knowledge of the family's situation spreads beyond a group of front line workers"; the more agencies are drawn in, the greater the possibility that the family will come into contact with agencies "whose staff are more insulated from the rule of optimism."54 5 0 R. Dingwall, supra note 31 referring to the The Protection of Children: State Intervention in Family Life study. Prof. Dingwall continues: "Some of the saddest cases in our study, for instance, involved the children of mentally handicapped parents. These parents clearly had considerable affection for their children, but were incapable of providing for their care, to the extent of causing great physical and mental suffering." 5 1 R. Dingwall et al, supra note 1 at 87. 5 2 Ibid., at 92. 5 3 Ibid., at 96. 54 Ibid., at 96-97. One pattern from the inquiry reports, discussed in some detail infra, Chapter Three, is the striking divergence between the observations/perceptions of the police with those of social workers. To the outsider, the police officer's perception feels real, what any possessor of "common sense" would 24 After the decision to investigate (and at any point in the decision making process) parents may successfully deflect a finding of abuse and/or neglect i f they can bring their circumstances within a persuasive "excuse or justification". Among these, Dingwall et al identify the following accounts as likely to succeed. 1. "Parental Justifications": parents admit the "deviant" facts but argue "that the act has been misinterpreted either because the observer has incorrectly applied correct standards or has correctly applied incorrect standards".55 "Parental justifications" include denial of injury (as "discipline" or something peculiar to the child, in the examples given); denial of the victim (the child is naughty or otherwise brings it on himself); condemning the condemners (what gives the social worker the right to define acceptable behaviour?); "sad tales" (stories of their own unhappy childhoods); appeal to loyalties and self-fulfilment (the acts complained of are admitted but justified by reference to different philosophies of life, religious beliefs, for example). 2. "Parental Excuses": the parent admits the deviant act but "denies moral responsibility by virtue of an impairment of his or her capacity".56 Parental excuses read from a given scene. The police officer, of course, stands outside of the social worker's frame; the officer seems to stand in for the public in some report (and media aftermath) narratives. Some reports describe social workers excluding police officers from the decision making process, apparently for this reason. Again, the striking exception is Cleveland, where it appears the doctors' decision to step completely outside their "normal" frame tipped the balance of roles- the job of each official player within the liberal compromise- into disorder. 5 5 Ibid., at 198. 5 6 Ibid., at 202. 25 include: appeal to accident (the child was hit, but the severity of his injuries are not the consequences of the blow, i.e. he fell on something); appeals to defeasibility (that the adult did not know about the consequences of his acts, or that he was drunk, or mentally sub-normal, or suffering from a mental illness); appeal to biological drives beyond control (in the case of sex offences); an appeal to scapegoating (where the child is so provocative that the adult cannot control themselves): "Once again, some kind of mysterious force overwhelms the possibility of human agency."57 In Great Britain, the "rule of optimism" became a "catch-phrase to describe professional naivete"58 through its use in the inquiry into the death of Jasmine Beckford in 1985.59 Objecting to this "misunderstanding", Robert Dingwall characterised the "rule" as a "response to both an organisational and a psychological problem... one of the ways in which people and organisations defend themselves in situations where they are being expected to make complex decisions on the basis of insufficient information and limited resources": It would not be a simple matter to invert the rule of optimism into a rule of pessimism.... If child protection work is ineffective, it is not because of a disrespect for the legal duties of the agencies involved. It is because child protection must be reconciled with other important social values, most particularly those of the freedom and autonomy of families. The surveillance of families by occupations like health visiting is only possible because of the tacit bargain that parents will not be harshly judged, that it is an occasion for them to demonstrate their respectability rather than have it minutely judged. A rule of pessimism would require a greater use of compulsory power and confrontation. This was graphically demonstrated in Cleveland where social services 5 1 Ibid., at 203. 5 8 R. Dingwall, supra note 31at 163. 59 A Child In Trust: The Report of the Panel of Inquiry into the Circumstances Surrounding the Death of Jasmine Beckford [Louis Blom-Cooper] (Wembley, Middlesex: London Borough of Brent, 1985). 26 adopted the more pessimistic approach recommended by Blom Cooper [in the Beckford Inquiry]. Their attempt to treat all referrals as suspect until proven otherwise exploded in a barrage of political and media outrage at this threat to the ideals of family life.60 The rule is an operational rule which makes State child protection in a liberal context possible; it is, indeed, "systemic" in the deepest possible sense (and whether a "child centred" model of decision making is able to modify this rule remains to be seen). The pattern of practice noted by Blom-Cooper and others (including Thomas Gove) in the series of child death inquiry reports from Maria Colwell onwards is evidence of the rule's fundamental importance to social work practice. The "neutralisation" techniques61 of the "rule" also "work" to address the social worker's problem of "persistent failure", a "latter day equivalent of the problem of theodicy":62 "cultural relativism and natural love are accounts which front line workers can use to bridge the gap between their own ideals and the realities of their practice, that their impact can be no more than marginal in a liberal society... [and allow workers] to reconstitute families as having some integrity and personal worth through which gains can be made, however slight."63 The often uncomfortable relationship between the public and the child protection system may be understood by reference to the fact that the public stands outside of these explanatory devices. The public 6 0 R. Dingwall, supra note 31 at 164. 6 1 Cultural relativism and natural love. 6 2 Dingwall et al, supra note 1 at 89, theodicy being a vindication of the justice of God in a world in which evil exists. 6 3 Ibid., at 90. 27 understands persistent failure as failure. The public child death inquiry may be understood as the final "failure of agency containment". A Rule of Pessimism? Child Protection and First Nations Communities It is now conceded by almost everyone in the field that the child welfare system has not operated in the best interest of Native children, families and communities. The evidence contained in the statistics... is overwhelming. In fact, a 1980 meeting of child welfare experts from across Canada referred to the plight of native children as a "national tragedy".64 Robert Dingwall has characterised the 1987 Cleveland crisis in the U K , in which the use of proactive diagnostic techniques for child sexual abuse produced a sudden and drastic increase in diagnoses, as suggesting an "inversion" of the rule of optimism: a "rule of pessimism." The "plight" of First Nations children65 may reflect a similar inversion of the general "rule of optimism" that the State's agents will prefer least stigmatising interpretation of available data and the least overtly coercive possible disposition: One longtime employee of the Ministry of Human Resources in B.C. referred to this process [the escalation in the numbers of first nations children in care in B.C. between 1955 and 1965, from almost nil to one third] as the 'Sixties Scoop'. She admitted that provincial social workers would, quite literally, scoop children from reserves on the slightest pretext. She also made it clear, however, that she and her colleagues sincerely believed that what they were doing was in the best interests of the children. They felt that the apprehension of Indian children from reserves would save them from the effects of crushing poverty, unsanitary health conditions, poor housing and malnutrition, which were facts of life on many reserves. Unfortunately, the long term effect of apprehension on the individual child was not considered. More likely, it could not have been imagined. Nor were the effects of apprehension on Indian families and communities taken into account, and some reserves lost almost a generation of their children as a 6 4 Patrick Johnson, Native Children and the Child Welfare System (Toronto: Canadian Council on Social Development in association with James Lorimer & Co., 1983) at 65. 6 5 Referred to in the quote above, Ibid. Ibid., at 23. 28 The consequences67 of "inversion", that all referrals are suspect unless proven otherwise (Dingwall's characterisation of Cleveland,68 which is taken further- from suspicion to "pretext" in the quite cited above),69 support the idea of "rule" as a general norm, by showing how the rule works; the exception, it seems, proves the "rule". The "scoop" described above, and the continued over-representation of First Nations children in care, indicate both a different premise (that living with their families is likely to contain a degree of inherent dangerousness for First Nations children) and a different relationship with the State and its agents. Dingwall et al concluded that the rule of optimism seemed "to filter moral character in such a way as to hold back some upper-, -middle-, and "respectable" working class parents, members of ethnic minorities and mentally incompetent parents while leaving women and the "rough" indigenous working class as the group proportionately most vulnerable to compulsory measures. This effect is achieved by tests which are not class biased in any simple or overt sense but [is one] which various groups are differentially able to meet."70 The over-representation of First Nations children in the Canadian child welfare system suggests that First Nations communities occupy this "vulnerable" position Supra, note 64. Supra, note 60. Supra, note 66. R. Dingwall et al, supra note 1 at 102. 29 in Canada71. Patrick Johnson's 1983 study Native Children and the Child Welfare System72 concluded that the "major contributing factor in this instance [the highly disproportionate number of First Nations children in care where services are available73] is a service delivery system that is not always culturally appropriate or compatible with Native customs, values and traditions."74 Differences in child-rearing norms and standards75 create obvious problems when the dominant group's standards are applied to First Nations communities.76 As these "norms" relate to the relationship of individual, family and community, there may be a dangerous dissonance between First Nations communities and a child welfare system built on and legitimised by the "inarticulate", 7 1 See Marlee Kline, "Complicating the Ideologies of Motherhood: Child Welfare Law and First Nation Women " (1993) 18 Queen's Law Journal 306. 7 2 P. Johnson, supra, note 64. 7 3 Jurisdictional disputes regarding the provision of services on reserves has limited access to services for some families on reserves; "Only when a child's life was, quite literally, considered to be in danger, would the province step in. The assistance provided at that point was almost inevitably the apprehension of the child." P. Johnson, Ibid, at 66. The federal government is responsible for the provision of child welfare service of reserves, the provincial government for services off reserve. 74/6/'rf.,at59. 7 5 Ibid., at 71. Described by Johnson as a "pacifistic" approach within a distinct and different notion of the family and conceptualisation of the relationship between the community and the individual: "The importance accorded group or collective rights is yet another factor that distinguishes native and non- native values. It influences the relationship between families and communities, which Native people believe is appropriate and legitimate. Ibid., at 70. 7 6 Whether or not the outcome of that application was intended (as contended by Hudson and McKenize, see infra, note 74) or not: "The child welfare system had riot been planned to change the culture of Indian people. The system was designed for non-native people living in urban areas and was then exported to rural and Indian communities to provide equality of service. This export of services had overlooked significant differences between the society where the system originated and the one on which it was imposed." Andrew Armitage, "Family and Child Welfare in First Nations Communities" in Brian Wharf, ed., Rethinking Child Welfare in Canada (Toronto: McClelland & Stewart, 1993) 131 at 151. 30 "core" assumptions of the liberal character and the liberal state: the assumptions of privacy and "moral minimalism", the isolation of the child within her family. The sharp contrast between the "barrage of political and media outrage at this threat to the ideals of family life" 7 7 in Cleveland (and the quick suspension of a "pessimistic" approach) and the persistence of the child apprehension crisis in First Nations communities may be explained by the resonance of each crisis within its social context. The sexual abuse of children- boys as well as girls- by their fathers on an unsuspected scale, combined with characterisation of social services workers and paediatricians as "foreign" and/or "feminist", connected with pre-existing cultural beliefs and prejudices in the U K to produce the Cleveland media event.78 In contrast, the "rule of pessimism" in the First Nations context connected with negative beliefs in the dominant culture to support that "inversion". Possible explanations for the over-representation in care of First Nations children were summarised by Brad MacKenzie and Peter Hudson as:79 individual deviance; rapid cultural change and consequent family dysfunction; economic deprivation; the "historical" argument communities had been "institutionalised" through the boarding schools and deprived of their land, losing their culture; racism on the part of the non-First Nations majority; the "colonial" argument, that "the child welfare system was part of a deliberate assault on Native society designed to make changes in Native people (accepted R. Dingwall, supra note 31. 7 8 See Beatrix Campbell, Unofficial Secrets: Child Sexual Abuse, The Cleveland Case (London: Virago Press, 1989). 7 9 "Native Children, Child Welfare, and the Colonization of Native People", in Levitt and Wharf, eds., The Challenge of Child Welfare (Vancouver: UBC Press, 1985). 31 by McKenzie and Hudson as most persuasive). These explanations may be conceptualised both as reasons for the adoption of a "rule of pessimism" in First Nations "cases", and for the persistence of that "rule". The Rule of Optimism as Rule of Law The rule of optimism remains intact: only it is now explicitly underwritten by the Act and policed by the courts.80 Child protection legislation cannot be a "pure" set of rules recreating, labia rosa, the "system" in its image, but legislative reform has meaning beyond the normative legal sanction of a system run de facto by the requirements of the "liberal compromise" and its operational "rules". The "codification" of the "rule of optimism" reinforces its legitimacy, increasing its resilience as an "over-riding belief to alternative explanations.81 80Dingwall, Eekelaar and Murray in a 1995 postscript to a second edition of The Protection of Children, considering the impact of The Children Act, 1989, The Protection of Children: State Intervention in Family Life, Second Edition (Aldershot, UK: Avebury, 1995) at 249. "In a way, this should not be surprising: to the extent that a number of changes reflected a desire to align the law with the way cases are actually handled." Ibid. 8 1 "professional thinking can be organised by overriding beliefs about a case. These beliefs may be determined by socio-political attitudes, strong personal or professional views, or inferences drawn from ongoing work with a family which develop into automatic thinking about them. Once a case becomes dominated by a fixed view, workers selective attention is likely to distort their observations and any contradictory information becomes difficult to acknowledge. We found a number of cases in which pervasive beliefs seemed to dominate most decisions and actions." Peter Reder, Sylvia Duncan and Moira Gray, Beyond Blame: Child Abuse Tragedies Revisited (London: Routledge, 1993) at 92. Legislation is one "determinant" in this process. 32 "Legalisation" of the "rule" also works to bring the public within the rule of optimism's "frame". The high profile given to child protection failures in the 1970s and 1980s82 created a fairly high level of dis-satisfaction on both sides of the "delegation".83 I have suggested that the ambivalent, sometimes hostile relationship between social workers and "the public" may in part be explained/understood by the public's position outside the "rule of optimism": decisions which seem right to the social worker inside her frame seem incomprehensible to the "public" on the "outside".84 "Legalisation" of the "neutralising" techniques of cultural relativism and natural love brings these "accounts" to bear on the gap which exists for non-professionals between the "ideal" and the "real"- as the realities of social work practice can be known to non-professionals, that is largely, through the media. The dramatic Canadian shift towards "non-interventionist" child protection statutes in the 1980s and 1990s was a response to the growing perception of failure. "Non-interventionism" in child protection legislation means narrowly defined legalistic standards strictly applied, increasing the scope of parental discretion by limiting the 8 2 D.H.S.S., Child Abuse: A Study of Inquiry Reports 1973-1981 (London: H.M.S.O., 1982.); D.H.S.S., Child Abuse: A Study of Inquiry Reports 1980-1989 (London: H.M.S.O., 1991.) And see P. Reder et al, supra note 81, a British study summarising all major inquiries since 1973, considered within their social context. In Canada, see Judicial Inquiry into the Care of Kim Anne Popen by the Children's Aid Society of the City ofSarnia and the City ofLambton [Judge H. Ward Allen] (Toronto, Ontario: Queen's Printer, 1982); and see Cyril Greenland, Preventing CAN Deaths: An International Study of Deaths Due to Child Abuse and Neglect (London: Tavistock Publications, 1987.) In British Columbia in 1995, the Report of the Gove Inquiry Into Child Protection (Victoria, B.C.: Queen's Printer,1995) [hereinafter the Gove Report]. The Gove Inquiry may have been called to identify and explain "errors", following two superficial and unsatisfactory internal reports, but the Report's criticism in fact targeted "business as usual" in child protection practice: the "system". 8 3 For child welfare professionals and for the public. 8 4 See the minority and majority reports of The Report of the Committee of Inquiry into the Care and Supervision Provided in Relation to Maria Colwell (London: HMSO, 1974). 33 discretion of courts and child protection agencies to enter into and enforce non-voluntary arrangements with parents and children. The system must be designed to ensure that agencies and courts are held accountable for their actions. If the State must intervene to protect the child, it should do so in the manner which least interferes with family autonomy.85 A "legalistic, non-interventionist" statute is one which has very narrow grounds for intervention in a specific and narrow set of circumstances", avoiding vague descriptions such as "improper" and "unfit".86 The legislation should contain clear guidelines encouraging courts to leave children with their parents, or return them if removed. The "best interest test" is considered "interventionist"; even where it is accompanied by a lengthy list of relevant factors which the court must consider in making a determination about "best interests" (the test being unlikely to "encourage the use of the least intrusive dispositional alternative").87 "Non-interventionist" legislative "principles" include as objectives both child welfare,88 or well being, and the protection of family autonomy. While these conflicting objectives may 8 5 Richard Barnhorst, "Child Protection Legislation: Recent Canadian Reform " in Barbara Landau ed. Children's Rights in the Practice of Family Law (Toronto: Carswell, 1986) 255 at 256. This brief description draws on Barnhorst's "interventionist" spectrum of Canadian legislation. S6Ibid. 8 7 "although some factors reflect the positive aspects of the child living with the parents, others may actually encourage placement with "psychological parents" such as foster parents in some cases." Richard Barnhorst, supra note 85 at 271. For a comprehensive discussion of the critical approach to "best interests", see N. Bala, J. Isenegger and B. Walter, " 'Best Interests' in Child Protection Proceedings: Implications and Alternatives " (1995) 12 CJFL Vol.2 367 at 368. 8 8 But see Andrew Bainham's argument that "non-interventionist" legislation "hijacks" the "welfare" principle which may or may not be paramount within it: "This is because the welfare principle cannot come into operation at all unless the court is called upon to determine an issue affecting a child, but the non-interventionist principle may result in the court having no issue before it." A. Bainham, "The Privatisation of the Public Interest in Children"(1990) 53 MLR 206 at 220. 34 be conceptualised as creating "balance", the idea that both can be "realised simultaneously" creates obvious contradiction: From one viewpoint, the two broad objectives are in conflict and cannot be realised simultaneously: more power for social workers in relation to children does mean parents lose some of their rights, in this view. Therefore, descriptions of the Children Act 1989 which refer to its providing both better protection for children and greater rights for parents are simply a denial of conflict, an attempt to avoid the awkward dilemmas that child care throws up.89 Resolving the Best Interests of the Child: Professionalising the Humanitarian Mores Whether the protective shell of the family is already broken before the state intrudes, or breaks as a result of it, the goal of intervention must be to create or re-create a family for the child as quickly as possible. That conviction is expressed in our preference for making a child's interests paramount once his care has become a legitimate matter for the state to decide... So long as the child is a member of a functioning family his paramount interest lies in the preservation of his family. Thus our preference for making a child's interest paramount is not to be justified in and of itself for intrusion. Such a reading would ignore the advantages that accrue to children from a policy of minimum state intervention. 9 0 8 9 Lorraine Fox Harding, Perspectives in Child Care Policy (1991: Longman, UK) at 230. Fox Harding goes on to add: "...from another viewpoint, however, what legislation and policy is all about is balance. While there are some conflicting objectives, it is argued a better balance can be achieved. Thus it is reasonable, and not inconsistent, for the Children Act to attempt to proceed in two directions at once, adding to the power of parents here, strengthening the courts and local authorities there. What will be achieved, it may be argued, is not simply a redistribution of muddle but a genuinely more effective balance correcting tendencies both to over and under react, while helping parents and children as a unit where it is appropriate to do so." 9 0 A. Freud, J. Goldstein and A. Solnit, Before the Best Interests of the Child (New York: Free Press, 1979) at 4-5. The "arch exponents" of anti-interventionism: so described by R. Dingwall and J. Eekelaar, "Rethinking Child Protection" in MDA Freeman ed., The State, The Law and the Family (London: Tavistock Publications, Sweet and Maxwell, 1984) at 78. And see Michael Freeman's critique, "Freedom and the Welfare State: Child Rearing, Parental Autonomy and State Intervention" [1983] JSWL 70. 35 The child protection problematic, the "clash of Utopias"91, cannot be resolved by simply choosing one set of values over the other and, crucial to the "resolution" of this conflict is the identification of child well being and family autonomy, what Robert Dingwall and John Eekelaar called the "family autonomy ideology": "The 'family autonomy' position [appearing in "left" and "right" versions] is an attempt to evade this dilemma [the "central dilemma within western liberalism over the relative priority to be afforded to individual freedoms, social justice, and civil or moral order] by reformulating children's rights in terms of adult freedoms... In fact, this is not a theory of children's rights at all so much as a political theory about the proper relationship between families and the state."92 This apparent resolution "resolves" the underlying conflict (and with it, the "liberal's dilemma of how the State can interfere in the private family "counterweight" without destroying it) by explaining that conflict as a "false dichotomy" and, crucially, by making child death (and therefore child suffering, death being most obvious) invisible.93 Given a 9 1 R. Dingwall et al, supra, note 1: "Debates about the proper response to child abuse are, in substance, debates about the nature of the good society. They are possible only because of a clash of Utopias between humanitarian and organisational moralists." 9 2 R. Dingwall and J. Eekelaar, supra note 90 at 104. 9 3 In 1992, when Joyce Rigaux became Superintendent of Family and Child Services in B.C., Audit and Review Division reviews into suspicious child deaths virtually ceased. In the 27 months preceding Rigaux's appointment there were 19 such reviews; the first ARD review authorised by Rigaux was into the death of Matthew Vaudreuil nearly 2 years after his death (the circumstances are discussed, in Chapter Four, infra)- during this time 33 child deaths had been reported to the Superintendent's office. Gove Report, supra note 82, Volume I at 165. Judge Gove referred to those children as the "invisible ones" (Ibid., at 213). A former Audit and Review Director told the Gove Inquiry that, in her opinion, Joyce Rigaux's decision to suspend the audits "stemmed from a desire not to stress staff". See Sharon Samuels and Karen Ryan, Audits and Reviews, Report Prepared for the Gove Inquiry (1995) at 15-18. At the time the Ministry's policy was "families first and apprehension only as a last resort." (Gove Report, supra note 82 Volume I at 101). I understand these events as a literal attempt to "disappear" children inside the "family autonomy ideology", and so "resolve" the problematic-ness of child protection. 36 family integrity premise, the child death inquiry (which has served as the main vehicle for public awareness of child protection "failure") rather loses its point; non-intervention anticipates "failures", characterised as occasional, regrettable outcomes or accidents. The interests of the child, identified with family privacy in life, continue to be identified with the privacy of his or her family in death.94 Public knowledge of private child suffering and death become (from this perspective) both unseemly and harmful: reviews and inquiries, with their connotations of blame and responsibility are (persuasively) inappropriate, indeed counter-productive. Press "scapegoating" of social workers during and after high profile inquiries (at once "unfair" and perceptive, a contradiction traceable to the essential contradiction within the "liberal compromise"95) becomes mere (and avoidable) hysteria. The conflict is "resolved" by the effective disappearance of private child suffering as a public concern, consequentially de-legitimising the communal interest in children and professionalising the humanitarian mores. The reconfiguration of failure containment as a family centred good, like the disappearance of children's rights as an enhancement of the child's interests and ultimate protection, "resolves" the contradiction by simply removing child suffering from the scope of public knowledge and the political agenda. Again, this re-imagining of the child protection problem must be cast as good for children, as actually expressing, and pursuing, "humanitarian mores": secrecy protects children and families, See Chapter Five, infra, re the inquiries of the Children's Commissioner. See Maria Colwell, supra note 84 and infra Chapter Three. 37 where publicity harms them. Non-interventionist child protection, by professionalising the humanitarian mores, "resolves" the liberal's dilemma in a quintessentially "modern" reform. Despite the logical and moral difficulties posed by the normative disappearance of the child into his or her family, the non-interventionist paradigm draws its considerable ideological power from the wide variety of political demands96 it appears to meet, together with the depth of its psychological/ social appeal. Where an idea serves many purposes, for many people, the will to "see" it work may be irresistible. Where, as with the "family autonomy ideology" the rationale for disguising failure is built into the value system of the philosophy itself, the danger increases manyfold. Thomas Kuhn described the process of discovery, or paradigm shifts, as beginning with the "awareness of anomaly", ending only "when the paradigm theory has been adjusted so that the anomalous has become the expected." 9 7 I suggest that the wave of Canadian child protection legislative reform in the late 1980-early 1990s98 (like the U K ' s Children Act, 1989)" was influenced by the publicly experienced failure of an earlier child 9 6 The "right or "left" versions of the "family autonomy ideology"; see R. Dingwall and J. Eekelaar, supra note 90. In the Canadian First Nations context, this idea includes aspects, of "cultural autonomy" as well; see infra, Chapter Two. 9 7 Thomas Kuhn, The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1962) at 52. 9 8 See N. Bala, J. Isenegger and B. Walter " 'Best Interests' in Child Protection Proceedings: Implications and Alternatives " (1995) 12 CJFL Vol.2 367 at 368. 9 9 1989, c.41 (UK). 38 protection paradigm.100 In a slight variation of Kuhn's formula, the "anomalous" (individual "mistakes") had increasingly become the "expected" (patterns of failure101), but the "theory", or explanation for protection failures, could not be (publicly) adjusted to expect child deaths (prevention of child deaths being the bottom line purpose of State child protection). The solution to this dilemma was the disappearance of child deaths. British Columbia's (pre-Gove) reform process was very much about the ascendancy and formalisation of the "non-interventionist paradigm". However, what happened in British Columbia, through the high profile Report of the Gove Inquiry into Child Protection,™2 was the almost immediate public conceptualisation of "non-interventionist" child protection103 as producing regular failure (with the Gove Report's "Invisible Ones", tying the Ministry's failure to protect Matthew Vaudreuil with numerous other child deaths, and the post-Gove crisis, with its incremental revelation of past child deaths), powerfully combined with a scathing presentation of the family autonomy "resolution"- the disappearance of child deaths- as political cover-up.104 1 0 0 A competent State system in which individuals sometimes made "mistakes", which then became the subject of inquiries and corrections. The series of child death inquiries which had accumulated by the end of the 1980s showed remarkable similarities between ostensibly aberrant, and individual, mistakes (over and over again), discrediting this explanation. It does not seem reclaimable. The Gove Inquiry, while noting individual decisions and behaviour, is really about "the system", as are Gove's thorough-going recommendations. 1 0 1 In British Columbia, this failure was joined by acknowledgement at the governmental level that State child protection had failed First Nations communities. 102 Supra, note 82. 1 0 3 "Child protection with a family focus": 1 0 4 In the pre-Gove Rigaux scandal, in the Gove Report itself, and in the post-Gove political crisis of 1996. 39 The "non-interventionist paradigm" is dangerous for children because it rests on a false premise: that family preservation protects children. The systemic "liberal compromise" and its "rule of optimism" tend to produce a system in which relatively few cases of child maltreatment are identified, and relatively few of those will be considered to require coercive State action. The "non-interventionist paradigm" is a political theory identifying, or equating, child well being and family autonomy, implemented through non- interventionist legislation codifying the "rule" within a political and policy context of "family centred" child protection.105 Legitimacy and coherence of this paradigm depends on the disappearances of child suffering because "child protection" practised as family preservation may increase child deaths,106 rather than, as officially explained, "lessening] the need for protection work." 1 0 7 The long and sometimes surprising reform process in British Columbia between 1991 and 1996 provides the material for a remarkable "case study" of both the ascendancy of the "non-interventionist paradigm", and the paradigm's fundamental inadequacy, despite the width and depth of its appeal. 1 0 5 The "compromise" and "rule" are therefore not the same thing, although of course they relate to and inform one another, and understanding the rule is an important aspect of understanding the "non- interventionist paradigm" (and vice versa). 1 0 6 A conclusion indicated by the inquiry reports, considered infra, Chapter Three, and by the Gove Report, supra note 82; see Chapter Four. 1 0 7 Ministry of Social Services Bulletin#l issued March 1993, "Message From the Minister: Shift to a Family Centred System". 40 CHAPTER TWO PROTECTING OUR CHILDREN, SUPPORTING OUR FAMILIES: LEGISLATIVE REFORM Legislative reform in British Columbia, leading to the Child, Family and Community Service Act,1 was very much about codifying the 'non-interventionist" consensus of the 1980s and '90s. The reform process was about, in part, constructing 'social meaning", 'naturalising" what Dingwall and Eekelaar called the 'family autonomy ideology" as the will of the "community". The debates in the legislative house during passage of the CFCSA demonstrate the width of the 'non-interventionist" consensus among the political parties and perspectives represented there.4 The tone of the debates, the virtually total focus on State restraint and 'non-intervention", indicates the depth of that consensus, and its resonance with Instinctual" liberal ideas. The community consultation process5 makes a different point 1 R.S.B.C. 1996, Ch. 46. 2 Lawrence Lessig described "social meaning" as "[understanding or expectations which] must be taken for granted by those within the group at issue...For an action to convey a social meaning in the sense I want to use the term here, it must do so in a way that feels natural... it must function with a sort of 'social magic'." Lawrence Lessig, "The Regulation of Social Meaning" (1995) 62 UCLR No. 3 958. at 958. 3 This "ideology" is about, or for, explaining child protection (specifically, child protection failures) politically and for the public; how minimal intervention "works" for "outsiders", and is conceptually distinct from, although certainly informed by, the "liberal compromise/rule of optimism" analysis (which is about how the consensus "works" for "insiders", or professionals; see infra, Chapter Three). 4 The points of difference between a politically conservative (all State activity in the zone of private family responsibility) and a "left", or "progressive" (non-supportive and judgmental interference with the private family on the part of the State) conceptualisation of "intervention" are visible, but not explored, in the debates, which are very much focused on the consensus (not the variations within it). 5 See Making Changes, infra note 12, at 5. The CFCSA was presented as the government's "response" to the reports of the produced by the community panels; Making Changes: Next Steps, A White Paper for Public Review (British Columbia: Ministry of Social Services, July 1993). 41 about the diversity6 which exists within that consensus: between ideological perspectives on the 'left and 'right" and, most significantly, the different meaning of 'non-intervention" in the First Nations context, a meaning which includes cultural (in addition to family) autonomy. At first blush the community consultation process, acknowledging the 'community's" authority/responsibility for the protection of children, seems to be explicitly about the underlying delegation of the communal interest in and responsibility for child well being to the liberal State. Social Services Minister Joan Smallwood's statements at this time about 'returning" child protection to the 'community" 7 also suggest a sensitivity to an idea of the State/community relationship as crucial to understanding (and changing) child protection. A 'return to the community" makes unambiguous sense in the context of colonial oppression and cultural autonomy, the conceptual framework of Liberating Our Children, Liberating Our Nations (the report of the Aboriginal Committee of the Community 6 See Protecting Our Children, Supporting Our Families: A Review of Child Protection Issues in British Columbia (British Columbia.: Ministry of Social Services, 1992), at 25, a "discussion document" about positioning a "left" or "progressive" family/state partnership as both moderate and modern (vs. the "extremist" imperative to simply keep the State away, and "old fashioned" ideas of child saving). 7 "I want to take the opportunity to state very clearly for the House something that I have taken every opportunity, when I've been talking to staff, when I've been talking to service delivery groups, with advocacy groups, with families and with communities...[sic] The time for this ministry to own the problem is over... We will continue to work with communities, and we will open the doors to allow communities and service providers, wherever possible, to sit at the table with us to identify the issues, to identify their concerns and to help, in partnership, to solve the problems." Joan Smallwood, British Columbia, Debates of the Legislative Assembly (April 10, 1992) at 678. "Community ownership" draws on the "progressive" or "left" critique discussed infra, of the oppressive tendencies of a monolithic State system; my criticism is only that the idea of "community ownership" requires a deeper analysis, a confrontation of the delegation and the conflict beneath it. "Community ownership" is a very challenging idea. 42 Panel),8 a paradigm which resonates with First Nations cultural norms.9 A 'return" does not make immediate sense in the non-First Nations context without a similar consideration10 of why the 'community" does not, at the moment, 'bwn the problem." There is no such radical11 analysis in Making Changes,12 the general, or overall, community report. Making Changes I know that there are some concerns in the House that we would be too intrusive - that the legislation would perhaps now say that because we have so clearly defined what a child at risk is, we may have opened up every family to being accused of having children at risk. That is not the intent and I hope that is not the case. Much of this legislation is modeled after successes in other provinces and other jurisdictions. Our province is very much at the tail end of change in modernizing child welfare.13 8 Report of the Community Panel, Family and Children's Services Review in British Columbia (British Columbia.: Ministry of Social Services, 1992). 9 "The importance accorded group or collective rights is yet another factor that distinguishes Native and non-native values. It influences the relationship between families and communities, which native people believe is appropriate and legitimate. In particular, Native people believe that the community has not only a right but a responsibility to become involved in Native family life." P. Johnson, Native Children and the Child Welfare System (Toronto: Canadian Council on Social Development in association with James Lorimer & Co., 1983) at 70. And see Mary Ellen Turpel, "Aboriginal Peoples and the Canadian Charter: Interpretative Monopolies, Cultural Differences" (1989-90) 6 CHRYB 3; L. Little Bear, "Aboriginal Rights and the Canadian 'Grundnorm'" in J.R. Pointing, ed., Arduous Journey: Canadian Indians and Decolonization (Toronto: McClelland & Stewart, 1986) 243. 10 Liberating Our Children, Liberating Our Nations is (in one sense) about how and why First Nations communities do not own the problem, and what to do about it. 1 1 "pertaining to, constituting, proceeding from or going to the root": Chambers Concise Dictionary. 1 2 Making Changes: A Place to Start, Report of the Community Panel, Family and Children's Services Review in British Columbia (British Columbia: Ministry of Social Services, 1992). 1 3 Joy MacPhail, British Columbia, Debates of the Legislative House (June 7, 1994) at 11553. Child protection reform as a politically neutral, linear "modernisation" is a theme of the government's presentation and defence of its Bill. "Modernisation", with "de-politicisation", or "naturalisation" is also a theme of the Community Reports, and the community consultation process itself. "De- politicisation" here is about crafting consensus (in this case around non-intervention and the priority of restraining the State) as natural. Re passage of the (UK) Children Act, 1989 in the House of Commons, Nigel Parton noted "this was one of the few opportunities to pass legislation which was likely to receive wide political, professional and public support... everyone was keen to demonstrate they were caring and 43 A left of centre New Democratic provincial government was elected in British Columbia in October 1991. The new government initiated a process of (ostensibly) community led reform14 by appointing the Community Panel Family and Children's Services Legislation Review in November 1991.15 The reform agenda is already clear in the consultation document released early in 1992,16 however, as, indeed, it appears in the throne speech delivered on March 17, 1992 by then Premier Michael Harcourt.17 First Steps The community reports, whatever their degree of influence (or as part of political design), are key to understanding the wider political/legal context in which the Child, Family and Community Service Act was introduced and the public inquiry into the death of Matthew Vaudreuil called. Through the public panel process the government was clearly involved concerned adults who could come together in the interests of children and the family." Governing the Family: Child Care, Child Protection and the State (London Macmillan Education Ltd., 1991) at 149. 1 4 Although the preceding Social Credit government may be considered to have begun the process: see Public Report No. 24: Public Response to Request for Suggestions for Legislative Change to Family and Child Service Act, February 1991 (Victoria, B.C.: Ombudsman, 1991). At this time, the government had not decided on the process by which amendments would be decided; this Ombudsman's Report recommended an invitation for public submissions before new legislation was drafted, resembling the "Community Panel" approach eventually decided on. This Report refers to a series of "cases" dealing with unwarranted and heavy handed intervention by child protection workers and featured on the popular Rafe Mair radio talk show, which seem to have created a mini Cleveland-like crisis in British Columbia at this time. 15 Report of the Gove Inquiry into Child Protection (Victoria, B.C.: Queen's Printer,1995) [hereinafter the Gove Report] Volume II at 15; K. Hamilton, "From the Ground Up: Designing a New, Child-Centred Child Welfare System for British Columbia" Report Prepared for the Gove Inquiry (1995) at 39. 15 Protecting Our Children, Supporting Our Families, supra note 6. 1 7 British Columbia, Debates of the Legislative Assembly (March 17, 1992) at 11. 44 in constructing a context within which the meaning of child protection would be changed.18 The value one ascribes to the family as the central child rearing unit in society will shape the legislative framework related to child protection... The child protection mandate given to the state will depend on one's philosophy about the family and beliefs about parental rights and responsibilities.19 In November 1991 then Minister of Social Services Joan Smallwood appointed a 'Community Panel" to travel throughout the province, gather popular opinion, and make corresponding recommendations for legislative change. To facilitate this process, a Consultation Paper was prepared by the Ministry to 'Stimulate discussion about the major issues and themes associated with child protection" (Protecting Our Children, Supporting Our Families: A Review of Child Protection Issues in British Columbia). The agenda is set out in the ideological spectrum established by this "consultation document". The Paper constructs a continuum of beliefs, positioning a voluntary 'partnership of family and state" at the centre20, with 'hiaximum parental rights" at one extreme and 'maximum state authority"21 at the other. The 'role of the state" is considered along a similar continuum: residual role for the state; family support role for the state; senior partner role for the 1 8 "Meanings exist, and are used. Construction is about how they are changed- more particularly, how the contexts within which they exist are changed [by intervention, as opposed to simply changing by evolution]." L. Lessig supra note 2 at 962. 19 Protecting Our Children, Supporting Our Families, supra note 6, at 25. 2 1 A position characterised as one suspicious of arguments about "autonomy and integrity" seeing in them a mere reluctance on the part of the State to assume responsibility for children. See Ibid. 45 state. Again, positioned pleasingly in the centre, 'family support" is presented as the moderate option.2 2 The legislative agenda tacitly outlined in Protecting Our Children, Supporting Our Families was explicitly filled in by the two Community Reports published in 1992 (Making Changes: A Place to Start and Liberating Our Children, Liberating Our Nations). After release of the reports, Smallwood announced a shift in policy from a 'child centred" to a 'family centred" system, apparently reflecting the messages received in the consultation process.23 Liberating Our Children, Liberating Our Nations (the report of the Aboriginal Committee of the Community Panel) is prefaced by the following disclaimer: We have been asked to review your child protection legislation and recommend changes as it affects our people. In doing so, we are put in a contradictory position, since we do not believe that your laws apply to our people....They [your governments and your courts] have enforced the extension of your law onto our land and applied them to our people with devastating effects. This has been particularly true of your child protection laws. Your child protection laws have devastated our cultures and our family life this must come to an end.24 This report (as the 'disclaimer" and the very title make so clear) is self-consciously about lifting an externally imposed force off of First Nations communities, accompanied by a 2 2 Throughout the legislative reform process, the New Democratic government has been at pains to present the legislation as "moderate"; see discussion of the Legislative Debates. 2 3 Ministry of Social Services Bulletin#l issued March 1993, "Community Panel Reports: A Blueprint for Change". Also in that issue a "Message From the Minister: Shift to a Family Centred System" "In this ministry, we are undergoing a fundamental shift in values- from a child centred system to a family-centred system. A similar shift is underway in jurisdictions across North America, and certainly the new Community Panel Reports provide a framework for a much more family centred system." 2 4 Liberating Our Children, Liberating Our Nations, supra note 8 at vii. 46 request for funds to build a separate First Nations "owned" (to borrow Smallwood's phrase) system. The document anticipates aboriginal self-government, recommending that 'Changes to family and child protection legislation must be seen only as an interim measure that will be fully resolved through the recognition of the paramountcy of Aboriginal family law." 2 5 The model which emerges from the Report's 102 recommendations locates responsibility for aboriginal children in First Nations and "enclave" communities; recommended government input is limited to financial support. The Report also recommends an emphasis on support services enabling the child to remain within the family, (again stressing the need for the government to finance aboriginal services), the involvement of the extended family and the Nation/community in planning for the child, and a moratorium on the adoption of aboriginal children by non-aboriginal people.26 Making Changes: A Place to Start considers the system in general27, and, like the Report of the Aboriginal Committee, calls for a 'fchift in emphasis" to a 'family centred system [which] recognises and enhances the strengths of each family member while minimising the tendency to find fault and lay blame".28 Making Changes identifies lack of public 2iIbid., at 30. 2 6 Ibid., at 97-107 contains the complete list of recommendations. 2 7 Guiding Principles; :Poverty; Community Development; Access to Information; Advocacy; Support Services; Youth Services; Service Delivery Structure; Guardianship: Past and Future; Dispute Resolution; Child Protection; Alternative Care; Staff; Legislating Change. 2 8 "In this approach, parents are supported in fulfilling their child-rearing roles and children are protected within the family setting. Communities have a vital role in supporting families by developing support service plans that will address local concerns. This shift in emphasis is vital, and is a theme throughout our entire report." Making Changes: A Place to Start, supra note 12 at 63. 47 confidence in social services, particularly regarding child protection, as a vital area for change.29 Its recommendations include no removal without adjudication except in emergencies, family conferences, specific and unambiguous definitions, provision for removing the offender, and criteria to assess competence. Both reports emphasise support to keep families together, constraints on discretionary authority, and the importance of the biological family Yet despite these points of similarity, the Reports are essentially very different. Liberating Our Children, Liberating Our Nations is an unambiguously political document, with a conflict as its centre and its subject: 'oppression within the context of colonization."3 0 Its subject is, as the name indicates, removing (and wholly replacing) rather than reforming. In this political context the foundational delegation of the communal interest in child wellbeing to the 'heutral" State31, key to the system's legitimacy, is incoherent- even gross. This difference becomes clear in the legislative debates, when the overtly political character of child protection reform32 for the First Nations overlaps the carefully 'de- politicised" context of the debates. 2 9"Child protection is a highly specialised field of social work. This must be recognised and valued, both within government and within the community. It must be recognised that caring for children is everybody's responsibility. Furthermore, we need a social climate that values family and community." Ibid., at 125. 3 0 Elaine Herbert, "An Overview and Analysis of First Nations Child and Family Services in B.C." Report Prepared for the Gove Inquiry (1995) at 6. 3 1 See Chapter One, supra, at 1-4. 3 2 See infra, the debates. The characterisation of child welfare law as "your" law-an outside and imposed force- an external oppression, is what I call a political characterisation, and is about aggression and opposition in contrast to the "natural" consensus constructed (it is clearly hoped) in Making Changes, and defended on all sides throughout the legislative debates. The up front challenge for resources- a transfer to the group- is also directly political in a way which the more generalised request for "more 48 The White Paper for Public Review published in 1993 to advise "the community" about the Ministry's 'proposed legislative response to the panel reports" (again, the careful de- politicisation of the legislation, posed as a passive 'response" to 'the people's" initiative), while not incorporating some of the more extreme recommendations of Making Changes*3 is self-consciously the product of its documentary evolution: 'The proposed legislation will continue to protect children but will focus on supporting families as the best, first step in preventing the need for intrusive intervention. The legislation will place greater emphasis on the role of the extended family and community members in support of families and children." 3 4 Development of a powerful, opposing context, the Report of the Gove Inquiry into Child Protection, would complicate this "non-interventionist" paradigm. The 'community panel" project does not appear to have been merely ritualistic, an expensive and time consuming exercise in image management; ritual may carry, and create, crucial social meaning. But if 'community ownership" is Active (if, indeed, 'the resources" for "the system" is not. The coherence of the community in the First Nations context, which emerges, infra, in the debates, may be key to understanding the difference I suggest: child protection here is a community issue posing First Nations communities against the State. In the non-First Nations context, child protection is clearly conceptualised in terms of the individual, whose rights are paramount, against the State, which must be restrained; this is also a "political" characterisation but, as the debates show, it is "taken for granted" as a natural consensus so as to posses the "social magic" which Lessig described as crucial to "social meaning" (removing the element of conflict and challenge which is crucial to my notion of "political" child protection). 3 3 Such as the replacement of "the child in need of protection" with the "less blaming" "in need of mandatory services" and the disappearance of the child altogether in the suggested name of the new statute, the "Family and Community Service Act". Making Changes, supra note 12 at 186 and 188. 34 Making Changes: Next Steps, supra note 5 at i. 49 community" is fictive) that fiction, (like 'family privacy') has its own shaping power to de-politicise or 'naturalise" hitherto political issues. This notion of the community as ideological neutralizer is crucial to 'rnodern" child protection. The difficulty for the project is, of course, that child protection is a political problem (in which 'bommunity" is deeply implicated)- perhaps the defining political problem for liberal democracy. The "de- politicisation" of child protection as a question of natural consensus is about dissembling that problem. Al l key elements of the non-interventionist Solution" in child protection at once depend on and promote this 'political neutrality": disappearing the child as an independent concern into his or her family (de-legitimising political choices about child welfare and adult freedom rights), 'normalising" child protection as a matter of expertise and service delivery35 and containing the problem inside the 'expert" domain.36 The story of the CFCSA and the Ministry for Children and Families in British Columbia is a story, in part, about the rather spectacular failure of this careful exercise in de-politicisation, which began so methodically in 1991 with Joan Smallwood's community panels.37 3 5 Within a less problematic "welfare-like" relationship. 3 6 By the process which I call "professionalising the humanitarian more". Cf. Leroy H. Pelton, "Child Abuse and Neglect: The Myth of Classlessness" in Leroy H. Pelton, ed., The Social Context of Child Abuse and Neglect (New York: Human Sciences Press, 1981) at 37: "The myth of classlessness persists not on the basis of evidence or logic, but because it serves certain professional and political interests." 3 7 Overt politicisation of child protection in British Columbia was perhaps inevitable when the government made the decision to publicly hitch its legislative "reform" to the Matthew Vaudreuil scandal and the Gove Inquiry into child protection. The decision must have been politically irresistible at the time, but therein lay the political crisis which (perhaps) hastily ushered in the Ministry for Children and Families (see Chapter Five). The connection between Gove and government reform implied that the reforms would do something to stop children from suffering as Matthew Vadrueil had or, at the very least, stop children from dying: as it became clear, after Gove, that children were continuing to die, and as the Ministry appeared both evasive about and unresponsive to those deaths, the government appeared 50 Unforeseeable Consequences: Matthew Vaudreuil and the Gove Inquiry Nothing in Matthew's story gives us reason to feel comfortable, and everything in it makes us feel sadness and anger. While we grieve for Matthew, and are outraged over what he experienced, we must also learn from these events. More than anything else, it is our mutual responsibility to do everything we can to prevent another child from suffering as Matthew did during his short life.38 Today I am introducing the Child, Family and Community Service Act to address the urgent public demand for change in this area. A child's greatest resource is a strong, secure family and a family's greatest resource is a strong community.39 It is almost impossible to believe that the timing of these two announcements was not influenced by publicity surrounding the death of Matthew Vaudreuil, a five year old boy who spent his short, unhappy life 'known to the Ministry" until killed by his mother in Vancouver in 1992. Shocking newspaper reports around the time of his mother's trial and conviction for manslaughter in April 1994 prompted Social Services Minister Joy MacPhail to call for an Internal Social Services Review on May 5; the very perfunctory 'review" released on May 164 0 satisfied no one, compounding the appearance of Ministry incompetence, indifference, and (it seemed) actual cover up. The external inquiry, to be conducted by Judge Thomas Gove, was announced on May 17. incompetent, confused, uncaring and mendacious, and child protection became a very political issue, in the House and in the papers. This crisis, as explained in Chapter Five, led to the creation of the new "child centred" system. 3 8 Joy MacPhail, announcing an external inquiry under Inquiry Act into the death of Matthew Vaudreuil, British Columbia, Debates of the Legislative Assembly (May 17, 1994) at 10912. 3 9 Joy MacPhail, British Columbia, Debates of the Legislative Assembly (May 18, 1994) at 10951. 4 0 The Findings, Conclusions, and Recommendations of the Review of the Superintendent of Family and Child Services Into the Death of a 5 Year Old Male Child in Vancouver on July 8, 1992 (British Columbia: Ministry of Social Services, May 16, 1994). 51 The implication of the almost simultaneous introduction of the Gove Inquiry and the Child, Family and Community Service Act is that the CFCSA is the kind of reform which will 'prevent another child from suffering as Matthew did." 4 1 What is never acknowledged- indeed, what appears not to be noticed throughout the debates accompanying the second and third readings of the Bill in the Legislature, where MacPhail doggedly defended the CFCSA as 'legislation that is the least intrusive in families' lives" 4 2 is that the 'least intrusive" CFCSA is, in fact, a codification of the family centred approach which kept Matthew Vaudreuil and his mother together. After three years of careful "consultation" positioning the CFCSA as the State's response to the community,43 the legislation was expediently re-invented for the public as a response to the death of Matthew Vaudreuil44. In the "Terrain of Struggle" : Debates in the Legislative House 4 1 A connection made explicitly after Gove by the new Minister of Social Services, Dennis Streifel; see Chapter Five, infra note 16. 4 2 Joy MacPhail, British Columbia, Debates of the Legislative Assembly (June 16, 1994). 4 3 The Child, Youth and Family Advocacy Act RSBC 1996 c. 47, creating an independent advocate for children, youth and families, was also drafted in "response" to the community panels, another piece in the reform process. "The child, youth and family advocate has a restricted jurisdiction, and I think its important that people be clear about that. She [like the ombudsman] has no authority to make change or to require change. Her role is to ensure that a child has an advocate."" Ombudsman Dulcie McCallum, describing the roles of the various "players" in the post-Gove child welfare system to the members' Committee on the Response to the Gove Report on April 24, 1997 (Hansard). Introducing the CYFAA 1994, Joy MacPhail gave a rather different emphasis to the Advocate's role, reflecting the different "reform" context then obtaining: "Some jurisdictions with similar legislation have limited the advocate role to children and young people. However, we felt it imperative to extend that role to the family as well... Support for the family is the single most important manner in which society can see to the rights of children." Joy MacPhail, British Columbia, Debates of the Legislative Assembly (June 7, 1994) at 11521. 4 4 Of whom it is extremely doubtful upper levels of the Ministry would have been aware, were it not for the need to respond to media stories. 52 The tension between conflicting mores and interests (or, using the language of rights analysis46, the tension between the child's rights, which include his right to protection by the State, and the 'family" rights of parents) is resolved for the non-interventionist by a total fusion of those mores/ interests/ rights until parental care falls below a low, unacceptable threshold, at which point the child's interest ceases to be merged with his family and attaches briefly to the State pending family rehabilitation.47 This understanding of the respective rights and interests involved re-defines the 'Welfare principle" 4 8 in child protection, so that the child's welfare may be interpreted as a 'family interest".49 The 'liberal dilemma" is thus neatly resolved by the 'realisation" that the dilemma itself poses a 4 5 Davina Cooper and Didi Herman, "Getting the Family Right: Legislating Heterosexuality in Britain, 1986-1991" (1991) CJFL Vol.10 41 at 51. Focusing on parliamentary and "expert" arguments in a different context, Davina Cooper and Didi Herman discuss legislative debates as "exposing the extent to which the law making process is a terrain of struggle." 4 6 I allude only briefly to "rights analysis" as I agree with Dingwall and Eekelaar that the language of "rights" is misplaced within the "ideology of family autonomy", a blind, perhaps: "this is not a theory of children's rights so much as a theory about the proper relationship between families and the State. A theory of children's rights would actually need to express claims that enhanced their interests as a matter of principle, rather than co-incidence." R. Dingwall and J. Eekelaar, "Rethinking Child Protection" in M. Freeman ed., The State, The Law and The Family: Critical Perspectives (London: Tavistock Publications, Sweet and Maxwell, 1984) at 104-105. 4 7 Or, if this becomes acknowledged as impossible, pending location of a second family. 4 8 That the welfare of the child is paramount. 4 9 See A. Bainham, Children: The Modern Law (Bristol: Family Law, 1993) at 104: "At the heart of the jurisprudential debate is the issue of when the interests of children and parents can truly be regarded as distinct and when they ought to be conflated. This is a problem deeply embedded in the welfare principle itself. For if the welfare of children is paramount and the sole consideration, the separate interests of parents (if they exist at all) are not only subordinate, they are actually irrelevant... Increasingly it is likely that the trend will be to admit the co- existence of independent rights and interests for children and parents whilst emphasising the primacy of the rights and interests of children. This has led to the suggestion [by John Eekelaar] that the welfare principle should itself be reformulated as a principle giving priority to children's rights over those of the parents in cases where they cannot be reconciled." What seems to have happened in Canada, with the gathering emphasis on parental interests or "rights" (see B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, and discussion in Chapter One, supraal note 79) is that resolution of the "problematic" welfare principle in Canadian child protection is proceeding in the opposite direction, towards "subordination" of children's rights within a welfare principle. 53 'false dichotomy".50 The enthusiasm with which non-interventionism has been greeted on all sides must derive from this neat Solution" to a terrible problem; it is a tragedy that the non-interventionist "resolution" is a false one, a contradiction disguised as a paradox.51 From a conservative perspective, non-interventionist reform contemplates the 're- privatisation" of family life. 5 2 From this perspective, which sets the tone of the legislative debates, the cure for social ills in general- child maltreatment among them- is to strengthen the family, a process directly and proportionately connected to weakening those 'outside 5 0 "Every decision... is based on the well being of the child within the family. There is no 'family focus' vs. 'child focus' in competent social work." BCGEU, A Presentation to the Inquiry into Child Protection in British Columbia (January, 1995). The existence of the apparent (pre-"realisation") dilemma appears as an historical misapprehension perpetuated by unsophisticated or sentimental "child savers" . 5 1 Borrowing John Eekelaar's notions of "paradox" and "contradiction" in legal theory. Eekelaar challenges the idea of the "fundamental contradiction", explained by Duncan Kennedy in "The Structures of Blackstone's Commentaries", (1979) 28 Buffalo L. Rev. 209 as the incompatibility of individual freedom with the "communal coercive action" necessary to achieve it. Eekelaar considers this not a contradiction at all, but a paradox "reflecting a deeper truth about human nature and social ordering, that without degrees of communal action regulating behaviour (and therefore restricting freedom) the experience of freedom for many might be capricious, fragile and minimal" [an observation which has especial poignance in the context of child protection, both for parent and child]. "What is Critical Family Law?" (1989) 105 LQR 244 at 245. "conflict is not contradiction. It is no contradiction for an individual to value both work and play, both discipline and pleasure, and to exercise choices between them, unless he were to believe in all of them simultaneously." Ibid., at 248. The "false dichotomy" characterises the conflict I describe as central to child protection- the conflict between public concern for children and the values of privacy and individual liberty- as a paradox; that the inviolate family will promote the welfare of children. Eekelaar finds that "conflict is not contradiction"- necessarily- but sometimes it is, where one is asked to believe in each "simultaneously", as the false dichotomy implies. 5 2 Bernard Dickens has characterised the ascendancy of the non-interventionist philosophy in child protection as a reaction to the perceived failure of the welfare State. "This return to the independent family as the basic social unit which functions without State involvement reflects a shift in focus. It marks an evolution from seeing welfare officers as benign helpers and guides leading families out of distress into self reliance, to seeing welfare officers as interfering and accident prone bureaucrats whose meddlesome interventions perpetuate dependency and endanger the potential for autonomy... The neo- conservative response to the failure of elaborate and costly welfare programs, supported by various levels of government to arrest perceived family breakdown and violence, and the role of welfare workers in achieving family dismemberment." Bernard Dickens, "The Modern Function and Limits of Parental Rights" (1981) 97 LQR 462 at 464; 467. 54 forces" which threaten its autonomy (chief among them, the State). This return to the private family may also be understood as a 'redefinition", rather than a release, of the public interest in children: 'In effect the Act [the Children Act, 1989] does not deny the public interest in children but redefines it by identifying it more closely with support for parental discretion."53 This is 'privatisation" like the 'privatisation" of a utility- not private in the sense that the provision of that utility now belongs in a 'private sphere", but in the sense that the public interest in the provision of water is best met where its distribution is controlled by individuals rather than the state.54 Critics on the left have argued that child protection statutes are used by the State's 'life style police" to harass and punish poor or otherwise 'Unconventional" parents: 'Low- income parents should not be forced to adopt the lifestyle espoused by agents of the State, typically middle class social workers."55 This 'progressive" critique argues that interventionist child protection statutes confer a troubling degree of discretionary power upon the State and its representatives: the power to form opinions, make judgements and take oppressive action against the 'bad" parents, usually mothers, so constructed.56 This perspective frames the contest in child protection proceedings as pitting the conformist 5 3 Andrew Bainham, supra note 49 at 104. 5 4 See J. Eekelaar, supra note 51. Cf. Michael Freeman on the Children Act, 1989 and "libertarian" Thatcherism: "Freedom and the Welfare State: Child Rearing, Parental Autonomy and State Intervention" (1983) JSWL 70 and, on this connection, Nigel Parton, "Child Abuse, Social Anxiety and Welfare" (1981) 11 BJSW 391. 5 5 Bala, Lilies and Thomson, Canadian Children's Law: Cases, Notes and Materials, p. 11. 5 6 M. Kline, "Complicating the Ideologies of Motherhood: Child Welfare Law and First Nation Women", K. Swift, Manufacturing Bad Mothers: A Critical Perspective on Child Neglect. See discussion of the "bad mother" in M. Ashe and N. Cahn, "Child Abuse: A Problem for Feminist Theory"; also J. Mosoff, Motherhood, Madness and the Role of the State (LLM Thesis, U.B.C., 1994). 55 ideological agenda of the strong State against the freedom rights of relatively weak parents; the restraints on State discretion and State action imposed by non-interventionist legislation are essential to correct the balance.57 Self styled 'realists", who prefer to distance themselves from 'politics" of either brand, appreciate the modesty of the non-interventionist paradigm, the self-conscious absence of mission, and the emphasis on family rehabilitation through practical support, suggesting that child protection is a 'normal" sort of problem which can be, and will be, resolved by normal "welfare-like" means: more money, more programs, more training and expertise. The three 'Versions" of the 'family autonomy ideology" (or 'critiques" as I have called them) imply the existence of a powerful establishment opposition, sounding what Christopher Lasch referred to, ironically, as 'Urgent calls for sweeping reform".58 Indeed, these 'Versions" are powerful as critiques, as defences against the authoritarian tendencies of the State. However, it is also important not to underestimate the existing level of 5 7 The characterisation of welfare "agents" in the progressive critique is crucially different from the neo- conservative characterisation identified by Bernard Dickens, supra note 52 (that of "meddlesome" bumbling bureaucrats haplessly creating and perpetuating a dependency culture despite— perhaps because of— their good intentions). The progressive critique identifies the threat in child protection as the fundamentally authoritarian use of inappropriate "middle class standards" by the State (social service workers and the courts) to judge and punish "other" women who do not conform to the mother norm created by dominant ideology. 5 8 "that category of social criticism which attacks arrangements already on the wane, disguising as independent, somewhat cantankerous and unpopular judgements what in many ways amount to an apology for the emerging order. Such criticism boldly defends views that have already become acceptable to everyone except the most hardened reactionaries... not so much a demand for change as the description of a change in attitudes that had already come into being... [such criticism is in considerable demand where] defence of an emerging status quo usually takes the form of urgent calls for sweeping reform." C. Lasch, Haven in a Heartless World: The Family Besieged (New York: Basic Books Inc., 1977) at 12. 56 'resistance"to the 'Panopticon" State.59 This resistance may be more or less in regard to different aspects, or tasks, of the State, but my argument is that in child protection, this resistance is an important part of the liberal context.60 The various critiques against the 'interventionist" State are valuable, but they must be understood in the cultural context in which they exist- the non-interventionist consensus. The danger inherent in not acknowledging this context, posing the 'critiques" as brave, principled, modern, is the extent to which the 'debate" shuts down: all sides allied against the phantom Goliath, the "interventionist" State. Looking at the Debates From the point of view of understanding family law, what requires analysis is the process of transition from the perception that behaviour, whether within the public or private realm, adequately serves the public interest without the invocation of law to the conviction that the public interest demands a legal response. This will include a consideration of the image a community holds of itself, and of what events constitute threats to that image. It will include examination of the historically specific configuration of interest groups within a community and their control over or access to the process of lawmaking. In short, the focus should be upon the conception of the public interest current at any given time within a community and not some predisposed classification which has small legal relevance.61 5 9 "Our society is not one of spectacle, but of surveillance...it is not that the beautiful totality of the individual is amputated, repressed, altered by our social order, it is rather that the individual is carefully fabricated in it according to a whole technique of faces and bodies. We are much less Greeks than we believe. We are neither in the ampitheatre, nor on the stage, but in the Panopticon machine, invested by its effects of power, which we bring to ourselves since we are part of its mechanism." Michel Foucault, Discipline and Punish: The Birth of the Prison (Harmondsworth, England: Penguin Books, 1977) at 217. Dingwall, Eekelaar and Murray note: "The resistances... lie in both the culture and the structure of the tutelary complex" [following Jacques Donzelot's analysis of the family as penetrated/under surveillance by the "tutelatory complex" of the welfare state] The Protection of Children: State Intervention in Family Life (Oxford: Basil Blackwell, 1983) at 218-219. My point is that this "resistance", on the subject of children, is itself established as part of the social/political context of the liberal State- part of liberal culture. 6 0 "the parental interest ... is an individual interest of fundamental importance to our society... the state can properly intervene in situations where parental conduct falls below the socially acceptable threshold." [my emphasis] B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 at 317 per LaForest, J. I further suggest that the experience of First Nations people with the State child welfare system gives this cultural resistance an added resonance, and power. 57 The remarkable point about the legislative debates is the width and depth of the consensus they reveal between all parties in the House, a 'taken for granted" understanding with the "social magic" essential to Social meaning." 6 2 In a background paper prepared for the Gove Inquiry in 199563, Lisa Martz characterised the CFCSA as among the 'least interventionist" of Canadian statutes.64 The debates in the Legislative House on second and third readings of Bill 46 (the CFCSA) reveal the consensus at this time about what the Act was for: limiting State intervention in family life. 61 Ibid., at 258. 6 2 "[these understanding or expectations] must be taken for granted by those within the group at issue...For an action to convey a social meaning in the sense I want to use the term here, it must do so in a way that feels natural... it must function with a sort of 'social magic'." L. Lessig, supra note 2 at 958. The understanding here is, in short: "stay away if you can" (see infra, note 92). 6 3 "Apprehension", Report Prepared for the Gove Inquiry (1995). The legislation considered in its "pre- Gove" context. The recent "post-Gove" case B.S. v British Columbia (Director of Child, Family and Community Services) [1997] B.C.J. No. 2202 (B.C.S.C.) considering whether the standard of proof required for a finding of "in need of protection" was higher under the new Act's "different underlying philosophy" (at para. 37) found that it was not, rejecting an argument that Madam Justice L'Heureux- Dube's statements in Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.) (1994), 2 R.F.L. (4th) 313 (S.C.C.) at 336 re the "underlying purpose" and "objective" of the Ontario statute ("balancing the best interests of children with the importance of keeping intact the family unit, without neglecting the protection of children who need protection"; "to balance the rights of parents and to that end., to restrict State intervention with the rights of children to protection and well being") applied to alter the standard of proof under the CFCSA. "In her discussion of the underlying philosophy of the legislation, Madam Justice L'Heureux-Dube noted (at 336) that 'The Ontario legislation, when compared to the legislation of other provinces, has been recognised as one of the least interventionist regimes' " (para. 49) which, in 1994, it was; by 1997, it seems, the CFCSA was not. 6 4 Ibid., at 53. Richard Barnhorst, placing the predecessor FCSA along an "interventionist continuum" found that statute among the most; "Child Protection Legislation: Recent Canadian Reform " in Barbara Landau ed. Children's Rights in the Practice of Family Law (Toronto: Carswell, 1986) 255 at 256. It is important to bear in mind that Matthew Vaudreuil lived and died in B.C. under the "interventionist" FCSA, recalling the "perceptual pendulum" discussed in Chapter One, and Christopher Lasch's analysis, discussed supra note 58 "([where] defence of an emerging status quo usually takes the form of urgent calls for sweeping reform."). 58 Bill 46 was presented for second reading on June 7, 1994. The new legislation was presented by the Minister to the House as reform, a "new approach to child welfare": Since taking office, this government has been working to replace outdated legislation with new laws and a new system that will ensure the safety and well being of children, and provide significant support for families who are experiencing significant levels of stress or conflict. 65...Parents will be guaranteed involvement in decisions affecting children. The aims are to continue contact between parent and child and to maintain parental responsibilities so that families can be reunited as speedily as possible...However, our willingness and desire to strengthen families does not eliminate the need to protect children from abuse or neglect. As a society, we must effectively address the needs of our children. They are our future. How we treat them today will affect the quality of life for each and every British Columbian for decades to come. The Child, Family and Community Service Act introduces significant new ways of protecting children by involving the family and the community.66 MacPhail is anxious to position her legislation as the 'hew", modern child protection by pledging government support for the autonomous, responsible family. At this early point she reminds the House of the raison d'etre of child protection- the fact that children need protection from abuse and neglect- then, interestingly, develops this point in terms of the justification for Society's" involvement with children67, immediately diffusing its "interventionist" potential by re-asserting "the family".68 In reply, Liberal M . L . A . Val Anderson expressed the following "concerns" about the Bill: 6 5 Joy MacPhail, British Columbia, Debates of the Legislative Assembly (June 7, 1994) at 11529. 66 Ibid., at 11530 6 7 The treatment of children will have an affect on your "quality of life"; this appeal to a special dispensation for the interference of the public in the private family sphere, a plea based on the listener's personal interests, immediately places MacPhail on the defensive. 6 8 The notion of the desirability of the "involvement" of the family in protecting the child which they (the "family") put at risk is one point on which, one may imagine, MacPhail might be vulnerable to criticism, but no. No criticism is directed towards this objectively questionable assertion; all criticism revolves around fear of The State. MacPhail speedily introduces the concept of "community involvement", but this idea remains vague. 59 I have some concerns about this bill. I see a lack of accountability for social workers, wide ranging powers for ministry personnel, and, in my view, a massive intrusion by the state into the rights of parents and families. We're going to be looking for checks and 69 balances to prevent that abuse. Anderson here wants to make it immediately and unambiguously clear, at the start of the 'conversation", that he is a committed and wholehearted supporter of the private family, that he understands 'the state" to be the natural enemy of parental and 'family" rights (as opposed to a 'partner" in the relationship offered by MacPhail) and therefore a power to be contained. Robert Neufield M.L .A . of the Reform Party is anxious to establish his credibility in Mr. Anderson's paradigmatic camp, and then some: This bill actually legislates for government to intervene in our children's and families' lives at a very— I don't know quite the word to use—slight provocation. I find this hard to believe, coming from a minister and a government that just said that some of the legislation in place before was far too harsh and that you should not intervene in family problems. I see there seems to be a bit of a change in philosophy, to where in some cases it could become almost too easy to interfere in a family's life.70 What exactly is he talking about? An analysis of the CFCSA using Barnhorst's criteria for legislative interventionism shows that the statute is carefully non-interventionist in tone where it cannot avoid being so in content. Interestingly, Neufield identifies one of Barnhorst's specified 'non-interventionist" criteria71 as exemplifying this 'bit of a change in philosophy" towards unacceptable state interventionism: A good example is that this bill has an entire section outlining when a child needs protection, which if broadly interpreted could apply to every child in British Columbia. That's disturbing for me, because I think that all of us realise that the family unit is under attack- not by government, but it just seems to me to be under attack from all Val Anderson, supra, note 65 at 11547. 7 0 Robert Neufeld, Ibid., at 11548. 7 1 See Richard Barnhorst, supra note 64 at 262. 60 kinds of forces. We see families broken up, not working and disfunctional. If the state breaks in more, I think that's going to cause trouble. We have to do a little of the reverse, to make people more responsible... I mean, make some of the families more responsible for their actions, instead of just intervening and trying to do it that way.72 Neufield's objection to s. 13 In need of protection" could be dismissed as mere thoughtlessness: he appears to assume that a detailed and limited list affords the state more points of intrusion than a brief, broad, vague list because it is longer. He may be objecting to 'has been or is likely to be" in the case of physical abuse, sexual abuse and exploitation and neglect, more precise, and explicit, than 'endangered"; perhaps he feels the subsection dealing with emotional abuse is applicable to every child in British Columbia. His objection may be best understood as a bid for the 'hon-interventionist" political high ground, but his plea for the 'family under attack" is interesting as a pithy articulation of a conservative concept of Intervention". Neufield clearly understands intervention" to mean any form of government 'interference" in the 'private" family, including the kind of activity characterised by MacPhail as Support." Where MacPhail imagines support in the form of services as strengthening the private family, Neufield has a different impact in mind, imagining that support damages the private family by removing the family's "responsibility for its own actions."73 Neufield's 'disturbance" neatly captures the dilemma in his classic conservative approach to child protection. Al l state activity in this most private sphere" undermines the family- support weakens. Short of a total abdication of the state's responsibility for children this 7 2 Robert Neufeld, supra, note 65 at 11548. Note Neufeld's evocation of the per se destructive "welfare agent", and its similarity to the "neo-conservative" reaction described by Bernard Dickens, supra note 52. 61 leaves only one course of action- the most extreme interventionist act, the removal of the child from the natural home and her or his placement in a substitute 'private" family as quickly as possible.74 Yet this absolute intervention must be anathema to the conservative hostile to State intervention in the family per se; and so the solution can only be to eliminate in so far as possible the range of situations in which the state needs to be concerned. It may not be possible to eliminate the 'extreme cases" but it is possible to define them in such as way as to render them virtually invisible to the public eye (and so perhaps it is that long list of children in need of protection which disturbs him so). Neufield continues, reiterating his hostility to State 'help" with his assertion that it creates weirdos (using the following strange metaphor): The family unit through time, if you read back in history, has brought us through many difficult times and will continue to do so. But if we allow the family unit to be broken down too much, to where the state will look after those who don't specifically fit into the square hole, then we are encouraging it, and we are going to have a lot more trouble 75 than we can deal with. MacPhail, Anderson and Neufield are all concerned to establish themselves as in favour of 'the family". All three actors are ostensibly moderate in that they continue to accept that the State bears some responsibility for the prevention of child suffering and the 'protection of children". 7 4 This conservative perspective sees no "middle of the road" position, See Protecting Our Children, Supporting Our Families, supra note 6, and its explicit positioning of "services" as the moderate approach- a pre-emptive "naturalisation" of the progressive agenda? 7 5 Robert Neufeld, supra, note 65 at 1154. 62 MacPhail, drawing on the background of consultative documents prepared by and for her government, presumes and focuses on family 'rJiversity"76, and conceives of 'intervention" (used by all speakers as a pejorative) as the judgmental and destructive actions of the state when dealing with individuals in their capacity as private family members. MacPhail proposes a re-imagination of the state/family relationship as a partnership: the resources of the state will be used to shore up and maintain the 'autonomous family". Neufield understands that the state and private family are in natural and perpetual opposition; overt intervention is actively destructive and to be avoided (although, if this position is to be reconciled with a residual responsibility to protect children it must remain at least theoretically available), yet 'support" acts as an equally ominous and destructive force, draining the private family of the 'responsibility"77 it needs to function with autonomy. Anderson's position is less clear, but he wants it to be known that he is, indeed, a liberal, and conceives of the statute's function as the protection of the "family" from the state. 7 6 "In writing this report we have tried to be conscious of the cultural and racial diversity of people who make up our province. We see the need to preserve and enhance our pluralistic heritage and to work for equality." Making Changes: A Place to Start, supra note 12 at 1. "That legislation [The Family and Child Service Act] was passed in 1980 and came into force in 1981. We have seen many changes in the intervening years. Two recessions and the economic shift that accompanied them have changed the lives of families and communities across the province. New social trends have emerged...Our child welfare legislation has not kept pace with these changes...it is for these reasons that we have drafted the legislation before you" Joy MacPhail, supra, note 61 at 11529. 7 7 John Eekelaar, discussing the Children Act, 1989 has described how the notion of parental "responsibility" for their children has shifted from a conceptualisation of "positive responsibility, involving a duty on the part of parents to advance the welfare of their children and behave, accordingly, "responsibly", to a negative idea of responsibility, emphasising the dependency of children on their parents: parents are responsible for their children in this sense because no-one else is. Responsibility in this sense is immutable; it has no connection to behaviour and cannot be delegated. Eekelaar attributes this shift to the conservative political climate in Great Britain: J. Eekelaar, "Parental Responsibility: State of Nature or Nature of the State?" (1991) JSWFL 37. His exploration of the idea of "responsibility in the "non-intervention" philosophy captures one aspect of the divergence in the progressive/ conservative "versions" of the "family autonomy" ideology. The progressive policy of non-intervention imagine the State facilitating positive family responsibility. The conservative idea contemplates a re-imposition of negative responsibility which will in turn, naturally, encourage a sense of positive responsibility. 63 The classic liberal position is advanced with some passion and at some length by Gordon Wilson M . L . A . for the Alliance: the government must be very careful at all times not to cross the line and allow the power of the state to become too great in terms of intervention...Because if you do, its a slippery slope. We have seen many instances in other jurisdictions-thankfully not many in British Columbia, although there are some examples in B.C.—where the state, sometimes out of good intentions, sometimes out of quite obvious politically driven dogma, has made the authority and rights of the state so overwhelming as to allow the state to move and to apprehend in a manner and at times that are simply not justifiable Wilson goes on to develop the argument that services are intervention of a destructive kind, and places this characterisation within an explicit statement of the issue in child protection legislation as one of political values: We don't and should not need the state to intervene. But we have become more and more dependent on government to provide more and more services...We have to recognise that individual rights must be enshrined in society as well, to be able to protect those rights...In the judgement of the members of the Alliance, the rights of individuals are paramount.79. They shouldn't be subjugated to the rights of the collective, and especially a collective that's driven by the government. It shouldn't be the government that's determining what's right in society and what the norms should be.80 7 8 Gordon Wilson, supra, note 65 at 11550. Wilson's evocation of "dogma" is interesting in this passage; he clearly understands the "private family" as a "natural", a political organisation, its opponents driven by sordid political motivations. 7 9 Wilson must be referring to the rights of adult individuals, although he does not specify; he cannot be referring to the child's right which truly, to be meaningful, must include "aspects of both protectionism and independence", A. Bainham, Children, Parents and The State (London: Sweet and Maxwell, 1988) at 6. 8 0 Gordon Wilson, supra note 65 at 11552. Note Wilson's "confusion of individual and family" (see M. Barrett and M. Mcintosh, The Anti-Social Family (London: Verso, 1982) at 50) and his incoherent evocation of the "collective": what does this mean? Does he mean the State? Reference to "the collective driven by the government" seems to indicate that the "collective" by itself is something different. Is the collective the community'} Is Wilson, subconsciously, referring back to the original dilemma in child protection, for a moment seeing "beneath" the "interventionist" question of State v. "family"? Wilson's later comments about the community suggest that he understands them to be several, primarily racially based; is the "collective" the "whole" community? Unfortunately no-one in the House challenges him as to what this means. 64 Wilson is anxious to characterise the issue here (ostensibly child protection) as a contest between the authoritarian tendencies of socialism, embodied in the NDP government, and the sacred liberal fundamental of individual (adult) rights embodied in himself. Interestingly, the long process of community consultation beginning with the appointment of the Community Panel in 1991 by MacPhail's predecessor Joan Smallwood, was self consciously about the government's adoption of this premise, that 'it shouldn't be the government that's determining what's right in society and what the norms should be." Perhaps this "community participation" is what Wilson means by "the collective interest": We believe in a greater of freedom in our society and among individuals, and we do not believe in subjugating that freedom to the collective interest...We're prepared to work with anyone who recognises that the state should have a limited authority.81 Responding to the cries of 'tlanger" around her, MacPhail is anxious to re-establish the CFCSA as a "non-interventionist" statute, and herself as "pro-family": Some of my colleagues have raised the concern that its too much intrusion by the state. I hope we can alleviate some of those concerns at the committee stage, because the intent is not to intrude in the home; it is to offer support when the family is in crisis and has no other way except to turn to our ministry for support in that crisis. Its not to have their children taken away or to have their rights lessened, but to see our ministry as an alternative for supporting the family, whereas before we weren't seen as a viable alternative.82 MacPhail goes on to identify the CFCSA as part of the modernising, 'hon-interventionist" trend in child protection legislation: I know that there are some concerns in the House that we would be too intrusive-- that the legislation would perhaps now say that because we have so clearly defined what a child at risk is, we may have opened up every family to being accused of having children 81 Ibid. 8 2 Joy MacPhail, supra note 65 at 11552. 65 at risk. That is not the intent and I hope that is not the case. Much of this legislation is modeled after successes in other provinces and other jurisdictions. Our province is very much at the tail end of change in modernising child welfare.83 MacPhail wants to de-politicise the CFCSA, and take it out of the collectivism individualism debate which Wilson has so distractingly constructed by characterising the statute as part of a general 'modernising" trend rather than following the ideological agenda of the NDP. I have the greatest of confidence that two years from now we will be facing a completely different system- a well resourced system, a system that both the community and our own staff are well trained for- and that there will be a different, much more open, point of view about how we protect our kids and how we strengthen our families. I look forward to ensuring that during committee stage.84 During committee stage Judy Tyabji M . L . A . for the Alliance (together with fellow party member Gordon Wilson) emerges as a dogged critic of the "authoritarian" tendencies of the CFCSA: The biggest concern [discussing the definition of the 'family conference'] is that someone other than the parties directly related to the issue at hand will be able to interfere in the integrity of the family to have self determination. That of course goes to the heart of the Bill: when is a family allowed to self-determination and at what point can the state intervene?85 This seems a remarkable statement to make about the 'heart" of legislation which is manifestly about protecting children86- but the most remarkable thing about it is that it goes completely unchallenged. MacPhail's response to the criticisms of the Alliance is Ibid., at 11553. Ibid. Judy Tyabji, British Columbia, Debates of the Legislative Assembly (June 9, 1994) at 11723. Note how the child is effectively "disappeared" here within the "family". 66 consistent, that is, to dig in her heels and reiterate the 'hon-interventionist"-ness of her Act, its place in the 'modernising" trend, and her government's belief in and esteem for the 'private family". Neither the Minister nor anyone else defends the Act in terms of society's obligation to protect the young: 'The intent throughout the Act is to ensure the safety and well being offamilies [my emphasis] and to keep families together."87 Further into the committee stage Tyabji again demonstrates her understanding of the appropriate focus of the legislation, and again MacPhail does not refute Tyabji's agenda: We have a difficulty with s.13 [child in need of protection] because the phrase "or is likely to be" comes up in almost every section. We have a problem with that, because the laws, of course, will demand that people are innocent until proven guilty. 8 8 Of course, the finding of whether a child is in need of protection is about whether a child is in need of protection, not the relative guilt or innocence of a parent, but MacPhail does not defend her legislation in these terms, falling back on her identification of the CFCSA with non-interventionist statutes in other jurisdictions: 'the context of the entire Act is that the primary responsibility for the protection of children rests with parents".89 I believe there is a sentiment in the House that this Bill should not intrude into family matters that we have no business being in the middle of. That's what this is saying...I want to reiterate that we are trying to make this bill responsible only in the areas for which the state should have responsibility and not to intrude in other areas where it shouldn't90 Joy MacPhail, supra note 85 at 11731. Judy Tyabji, supra note 85, at 11734. Joy MacPhail,. supra note 85, at 11736. Joy MacPhail, British Columbia, Debates of the Legislative Assembly (June 16, 1994) at 12021. 67 Exasperated by the committee stage criticisms, MacPhail hopes to re-establish her statute as embodying a trans-party, "natural" and non-ideological consensus on the social value of the family. She tries it again: 'Throughout this Act you will see a requirement on the State—i.e. our social workers and child protection workers—to ensure that less disruptive measures are taken"91; and again: ' I ' l l try this one more time...We are trying to develop legislation that is the least intrusive in families' lives. That's what I've heard from the honourable member [Tyabji, to whom she is replying] over and over again: stay away if you can. Debate during the committee stage was dominated by the rather pious arguments of the Alliance members Tyabji and Wilson against the 'authoritarian" tendencies of the Bill , with much righteous anger directed towards the sections dealing specifically with aboriginal children, which they characterised as racist: the previous Act, the Family and Child Service Act dealt with every British Columbian on the same basis; all of us were equal and none of us were designated on the basis of 9 3 race. At this point the politics of child protection reform for the First Nations overlaps the carefully 'de-politicised" context of the debates. Tyabji's misunderstanding, from which her charge of racism flows, is to miss the politicising significance of community94 in this Ibid., at 12026. Ibid. Judy Tyabji, British Columbia, Debates of the Legislative Assembly (June 7, 1994) at 11549. See discussion of Liberating Our Children Liberating Our Nation, supra ("First Steps"). 68 context; although, at a later point, she notes that 'community" is only ever defined re the First Nations, she does not make the connection between this kind of definition and the distinctions she perceives as racist. Tyabji's premise (which, the debates show, is the shared assumption in the House) positions the 'paramount" individual against the State from which the individual must be protected, a conceptualisation with no 'natural" place for identity outside of the 'individual" character (defined by her opposition to the State). In this 'high liberal" conceptual context the introduction of community identity (and politics) is a distortion: racist95, in diametrical opposition to the understanding of community identity as definitive which frames Liberating Our Children, Liberating Ourselves (and the development of autonomous First Nations child welfare programs).96 This crucial difference, and the confusing consequences of a failure to recognise it, colours the later passages in the debates dealing with "community". MacPhail responds from a purely defensive position. It is somewhat infuriating to note MacPhail's missed opportunity to challenge the "liberal" members of the Alliance as to how they would go about protecting children , the raison detre, after all, of the legislation under discussion, while 'enshrining" their belief that 'the rights of individuals are paramount". 9 5 Harking to the essential conflict between the community and the individual: the notions of community and liberal individualism are in fact antagonistic: the State child protection structure is built on this antagonism. 9 6 In a paper prepared for the Gove Inquiry into Child Protection, Elaine Herbert described this process as "cultural and community ownership". As "ownership" develops, the issues of delegation fundamental to non-aboriginal child protection will no doubt arise within First Nations Programs. See Ms. Herbert's discussion supra, note 30 at 63. 69 This is an extremely difficult and sensitive area because, on the one hand, every legislator wants to protect the rights and interests of children. All of us do. By the same token, we have to recognise that empowering an individual to remove a child...[meandering] I fully appreciate that there may be instances where a director has to move quickly to protect that child and his or her interests. I don't have any problems with that at all. I have serious problems when the state provides the power to eliminate the civil rights of individual parents. This is state authoritarianism in its worst form.97 This is a classic statement of the classic "liberal" position: a strong, extensively argued argument against state interference with the rights of'individual parents" (using the strong language of'authoritarianism'), accompanied by a vague "of course" commitment to that abstract collective 'children", with no concrete consideration of how that 'commitment" is to be met (intervention is permissible in the extreme cases, never defined). It is remarkable that no-one in the House sought to challenge this flimsy position: it would have been easy to do. Why not? These debates are powerful evidence of the internalisation of 'private family" values, and a trans-party political consensus supporting the identification of the child's interest with those of the parent in the "family". About the "Community" Matthew was too young to speak for himself, but he did have advocates, including his father, his aunts, his uncle and social acquaintances of Verna Vaudreuil. Some of these people alerted the ministry time and time again to Matthew's horrible living conditions, his neglect and incidents of abuse. Whatever their personal difficulties and their own dealings with the social welfare system, these people were Matthew and Verna Vaudreuil's community; they were the people with the best opportunity to observe Matthew's real circumstances.98 Gordon Wilson, British Columbia, Debates of the Legislative Assembly (June 20, 1994) at 12100. Gove Report, supra note 15, Volume I at 140. 70 The presence of the 'community" and its anticipated 'involvement" runs through the legislation and the debates as a kind of abstract subtext (or, more accurately, counterpoint) to the struggle between 'individual rights" and 'The State". Is this inclusion of the 'community" a recognition of the origins of the apparent individual/ State 'problem'? Does the legislation imagine a partial dissolution of the 'Walls of privacy" as they are internalised on an individual level, and a resulting 'devolution" of responsibility to the community via statutory support? Does the CFCSA codify such a truly radical solution to the 'State intervention" issue, and does this explain the notion of the "collective" that Gordon Wilson found so threatening? Unfortunately, discussion of the notion of the "community" in the Debates never comes close giving it meaning of any kind. MacPhail defends the 'Community" in the Child, Family and Community Service Act, potentially such a powerful concept, primarily in terms of its legal impotence and notional ambiguity (truly 'meaningful"- given meaning- in the context of First Nations communities only9 9): Although this is called the Child, Family and Community Service Act, there is no definition of community. The only time we see any definition that has the word "community" in it is when we see "aboriginal community... I have a definition of community...The definition for community, ...would be that 'community' means a body of people living in one region or district and sharing common interests.100 MacPhail responds: 9 9 The relative coherence of "community" in this context flows both from the imposed and qualitatively different nature of aboriginal child welfare, and from those characteristics of First Nations communities which seem to set them apart from the dominant liberal paradigm. 1 0 0 Judy Tyabji, supra note 93 at 11706. 71 Let me just try to explain what is intended by integrating 'the community' into this bill. At the beginning let me reassure the members that no legal consequences flow from the definition of community. It's not a legal concept which holds some weight before the courts or whatever, but it is a principle contained in the bill. The community isn't necessarily- but could be- physical geographical definition., [unable to define the "community" but clearly indicating that "community" does not mean everyone, but describes groupsXM , MacPhail goes on to talk about what these communities will do] "We know that the community has a significant role in developing plans to protect children and keep them safe...Later on, we also understand that the community plays a significant role in identifying children who may require protection [the really difficult bit- acting- remains the responsibility of the State].. So it is a concept from which no legal consequences flow, but it is an important principle to be held throughout the bill. 1 0 2 So the original "delegation" remains intact, the walls of privacy unchallenged. Perhaps, extending the metaphor, a group of second walls, slightly thinner, called 'communities" have been imagined as surrounding and collecting groups of "private families". The community as described by Tyabji resembles nothing so much as a club, and, indeed, no other definition is possible in the liberal context. The 'aboriginal community" makes sense because of a fundamental normative difference103, in contrast to the dominant culture of liberal individualism. The only time we see a definition of 'community" is in reference to the aboriginal community; no political definition of that word (in reference to child protection) appears outside of the aboriginal context. The 'aboriginal community" has coherence because of its distance from the dominant culture. 1 0 4 1 0 1 A notion of "communities" as rather like larger "private families"; a loose grouping of "private communities ", as opposed to "the collective ". 1 0 2 Joy MacPhail, supra note 93 at 11706. 1 0 3 M. Turpel, supra note 9; L. Little Bear, supra note 9. 1 0 4 See Elaine Herbert's discussions of issues for First Nations child welfare programs, supra note 30. Discussing the Spallumcheen program, she notes: "For the workers at Spallumcheen this meant sometimes having to investigate your relatives or people you know in the community", which is community child welfare, and almost impossible to imagine with the liberal model of "professional" child 72 Communal responsibility for other peoples' children involves a much higher and more constant level of'intrusion" into private family life, on many levels and for everyone, than a residual State system implies for the few. Joy MacPhail's 'bommunity", coming as it does at the end of a long debate entirely focused on the sanctity of individual freedom and the potential threat of child protection, has to be meaningless, the spectre of the "collective" having been let loose in the Chamber. Dissatisfaction and 'non-interventionist" child protection reform was not peculiar to British Columbia in the 1990s. 1 0 5 In British Columbia, however, the 'failure" preceding reform had particular characteristics, which perhaps account for the depth and width of the consensus we see in the legislative house, the resonance of the 'hon-interventionist paradigm" at this time and in this place: the little 'Cleveland" of the Rafe Mair radio exposes, perhaps connecting with a general 'heo-liberal" mood of the sort described by Bernard Dickens, 1 0 6 and government acknowledgement and acceptance of the unacceptable impact of State child welfare on First Nations communities.107 protection as a neutral apparatus designed for the purpose of maximising parental freedom from censure and interference (from family, neighbours, tradition- the community). 1 0 5 See N. Bala, J. Isenegger and B. Walter " 'Best Interests' in Child Protection Proceedings: Implications and Alternatives " (1995) 12 CJFL Vol.2 367 at 368. And see Richard Barnhorst, supra note 64. Also, the Children Act, 1989 1989, c.41 (UK). W 6 Supra, note 52. 1 0 7 "As used in current debates 'child saving seems to have connotations of paternalism, do-gooding, and the promotion of class interests. It involves the imposition of an alien moral code on one section of society by another". R. Dingwall and J. Eekelaar, supra note 46 at 108. By precisely fitting this formulation, the experience of First Nations communities seems to prove this, moving it towards a self evident characterisation of "interventionist" child welfare, the "taken for granted" context described by Lawrence Lessig as "social meaning". 73 What happened between the introduction of Bill 46 to the House on May 17, 1994 and proclamation of the CFCSA almost two years later was the Report of the Gove Inquiry into Child Protection in British Columbia™ The conceptual problem for the philosophical consensus- the public experience of child protection failure through the child death inquiry- became, literally, the problem for the particular consensus in British Columbia. Crucially, the implicit solution- the disappearance of'failure" for the public as an aspect of family privacy and autonomy- became identified for the public, from the beginning, as a key part of the problem. Child protection reforms in British Columbia before the Gove Inquiry were about the ascendancy of the 'non-interventionist paradigm", of which legislative reform- the Child, Family and Community Service Act- was a part (within the context of 'family centred" policy and a political consensus around the inherent wrongness of'intervention').109 The CFCSA should still, after Gove, be characterised as generally "hon-interventionist" child protection legislation110 but, although the legislation and its characterisation111 is 108 Supra note 15. 1 0 9 Derived from and supported by child welfare critiques on both "right" and "left", the "naturalising" consensus building exercise of the Community Reports, and resonating with liberal political and legal norms and "instinctual" liberal privacy values. The legislative debates demonstrate the power of this consensus, even after the initial Matthew Vaudreuil scandal which led to the Gove Inquiry. 1 1 0 Following Richard Barnhorst's criteria for characterising child protection legislation along an "interventionist" continuum, supra note 64 at 255, considering: principles; grounds for involuntary intervention; initiation of proceedings; authority to apprehend; authority after apprehension (medical consent); time limits; interim custody of the child; clear guidelines encouraging the court to leave the child with or return her to her parent(s); adequate notice and hearing requirements; the court's ability to order the provision of support services to the family so that the child may remain with or be returned to the parents; provisions encouraging the court to give parent(s) access to the child during a period for which the agency will have interim custody; and accountability mechanisms: "One of the general principles of a legalistic approach is that a system of involuntary child protection intervention should be 74 important, it is not determinative: Judge Gove noted that grounds existed for apprehending Matthew Vaudreuil under the 'hon-interventionist" CFCSA (as they did under the Interventionist" Family and Child Service Act)112 After Gove, the context of that legislation- the new "system" and its policy, and the political and social focus on the safety of children- is very changed from the 'family centred" context in which the Act was introduced. Elevation of the safety and well being of the child to the paramount consideration in the interpretation and administration of the Act113 codifies this new 'thild centred" context. The Gove Inquiry was told 'We continue to see in practice that ministry social workers support the view that family support must be completely exhausted before child protection is applied. If this attitude is practised within the framework of the new Act, there are many new hoops to jump through on the road to child protection."114 Within a child centred political, policy and structural context (the non-interventionist 'framework" without the family centred 'attitude" referred to in the quote above), the designed to ensure that agencies and courts are held accountable for their actions" (at 275), and as characterised by Lisa Martz, supra note 63. 1 1 1 Along an "interventionist" continuum. 1 1 2 Gove Report, supra note 15, Volume II at 328 1 1 3 The CFCSA originally contained seven "guiding principles" of equal emphasis. The Child, Family and Community Service Amendment Act, 1995 S.B.C. 1995, c. 19 elevated the first of these principles, that "children are entitled to be protected from abuse, neglect and harm or threat of harm", to the "paramount consideration" in the administration and interpretation of the Act, in response to Gove's interim report recommendation. Also, amendments to the family conference provisions making their offer by the director discretionary rather than mandatory cut against the family support presumption: in some situations the family conference may be appropriate, but in some cases it will not be, and the professional "child centred" task is to discern the difference and make the choice. And see B.S. v British Columbia (Director of Child, Family and Community Services) [1997] B.C.J. No. 2202 (B.C.S.C.) considering whether the standard of proof required for a finding of "in need of protection" was higher under the new Act's "different underlying philosophy" (at para. 37), and finding it was not, characterising the CFCSA (after Gove) away from the "non-inerventionist" end of the "interventionist" spectrum (see, supra note 63). 75 CFCSA will not prevent child centred decision making, and may indeed prove an important balance to the over-intrusiveness some observers fear may result from a 'child centred focus".1 1 5 The systemic 'hale of optimism" and the patterns it produces pose a greater challenge to the goal of a child centred paradigm. 1 1 4 From a submission from a consortium of 14 Vancouver agencies, Gove Report, supra note 15, Volume II at 247. 1 1 5 See I. Grant and J. Mosoff, " Supporting Our Families, Protecting Children " The Vancouver Sun (Dec.8, 1995). 76 CHAPTER THREE SITUATING GOVE: THE INQUIRY REPORTS The political coupling of the CFCSA with the Gove Report made the Report and its sequalae (up to and including the Ministry for Children and Families) a truly sui generis phenomenon- particular in all respects to its time, place and players. At the same time, setting the Report of the Gove Inquiry in the context of previous inquiry reports, Gove's report becomes one piece of a larger pattern of meanings: about the interplay between high profile inquiries and child protection reform, the "rule of optimism" and the limits of child protection practice, and understanding child protection failures. Describing the collected British inquiry reports shows how the liberal compromise/rule of optimism analysis discussed in Chapter One works: how the non-interventionist consensus "works" for "insiders". Situating the Gove Report within the context of the British inquiry report collections extends that analysis; the repetition of patterns indicates a similar process is at work, despite obvious differences of time and place, supporting the concept of a systemic "rule". The sharp departure of Gove's "result"- creation of the new Ministry and the office of the Children's Commissioner- from another inquiry report pattern, the pattern of repeating failures and repeating recommendations without meaningful change, may indicate that the particular combination of events in British Columbia has created a special situation, or context, in which a quite new kind of "child centred" reform is possible (or, that the post-Gove changes will themselves prove less "meaningful" than they now seem). 77 The British Inquiry Reports: 1973-1989 The general picture of practice emerging from the reports is not of gross errors or failures by individuals on single occasions but of a confluence or succession of errors, minor inefficiencies and misjudgements by a number of agencies, together with the adverse effects of circumstantial factors beyond the control of those involved. The Lisa Godfrey Report points to the cumulative effect of errors by social, medical, probation and health visiting services1; in the Carly Taylor case the professionals principally involved were all judged to have worked together to consult, but not to act positively to prevent the tragedy2; and a witness in the Karen Spencer3 inquiry described the entire case as "a whole chain of events... strewn with 'if only'". 4 Eighteen British child death inquiry reports between 1973 and 1981 were considered together in a study published by the DHSS (Department of Health and Social Services) in 19825, responding to requests from local agencies that the DHSS analyse these reports as a group to identify common lessons for practice. The cases cover neglect, emotional abuse, and physical violence. One "theme" of these reports6 and their public reception is xThe Joint Report of the Committee of Inquiry into Non-accidental Injury to Children, with particular reference to the case of Lisa Godfrey (London: Lambeth, Southwark and Lewisham AHA(T), Inner London Probation and After-Care Committee, London Borough of Lambeth, 1975) [hereinafter Lisa Godfrey] at 189. 2 Carly Taylor: Report of an Independent Inquiry (Leicester: Leicestershire County Council/ Leicestershire Area Health Authority, 1980) [hereinafter Carly Taylor] at 125. 3 Karen Spencer: A report by Prof. J.D. McClean (Derby: Derbyshire County Council/ Derbyshire Area Health Authority, 1978) [hereinafter Karen Spencer]at 19. 4 DHSS, Child Abuse: A Study of Inquiry Reports 1973-1981 (London: HMSO, 1981) at 28. 5Ibid. 6The Carly Taylor report published in 1980 referred to "the plethora of recommendations in the various reports of similar inquiries in recent years; we have studied nine of them and while we agree with the majority of their general recommendations many of them are largely repetitious of others and it would be pointless of us to repeat them. We can only say that if they had been studied and followed by those concerned at all levels in this case, it is reasonable to assume that the troubles with which we are concerned would not have occurred." Carly Taylor, supra note 2. A crucial meaning of the reports, I suggest, is this repetition. 78 the similarity of their findings and their inability to stimulate change; the DHSS collection is a response to that frustration. A second collection of 19 reports was published by the DHSS in 1991.7 The 1982 study was compiled by a panel of six. The 1991 study was compiled by a single individual, Philip Noyes of the NSPCC (National Society for the Prevention of Cruelty to Children). The two collections identify similar themes and patterns in the reports, although Noyes distinguishes his study somewhat, noting: "what was remarkable in the first decade was the coherence of the findings. In the 1980s a more complicated picture emerges... it is understandable where difficult decisions concerning human relationships are being made by professional staff from a number of agencies that tragedies will from time to time 7,8 occur. This "more complicated picture" from the 1980s is primarily attributable to the huge influence of the Cleveland "crisis" and subsequent inquiry report, included in the 1991 DHSS study. Two doctors in Cleveland, England, began pro-active diagnosis of sexual abuse in young children in 1987. The result was a sharp and sudden upswing in the number of sexual abuse referrals to social services. Tensions between the police and social services erupted into open hostility, politicians took up the parents' "cause" and the "crisis" became a media sensation. The Report of the Inquiry into Child Abuse in 7 DHSS, Child Abuse: A Study of Inquiry Reports 1980-1989 (London: HMSO 1991). 8Ibid., at iii. 79 Cleveland* did not resolve the still ambiguous question of how many children diagnosed as sexually abused were abused, but "Cleveland" has nevertheless become a byword for "what happens when things go too far in the other way", a counterpoint to the child death inquiries. The "rule of optimism" (whose operation is so clear in the 1973-1981 narratives, although it had yet to be named and described) is an explicit point of reference for Noyes in 1991:1 0 The proper balance of judgement between respecting family privacy and intervention to protect a child must always be difficult to achieve. Most of the reports describe cases which require professionals to work with families who are either resistant or hostile to their intervention and hence are frightening or superficially plausible and the so-called 'rule of optimism' may prevail.11 In 1993, Peter Reder, Sylvia Duncan and Moira Gray published Beyond Blame: Child Abuse Tragedies Revisited12 a collective study of the British child abuse inquiries from 1973 and the inquiry into the death of Graham Bagnall, also the starting point of the 1981 DHSS 1 3 study, to the Doreen Aston 1 4 report published in 1989. This study considers the 9 London: HMSO, 1988 [hereinafter Cleveland]. 1 0As it was by Louis Blom-Cooper in A Child in Trust: The Report of the Panel of Inquiry into the Circumstances Surrounding the Death of Jasmine Beckford (London: London Borough of Brent, 1985) [hereinafter A Child in Trust], although Robert Dingwall, in a subsequent article, objected to Blom- Cooper's characterisation and use of the rule in that context: Robert Dingwall, " Reports of Committees: The Jasmine Beckford Affair" M.L.R. 49 No. 4 July 1986 489. 1 1 DHSS, supra note 7 at iii. 1 2 (London: Routledge, 1993). 1 3 An inquiry was held into the death in foster care of Denis O'Neill in 1945 but the next one appears to be concerning Graham Bagnall in 1973. Report of Working Party of Social Services Committee: Inquiry into the circumstances surrounding the death of Graham Bagnall and the role of the County Council's Social Services (Salop County Council: 1973) [hereinafter Graham Bagnall]. 14 Doreen Aston (London: Lambeth, Lewisham and Southwark Area Review Committee, 1989). 80 inquiries and the patterns therein from a 'systems" perspective in an attempt to get beyond the "blaming", often accusatory context of the inquiries themselves.15 Cleveland is not included in this collection. These three collections and their conclusions are discussed as they draw attention to or demonstrate certain common themes and patterns from the inquiry reports. Some passages of particular relevance to the Gove Report have been included for that reason. The report into the death of baby Paul, which is similar in many respects to Matthew Vaudreuil's story, is considered independently. Paul: Death Through Neglect, was written post Children Act, 1989: it is significant that many of the themes and patterns described in the earlier reports recur in Paul's story. I have included, where appropriate, "stories" from the reports, mostly drawn from the Beyond Blame study, for two reasons. The themes and patterns identified in the studies are clearest and most compelling in the narratives from the inquiry reports. Most importantly, the children and their experiences must be central to any discussion of these events, and "neglect" must become what happened to Malcolm Page.16 I also hope that 1 5"Our concern has been that the reports tended to focus over-much on matters of professional responsibility and accountability at the expense of analysing the psychological aspects of the cases and the responsibilities of the caretakers. In our opinion, reviewing what did happen and what should have happened needed to be balanced with an attempt to understand how the errors had occurred." P. Reder et al, supra note 12 at 4. 1 6 See infra. The use of "clinical" words may convey a very different meaning to the reader than a plainer account of details: " A judge may ask a complainant: 'How often does he hit you?' or 'How did the child come to have a hematoma?' Compare these statements with 'a pool of blood rotted in the brain'. Judges more often use the former language- like that of a remote clinical examination." Martha Minow, discussing DeShaney, 109 S. Ct., "Words and the Door to the Land of Change: Law, Language and Family Violence" (1990) VLR Vol. 43 1665. In addition, some "clinical" words may come freighted for the reader with implications, particularly " neglect" which will (for some) trigger an image of ambiguous, sloppy housekeeping and "middle class" standards. This implications are not appropriate to the 81 the excerpts I have included, here and in Chapter Four, will convey something of the emotional experience Of reading the reports, which is a crucial part of their meaning.17 The themes noted in the following sections are by no means discrete. Each pattern merges, overlaps and interacts with the others. The "pattern" organisation, while artificial and, to the extent that it implies a degree of separateness, a bit misleading, helps to make sense of the information and its relationship to Judge Gove's report. I have tried to indicate connections in the text; in some instances they are self-evident. Authority The DHSS 1981 study identified reluctance to use authority as one theme in the reports: There are a number of references to the fears of workers struggling to engage the co- operation of parents, that authoritative intervention to protect the child might lead to the breakdown of any relationship they might have established with the parent... "The need to establish and maintain a relationship of confidence with the parents may be difficult, perhaps impossible, to reconcile with the worker's duty to the child."18 But whilst the untimely imposition of authority can estrange parents, failure to impose authority and to set limits, as in the Malcolm Page case, can lead to a situation where a " neglect" situations described in this chapter (or in the subsequent chapter dealing with the Gove Report) and it is extremely important to make that point, in the plainest language available, which requires some detail. 1 7 "The stories of the individual children are moving and the tragedy of the death, usually described near the middle of the report, is always moving impact [sic]. Afterwards, reading the policy and practice discussion seems rather superfluous. What really can be done?" DHSS, supra note 7 at 109. 1 8 From the Lester Chapman Inquiry Report (Berkshire and Hampshire County Councils and Area Health Authorities, 1979) [hereinafter Lester Chapman], at 65, ix. Also referred to here are the Report of the Committee of Inquiry into the provision of services to the family of John George Auckland (London: HMSO, 1975) [hereinafter John Auckland] and the Report of the Joint Committee set up to consider co- ordination of services concerned with non-accidental injury to children (Essex County Council and Area Health Authority, 1974) [considering the case of Max Piazzani; hereinafter Max Piazzani]. DHSS, supra note 4 at 23. 82 case "drifts"19... Whilst acknowledging the difficult casework decisions involved, the inquiry thought" that the solution lies in simply not taking " no" for an answer and the exercise of personal or statutory authority by the workers involved with the case... The existing law provides the means to set a specific requirement which if not met can result in the removal of a child".20 The fatal "drift" in the Malcolm Page case seems to have been the product of wavering authority, tentatively asserted, then withdrawn at the merest sign of co-operation. Al l four children of the household were severely neglected, their upstairs bedroom full of faeces, freezing cold, and filthy , their beds soaked with urine, despite the fact that the downstairs was kept reasonably pleasant (and on view to social workers).21 Malcolm Page died of malnutrition and hypothermia in that bedroom after weeks of malnutrition culminating in acute starvation. He was also found to be suffering from gangrene. Malcolm Page was 14 months old when he died. At the age of 4 months Malcolm and the other children were removed on Care Orders, because of appalling conditions in the home: The parents co-operated with the social worker, visiting their children and making strenuous efforts to clean the house and the children were returned. However, within a few days the social worker received no replies to her home visits and the home conditions deteriorated again. Although she spoke sternly to the mother and despite parental promises, the children were not taken to the next two health clinic appointments. At their next home visit, the social worker and home help realised that they had never been allowed upstairs, where they found sheets soaked with urine and encrusted with faeces. A case conference recommended that the social worker should put the position bluntly to the parents and that home help should be increased. The father agreed... that things had slipped a bit and he thought his wife was depressed 1 9 From Malcolm Page: Report by the Panel (Essex ARC, 1981) [hereinafter Malcolm Page] at 3.67. DHSS, supra note 4 at 23. 20 Malcolm Page, supra note 19 at 5.21. DHSS, supra note 4 at 24. 2 1 This aspect is echoed in Paul: Death Through Neglect: " there was a toleration from the beginning of the case of the state of the family home which raises concerns. Part of the explanation was that, whenever anyone visited the family home, they were shown in to one particular room. This room was untidy, but not especially dirty. However, no one seemed to see the remainder of the house, which was kept in an appalling state." (London: The Bridge Child Care Consultancy Service for Islington Area Child Protection Committee, 1995) at 156. 83 again. The case continued in this to and fro manner with episodes of deterioration in the home and children met with confrontation by the workers, followed by temporary periods of improvement and co-operation from the family. It ended in terminal closure, with the health visitor and social worker either unable to gain entry to the home or not shown Malcolm in his room upstairs.22 Malcolm Page's parents were found guilty of wilful neglect and imprisoned for twelve months.23 The pattern of tentative assertion of authority, followed by anxious but ineffectual monitoring and the collapse or withdrawal of authority has been described as the hallmark of the "dangerous professional".24 The implication of these analyses25 is that intervention without confident authority is more dangerous than total non-involvement. 2 2 Reder et al, supra note 12 at 107. 2 3 For a detailed account of this case, see M. Jay and S. Domains Battered: The Abuse of Children (London: Weidenfeld and Nicolson, 1987), at 64. 2 4 Peter Dale with Murray Davies, Tony Morrison, and Jim Waters, Dangerous Families: Assessment and Treatment of Child Abuse (London: Tavistock Publications, 1986) at 35. "It is possible to caricature types of behaviour of dangerous professionals. The 'dangerous social worker' [attempts] to make contact with an unenthusiastic or hostile family in respect of some expressed concerns that a child might be at risk. Such approaches may be made by focusing on more mutually acceptable problem areas such as housing or material benefits, as neither the worker or family feels comfortable with an open statement of the real concern. The next phase occurs when, having provided a nursery place, the worker is informed of [suspicious injuries]. The referral is likely to have been delayed by a dangerous officer in charge. The dangerous social worker will then either reluctantly (and very anxiously) visit the parents to inquire about the bruising, but will be eager to accept rather implausible explanations. At the extreme the dangerous social worker will refuse to investigate (supported by a dangerous manager) rationalising that the referral is too late and also that it would 'damage my relationship with the family'. This is one of the catch phrases of the dangerous social worker in action. When noted it should cause immediate alarm and prompt active review of the management of the case. A 'relationship' which can be damaged in such a way is in fact only a relationship of enmeshment and collusion: the antithesis of any therapeutic or supervisory contact. A professional relationship which cannot include the discussion of concerns inevitably reveals itself as not a relationship at all, but an avoidance of conflict and difference." 2 5 And see S. Minuchin, "Child Murder: Maria Colwell" in Family Kaleidoscope S. Minuchin ed. (Cambridge, Mass.: Harvard University Press, 1984). 84 The Jasmine Beckford Inquiry highlighted the appropriate use of authority as "an essential ingredient in any work designed to protect abused children"26 although, as noted in the DHSS collection, the social worker's "multiple roles and, in particular, the emphasis on parental rights complicated the exercise of that "authority".27 The Panel of Inquiry into the death of Lucy Gates found that "the rights of parents appear to take precedence over rights of children... There is currently strong pressure on professional workers to keep children with their parents at almost any cost".28 Lucy Gates died at age two when an electric fire fell on top of her, after she and her siblings had been left unattended while their mother, Linda Gates, went to the pub. Linda Gates was sentenced to manslaughter and sentenced to eighteen months imprisonment, suspended for two years. A summary29 of eight years of social services involvement with Linda Gates (from the birth of her first child, who she gave up for adoption, to the death of Lucy in 1979), shows a pattern of severe neglect and abuse. The Kimberley Carlile report30 concluded that discomfort with authority subverts worker confidence about insisting on seeing a child where the parent(s) is "stonewalling", a situation identified in all three studies as a danger sign. 2 6 A Child in Trust, supra note 10 at 295. 2 7 DHSS, supra note 7 at 5. 2iReport of the Panel of Inquiry (London Borough of Bexley and Bexley Area Health Authority, 1982) [hereinafter Lucy Gates] at 6.17; DHSS Ibid. 2 9 Reder et al, supra note 12 at 87. 3 0 A child in mind: protection of children in a responsible society. The report of the commission of inquiry into the circumstances surrounding the death of Kimberley Carlile (London Borough of Greenwich, 1987) [hereinafter Kimberley Carlile]; DHSS, supra note 7 at 5. 85 Uncertainty and unease about the use of authority undermines the worker's capability to react appropriately to warning signs and signals. The Beyond Blame study describes a pattern of "disguised compliance" in the reports whereby the tentative use of authority is met by apparent co-operation from the family, effectively "neutralising] the professional's authority": ...social services received a complaint about a child being beaten in the house but, although two social workers were allowed into the home, they were refused sight of Kimberley and her younger sister, who were said to be asleep upstairs. Three days later, the social worker delivered a confronting letter saying that the two youngest children had to be medically examined or else the police would be informed. The next day the family telephoned social services, admitting that they had harmed Kimberley , and the duty social worker arranged a meeting at the family's home the following afternoon with the social worker who knew them. However, in a move of apparent compliance which managed to undermine social services' more controlling stance, the family came instead to the department the next morning. Believing this indicated co-operation, the social worker agreed with them to seek a nursery school place for Kimberley and to have further meetings in a few week's time. The parents' never took up the offer of the nursery place and they did not attend for health clinic appointment. Despite being concerned by what he had seen of Kimberley's appearance, the social worker still did not have any statutory powers and could only recommend medical examination for her. At a subsequent home visit, Kimberley's step-father allowed him into the house but only to glimpse her through a glass panel above a door and this pattern towards closure 31 continued until Kimberly was killed. Kimberly Carlile was killed by a blow to the head, having experienced physical abuse and starvation over a long period. She was four years old. She and her two siblings had been returned from voluntary care when her mother and step-father married. Kimberley 3 1 Reder et al, supra note 12 at 106. The " glass panel" incident is strikingly similar to an incident recounted in the Review of the Circumstances Surrounding the Death of Mavis Flanders, Report to the Honourable Un'al Dosanjh, Attorney General prepared by Cynthia Morton, Children's Commissioner and Chair, Child & Family Review Board, June 12, 1997, in which a social worker responding to an anonymous call about the health and safety of Ms. Flanders' son is denied entry but, seeing the child through an open door, determines he is fine. 86 Carlile's step-father was sentenced to life in prison for her murder. Her mother was sentenced to twelve years for grievous bodily harm. A very different conclusion about the appropriate use of "authority" and its implications for "error" comes from the Cleveland Inquiry: "the lack of a basic understanding of the unique features of each family meant that parents felt alienated by what they saw as an apparent lack of willingness to understand their point of view... we would suggest that the gathering of knowledge upon which to place carefully considered judgements, together with cautious use of professional authority and statutory powers, are more likely to be in the best interests of vulnerable children than patterns of professional practice which alienate parents and isolate children at the centre of the conflict."32 The Law: Pre-guessing Court Outcomes The 1981 DHSS study identified paucity of legal knowledge among some social workers, and confusion about the little that was known, as a recurring problem,33 together with "numerous instances34 of failure to exercise legal authority held".3 5 Despite this lack of 3 2 Cleveland, supra note 9 at 4.195; DHSS, supra note 7 at 4. 3 3 Referred to in the following child death inquiries: Report of the Committee of Inquiry into the case of Paul Steven Brown (London: HMSO, 1980) [hereinafter Paul Brown], at 60, Report of the Committee of Inquiry into the Care and Supervision Provided in Relation to Maria Colwell (London: HMSO, 1974) [hereinafter Maria Colwell], at 238; Lester Chapman, supra note 18 at 58; Report of the Committee of Enquiry concerning Simon Peacock (Cambridgeshire and Suffolk County Councils and Area Health Authorities, 1978) [hereinafter Simon Peacock],at 14, 2.9, 2.10, 4.15. 3 4 Paul Brown, supra note 33 at 85,88; Lester Chapman supra note 18 at 50, 59; Maria Colwell, supra note 33 at 107, 109; Karen Spencer, supra note 3 at 2.87; Report of the Social Work Service of the DHSS into certain aspects of the management of the case of Stephen Menheniott (London: HMSO, 1978) [hereinafter Stephen Menheniott]. 3 3 DHSS, supra note 4 at 24. 87 legal knowledge, the study identifies a tendency to pre-judge court findings and take actions accordingly as a pattern in the reports: Preparing and giving evidence can provide a useful discipline in reaching clear judgements and decisions; the value is, of course, lost to those who pre-judge what the court's findings will be. In the Lester Chapman case, for example, a social worker was influenced against seeking a place of safety order partly by a Court's earlier decision to refuse a Care Order in what seemed a clear case to the SSD.36... In the Maria Colwell case social workers judged, in the legal and social context of the time, that application by the mother for revocation of the care order would succeed within a short time. The inquiry accepted that they were probably right to assume that the magistrates would return the child home once the parent's fitness was proved, unless it could be clearly shown that it would not be in her best interests. When the mother pressed ahead with her application, the local authority, seeking to retain some control in the situation, decided not to oppose it. The effect of the decision was: "because there was no opposition... there was no examination by way of argument or evidence of any reasons why the care order should not be revoked... The revocation went through virtually 'on the nod." If opposed, "there would undoubtedly have been a very full hearing with evidence and argument on both sides and the court would have made its decision after every possible point had been taken". The care authority would also have looked " for evidence to justify their opposition" , 3 7 i.e. this would have imposed a useful discipline on social workers to seek evidence supporting actions.38 The 1981 DHSS study refers to what it calls the failure to "pool" information from various agencies as pre-empting the collection of evidence for "full exploration" in Court proceedings.39 The "tendency to regard physical injury as the pre-dominant factor in Court proceedings" is another practice conducive to error: "local authorities should be 3 6 Lester Chapman, supra note 18 at 171. 37 Maria Colwell, supra note 33 at 226. 3 8 DHSS, supra note 4 at 25. The significance of " pre-judgement" and its influence on child protection practice is heightened in the context of " least intrusive" non-interventionist legislation. Also noted here: Karen Spencer, supra note 3 at 2.124, 2.128; Wayne Brewer: Report of the Review Panel (Somerset Area Review Committee, 1977) [hereinafter Wayne Brewer] at 4.18. 3 9 DHSS, supra note 4 at 26; reference to John Auckland, supra note 18 at 120. 88 more prepared to bring evidence of the likelihood of injury and that the courts should be more willing to receive and weigh such evidence."40 What Can Be Known: Compiling Reports From Parental Accounts The 1981 DHSS study identified the compilation of reports from parents' "versions" as a dangerous pattern.41 The 1991 DHSS study found as a "recurrent theme" "the extent to which parents will lie and seek to deceive professional workers"42 citing as examples the cases of Jasmine Beckford, Tyra Henry, Lucy Gates, Charlene Salt and Kimberley Carlile. Throughout the first month of the trial at home, Ms. Wahlstrom [social worker] and Ms. Ruddock [family aide ]amply monitored the daily lives of the Beckford family. In the early stages, Miss Knowles [the health visitor] was requested to stay away "until the situation had calmed down a bit more" - a reference to the irritation being displayed to the social workers by both Beverley Lorrington and Morris Beckford in their handling of an intensely supervised pattern of life by public authority... It is fair to say that Ms. Wahlstrom did at least keep in contact with Mortimer Road Day Nursery about Jasmine's erratic attendance there, but she appears always to have accepted Beverley Lorrington's excuses for not having taken Jasmine to the nursery. This expression of trust in what she was told by Beverley Lorrington, both about herself and the children, permeated every aspect of Ms. Wahlstrom's social work. She was, fatally, much too willing to believe everything "her clients" (the Beckford parents) told her. 4 3 The basic dilemma appears to be that most of the professionals involved seemed to be accepting at face value the way in which the family was portrayed and the information they presented. We would argue that parents who provide the greatest risk to children are those who successfully convince the system of their ability to care if only they receive the right help, year after year [the records begin in 1976 with the birth of the mother's first of eight children. Paul dies March 7, 1993]. In addition such parents are also well versed in conveying misinformation and children may feel unable to contradict or may 4 0 Ibid. Reference to Wayne Brewer, supra note 38 at 4.25; Paul Brown supra note 33 at 84; Lester Chapman supra note 18 at 66 xii; Graham Bagnall supra note 13 at 20. 41 Maria Mehmedagi-Report of an Independent Inquiry (London Borough of Southwark, Lambeth, Southwark and Lewisham AHA(T), Inner London Probation and After-Care Service, 1981) [hereinafter Maria Mehmedagi] at 87; Maria Colwell, supra note 33. DHSS, supra note 4 at 26. 4 2 DHSS, supra note 7 at 69. 4 3 A Child In Trust, supra note 10 at 116. 89 not be asked... Because of the perceptions of this family as being a low income family in need of support, rather than one in which children were at risk, the direction in which the case was managed became distorted.44 Reading the chronology of the involvement of Paul's family with social services, one becomes intensely curious about what these parents must be like. They must have been very persuasive, with considerable personal power, to have wrung so much out of social services for so many years while successfully refusing to avail themselves of the help directed at the children (such as doctor's appointments) without challenge. The parents position throughout is that any problems they experienced were completely due to social services' not giving them enough money. There is no indication that, when demanded benefits materialised, they were used to benefit the children. Furniture was immediately sold, with proceeds in the pocket of the father, who was the dominant figure in the family. Yet throughout the 15 year period covered by the report, such benefits continued to be provided to the family. What Can Be Known45: Specialised Knowledge and Blocks to Recognition Two knowledge based error types are identified in the 1981 DHSS study under the heading "Professional Practice": "specialised knowledge" (a "lack of experience and expertise in child abuse") and "blocks to recognition" (subjective or "psychological" reactions to situations which prevent the worker from accepting certain explanations or Paul: Death Through Neglect, supra note 21 at 154-155; and see infra notes 59, 60. And see Robert Dingwall, supra note 10 at 495-504. 90 conclusions).46 "Blocks to recognition" and their significance in the inquiry narratives are also considered in the subsequent DHSS study and Beyond Blame. a) subjective reactions to family members There is a danger that professionals may misconstrue situations by reacting too subjectively or uncritically to one family member. The Auckland report demonstrates very clearly the dangers of accepting too readily one party's account of the situation. 'From the start and perhaps because of her lack of knowledge of previous events' a social worker 'formed an adverse view of Mrs. Barbara Auckland and, from this point onwards, the social services personnel dealing with the Auckland family seems to have been rather too ready to accept information and explanations offered to them by Mr. John Auckland and his relations.47 Another worker, later in the story, having first talked to Mr. Auckland and his parents, went to see Mrs. Auckland 'with a version of her reasons for leaving her husband already established in his mind'; he paid 'relatively little attention to Mrs. Auckland's own complaints about her husband and his family'.48 The social worker succeeded in persuading Mrs. Auckland to allow Mr. Auckland to have care of the child, at the home of his parents. Susan was subsequently killed by her father, who had previously killed a baby daughter. There were also problems of accepting one party's account too readily in the Maria Mehmedagi case,49 problems of over-identification with the mother in the Steven Meurs case.50 Fear of manipulation led workers to discount warnings given by the mothers of Paul Brown51 and Richard 4 6 DHSS, supra note 4 at 29. 47 John Auckland, supra note 18 at 149. 4 8 Ibid at 190. 4 9 Maria Mehmedagi, supra note 41 at 122. 50 Report of the Review Body appointed to inquire into the death of Steven Meurs (Norfolk County Council and Area Health Authority, 1975) [hereinafter Steven Meurs] at 6.02. 51 Paul Brown, supra note 33 at 84. 5 2 Report of the Committee of Inquiry into the Consideration given and steps taken towards securing the welfare of Richard Clark by Perth Town Council and other bodies or persons concerned (Secretary of State for Scotland, 1975) [hereinafter Richard Clark] at 40. 5 3DHSS, supra note 4 at 30. 91 John Auckland killed his and Barbara Auckland's first child, Marianne, when she was nine weeks old. He was imprisoned for eighteen months, having been found guilty of manslaughter with diminished responsibility. He severely scalded his second child as a baby. Social services were unaware of John Auckland's responsibility for the death of Marianne until Barbara Auckland informed them of it after Susan's return to her father (Barbara Auckland had originally taken Susan when she left). This information "alarmed" the duty social workers, however, Susan remained with John Auckland until he killed her. Richard Fraser died as a result of severe head injuries when he was five years old. He was admitted to the hospital unattended. His father was given a life sentence for his murder. His stepmother was imprisoned for two years for wilful assault, ill-treatment and neglect. Richard's father was repeatedly violent, dismissive and critical of Richard's mother. He often threatened her physically for neglecting Richard and eventually he beat her up and took Richard to a crisis reception centre. Richard's mother left the area and his father was then joined in the centre by a co-habitee. While the father was in prison for violence, Richard was seen to have sustained non-accidental injuries and was taken into care. A case conference decided not to return Richard to his father while he remained with the co-habitee, but at the subsequent care proceedings the solicitors representing both parties came to an agreement for Richard to go home on trial provided that his father was present in the household. The early belief that Richard was safe when his father was there was reinforced by the legal process and continued despite contradictory evidence, such as his father's re-imprisonment for violence and both parents' hostility to the social worker when he visited. It was Richard's father who was eventually charged with murder.55 Account taken from Reder et al, supra note 12 at 93. Ibid., at 93. 92 The social worker adopted a "low profile" visiting strategy regarding Richard Fraser because she was afraid of his father; this does not seem to have mitigated the initial impression that Richard was safe in his father's presence. Granting a Care Order to Brent Social Services for Jasmine Beckford and her sister Louise, the Magistrates added "In making these Orders it is our earnest hope that the Social Services Department will do it's [sic] utmost to carry out a rehabilitation programme to unite these children with their parents."56 [The Report considered that the Magistrates may have been given incomplete, incorrect or inadequate evidence conducive to misunderstanding] We think that, like most people who have seen Morris Beckford and/or Beverley Lorrington, the Magistrates found the Beckford parents very appealing, and were understandably sorry for them in their plight of having to live in appalling housing conditions57 and with a background of unhappy childhood... Whatever objectively the investigators of this episode in the Beckford Case may conclude about the Magistrate's rider, there is no doubt how it was perceived by everyone in court... Mr. Bishop [area manager] was astonished that the Magistrates found it possible to add their rider, given the evidence of multiple child abuse... What perturbed him more, in practical terms, was the effect it would have on the parents... Mr. Bishop, with whose reaction we entirely sympathise, was asked what he would have done in the absence of the Magistrate's rider. While not wanting to hypothesise, he said it would have meant that he and his colleagues would have had one less factor to consider when assessing the case in the future. But he was more emphatic on the positive side, in concluding that what the Magistrates had indicated did powerfully influence at least his ultimate decision [to] concur in a programme of rehabilitation.58 The story of the Magistrates' rider vividly illustrates the incremental nature of mis-steps identified in all three studies, the accumulating " i f onlys". The rider, arising it seems from 56 A Child in Trust, supra note 10 at 99. This statement is referred to in the report as a " rider", and all evidence indicates that it contributed very much to social worker " preguessing" of court outcomes in this case. 5 7 The care order was made on November 9, 1981; the Beckfords moved into a three bedroom house in March 1982; Jasmine Beckford was killed in July 1984. 58 A Child in Trust, supra note 10 at 100-101. 93 a combination of misinterpretation and a subjective, sympathetic reaction to the Beckfords (and these two explanations are not exclusive) created a context for the Beckford case. The Beckford children were going home, and the Beckford family was a viable option; it became difficult at this point to "see" any signs to the contrary. In the case of Paul, the report concludes: In this case, both parents were able to convince a range of professionals involved of their ability to cope with help and were extremely successful in conveying misinformation and thus confusing the professional system. In addition they convinced many professionals that it would be better not to involve social workers. Even in 1991, by which time social workers were more involved, the parents were still able to convince professionals, such as doctors, that referring a situation to social workers would not be constructive: a view which appears to have gone unchallenged. Eleven years of a fixed perception continued to dominate. Representatives of The Bridge [the agency carrying out the report] met both parents and we have some sympathy with the way in which professionals were deceived regarding their ability to cope.59 Both parents blamed social services for Paul's death, on the grounds that social services had not done enough to help the family: the statements were presented with a confidence that they would be accepted... Despite the detailed factual knowledge of what happened, the Bridge representatives could feel the power that was being exerted to draw them in to an acceptance of these statements. The facts of the case showed the statements to be patently untrue.60 b) denial Paul: Death Through Neglect, supra note 21 at 154. Ibid. 94 "Denial" may block recognition where a worker finds the suggested abuse so "horrifying" that she cannot suspect a client (who she may like) of doing it: The Darryn Clarke inquiry found that the senior social worker initially believed the source of the problems and complaints lay in the family's disapproval of Darryn's mother's conduct and friends. This caused him not to ask her brother specific questions about the alleged injuries, and not to purse an objective assessment of the situation in the light of new information. The senior social worker told the inquiry " he did not want to believe that Darryn was being injured." 6 1 The abuse of Darryn Clarke was horrifying and sadistic. Darryn Clarke was three years old when he was killed by his mother's partner, who went to prison for fifteen years for unlawful killing. The child's physical injuries included severe burns to the legs: "Darryn's step-father also locked him in a cupboard, forced him to drink lager and tied up his penis and put a cork in his anus to stop his incontinence and forced Darryn to sit on the potty for hours."62 The child was well cared for until his mother began co-habiting with Charles Courtney, a relationship of which her family disapproved. The family contacted the police, social services and the NSPCC for seven weeks trying, unsuccessfully to find Darryn. They were unable to find the child before he was fatally assaulted by Charles Courtney. Worker interpretation of statements and situations may be shaped by these kind of psychological processes. Christine Aston, the mother of Doreen Aston, confessed to her 61 Report of the Committee of Inquiry into the Actions of the Authorities and Agencies relating to Darryn James Clarke (London: HMSO, 1974) [hereinafter Darryn Clarke] at 43; this account from Reder et al, supra note 12 at 153. Other references: John Auckland, supra note 18 at 210, Steven Meurs, supra note 50 at 12.06. Darryn's mother came from a large, "close knit" Liverpool family who, social workers suspected, disapproved of her partner because he was black. 95 worker that she had smothered an earlier child; the confession was interpreted by the worker as a "grief reaction" rather than a statement of fact. The worker's interpretation of Ms. Aston's statement was never overtly challenged: A critical factor that influenced professionals' assessments was a pervasive belief that Karl [the first child] had succumbed to the cot death syndrome. This was despite Christine's earlier threats to harm him, her admission that she had hit him six weeks prior to his death, post-mortum evidence of fractured ribs and a brain haemorrhage and Christine's disclosure to her social worker that she had smothered him. The belief may have been influenced by the police view that there was insufficient evidence for a criminal prosecution and the social worker's interpretation that Christine's confession was a grief reaction. Nonetheless, Doreen's name was entered on the At Risk Register because some considered her brother Karl's death to be suspicious.53 c) confusion of fact and opinion "Subjectivity and the confusion of fact and opinion" may distort assessment. The DHSS study considers the example of Malcolm Page, whose home conditions64 were described in a social worker assessment as "not bad" meaning not bad for the Pages, in contrast to the police account, described in the inquiry report as a good example of factual reporting.65 Paul: Death Through Neglect notes the positive "opinions" and "value judgements" which appeared in the files pertaining to Paul and his family- "dirty, smelly, but happy"- despite the fact that there was little evidence to support them and substantial evidence of gross neglect of all the children. d) source of data 6 3 This account from Reder et al, supra note 12 at 116. 6 4 Malcolm Page would die in his home of hypothermia and malnutrition. 6 5 DHSS supra note 4 at 30. And see M. Jay and S. Domains, supra note 23 at 73. 96 Data may be unappreciated because of its source or because the source is not valued.66 The inquiry into the death of Tyra Henry6 7 described how the evidence of police officers was discounted at case conferences because of social worker distrust of the police. The police were invited to early case conferences regarding Karen Spencer where they had questioned gaps in assessment but they were not invited to subsequent conferences after the rehabilitation plan was implemented.68 A similar rift between the police and "care workers (the social worker, probation officer, health visitor and paediatrician) developed after Maria Mehmadagi was admitted to hospital with extensive injuries: The police received their invitation to the next case conference too late for them to attend and this exemplifies the rift that had developed between the two entrenched groups, one becoming advocates for the parents [the care workers], the other (the police) being seen as hostile to them. In the middle of this polarisation was Maria and plans to return her to her parents continued even though she was observed to be bruised and injured. It seems that, as these processes develop, the great wealth of feeling generated by the professional interaction interferes with thinking about the child.69 Maria died of severe head injuries three weeks before her first birthday. Her father was convicted of causing actual bodily harm and imprisoned for nine months. 6 6 DHSS, supra note 7 at 59. 67 Whose Child? The report of the public inquiry into the death of Tyra Henry (London Borough of Lambeth, 1987) [hereinafter Tyra Henry]; see Reder et al, supra note 12 at 72. 6 8 Reder et al, supra note 12 at 72. "The day before Karen died, a police detective telephoned social services to inquire when the next case conference would be and he was told that it had taken place two months previously." Ibid, at 74. 97 The Jasmine Beckford inquiry found "the police exclusively possess optimum access to a range of information about the criminal background of individuals that can be invaluable to those in agencies engaged in the assesment of child abuse. For social services and the allied agencies engaged in child care to dispense with the expertise of police officers is to indulge in self-denial that may have serious, sometimes fatal results for children at risk."7 0 The implication here, and elsewhere in the narratives, is that the police are "real" in a way that social services are not: a "real" service, with "real authority", doing "real" work. This attitude seems shared by some parents, who appear to respond much less aggressively to police than to social workers. This attitude on the part of the police certainly informed much of what happened in Cleveland. Such a self-perception may inform the problem of police "confidentiality", discussed in the Tyra Henry and Liam Johnson inquiries: "the police have traditionally regarded and still regard the information in their hands as more confidential than the confidential information possessed by some other agencies."71 The Jasmine Beckford Inquiry describes the discounting of information received from health visitors due to their relatively low hierarchical status (vis a vis social workers). 7 2 The Beyond Blame study describes how the strong suspicions of a student social worker and health visitor that Neil Howlett was suffering from parental neglect and cruelty were not received with "any degree of urgency", referring to such discounting as an 70 A Child in Trust, supra note 10 at 159; DHSS, supra note 7 at 18. 71 Liam Johnson (Islington Area Child Protection Committee, 1989) at 7.21, DHSS, supra note 7 at 21. 7 2 Reder et al, supra note 12 at 75. 98 "exaggeration of hierarchy", in which professionals with a lower perceived status defer to the opinions of others perceived as hierarchically superior.73 This could take the form of discounting information or the inhibition of "inferiors". The Beyond Blame study gives several examples from the reports of the latter dynamic: The first social worker involved with Lucy Gates was impressed by her mother's potential to improve her standards of caretaking and cleanliness. At the initial case conference, the social worker's report strongly in favour of leaving the children at home held sway, even though she was not present to speak to it. A health visitor who was present and very concerned about that proposal did not speak out. The midwife who found Charlene Salt at home dirty, hungry and bruised felt unable to express her disquiet at the first case conference's decision to return Charlene home. e) the "decoy of dual pathology" and the secure perspective The McGoldrick case was viewed as one of poor parenting. The inquiry says 'that there was an abundance of evidence of poor parenting we have no doubt. This was a case of 'dual pathology' and in concentrating on the poor parenting theme the agencies overlooked or played down a second theme of child abuse.74 The 1991 DHSS study calls the inability to appreciate a second problem where a first has been identified as the "decoy of dual pathology".75 Related to this phenomenon is the "block" posed by security in a certain point of view, which can make a worker resistant to information suggesting a different point of view is required. Where the problem is initially identified as material and therefore relatively straightforward- more welfare-like than police-like- worker attachment to the "decoy" seems particularly resilient: 13 Ibid. 7 4 Karl John McGoldrick (Northern Regional Health Authority, 1989) at 41; DHSS, supra note 7 at 59. This is also a theme in the Report of the Gove Inquiry Into Child Protection (Victoria, B.C.: Queen's Printer,1995) [hereinafter the Gove Report]. 75 DHSS, supra note 7 at 59. 99 At some point in at least half of the cases we were able to not an attempt to resolve problems through what we have called " concrete solutions". We mean by this that undue reliance was placed on very practical measures as a means of dealing with or monitoring problems which were essentially emotional. While we recognise the value of practical assistance, we were struck by how often it became the main intervention to some families.76 And see, Richard Fraser, supra note 55. f) the larger paradigm Another dimension to the dilemma is added by a number of inquiries, namely the rights of parents which appear to take precedence over the rights of children. There is confusion over what the rights of children are. There is currently strong pressure on professional workers to keep children with their parents at almost any cost.77 Information may be blocked because it does not fit the current mode of understanding: "The principles of clients' self-determination, working through parents, keeping families together, on the one hand, and pessimistic perceptions of alternatives to care within the family on the other, influence understanding and action."78 Paul: Death Through Neglect identified "two distinct factors at play in social service provision which failed to prevent the tragedy in this home": organisational fragmentation and the focus of social work intervention as shaped by policy and perception: 7 6 Reder et al, supra note 12 at 94. See A Child in Trust, supra note 10; Paul: Death Through Neglect, supra note 21; and the GoveReport, supra note 74 on this point. 77 Lucy Gates, supra note 28 at 6.17, DHSS supra note 7 at 5. 7 8 DHSS supra note 7 at 60. Reference to A Child in Trust, supra note 10 at 294; Lucy Gates, supra note 28 at 24.7; Liam Johnson, supra note 71 at 3.67 100 Social work, not just in Islington but nationally, was firmly committed to Community Social Work in the late 1970s through to the mid-80s. Community social work is the provision of resources such as finance, housing and other practical help, together with short term supports from social workers and other professionals, to ensure that families in need are able to stay together and children protected. By the mid 1980s in most local authorities, policy makers had come to realise that, laudable though the objectives of community social work are and effective as they were in practice for the vast majority of families, there was nevertheless a core of children who, irrespective of the supportive resources and systems provided, were still at risk of either severe abuse or neglect.79 This realisation seems to have come too late for Paul and his siblings: why? Because the professionals involved with the family perceived the children as dirty, smelly, but happy [a conclusion for which there was no evidence] other professionals, when they became involved, seemed unable or unwilling to pursue any alternative scenario and lacked confidence in changing the prevailing view... One professional told us that, despite her concerns, she felt powerless to change the direction because of the prevailing view. It was as if a collective inertia prevailed.80 This relationship between "policy and perception", the larger context ("policy") and the intimate or familial context ("perception") is crucial. The important "family context" (here, "dirty and smelly but happy") is created by perceptions which are themselves decisively shaped by the larger social and legal context. The "family context" then becomes what the case is about. This relationship is important to understanding the Maria Colwell case, discussed in some detail in the next section. g) "I know what she's like": the long relationship Paul: Death Through Neglect, supra note 21 at 161. Ibid., at 162. 101 Where there is a long relationship between a family and a particular worker, cumulative misperceptions and a developing "I know what she's like" belief may block worker recognition.81 "... we summarised the eight years of injuries, accidents and illnesses suffered by all three of Linda Gates' children. During that time, Linda received regular social work visits to provide her with emotional and financial support, intensive home help and rehousing, as well as nursery placements, holidays, respite care and relief fostering for the children... The home help eventually left because she felt that Linda was taking advantage of her and she described her as childish, moody, prone to temper tantrums and in need of someone with her 24 hours a day to stop the situation deteriorating. The health visitor also felt that Linda needed a " grandma figure 24 hours a day". A case conference on all three children recommended massive support to keep the family intact and envisaged a minimum of ten further years of social work input. The first social worker involved with the Gates family visited them weekly for a further year after she had left the social work department and the case had been re-allocated. There is a danger in these situations [of] front line professionals sharing a conviction with parents that they are essential to the family's well being and that the family would collapse without their regular input. This belief can lead to the development of a closed system which excludes other workers who might adopt a more controlling approach. The NSPCC were called by neighbours to the Gates home on several occasions but withdrew after discussion with the social worker. It was only when the social worker was on leave that the NSPCC requested a case conference which resulted in the children temporarily going into care. This social worker left without forwarding a case summary or file to the new social worker on the case. Lisa Godfrey's probation officer (she was on probation for de- frauding the DHSS) became a "communication switchboard" between the family and all other agencies, suggesting social services were not "relevant" in the situation (social services kept the file open but took no further action): When social services later planned a case conference, the probation officer suggested that, since housing was a major issue, the conference should not take place if the housing directorate could not be represented. When the health visitor informed social 81 DHSS, supra note 7 at 59, 61. 8 2 Reder et al, supra note 12 at 98. 102 services that Lisa was bruised, social services told her to inform the probation officer, whose reaction was to contact the housing directorate.83 Failure to Read Warnings and Signs The 1981 DHSS study identifies "warnings and signs"84 repeating throughout the reports which could have alerted workers to dangerous situations: children being left alone,85 dwindling school attendance,86 and, critically,87 failure of professionals to gain access.88 a) failure to pay attention to the child The failure of workers to communicate with children directly or to pay attention to children when they do indicate their unhappiness and fear or attempt to get help is well documented throughout the reports.89 That the child's "messages" might not always be clear is "not least because children tend to give up if their messages are not well "ibid., at 16. 8 4 DHSS, supra note 4 at 31. 85 Lester Chapman, supra note 18 at 174; Maria Colwell, supra note 33 at 117; Steven Meurs, supra note 50 at 7.04; Joint Inquiry arising from the death of Neil Howlett (City of Birmingham District Council, Birmingham AHA, 1976) [hereinafter Neil Howlett]at 4. 8 6 Lester Chapman, supra note 18 at 201; Maria Colwell, supra note 33 at 120, 124. 87Identified as a " critical danger sign" in Steven Meurs, supra note 50 at 7.16; Carly Taylor, supra note 2 at 48; Paul Brown, supra note 33 at 101. 8 8 DHSS, supra note 4 at 31. The Beyond Blame study identifies this warnings sign as part of a general phenomenon of " closure" preceding a child's death, in which a family increasingly shuts itself off from the outside world, Reder et al, supra note 12 at 99. 8 9 Paul Brown, supra note 33 at 79; Wayne Brewer, supra note 38 at 2.62; Darryn Clarke, supra note 61 at 43; Lester Chapman, supra note 18 at 165-169, 207; Maria Colwell, supra note 33 at 53, 294, 306, 317; Richard Clark, supra note 52 at 39, 68, 88, 91; Stephen Menheniott, supra note 34. 103 received."90 A shocking example of this can be found in the Maria Colwell report, which will be discussed in some detail later. After a ferocious campaign of resistance to being "re-united" with her natural mother and stepfather were repeatedly ignored, the little girl finally gave up: her last doctor's examination (before she was killed by her step-father) was carried out entirely in silence. The circumstances of Jasmine Beckford's final visit from her social worker dramatically illustrate the point.91 On 6 June 1982 Miss Knowles [health visitor] made her last visit to the Beckford family before handing over the case to Miss Leong. She described Jasmine as "rather a pathetic child" and "still looked pinched and ([word illegible])."... It is surprising that during her extensive work with the Beckford family in April and May 1982 Ms. Wahlstrom also did not come to a like conclusion about the picture Jasmine was presenting to Miss Knowles. But then Ms. Wahlstrom was not looking at Jasmine as a child to be protected, even if she averted her glance from the Beckford parents to the children.92... On 12 March 1984 Ms. Wahlstrom saw Jasmine alive for the last time... Ms. Wahlstrom very seldom visited the Beckford family unannounced. Indeed, on one occasion... when she did visit unannounced, Beverley berated her for having come on the wrong day. Beverley was placated by the news that Ms. Wahlstrom had come to arrange for the review which would lead to the removal of the children from the child abuse register... We have, moreover, found that on no occasion over a two and a quarter years of home on trial did Ms. Wahlstrom take Jasmine out on her own for a walk; that she recorded no conversation with Jasmine; and that virtually all the entries in her Social Worker's Report which mentioned Jasmine were related to matters that occurred in the presence of one or both Beckford parents. Ms. Wahlstrom demonstrated with eloquent testimony the negation of any sense of personal relationship between her and the two children. Ms. Wahlstrom's own entry for this occasion [the final visit] is headed: Home visit as arranged... Ms. Wahlstrom enquired about the children and Beverley took her upstairs... Jasmine (dressed in jeans) and Louise were both sitting on the floor watching the "Jungle Book" on a hired video... When Ms. Wahlstrom came into the "playroom", Jasmine did get up but took only a step or two towards the bedstead, [which] she probably used to prop herself. She did not walk across the room and was not heard to 9 0 DHSS, supra note 4 at 32 9 1 They also merit describing in some detail for their resemblance, pertinence, to the Gove Report, supra note 74. 9 2 A Child in Trust, supra note 10 at 119. 104 say anything. She remained in that position for some moments and then continued watching the film. Ms. Wahlstrom proceeded to have a conversation with Beverley Lorrington in which she admitted that she no longer took Jasmine to a nursery class, the reason given being that she had been off school for a while with a bad cold and got out of the habit of going to school."... Morris Beckford returned home and the three adults went downstairs... Ms. Wahlstrom's record of the children's health and welfare was that "all three appeared well and happy". Before us, she amended the phrase to " calm and collected". The grounds for those generalised words are not apparent... we find that on that day Jasmine was recovering from a fracture of her thigh and would have walked with an abnormal gait. Since she did not perform any purposeful act of mobility, her healing bone fracture would not have been noticed. Ms. Wahlstrom also explained to us- and we accept her description- that Beverley Lorrington was waving her arm about so that Jasmine was partially obscured from sight, Miss Lorrington standing between the two of them in the playroom... We conclude that Ms. Wahlstrom was gravely in error in doing no more than have a cursory glance at the children in front of the TV set... We conclude, moreover, that the visit was stage managed by the Beckford parents who had been given five days notice of the impending visit and thus had ample opportunity to arrange the sitting of the children and the unrevealing clothing worn by Jasmine. Indeed, Morris Beckford said as much in his written statement to the Inquiry. Ms. Wahlstrom should have been alive to such parental ruses to conceal the effects of child abuse.93 Paul: Death Through Neglect considers that "opinions" and "value judgements" at variance with the information contained in the family's file "suggests to us that no one who was dealing with the family ever got to grips with the detailed history and developmental issues that were unfolding in relation to each of the children over the fifteen years: There is, however, another gap in the way in which information was dealt with. If one considers the contents of the column in the case history labelled " What the child says and impact of this" then it can be seen that little was occurring in terms of attempting to establish the views of the children within the family... This is a theme we will return to later. At this stage it is important to note that when one is attempting to establish accurate information about a situation, asking the children themselves is an important avenue to pursue.94 Ibid., at 125-126. Paul: Death Through Neglect, supra note 21 at 152. 105 One "case history" from a study of social work practice has the worker consciously not "singling out" the child for private contact, on the grounds that to do so would isolate and perhaps alienate her from her familial context, despite the fact that in this particular case the child had been allotted her own social worker, and the family another.95 b) parents asking for the child's removal The 1981 DHSS study notes as striking "the number of cases in which parents or parent figures asked for children to be removed in one way or another.96 Mrs. Godfrey kept asking for a holiday for Lisa, or for a full-time nursery place, and would not be put off by offers of child guidance97 On one occasion when she said she wanted Lisa taken away she also said she was striking her again.98 Similar warnings were given to the general practitioner by Mr. Auckland99 and to the health visitor by Mrs. Piazzani100 and Mrs Howlett.101 Richard Clark's private foster parents asked for the children to be removed, ostensibly because their father was not offering sufficient support. As their own children had previously been removed and then placed home again under supervision it must have been difficult for them to suggest they could not cope.102 In the Lester Chapman case, Lester's step-father twice called for help in relation to Wendy, the first time stating that she would have to go into care. On both occasions she was removed from the home.103 Later, when Lester ran away for the 9 5 " In this case it is difficult to distinguish the roles of the two social workers allotted to the family. Their briefs may have been different, but their reports are remarkably similar. The social worker for the child never actually saw Alia on her own. She wanted Alia to feel integrated with her family and not set apart." M. Jay and S. Domains, supra note 23 at 34. 9 6 DHSS, supra note 4 at 33. 97 Lisa Godfrey, supra note lat 22, 45. 98 Ibid., at 41. John Auckland, supra note 18 at 50. 3 Max Piazzani, supra note 18 at 19(f). 1 Neil Howlett, supra note 85 at 3. 2 Richard Clark, supra note 52 at 35. 3 Lester Chapman, supra note 18 at 127, 133. 106 second time Mr. Chapman " said that he did not want Lester in the house" 1 0 \ although he did not demand immediate action, and later still he threatened to leave the boy on the social worker's doorstep in an effort to apply pressure for something to be done.105 Part of this pressure stemmed from a genuine concern for the child's safety, and a search for a solution to the child's behaviour problems rather than a wish to be permanently parted from him 1 0 6 . 1 0 7 Jean Duncan became the "unofficial" foster parent of Richard Clark and his brother Robert after their mother was charged with the attempted murder of Richard's father. Jean Duncan was a drinking partner of the boys' mother, and had previously been convicted (along with her husband) of severe neglect of her own children. Many workers, and the boys' father were concerned with Richard and Robert's situation at the Duncans, yet they remained in the "unofficial fostering" placement108 until Richard was admitted to hospital with massive cerebral haemorrhage (he did not die, but will never recover from his severe disability). Jean Duncan was sentenced for assault, receiving four years, David Duncan for two years.109 ] W Ibid., at m. 105 Ibid., at 204. 106 Ibid., at 240. The statement about Lester Chapman's step-father being sincerely concerned about his emotional state must be tempered by pointing out the connection between the boy's "flights" and severe parental assaults, Reder et al , supra note 12 at 104. It is, of course, entirely possible that the step father was unable to make the connection between the boy's " emotional problems" and his abusive and rejecting home life. 1 0 7 DHSS, supra note 4 at 33-34. 1 0 8 Social services considered the Duncans to be unsuitable as " official foster parents"; Reder et al, supra note 12 at 74. 1 0 9 This account from Reder et al, supra note 12 at 152. 107 Lester Chapman was taken into care aged five months, along with his sister, because of neglect. They stayed in care for two and a half years. Their mother, Linda, divorced and remarried during that time and the children were "re-united" with the new couple. Over the next four years the NSPCC and social services were contacted about the children, who were put on the At Risk Register for four months. Lester ran away from home repeatedly until disappearing; he was later found dead of exposure/suffocation, having fallen into sewage sludge.110 Failure to Assemble Complete and Accurate Information: Passivity and Credulity The 1981 DHSS study identifies difficulties in assembling complete and accurate information, stressing that such "pooling" requires active "liasing" rather than "passive" assembly.111 The 1991 collection contains a great deal about the need for various agencies to understand their individual roles as part of a wider social policy role, share information and actively pursue issues rather than wait passively until events force their hand. The Tyra Henry inquiry considered the difficulties posed for social workers by an expanded "policing" role: "It is one thing for a neighbour to report seeing Claudette Henry [Tyra Henry's mother] and Andrew Neil [her father] in the street together; it is another for a social worker to visit the neighbour in search of such information."112 The conclusion that professionals should assume an active role in child abuse situations is troubled by the U 0 This was also a significant factor in the Vaudreuil case, discussed in detail in Chapter Four. U l Ibid., at 35. 1 1 2 Tyra Henry, supra note 67 at 7.16; DHSS, supra note 7 at 5. 108 Cleveland "affair", in which the decision of doctors to take an active role in diagnosing child sexual abuse (as opposed to a passive "response", and then only in the face of overwhelming evidence or when contacted or asked to do so by someone else) was the cause of such outrage and "scandal". Despite the inclusion of Cleveland in the DHSS 1991 study, the connection between the "passivity" uncovered by the death inquiries and the "activism" in Cleveland goes unremarked. Information must be corroborated to be accurate; the reports show a tendency to uncritically accept parental versions as true accounts:113 "Karen Spencer's mother claimed untruthfully to be visiting her child in hospital daily;1 1 4 John Auckland claimed that his daughter Marianne (whom he had battered to death) died because he had a blackout and dropped her1 1 5 while his wife said her death had been an accident",116 before telling the truth about Marianne's death after Susan had been returned to her father. Inappropriate Focus The focus of assessment and intervention must be, and stay, appropriate: "In many of the cases studied, for example, housing was mistakenly seen as the source of all difficulties."117 The "decoy of dual pathology" identified in the 1991 DHSS study as a 1 1 3 DHSS, supra note 4 at 36. 114 Karen Spencer, supra note 3 at 47. 115 John Auckland, supra note 18 at 146. n6lbid., at 148. 117 Lisa Godfrey, supra note 1 at 38, 134, 135; Malcom Page, supra note 19 at 3.103; Simon Peacock, supra note 33 at 5.1; Graham Bagnall, supra note 13 at 14; DHSS, supra note 4 at 38. 109 block to worker recognition is also a block to appropriate focussing, it becomes difficult for a worker to shift focus where it is initially concentrated on housing, for example. Security in a point of view, another block to recognition, also acts to perpetuate an inappropriate focus. The question of "focus" is inextricably bound with worker "blocks to recognition", so much so the "solution" to persistent blocks suggested by the 1991 DHSS study is, in fact, a clear child centred focus in a "framework of policy and principle" constructed around that focus. Stripped of the inessential details of social work activity, the picture is one of unrelieved focusing on the parents. In short Mrs. Dietmann (the supervisor) and Ms. Wahlstrom had been saying, at least since May 1982: " We can rehabilitate this family if we work hard enough on defective parents..." Once the Beckford's were rehoused in March 1982, the social workers' earlier pessimism about rehabilitation quickly changed to a genuine attempt at rehabilitation. As soon as the social workers thought they saw the first signs of improved conduct on the part of Morris Beckford and Beverley Lorrington, an overweening optimism took hold. The prime focus on the parents was never adjusted- indeed, it was sharpened as the home on trial appeared, month by month to be working. Jasmine thus became a victim of persistent disfunctioning social work while the law demanded, above all, her protection.118 Inability to Commit to a Course of Action Regarding "intervention", the first DHSS study notes both the importance of a clear and considered plan 1 1 9 and the importance of carrying it out: U8A Child in Trust, supra note 10 at 127. 119Malcolm Page, supra note 19 at 2.23; Wayne Brewer, supra note 38 at 5.8; Lisa Godfrey, supra note 1 at 175; Carly Taylor, supra note 2 at 58, 125; Karen Spencer, supra note 3 at 2.79; Maria Mehmedaggi, supra note 41 at 100, 107; John Auckland, supra note 18 at 152, Richard Clark, supra note 52 at 66. 110 Once a plan of action has been adopted and clear decisions taken, they must be implemented: there are several instances in the reports of decisions simply not being carried out. In the Karen Spencer case, immediate reactions to Karen's first injury are described as " swift and efficient". But at a later case conference it was agreed, among other things, that a psychiatric assessment of the mother should be arranged. The psychiatric referral was not made, and the omission was not recognised until the next case conference. Even then a letter of referral prepared by the GP was not sent. There was no indication in the minutes of the case conference as to who should have taken action.120 A potentially dangerous situation can be caused when intervention becomes routine or " token", without a clear follow-through from plan to implementation.... Over a period of three weeks immediately after [Susan Auckland's] return the social services " made one visit to a convicted child killer who had for the first time been left in sole charge of three small children... No liaison was established between the social services and the health visiting service, and the latter service did not in fact visit at all." 1 2 1 Reluctance to commit to a course of action appears related to a reluctance to assume responsibility one's self, passing it on to another player in the "system". And so Richard Clark's social worker, having realised that the child's situation requires action, frantically searches for others to make the necessary decisions for her: Finally, there are reminders that decisions made in critical situations should be implemented as a matter of urgency. In the Richard Clark case, after numerous expressions of concern from other workers and from family members, the social worker herself became worried that the child might be being battered and in consultation with her senior it was decided he should be removed. However, it was decided to postpone action until after a meeting with the children's father two days later. The inquiry considered " that once the need to remove Richard had been accepted this should have been done as soon as possible without waiting for the further two days which must inevitably elapse if removal was to be postponed until after the meeting with Mr. Clark" , 1 2 2 In the event the matter was not considered again as Mr. Clark did not keep the appointment and the next morning the social worker found Richard's condition had seriously deteriorated. She could not contact the health visitor but she called the GP shortly after mid-day and told the receptionist that the matter seemed 'fairly urgent'. She also told her senior that Richard needed " urgent medical attention" . Further phone calls were made to the GP who eventually saw Richard at 4.20 PM and arranged immediate admission to hospital. The inquiry concluded, with hindsight, that the social 120 Karen Spencer, supra note 3 at 2.60; also, Lester Chapman, supra note 18 at 101; Mix Piazzani, supra note 18 at 19(e). 121 John Auckland, supra note 18 at 230;DHSS, supra note 4 at 41-42. 122 Richard Clark, supra note 52 at 72. I l l worker should have taken the decision to have the child removed to hospital immediately without waiting for the GP to visit.123 Failure to Take Complaints Seriously In most cases considered in the 1973-1981 study, neighbours and relatives contacted authorities about the child's situation, the exception being the John Auckland case.124 In the cases of Maria Colwell, Lester Chapman, Carly Taylor and Darryn Clark, there were numerous complaints. In a number of reports information subsequently validated by the inquiries was dismissed as "idle gossip" or otherwise "unreliable", and "the mounting sense of crisis on the part of relatives and lay people was not shared by professionals."125 Although the study found examples of prompt and effective investigations,126 there were also numerous examples of inadequate- or non-existent- investigations.127 The Lucy Gates inquiry provides a striking example of a situation in which neighbours complaints' were justifiable and their behaviour indicated extreme hostility towards Linda Gates; of course their perceptions and actions were disentangleable. Linda Gates' 123 Ibid., at 73; DHSS, supra note 4 at 42-43. Other reference: Carly Taylor, supra note 2 at 76. 1 2 4 DHSS, supra note 4 at 43. 125 Ibid. Carly Taylor, supra note 2 at 78, Darryn Clarke, supra note 61 at 148; Max Piazzani, supra note 18 at p22; Steven Meurs, supra note 50 at 8.09, 10.11, 12.06; Maria Colwell, supra note 33 at 80, 96. 126 Wayne Brewer, supra note 38 at 2.48, 2.62; Lester Chapman, supra note 18 at 23, 24; 26 Simon Peacock, supra note 33 at 8, 5.4. 127 Paul Brown, supra note 33 at 69, 73; Maria Colwell, supra note 33 at 94, 103, 110, 124, 143; Carly Taylor, supra note 2 at 23; Darryn Clarke, supra note 61 at 98, 99; Neil Howiett, supra note 85 at 5; Steven Meurs, supra note 50 at 6.10, 6.12. 112 neighbours seem to have hated her because of the behaviours which put her children at risk: Lucy Gates' neighbours were viewed as malicious and not responded to yet their information was extensive: " Linda's flat was filthy; her children were dirty and neither properly clothed nor fed; she had an assortment of male visitors; sometimes she left the children alone until the early hours of the morning while she visited a public house; she hit the children excessively and without cause." The neighbours, it was said, had expressed their disapproval of Linda by putting dead mice through her letter box. Their complaints were not taken seriously by the social worker.128 The failure to take complaints from neighbours, extended family, acquaintances - the child's community- seriously is also highlighted in the Gove Report. These themes and patterns from child protection "failures" are significant in the context of recent recommendations made by the Children's Commissioner129 that community complaints be encouraged as key to successful child protection. Circumstantial Elements Lastly, the DHSS 1981 study considers those "circumstantial" elements it styles "The Context of Professional Practice", "beyond the control of professionals at the time that decisions are taken but not, of course, beyond all control": resources, training and experience, supervision, staffing and recruitment, accommodation and administrative support, and re-organisations. These elements are repeated in the DHSS 1991 report, together with the issue of interagency co-operation as a priority for improvement and the shortage of black workers as a particular recruitment issue: this shortage was barely ; Lucy Gates, supra note 28 at 5.17; DHSS, supra note 4 at 66. 'in her first report and in the Mavis Flanders inquiry; see infra, Chapter Five. 113 addressed in the 1981-1989 reports, although 7 of the 19 reports considered minority children. " A hurdle to cross for senior managers as all others, is the different points of view derived from different agency functions."130 An example of this is given from Cleveland: "one point of tension is how to relate the 'bureaucratic' to 'professional' structures, where the Director of Social Services tells doctors the resources do not exist to cope with the number of referrals and asks them to 'reduce diagnoses', which the doctors find unacceptable."131 All three studies identified the problems of inter-agency communication as key, and the danger of information being lost or "falling through the cracks", its significance unrecognised, because of a failure/inability to put the big picture together. To summarise, these "themes and patterns" in dangerous practice are identified and considered in the three comparative studies discussed: the failure to exercise authority; insufficient knowledge of the law and a tendency to "pre-guess" court out-comes; a tendency to compile reports uncritically based on information given by the parents/parent figures whose behaviour is in question; lack of expertise combined with "blocks to recognition"; warning signs, including the statements of the children themselves, which go unheeded; failure to recognise the significance of a request that a child be removed; ' DHSS, supra note 7 at 24. Cleveland, supra note 9 at 4.117-118. 114 passive stance as a mere receptor of information; inability to focus assessment appropriately, draw up a considered plan, and carry it out; failure take complaints from a child's immediate community of family and neighbours seriously; and inadequate or even non-existent investigations. The inquiry reports are themselves extreme and unusual events; are the stories they contain so extreme and unusual as to be applicable only to themselves? What are the implications of the reports for child protection; what "lessons", if any, do they contain? The "big picture" in the collections shows not "gross" or aberrant mistakes, but regular (in the sense of ordinary and repeating) patterns of behaviour which occasionally lead to tragedy but more often, and through no greater virtue, do not.1 3 2 The limitations of the inquiries were noted in the 1980-1989 DHSS collection1 3 3 to be manifold: generalising from failure is self-evidently unsound; information, evidence available to the panel is partial; the focus on abuse as the product of family interaction, and on the family as the recipient of services, excludes an analysis situating abuse within social 1 3 2 Cyril Greenland has considered child death inquiries from a comparative, international perspective. Greenland's data is used by the Beyond Blame authors as a comparison for their own conclusions, against which to check/identify " common characteristics and patterns". Greenland is interested in identifying characteristics and patterns of behaviour in abusive and neglecting parents (he develops a " high risk check list" based on his findings), less so with identifying and analysing patterns of professional behaviour, but the "themes and patterns" in his studies are similar to those discussed here. See: C. Greenland, Preventing CAN Deaths: An International Study of Deaths Due to Child Abuse and Neglect (London: Tavistock Publications, 1987); C. Greenland, "Lethal Family Situations: An International Comparison of Deaths From Child Abuse" in The Child in His Family: Preventative Child Psychiatry in an Age of Transitions, Volume VI; E.J. Anthony and C. Chilland, eds. (New York: John Wiley & Sons, 1980); C. Greenland, "Inquiries into Child Abuse and Neglect (CAN) Deaths in the United Kingdom" (1986) 26 BJC No. 2 164. And see C. Greenland, "Reporting Child Abuse in Ontario" (1973) 10 Reports of Family Law 44. 1 3 3 DHSS, supra note 7at 109. 115 • relations of class, race and gender; insufficient exploration of questions of environmental deprivation and what (unavailable) services could have helped, and why some people kill children while others do not.1 3 4 Considering the reports collectively, the DHSS report finds two points strike "most forcibly": the fragmentation and isolation of child protection from the rest of child care and the extreme polarisation of opinion, and people, within and around the inquiry event.135 Maria Colwell In retrospect, it now appears that, apart from the specific issues over supervision, the Committee of Inquiry found itself ensnared by a public preoccupation with the fundamental question of the nature of the relationship between social work and society, social work and the State. The interest of the public and of the media in the case of Maria Colwell- not underestimating the importance of the tragedy itself- was fanned by a widespread feeling of a need to re-assess the role of social workers in the community, and their role vis a vis some of the moral issues that are powerful factors in any culture- natural parenthood, fostering, adoption, child protection, delinquency and crime, deprivation and freedom of the individual.136 The Report of the Committee of Inquiry into the Care and Supervision Provided in Relation to Maria Colwell [hereinafter "Maria Colwell"], published in 1974, initiated the wave of high profile child death inquiries of the 1970s and 1980s. The Report consists, in fact, of two reports, one compiled by the majority (Chairman T.G. Field-Fisher and l3Albid. 1 3 5 Ibid., at 110. U6A Child in Trust, supra note 10 at 12. 116 Alderman Mrs. M R . Davey), the other compiled by social worker Olive Stevenson (the minority).1 3 7 The two reports are a remarkable example of the "framing process" in child protection described by Dingwall et al in The Protection of Children: State Intervention in Family Life. The narratives in the majority and minority reports are, in important respects, very different stories.138 We read the majority report first, a series of mis-read signs, misguided persistence, and apparent insensitivity. The majority report is difficult to read. The reader feels angry and powerless as the narrative relentlessly describes Maria's increasing distress, her panic as the plan to return her to her mother moves towards implementation. It is terrible to realise the child's defeat and demoralisation, her subsequent retreat into isolation and pathetic fantasy, and the frantic attempts of her community- her neighbours and teachers- to persuade the authorities of Maria's danger. Olive Stevenson's minority report is a relief. The workers' decisions , up to and including Maria's transfer to her mother, seem both reasonable and sensitive, much to the surprise (and gratitude) of the reader. The minority report is a far less harrowing experience, and, 137"It is a matter of regret to the Committee, however, that we have been unable to reach agreement on certain matters, and on these Miss Stevenson has submitted a minority report". Maria Colwell, supra note 33 at 7. The Lucy Gates Inquiry also produced two reports (the Chairman's report and the report of the other panel members). According to the 1980-1989 DHSS collection, these reports show a "straight divergence of view about the interpretation of Linda Gates' behaviour, and the appropriateness of the professional agencies response to it. Inquiries may allow themselves two decisions. Children in need of protection need one." DHSS, supra note 7 at 82. 1 3 8 Significantly, Miss Stevenson's report was later described by one social worker as the bit that really mattered: " Jeanne Wall feels that Olive Stevenson was the only member of the panel who understood the reality: 'Her minority report was the only bit we took seriously in a way- that was the bit that really mattered because that was the professional view.'" A. Shearer, "Tragedies Revisited (1): The Legacy of Maria Colwell" (1979) 10 Social Work Today No. 19, 12 at 16. 117 despite the reader's knowledge of the outcome, in many respects more persuasive: but, as Olive Stevenson concludes her report, "the narrative will speak for itself and I do not wish to apportion degrees of blame." The following narrative is taken from the majority report. Maria Colwell was born in March, 1965. She was her mother's fifth child. Maria's father left home in the weeks after her birth and died suddenly that July; Mrs. Colwell "went completely to pieces".139 In August Mrs. Colwell's sister-in-law, Mrs. Cooper, agreed to look after Maria (then four months old). The arrangement was private, and voluntary. Mrs. Colwell's other children were removed under a place of safety order in December; later that month all four were committed to the care of the local authority. Two were eventually boarded out with their maternal grandmother, two with foster parents. In June 1966 Mrs. Colwell removed Maria from the Coopers. She intended, at that time, to "set up house"140 with Mr. Kepple, who she would eventually marry. The following week, Mrs. Colwell left Maria with another woman in unsuitable conditions; the NSPCC removed Maria on a place of safety order and, as an interim measure, returned her to the Coopers. The following week Maria was placed under the care of the local authority. At that time, the authority contemplated placing Maria in a residential nursery, which was Mrs. Colwell's preference, but decided to board Maria with the Coopers as foster parents, Maria Colwell, supra note 33 at 11. Ibid., at 12. 118 recognising their previous satisfactory care and wishing to avoid another move. It was explained to the Coopers that the placement was temporary, the long term plan being to return Maria to her mother. The next "event of significance" noted by the report141 was a disagreement over having Maria christened. Mrs. Colwell had by this point started her second family of children with Mr. Kepple (three children being born in 1967, 1968, and 1969 respectively) and anticipated marrying him (Mr. Kepple was a Catholic, and although Maria's mother was not bothered whether the other children in her first family were brought up in the Church of England, she determined that Maria should become a Catholic). "Despite the apparent degree of stability in Mrs. Colwell's relationship with Mr. Kepple and the steady arrival of further additions to their family, we gained the impression from the evidence relating to the years 1966-1969 that any improvement over that period regarding Mrs. Colwell, either of a material kind or of temperament, could not be assumed to be either substantial or lasting."142 In 1969 and 1970 there were complaints of Mrs. Colwell and Mr. Kepple going out drinking and leaving the children alone at night, and a visiting social worker thought a child may have been struck by Mrs. Colwell. In 1969 Mrs. Colwell asked for Maria's care order to be varied for specific access: "The attitude of the Social Services Department [at that time] was to encourage contact between Maria 141 Ibid., at 14. •Ibid. 119 and her mother, but that was not linked at that time with any intention or idea by the latter to have Maria returned to her."143 Rather ominously, the report then describes how "two things of importance" for Maria occurred in April 1970: she began to attend Middle Street Infants School and a new social worker, Miss Diana Less, took over her case. That July Mrs. Colwell [hereinafter Mrs. Kepple] told Miss Lees she expected to move into a council house when she and Mr. Kepple got married, and that they would "get Maria back": As this was said in front of Maria, Miss Lees thought this an unsuitable conversation and managed to stop Mrs. Kepple " with difficulty". Later during the same visit when Maria was upset and crying for "mummy", Miss Lees noted that Mrs. Kepple very insensitively claimed that position in a tactless way. In view of later events it may well be that Maria's fears for her security and happy home at the Coopers were aroused then for the first time... Even if her unease did not date from this incident it clearly existed by October 1970 when Mrs. Lees attempted to take Maria from school to see her mother in the new council house... On that occasion Maria was so distressed that Miss Lees had to abandon the visit and she recorded also that Maria had been told by her mother that she would have to live there.145 The visits continued. Maria became distressed at suggestions she was to live with the Kepples, but otherwise seemed to accept the visits. In April 1971 Mrs. Kepple asked Miss Lees whether Maria could go home on trial. The ensuing case discussion lasted one and a half hours. 143 Ibid., at 15. 144 Ibid. 145 Ibid. 120 It would seem that whatever the decision was taken concerning Maria it would involve stress and trauma for her at some time. On balance it was felt that future plans should be directed towards her eventual return to her mother. It was recognised that while she remains with the Coopers she would continue to be the centre of conflict. It is unlikely that the Coopers will be able to deal with her feelings in adolescence concerning her natural parents, and it is possible that at this age she would herself decide to return to her mother. It should be easier for her to build relationships with the Kepple family and to take her place within [it] at a younger age, particularly considering the good emotional grounding she has received from the Coopers. It was seen that the best way to manage a situation of this type would be for Maria's visits to the Kepples to be gradually increased to include holidays, etc., and in this way to effect a gradual transferring of her roots from one family to the other. She would then go home on trial whilst still remaining in care and contact with the Coopers would gradually diminish until revocation of the order could be supported. However, this type of management would not be possible in this case, because of the animosity between the Coopers and the Kepples... It was felt that the best plan... was the gradual changeover up to the point when the stress for Maria appeared to be becoming too great, i.e. contact with the Kepple family should be encouraged and increased to give Maria the opportunity of knowing them better before her sudden transfer to them. With this in view, Mrs. Kepple should be encouraged to delay her application for revocation and go along with such a plan.1 4 6 The majority report found that the crucial question, whether it was in the best interests of Maria to be returned to her mother,147 was never asked by the East Sussex social workers, and that the Court was prevented from correctly deciding on the matter by a "total lack on knowledge" about Mr. Kepple, and the misinterpretation of Mrs. Kepple's physical and 146 Ibid., at 19. "An accurate note" of the case discussion, which is reproduced at length in the report. 1 4 7 In his study of the Colwell report, Salvador Minuchin considered at this point in Maria's story: " Any first-grader would realise that the Kepples were a completely new factor in Maria's life. She was going to a new father, three new siblings, and a mother she had barely seen for six years. But legally this was a 'return'- to Maria's natural environment and to the ownership of her natural mother. This was the first of a fatal series of moves made considering the child in isolation from her context, which is like playing chess with only one piece." S. Minuchin, supra note 25 at 147. Although Minuchin appears to have read Olive Stevenson's report he does not seem to have paid much attention to it. The two narratives describe two different contexts in which this decision took place, and against which it must be judged. In the context of Olive Stevenson's report the Kepples were not strangers to Maria at all. The " lesson" from the reports is not the folly of isolating the individual from her context, but how the context itself may be formed by the frame of the actor/narrator, and how that context, in turn, creates meaning. Minuchin's subsequent analysis of Maria's situation within the Kepple household after her return is insightful. 121 emotional condition.1 4 8 A "contingency plan" was not prepared for the event that the "transfer" did not work- the assumption seems to have been that the transfer would happen; the options for the social workers, z/Mrs. Kepple did not seek a revocation order immediately (in which case it was assumed the transfer would happen immediately, and very traumatically, for Maria) were how to effect that transfer so as to minimise damage to Maria: It is clear that the social workers considering the case in April did not consider themselves in a position to make an unfettered decision about Maria's future. They operated within a legal and social system in which when a child was taken into care the expectation was not that she would remain in care until the age of eighteen but that she would return to her own family when their circumstances had improved.149 The disturbing story of Maria's gradual "transfer" to the Kepples starts here. Maria's distress is obvious, her resistance utterly unambiguous. After an all day visit in June Maria ran away to Mrs. Cooper's sister; brought back to Mrs. Kepple, Maria screamed and tried to run away again. Mrs. Kepple slapped her. Later that month Mrs. Cooper took Maria to the doctor for "bad nerves". He gave her a nerve tonic and recommended she not see her mother if she didn't want to. Miss Lees sent him a note thanking him for his opinion, but did not alter the plan. On July 14th, Maria resumed visiting her mother after "sitting on the floor and screaming that she did not want to go[;] [w]hen she finally went Miss Lees thought she had quite enjoyed herself and was fairly cheerful."150 There are many Maria Colwell, supra note 33 at 20. 149 Ibid., at 22. The report prepared and presented to the Court by Miss Lees is reproduced as Appendix II. The revocation order was made on the basis of this document. 150 Ibid., at 24. 122 instances in this narrative where, after strenuous resistance and obvious distress, Maria's mood is described as "quite cheerful" or "happy but subdued" by Miss Lees. On July 16 Maria spent the night at the Kepples after more strenuous resistance, eventually going only on condition Mrs. Cooper travel with her: "She needed reassurance that she would return to the Coopers but the visit, according to Miss Lees, appeared to go fairly well. Later, Maria accused the Coopers on her return of making her go because they didn't want her."151 More visits, more incomprehensible interpretation by Miss Lees: "[the visit] lasted for a whole day and... she was reluctant to go until reassured she would not have to stay overnight"; "On August 4 she went to stay for two nights after a considerable scene before she would go but on her return Miss Lees thought she had enjoyed herself: On the 13th , she went to stay for three nights but at 7:45 the next morning she turned up again on the doorstep of her aunt, Mrs. Shirley, to whom she had run in June. She was half-dressed, barefoot, carrying all her clothes and very distressed. She told Mrs. Shirley she had run away and kept talking about going back to the Coopers. She was taken there and collected again from there by Mrs. Kepple who shook her and slapped her " to make her understand it was wrong to run away". No doubt this recurrence of Maria running away worried Mrs. Kepple and was certainly responsible for her later practice of locking the child in her bedroom. On her return after the visit Miss Lees thought Maria looked happy enough but rather subdued.152 By September of 1971 the pattern of regular visits was established: "Maria's resistance was becoming more strenuous, resulting in major scenes on nearly every occasion."1 5 3 Mrs. Locke, Maria's teacher at this time, told the inquiry she "assumed the authorities knew what they were doing but... that she thought it seemed a very inhuman 151 152 Ibid. Ibid., at 24. 153 Ibid., at 25. 123 procedure."154 And so it seems to the reader as, no doubt, it did to Mr. Field-Fisher and Mrs. Davies (authors of the majority report). In September, Maria returned from a weekend visit with finger mark bruising on her thigh and told the Coopers "the man who' lived with Pauline [Mrs. Kepple] had done it ." 1 5 5 That Monday she ran away from school to avoid her mother picking her up. On October first, social services learned Mrs. Kepple was planning to apply for the revocation order. "The tension for Maria was approaching an unacceptable level" 1 5 6 - as anticipated in April- a decision "one way or the other" had to be made, and Mrs. Kepple's application would be heard soon. Social services decided not to oppose her application. I have included some detail of Maria's resistance - the report itself includes much more- too put this moment from the majority report in context. The decision not to oppose, in this context of Maria's resistance, is terrible, extremely upsetting even to read. Their reasoning appeared to be that if Mrs. Kepple did not succeed on this first occasion she would probably do so sooner or later and therefore it was better to accept the position and seek to control it. Their assumption may or may not have been correct- no one will ever know- but that this belief of theirs was genuinely held and, moreover, in accordance with the current climate of opinion we are quite prepared to accept.157 Mrs. Kepple's application for revocation of the care order was to be heard November 17, 1972. Maria went to the Kepple house "home on trial" on October 22. "It is fair to 154 ibid. ]55lbid. 156 Ibid., at 21. 157 Ibid. 124 record", the inquiry notes, "that two weeks before, Miss Lees on a visit to the Kepples was impressed with the very real efforts to improve the home which had been made recently and also with Mrs. Kepple's efforts at improving her appearance. She thought the family was on a steady upward trend and the children were developing normally."158 On Friday the 22nd Mr. Cooper took Maria to Middle Street School for the last time. She was nicely dressed and brought a box of chocolates for her school friends. Later Mr. Cooper collected her and took her to the Hove Social Services Office whence Mrs. Coulthard (Miss Lees' senior) took her to the Kepples. She had screamed and clung to Mr. Cooper at the office and was apprehensive about going with her mother who was present. She was given an assurance by Mrs. Kepple in Mrs. Coulthard's presence that she would be returning to the Coopers at the weekend. We think this was inexcusable. She then went quietly and on that false note her new life began. She was never to see the Coopers again Shortly after moving to her mother's, on the Monday, Maria again ran away to her aunt Mrs. Shirley. It is impossible to resist the inference that there was connection between this choice of day and her discovery of her mother's deceit. She arrived on Mrs. Shirley's doorstep at 7:45 am wearing only a dirty T-shirt and trousers. She was barefoot, crying and in a very distressed state. She repeatedly said "don't let me go" and wanted to go back to her mummy and daddy. Miss Lees was telephoned and came round. Maria continued to cry and said she wanted to go back to " mummy and daddy Cooper" and begged not to be sent back to Pauline. When Mrs. Kepple appeared to claim her Maria cringed, according to Mrs. Shirley. Miss Lees thought she calmed down quite well and allowed herself to be dressed and taken home where she was quite "bright and chatty". 1 5 9 Mrs. Kepple's application was heard on November 17. The Court had a full report from Miss Lees on behalf of the local authority and we accept that of its kind it was probably of the standard expected in general terms. It was also, we accept, intended by Miss Lees to be fair and in no way to mislead the Court. It made clear that the East Sussex decision not to oppose was not an easy or clear cut one, and it concluded by recommending that a supervision order might replace the care order with Mrs. Kepple resuming her parental responsibilities. Unfortunately, in our view, but entirely naturally in light of Miss Lees interpretation of Maria's protests and trauma, it put a gloss on that aspect of the matter which distorted the true picture. It referred to Maria's last running away to Mrs. Shirley but made no mention of the previous three occasions and referred to her " confusion over where her loyalties lie". To our mind, Ibid., at 28. 125 there was never at any time on the evidence before us, any doubt at all where Maria's loyalties lay, and that was with the Coopers. On that ground the report can be criticised, but it is important to realise that this only arises because of the social workers' assumptions about the trauma, which we have already indicated they were not qualified to take on their own in the particular circumstances of this case.160 On the other hand, since it has been admitted in evidence that this was not a moment when, unless forced by events, east Sussex would have chosen to return Maria, it seems to us that the omission of this factor from Miss Lees' report was a mistake. The Court was entitled to know this.161 Maria's resistance appears to have finally run out once she realised the permanency of her separation from the Coopers and new home with the Kepples. Her struggle seems to have been taken up, on her behalf, by her new neighbours. The complaints began in March/April of 1972. The report states the inquiry was "urged" to treat the "emphatic" evidence of the neighbours with "the greatest reserve", on the grounds that the Kepples were "social misfits" in the "somewhat superior council house area" and so disliked; the majority report "unhesitatingly" accepted the neighbours' evidence "in general terms": "The picture presented by that evidence is of an unhappy and deprived child whose general condition was both physically and emotionally deteriorating, at any rate after April 1972."1 6 2 Unfortunately, the neighbours were no more successful than Maria at moving the "authorities". A Mrs. Ruston emerges from the narrative as the "conscience" of the neighbours. She first contacted the NSPCC after seeing Maria "looking out of the side of a curtain", after not seeing her at all for many days, with a blackened face and bloodshot eye. The NSPCC The majority report is critical of the social workers' not obtaining psychiatric advice regarding Maria. Maria Colwell, supra note 33 at 29. Ibid., at 34. 126 officer (Mrs. Kirby), after learning that Maria was under the supervision of Miss Lees, went with Mrs. Lees to visit the Kepples. What happened next was referred to in the majority report as a "barrage of lies and prevarication"163 as the two women were first told by Mrs. Kepple that Maria (who was "all right") was at the dentist with Mr. Kepple, then (after Lees and Kirby discovered the dentist had never heard of Maria), told that Maria was shopping with her mother (by a "furious" Mr. Kepple who "hurled abuse" at Miss Lees), an explanation which was then changed for another lie, that Mrs. Kepple had taken Maria to Miss Lees' own office. When Mrs. Kirby returned later that evening, Maria and Mr. and Mrs. Kepple were present. Maria was bruised on both sides of the face with a very bloodshot eye, as Mrs. Ruston had reported two days earlier. Maria was told to tell Mrs. Kirby that she had fallen off of her scooter. She did so. Mrs. Kirby thought this a feasible explanation. What follows is a highly condensed version of events between the "April incident" and Maria's death in January 1973. The majority report contains a lot of detail about these events (the minority report does not discuss events after Maria's transfer to the Kepples). On April 24 a "deputation" of the neighbours complained to the administrator of the housing estate about the ill treatment of Maria and about the Kepple children being encouraged to defecate outdoors. Complaints continued from neighbours, and from Maria's teachers, throughout spring and autumn. Miss Lees did not see Maria during that period, believing Mrs. Kirby was visiting regularly; between May 1 and the end of Ibid., at 37. 127 November Mrs. Kirby paid two visits to the Kepple home, and on the second visit she did not see Maria (although she did see Mr. Kepple who thought Maria had something wrong with her mentally). Other professionals were drawn into the situation. It seems that lack of communication and confusion about roles and obligations were chiefly responsible for the failure of this "failure of containment" to provoke a more investigative response. The police were called to the Kepple house in November after a complaint that the children has been left alone in the house while the Kepples were at the pub. The police did not see Maria in the house, the implication being that she was locked in her room (the inside door handle had been removed so that she could get out). A second deputation of neighbours visited the housing officer. Maria was missing school. The school welfare officer tried to see Maria at her home in December, but was prevented by an angry Mr. Kepple who "brandished a strap in the air during the interview with the clear intention of intimidating her", and told a string of contradictory lies about Maria's whereabouts.164 When Miss Lees visited in response to the welfare officer's report, she was "completely reassured" having seen Maria, and accepted Mrs. Kepple's version of the confrontation, that the welfare officer had been "officious". "The trouble was, of course, that Miss Lees was merely the first of those to examine Maria over this period who looked for signs of physical injury, expecting to find them, and in the relief engendered by their absence and in the lack of knowledge of 1 6 4 " Once again Mr. Kepple had shown something of himself and his attitude towards authority." Ibid., at 54. 128 events during the last six months, or recognition of other signs of Maria's deterioration, felt somewhat reassured."165 Shortly after this episode , Maria was brought to her doctor for her final examination. The doctor could not recall which adult had brought her, and did not refer to her medical card. Throughout the examination Maria was silent. The doctor found her to be thin, but not "unduly so" (although he did not weigh or measure her) and diagnosed a sore throat. A follow up appointment was not kept. In mid December the school welfare officer again tried to make contact as Maria had not returned to school, but got no answer. Mrs. Ruston telephoned Miss Lees to complain of seeing Maria "looking more or less like a skeleton, unkempt and dirty" 1 6 6 on December 12; Mrs. Ruston left her name and contact number as Miss Lees was not available, but Miss Lees never did successfully return the call (the reasons being rather mysterious). On December 18, an anonymous caller complained to the NSPCC about Maria; Mrs. Kirby's notes record that she called Miss Lees about this, and Miss Lees was to visit the next day, something she did not, in fact, do. Miss Lees had no record of this: "Once again, we can only record our bewilderment at the factual discrepancies between two vital witnesses who are accustomed to keeping notes of events. That alleged bruising was, at all events, never investigated."167 On the morning of January 7, the Kepples took Maria to the hospital in a pram, where she was Ibid., at 55. Ibid., at 57. Ibid., at 59. 129 declared dead. She was very bruised, with severe internal injuries. Prof. Cameron, who carried out the post mortem, described the majority of the injuries as "the result of extreme violence".1 6 8 Maria Colwell was seven years old when she died. William Kepple was found guilty of murder in April 1973. The Court of Appeal substituted manslaughter in July of that year, and sent Mr. Kepple to prison for 8 years. The majority report found that there was a failure of communication between the various welfare professionals who were involved with Maria, which resulted in confusion about roles and responsibilities.169 The report also identified specific problems with recording notes and messages, and the transmission of information between schools (Maria changed schools when she move from the Cooper household to the Kepples) and between schools and social services departments. As the narrative makes plain, there were serious problems in the communication between the NSPCC and social services, and dangerous confusion about roles and responsibilities. The report identifies communication problems between the housing departments, the police and the local community (the neighbours) and social services. The report found that the key social workers, Miss Lees and Mrs, Kirby, failed to communicate with Maria; also that there was insufficient information obtained about Mr. Kepple. The report considered the impact of not contesting the revocation order, whether an independent report would have been beneficial, given Miss 168 Ibid., at 60. 1 6 9 " The adage 'too many cooks spoil the broth' may come into the mind of the outside observer." Ibid., at 61. 130 Lees' "plurality of roles", whether the Coopers' should have been present (the Coopers were advised to seek legal advice but Mrs. Kirby and Miss Lees told them that there was no possibility of their "resisting" the return of Maria). 1 7 0 The report also considered the suggestion that supervision orders be governed by regulations. The overall impression created by Maria's sad history is that while individuals made mistakes it was "the system", using the word in the widest sense, which failed her... because that system is the product of society it is upon society as a whole that the ultimate blame must rest; indeed the highly emotional and angry reaction of the public in this case may indicate society's troubled conscience.171 The Maria Colwell report is about the danger of failed communications, a point on which the minority report concurs with the findings of the majority. It is also about the way in which the larger legal and social context influences decisions about child protection. Focusing on its dual narrative structure, the report is about how events- the immediate context of the decisions in question- are shaped by the interaction between that larger context and the particular, structural limitations of child protection: the liberal compromise and its rule of optimism. Two crucial "turning points" emerge from the majority report. The first of these is the introduction of Miss Lees, prior to which Maria's situation seems generally stable and trouble free (with the exception of the episode in which she was removed from the Coopers by her mother and the disagreement about her Christening), and Maria herself a happy little girl: 170 Ibid., at 82. 171 Ibid., at 86. 131 In April 1970 two things of importance in the life of Maria occurred; first, she began to attend Middle Street Infant's School and secondly, there appeared to take over from the East Sussex social worker in charge of her case, Mr. Bampfylde, a new social worker in the person of Miss Diana Lees, who was to continue to be responsible for Maria's welfare until the latter's death. This seems to be an appropriate point to quote from the last statutory six monthly report on Maria prepared by Mr. Bampfylde just before his handing over to Miss Lees and dated the 20th March 1970: "Maria relates closely to Mr. and Mrs. Cooper (whom she is still calling Mum and Dad). They respond well to her, Mrs. Cooper being perhaps rather over indulgent in some ways. Maria presents no problems, though is perhaps a little 'out of control', very excitable. Maria is well settled with her aunt and uncle."172 Enter Miss Lees. The second turning point in Maria's story is the decision not to contest the revocation order, a decision which pre-empted the case against the Kepple reunification and forced a "decision" which was not, in fact, a decision at all but a "nod". After this point, what happened to Maria passed out of the realm of external influence and became, effectively, a private family matter; despite the ineffectual storm of protest around Maria she is, after her transfer to the Kepples, an isolated figure, a sad face glimpsed at the side of the window. At this point it is helpful to refer to a statement put in evidence by Mrs. Kepple, who did not give oral evidence before us. Although, of course, not subject to cross examination, it contained much that bore to us at least the ring of truth. In it she recalled Maria's steady deterioration; how she got thinner and as she did so became more dreamy and quiet and went about in a daze; how she would not answer anyone but would sit and stare into space; how her habits of personal cleanliness greatly changed for the worse; how Mrs. Kepple thought she was pining for the Coopers and how she even became destructive of her own clothes. The whole picture drawn by Mrs. Kepple of Maria during the last few months of her life is a startling corroboration of, and wholly consistent with, the outward signs observed by neighbours.173 Ibid., at 15. Ibid., at 59. 132 The Minority Report There is little dispute concerning the central facts in Maria's life during this period. My differences from my colleagues lie in the interpretation of those facts and the emphasis which should be given to them... Those who read the two reports dealing with this period are therefore free to choose whichever they find most convincing. As a social worker, my education and experience has taught me that in such matters, there is no one truth; in considering the subtleties of human emotions everyone is subjective.17'' The minority narrative makes the case that Maria's social workers "did not consistently make mistakes [although there were certain "specific failures] but, at times, reached unfortunate decisions for good professional reasons."175 The report describes the period of Maria's care up to her return in October 1971 to the Kepples, "home on trial". The report contains considerable detail about Maria's care up to the arrival of Miss Lees; the events of this period appear as essential to understanding how and why the tragedy unfolded as it did. Miss Stevenson focuses on her mother's removal of Maria from the Coopers in 1966 as a crucial point for two reasons. The emotional impact of this separation from Mrs. Cooper on the 14 month old Maria may have been relevant to her subsequent behaviour during the transfer; the subsequent decision to return the child to the Coopers, on the face of it, the most obvious and sensible one, may in fact have laid the foundation for the later tragedy.176 17" Ibid., at 88. 1 7 5 Robert Dingwall, supra note 10 at 490. 1 7 6 This point has its own significance in the context of the "non-interventionist" preference for family placements; and see B. Needell and N. Gilbert, " Child Welfare and the Extended Family"; M. Tester, " Kinship Foster Care in Illinois"; M. Courtney and B. Needell, " Outcomes of Kinship Care: Lessons from California" for information suggesting that while fostering with kin is stable fostering, it is 133 Viewed in retrospect, it is possible to argue that in this humane and seemingly obvious choice lay the seeds of the tragic " tug of love" which was to follow. Mrs. Kepple, in removing Maria, had given an indication of which way the wind would blow and it is worth noting that at the point when the choice was made she herself had expressed a preference for residential care for Maria and had said she would not want her to be returned to the Coopers. Given the legal and social framework within which the social workers had to operate, in which it was assumed that a parent had a right to reclaim a child if he or she could prove themselves to be " fit persons", it may be that this was the most serious error of judgement made up to the point where Maria returned to the care of her mother.177 Miss Stevenson considers the disagreement over Maria's christening to be significant, a "symbolic blow for Maria" struck by Mrs. Kepple, and that the relationship between Mrs. Cooper and Mrs. Kepple began to seriously deteriorate at this point.1 7 8 In January 1968 Mrs. Kepple came to see the social worker, Mr. Morrish, and asked to see Maria at her flat. An earlier visit to her brothers in an unrelated foster home had caused Maria some anxiety, evidently about being separated from Mrs. Cooper, and Mr. Morrish asked Mrs. Kepple to visit Maria at the Coopers, accompanied by himself. Mrs. Kepple's solicitors wrote a few days later that Mrs. Kepple had sought their help about seeing Maria.: "From this time foreword, Mrs. Kepple's interest in Maria, though erratic, was a force to be reckoned with... For any experienced social worker, there would have been a mounting dread of the inevitable explosion."179 dramatically less likely to result in the " permanency" outcomes of either return to parent or adoption. All articles contained in Child Welfare Research Review, Volume Two, J. Berrick, R. Barth and N. Gilbert eds. (New York: Columbia University Press, 1997). 177 Maria Colwell, supra note 33 at 91. ™Ibid., at 93. Ibid., at 94. 134 Mrs. Kepple's "interest" stepped up markedly in June 1969. The relationship between Mrs. Kepple and Mrs. Cooper deteriorated further, with Mrs. Kepple's main complaint being that she could not see Maria (although she did not always keep arrangements that were made), asking in July 1969 that Maria be put into a home so that access would be easier (the request was refused). The minority report emphasises the complexity and significance of Maria's position within her familial context. Miss Stevenson identifies four points as standing out in her narrative of Maria's situation before the arrival of Miss Lees: although "variable in intensity", Mrs. Kepple's interest in Maria and resentment of her placement with the Coopers was constant from 1966; Mrs. Cooper was always "disturbed and upset by Mrs. Kepple's interventions"; "the wider families on both sides played a significant part in the difficulties"; the social workers were sensitive to Maria's situation and emotions, and were working to reduce conflict in her extended family.180 And so the scene is set for the entrance of Miss Lees, which occurs with none of the intimations of foreboding in the majority report. The detailed account of Maria's early life and the "tug of love" feuding which coloured her family relationships, builds up a very different context for the introduction of Miss Lees. Maria's aggressive resistance to the Kepple household becomes more ambiguous in this context- less obviously a reaction against/fear of the Kepples, more persuasively Ibid., at 97. 135 related to Maria's deeply rooted anxiety about separation from the "mother" in her life, Mrs. Cooper (possibly related to the early separation from her "real" mother, the incident at 14 months where she was removed from Mrs. Cooper, and less than sensitively handled contact visits with her family). Maria liked her maternal family, but was afraid to let go of the Coopers. Her behaviour was an indication of that conflict, rather than a more straightforward resistance. In this context, Miss Lees' statements about Maria's feelings during and after her visits seem significantly less obtuse, even perceptive. Here is Miss Stevenson's account of Mr. Bampfylde's final review: ...in the last six monthly review before Miss Lees took over, Mr. Bampfylde reported that Maria was seeing her brothers and sister, those with Mrs. Tester [the grandmother] frequently, and also her mother. The review, as all the others, emphasised that she was " well settled with her aunt and uncle". " Maria relates closely to Mr. and Mrs. Cooper (whom she is still calling Mum and Dad!181). They respond well to her, Mrs Cooper being perhaps over indulgent, etc."182 When Miss Lees took over the case she worked hard to get to know everyone involved and understand the dynamics of the situation. Maria expressed some anxiety about visiting the Kepples and Testers (her maternal grandmother) at that time, and her anxiety increased when, on Mrs. Kepple moving into the council house, the possibility of her moving to the Kepples became "real". However, according to Miss Stevenson, Maria's "uncertainty about the whole position is illustrated by two contrasting incidents. On the first, she was to be collected by Miss Lees from school but was too upset to go without 1 8 1 It is interesting to note the exclamation mark here, which is absent in the majority report's account of this note- it gives the comment quite a different emphasis. 1 8 2 Maria Colwell, supra note 33 at 97. 136 seeing Mrs. Cooper first. (Later she went quite happily). On the second she was most enthusiastic at the idea of spending a Saturday with the Kepples and asked Mrs. Cooper about it as soon as she went home."183 A striking note of difference between the reports is the "treatment" of Mr. Kepple. The majority report makes much of the fact that "nothing was known of Mr. Kepple" except what Miss Lees had been told by the Kepples themselves, "neither of whom were truthful or reliable persons".184 Mr. Kepple seemed "indifferen[t]" about whether Maria came to live with his family:185 "such an apparent unconcern may mask a more sinister form of indifference which, after all, can pass through insensitivity and callousness to neglect and active cruelty."186 What was known about Mr. Kepple was not good: that he was "an Irishman with quite a wild reputation" and the possessor of several aliases,187 that he liked to get drunk, and that he did not think much of authority. The minority report tells us that Miss Lees felt anxious about Mr. Kepple's "lack of interest and understanding of Maria", adding that he "seems to have little idea of a close relationship with any of his children, but was clearly fond of them and played with them a 183 Ibid., at 99. 184 Ibid., at 20. 1 8 5 "It was suggested to us... that this was a not uncommon attitude for that type of person, and that nothing wrong should therefore be inferred from it. Such may well be a frequent attitude and .. portend nothing more than 'leaving it to the woman of the family to deal with the children'... but clearly one would hope to find a more positive approach by the man in this situation" Ibid., at 17. Ibid., at 14 from case notes on the Kepples made at the end of 1968. 137 lot". 1 8 8 However, after a long talk with Mr. Kepple, Miss Lees comes to understand his attitude towards his family in the context of his cultural background: ... a long talk with Mr. Kepple shed some more light on this. In a very full record, Miss Lees described how bewildered Mr. Kepple felt about the involvement of social services: " He felt that in Ireland, if a mother had not been able to look after her children, friends, neighbours, etc., would have done so until such time as this mother could care for them again, when they would automatically have returned to that mother. He now finds great things are being made of Maria's return with emphasis in the building up of relationships... He comes from a large family of 16 children himself and his view of relationships between the father and his children is a natural relationship which does not require working at but would automatically build up." Our expert witnesses were in agreement that they saw nothing sinister in Mr. Kepple's approach to the situation. Indeed, one may criticise the social workers for being slow to realise the cultural differences which Mr. Kepple so graphically described. It is not in the least uncommon for men and women from such backgrounds to view with astonishment the notion of problems of emotional adjustment. And Mr. Kepple was quite right in reminding Miss Lees that in some cultures children are " borrowed and returned" between relatives with no fuss and bother!"... To suggest, as do my colleagues, that this attitude may be on a continuum leading to "neglect and active cruelty" is unhelpful. 1 8 9 In April 1971, it being apparent that Mrs. Kepple was going to apply to have the Care Order revoked and in the expectation that she would be successful, the social workers decided on the strategy of encouraging Mrs. Kepple to delay her application to give Maria time to get used to her new family, this being preferable to the trauma of a sudden move. Miss Lees is described as "[seeking] opinions from, and [explaining] the situation to, various significant people"190 as she effected the plan. Of Maria's mounting distress at visiting, as her impending transfer became more tangible, Miss Stevenson writes: The pattern, as described in detail by my colleagues, was of very considerable resistance to going but apparently enjoying herself whilst there. Miss Lees remarked that she Ibid., at 99. Ibid., at 100. Ibid., at 103. 138 thought Maria " chooses what she says knowing what will be acceptable to the person she is addressing", an intolerable burden for a child of this age.191 Miss Lees "felt that these scenes were caused by Maria's very great fear of losing security at the Coopers and she wondered whether the interaction between Mrs. Cooper's feelings and those of Maria increased the display of anxiety."192 The minority report also refers to significant improvements in the Kepples living standards during this time, the house "clean and bright with a good fire burning", material comforts in the new council house. Miss Stevenson describes a long visit between Miss Lees and Mr. and Mrs. Kepple, in early October, before the return of Maria "home on trial" on October 22. The interview "must have seemed like a breakthrough" to Miss Lees, "the beginning of trust and... hope for the future", being "marked by a candour and self-examination not evident before and alas not after."193 Miss Lees concluded that " this family is at long last on, I hope, a steady upward trend. The improvement over the year since they had been in this house is considerable in all spheres of family life.194 The account of Maria's "transfer" and subsequent flight to Mrs. Shirley are strikingly different here from the account in the majority report: Mr. Cooper brought Maria to the office where Miss Lees' senior effected the transfer and Maria went quietly with her mother. Mrs. Kepple had given her a false assurance 191 Ibid., at 104. 192 Ibid. 193 Ibid., at 106. 194 Ibid. This is the same meeting referred to "in fairness" in the majority report, rendered in much fuller, more emotional, detail here. 139 that she would return to the Coopers at the weekend. She did not see the Coopers again. Maria ran away once again to relatives in the Whitehawk Crescent and arrived in a distressed state. She ran out early in the morning. Miss Lees went round; Maria sobbed and asked to be taken back to the Coopers but, as soon as her mother appeared, Miss Lees thought she calmed down (although Mrs. Shirley, her aunt, said in evidence she "cringed"), allowed herself to be dressed and taken home and was quite bright and chatty Miss Lees recorded that she " showed no apprehension at all of a comeback from her mother".195 The minority narrative ends with the revocation of the care order in Court on November 17, 1971. Olive Stevenson describes Miss Lees' report to that Court as "a skilful presentation of an exceedingly complex situation": Inevitably, in a history of the kind described in the preceding papers, there is much that is abbreviated and condensed. In my view it is not fair to single out, as do my colleagues, Miss Lees' failure to mention all the running away episodes. The magistrates were told of Maria's strain, distress and medical treatment; and of her affection for Mr. and Mrs. Cooper they were left in no doubt. As to the question of " confusion over where her loyalties lie", this must be a matter of interpretation. Miss Lees had made clear that Maria regarded Mr. and Mrs. Cooper as her " Mummy and Daddy". But my analysis of Miss Lees' observation and description of Maria's feeling shows that she did indeed believe Maria was in some confusion. To acknowledge that her primary affections lay with the Coopers does not preclude the possibility of some confusion of loyalties. Whether Miss Lees was right or wrong is another matter. She was as fallible as the rest of us. But as I indicated in the beginning of my report, I do not consider it useful to speak in terms of a " true picture" in a situation as confused and complex as this. Nor do I accept that she " put a gloss" on the situation, which seems to suggest a degree of deliberate distortion.196 Miss Stevenson raises several points in the discussion which follows. It is implicit, however, in the arguments of my colleagues that painstaking work is of no avail if the fundamental assumptions are mistaken. In this case, the assumption which is open to argument is, of course, that which led the social workers to work towards Maria's return to her mother and the care of her stepfather.197 Ibid., at 107. Ibid., at 107. Ibid., at 109. 140 Pertaining to this issue is the wider context in which the social workers were operating, in which it was presumed that the magistrates would return the child once the parent's fitness could be shown unless it was clearly not in the best interests of the child. The social workers did not, as the majority report concurred, have "free reign". While the social workers did not believe in the automatic priority of the "blood tie", they did consider it important for Maria to know her family, and not come to believe, as an adolescent, that she came from "bad stock". For this reason, the social workers had to plan for Maria long term, and clearly the increasing tension between Mrs. Kepple and Mrs. Cooper could not continue (Miss Stevenson points out that, had Mrs. Kepple not pushed for Maria's return the social workers would not have moved Maria- the tension, not Maria's placement with the Coopers, was untenable). On the "vexed question" of Maria's "true feelings" Miss Stevenson argues that although Miss Lees' interpretation of Maria's distress as caused by the "tug of love" may have been incorrect (and Miss Lees should have taken her running away more seriously), this point of view was certainly defensible.198 "Whichever is More Convincing": Reading the Reports The gulf between a professional conceptualisation of "what went wrong" as the uncontrollable and unfortunate outcome of rational decisions and the public perception of bad decisions by individuals who should be held accountable reveals how child protection operates as a "culture" with particular beliefs and behaviours. The implicit demands of this culture are not, of course, apparent to "outsiders"- a group which will usually include Ibid., at 111. 141 those responsible for inquiry reports. Neither "outsider" nor professional is dissembling or unobservant; the division is best described as a case of cultural misunderstanding. The reports of the Maria Colwell Inquiry dramatically illustrate this "culture clash". Of the two, the minority report is the most persuasive, and the reasons for this reveal the way in which the "rule of optimism" operates as a systemic or cultural rule, as opposed to a mere "attitude"199 which can be assumed or discarded under the appropriate instruction. Miss Stevenson's careful reconstruction of the important familial context of Maria's early life makes her account of Maria's early life more "realistic", a fuller, more textured picture. She describes the households of the various Coopers, Testers and Kepples as constantly shifting with large numbers of relatives on all sides moving in and out, visiting, falling out and reconciling. Maria's situation within the Cooper household yet connected with her mother is a part of this fluctuating extended family scene. She also has a particular significance within her close family culture as the last child of her father and the object of possessive tensions between her mother and Mrs. Cooper. 2 0 0 1 9 9 See Nigel Partem re the rule as discussed in the Jasmine Beckford Inquiry: "The report suggests that the tragedy occurred not because the child abuse system was misplaced or lacking but because the professionals attitudes were inappropriate. Therefore, it is not the system but the attitudes that need correcting... the report strips the concept from its social, legal and organisational context and reduces it to individual professional attitudes". N. Parton, "The Beckford Report: A Critical Reappraisal" (1986) 16 BJSW511 at 517. 2 0 0 Both reports describe Mrs. Kepple's desire to " have" Maria as informed by the wish that Mrs. Cooper not" have" her, as opposed to a consideration of Maria's best interests. For the majority, this evidence of Mrs. Kepple's motivations is another strike against Maria's transfer; in the minority report, Mrs. Kepple's stubbornness on this point means the tension around Maria will be increased and prolonged, and so a resolution becomes ever more pressing. 142 The presumption that a return to her mother is inevitable is informed by the larger legal and social context acknowledged in both reports, but also, in Olive Stevenson's report, by Maria's position within this wider extended family context. There is little sense here of Maria as a "stranger" to her non-Cooper family, or psychologically "belonging" to the Coopers.2 0 1 The larger social and legal context in which the "blood tie" has priority and the Cooper/Tester/Kepple culture, as interpreted202 by the social workers, are complimentary.203 Maria's "significance" within that family culture disqualifies the status quo as viable in the long term. The decision to return Maria to the Coopers as opposed to placing her in a residential nursery, in the context of the family culture and Maria's place in it, lit the fuse for the eventual "explosion".204 2 0 1 Goldstein, Freud and Solnit use the Maria Colwell report to prove the guidelines they recommend in Before the Best Interests of the Child (New York: Free Press, 1979). Had these guidelines been followed in Maria's case, the tragedy would not have occurred (they submit). If return to the biological mother had been contemplated, " our provisions would have precluded subjecting Maria to the agonising ordeal of experimental (or preparatory) visiting. More vividly than any of our arguments, the Report's description of Maria's reactions demonstrates the shattering effect of this procedure on a child's feeling of security and the stability of her personality in general... When, with the aim of final return in view, visiting was intensified, she answered it with kicking and screaming, clinging, hiding, repeated running away, deterioration in behaviour and health. All these should have been taken as unmistakable signs of where her loyalties lay, who her psychological parents were, and that her return to her natural mother represented a threat to her well being." Goldstein, Freud and Solnit at 183-184. The authors' solution to Maria's situation is, however, dependent on their interpretation of Maria's behaviour (which is not self- evident, as we see in the two reports), and an understanding of the Cooper's as Maria's psychological parents (which is, again, not self-evident but dependent on the emphasis one places on Maria's extended family context, anticipating her growth to adolescence within that context). 2 0 2 Sensibly and with sophistication; the point of this exercise is to understand how a rule of optimism interpretation works, and how it is, within a particular frame, correct. 2 0 3 This understanding of the extended family by reference to their behaviours/norms is an incident of cultural relativism as part of a rule of optimism. 2 0 4 To step aside at this point is to see our distance from the outsider's "common sense": to take Maria from her caregivers at the age of 14 months and place her in a residential nursery because her of her mother's jealousy seems, because it is, absurdly indifferent to Maria's well being. In fact, from the outsider's perspective, this was the point to sever contact with Mrs. Kepple. Yet, within the minority narrative, the decision to leave Maria with the Coopers was a mistake; here we have, in one moment, the perceptual dichotomy explicit in the Maria Colwell report, and implicit throughout the collected reports. 143 "Cultural relativism" is explicitly relied on to explain Mr. Kepple's attitude, obviously a "red light" for the majority report. Indeed, Miss Stevenson chastises the majority for their cultural insensitivity on the point of Mr. Kepple. Miss Lees' "long talk" with Mr. Kepple on this occasion (and at the "candid" and "trusting" interview before Maria's return, when Mr. Kepple again expressed his mystification about social services) seems to have reassured her, with Mr. Kepple's cultural difference effectively neutralising his potentially "deviant" behaviour.205 Mr. Kepple, after the conversation with Miss Lees recounted in the minority report, becomes a far more sympathetic character, and the reader (as did, one supposes, Miss Lees) begins to form an understanding of Mr. Kepple and his family as the "odd ones out" in the context of the "superior council estate" they have moved to. In this context, the neighbours complaints206 become more ambiguous, and their "concerns about Maria" (coupled, on one occasion with their objections to the Kepple children's "free range habits") open to interpretation. Perhaps the neighbours had a prejudice against their Irish neighbour with his carefree attitude towards his large family.2 0 7 2 0 5 Again, in the context of the minority narrative, this interpretation of Mr. Kepple is the correct one, and the majority's description of the "Irishman with a wild reputation" seems crude, a caricature. 2 0 6 Which Miss Stevenson does not refer to; however, the majority report refers to " strong urgings" from various agencies that the neighbours' accounts were not credible. 2 0 7 Here one should pause to consider the partiality of Mr. Kepple's Irish reverie re communal child care. In such a system the community has the authority to censure as well as care (Mr. Kepple's violent reactions to his neighbours, who he physically attacked on several occasions when they " interfered" with his freedom to do as he pleased, suggest his problematic community situation). Mr. Kepple's " communality" is accepted uncritically in the minority report (suggesting a stereotypical imagination equal to the majority report's "Irishman of wild reputation"). 144 The decision to return Maria is made; in the context of the minority report, it is difficult to imagine how an alternative decision could have been justified. We have reached the point at which, in the majority report, the extremely disturbing description of Maria's acclimatisation and transfer to the Kepple house begins. The minority report is much less awful to read (as one imagines it was to write). It is less painful to understand Maria's behaviour as about her ambiguity, her long standing separation anxieties exacerbated by Mrs. Cooper's tension, her more florid distress an "acting out" for the benefit of observing adults (rather than a child's fear and helpless panic). In the context which has been constructed to this point, such an interpretation is also the most reasonable and the most sophisticated, taking into account both the historical and long term perspectives. This "good professional decision"2 0 8 was, of course, a fatally bad decision for Maria Colwell, and this apparent paradox is key to understanding child death inquiries and understanding child protection. Recurrence and Lasting Impact One of the striking features of these inquiries is the repetitive character of their findings and recommendations... But this very recurrence suggests that these inquiries are actually failing to make any lasting impact on the everyday practice of the occupations and organisations under scrutiny.209 2 0 8 And in a 1986 "Guest Editorial" considering the Jasmine Beckford Inquiry, Olive Stevenson emphasised that her " minority report" was motivated by the strength of the decision making behind the decision to send Maria Colwell " home" (she concludes she might not have felt it necessary to write a separate decision in the Beckford case, in which she found a " manifest failure to asses the total situation comprehensively"). Olive Stevenson, "Guest Editorial on the Jasmine Beckford Inquiry" (1986) 16 BJSW 501 at 501. 2 0 9 Robert Dingwall, supra note 10 at 489. Prof. Dingwall's analysis here is used in part and in part of the DHSS 1980-1989 collection, supra note 7at 69. 145 Robert Dingwall suggests that this phenomenon ("recurrence" without "lasting impact") may be explained as a function of the "inquiry" premise: that the "disaster"210 is the outcome of "human errors which are randomly generated within the system".211 The recommendations of such reports, proceeding from that perspective, focus on "attempting to make individuals less error prone" by altering training and selection or "designing error limiting systems" involving "monitoring, supervision or regulation".212 These solutions, however, assume knowledge about risk and "good predictors of occupational performance", and that "the introduction of additional complexity actually improves an organisation rather than simply creating new points for failure."213 These kinds of solutions seem unlikely to disrupt or suspend the "patterns and themes" discernible over and over again in the inquiry reports, yet these sorts of solutions appear as "recommendations" with the same repetitiveness. By focusing on the repetitive nature of the reports as the key to their meaning one can appreciate the inquiry reports as providing quite detailed descriptions of the kind of thing child protection is and how it works. In B.A. Turner's analysis of Man-Made Disasters, considered here by Robert Dingwall in terms of understanding child protection "disasters", accidents occur when people are stopped from acquiring and using relevant information because "the information is not available to them at an appropriate time in a usable 0 Prof. Dingwall borrows here from B.A. Turner's study Man-Made Disasters (1978) for his analysis. 1 Robert Dingwall, supra note 10 at 491. 2 Ibid., at 490. 3 Ibid., at 491. 146 form" 2 1 4 Prevention is then impossible. Everyone's perceptions are selective; no one sees everything at once. The "power of Turner's analysis", according to Dingwall, "[is] in his insistence that the underlying disorder does not have a specific pathology but is intrinsic to the nature of organisations215 in modern societies." The division and specialisation of labour in the advanced liberal State has created what Turner called "bounded decision zones", whose inhabitants establish a common way of perceiving events and predicting outcomes, what might be called a professional culture: But the effect of this culture of decision making is to define what is and is not relevant knowledge in ways which generate selective ignorance, inattention, non-communication or incomprehension. Disasters in the twentieth century are rarely the result of genuinely unforeseeable events. They are more usually predictable outcomes of the way complex organisations have to operate, if decision makers are not to be overloaded with information or paralysed by uncertainty.216 And so the inquiries "identify" the same "failures", prescribe the same "mechanical" solutions, and, apparently, disappear with little accomplished except possible public catharsis and ritual scapegoating; and here we find the notion of the inquiries themselves as expensive and harmful, deflecting from the "real issues", a characterisation which resonates on many levels with the non-interventionist paradigm. While the "once in a generation" high profile report such as Maria Colwell, which brought the issue of the child 4 Ibid. 5 Ibid., at 192. 6Ibid., at 193. 147 abuse to public attention in the UK, has an important social function the repetition of the process (where that repetitiveness is a matter only for passing criticism) does seem rote, ritualistic.217 The Gove Inquiry into Child Protection, which looked so much like another ritual exercise in containment and catharsis, was not. Within a year of the Gove Report's publication the Ministry of Social Services had been dismantled and a process of massive change initiated. Why? 2 1 7 And, possibly, evasive. Labour MP Ann Chvyd (amid the usual official chorus of praise for the government's decision to "air the truth") sought to block the currently ongoing Waterhouse Inquiry into long term abuse of children in residential homes in North Wales, fearing it would create a "wall of silence" around the more controversial circumstances surrounding that " affair". The " official version" of the inquiry, Ms. Clwyd implied, could hide rather than reveal; in the case of the Waterhouse Inquiry, it is possible that is the intention. Re the public child abuse inquiry as a class, the " wall" is undoubtedly unintentional (but no less a possibility for that). 147 CHAPTER FOUR REPORT OF THE GOVE INQUIRY INTO CHILD PROTECTION As a story about dead children,1 the Report of the Gove Inquiry into Child Protection is about the importance of "disappearing" child deaths2 to the coherence, and legitimacy, of the "non-interventionist paradigm". The Gove Report has effectively discredited that apparent resolution (for the time being, at least). As a particular narrative story about one boy- "Matthew's Story"- the Gove Report is about the limitations and failures implicit in the "liberal compromise" and its "rule of optimism", and the way in which policy "attitudes"3 can encourage and magnify these systemic tendencies of the "rule". What Came Before First I tell the story from Matthew's perspective, as though the services provided to him and his family were for him- in other words, were child centred. Regrettably, this was seldom the case. If Matthew's story was told as the evidence unfolded there would be long passages in which he was not mentioned at all...The Ministry, its employees and contractors lost sight of why a child protection service exists and who they were supposed to be protecting. 1 Matthew Vaudrueil and the " Invisible Ones" (see Report of the Gove Inquiry into Child Protection 1995, An Independent Commission of Inquiry Appointed by the Province of British Columbia, (Victoria, B.C.: Queen's Printer, 1995) [hereinafter the Gove Report], Volume I at 213. 2 This apparent resolution " resolves" the underlying conflict by explaining it as a " false dichotomy" and, crucially, by making failure (for the public) invisible." 3 " We continue to see in practice that ministry social workers support the view that family support must be completely exhausted before child protection is applied. If this attitude is practised within the framework of the new Act, there are many new hoops to jump through on the road to child protection." From a submission from a consortium of 14 Vancouver agencies, Gove Report, supra note 1, Volume II at 247. 148 My second caution is that Matthew's story is very sad and will upset many readers, as it upsets me.4 Matthew Vaudreuil died on July 9, 1992. On July 22, 1992 one of two Vancouver Police detectives investigating the killing requested the relevant Ministry records from ISU/ARD 5 Inspector Donna Knox. On July 30, 1992 Inspector Knox completed a chronology based on information contained in the files, and met with Superintendant Rigaux to discuss it. According to Knox, Rigaux didn't see the point of doing a review, and stated that she "didn't want to proceed any further" because she didn't want to upset staff: The child was already dead. The mother was probably going to be charged.. There wasn't any urgency around this. There were no other children in the home [although Verna Vaudreuil was pregnant]. There were no immediate planning issues that had to arise out of the review.6 Rigaux recalled events differently,7 testifying to the Gove Inquiry that she did not remember telling Knox about being reluctant to upset staff.8 Rigaux explained that she 4 Gove Report, supra note 1, Volume I at 6. 5 " When notified of a child's death, the superintendant, who is designated by and reports to the Minister of Social Services, must decide whether the circumstances are 'suspicious or unusual'. If they are Ministry policy requires the Superintendant to refer the case to the Audit and Review Division, formerly the Inspections and Standards Unit [ISU/ARD], for an independent review." Ibid., Volume I at 159. 6 Donna Knox, Ibid., Volume I at 162. 7 "The Inquiry accepts Knox's version of events over Rigaux's version for two reasons. First, Knox clearly remembered her conversation with Rigaux, while Rigaux testified that she did not have a clear recollection. Second, a decision not to proceed with a review was consistent with Rigaux's termination of the role of ISU/ARD in reviewing children's deaths and serious injuries since she had taken office as superintendant." Ibid., Volume I at 181. 8 In January 1998 a B.C. Supreme Court Judge ordered that the chapter of the Gove Report " What the ministry did after Matthew died" be quashed and the findings against Rigaux be set aside on the grounds 149 had postponed the review in the mistaken belief that it was ministry policy to put such a review on hold until criminal proceedings had been completed: Rigaux testified that she had every intention of doing the full review as soon as the criminal process was concluded. However, she took no steps to ensure that the police or court officials would keep her or her staff advised of the progress of the case.9 Anticipated media criticism seems to have prompted action in 1994. On January 20, 1994 the District Supervisor of the social worker responsible for assessing whether Matthew was in need of protection in Vancouver e-mailed several of his colleagues that Verna Vaudreuil had pleaded guilty10, and that there would be "considerable media interest in this case": invariably [there will be] criticism of the ministry's role in this tragic matter...in view of the media blackout [until Vaudreuil's sentencing], the ministry has some time to develop a strategy to deal with the media and control damage.11 On January 27, 1994 this story appeared in the Vancouver Sun: that Judge Gove exceeded his jurisdiction; " Judge quashes criticisms of former child-protection boss", Vancouver Sun, January 14, 1998. "The Terms of Reference... were very specific. They clearly relate to events preceding Matthew's death. They simply do not bear a construction which would include an investigation into the preparation of the Superintendent's Review commencing on March 3, 1994, almost two years after Matthew's death." Rigaux v. British Columbia (Attorney General), [1998] B.C.J. No. 32, Q.L. at para. 25. 9 Gove Report, supra note 1 Volume I at 163. See three Reports Prepared for the Gove Inquiry: Karen Ryan, Coroner's Recommendations for MSS Arising from the Deaths of Children and Youths (1995,); Karen Ryan, Critical Incident Review: An Examination of Family and Children's Services Division Records (1995); Audits and Reviews, Karen Ryan and Sharon Samuels (1995). Critical Incident Review: An Examination of Family and Children's Services Division Records includes an evocative, and quite fantastic, account of gaining access to critical incident reviews, and what the researchers found when they got there (at 51). 1 0 She was sentenced to ten years, reduced on appeal to four. 11 Gove Report, supra note 1, Volume I at 164. 150 Matthew's story: the boy who was doomed from the start The shrivelled body on the stainless-steel examining table looked like the corpse of an Ethiopian famine victim. It weighed only 16 kilograms. On his back, the child had a purple footprint, with the toe and heel marks clearly visible. There were rope burns on his wrist. There were deeply embedded belt marks on his buttocks. He had nine cracked ribs. His lower left arm had a week old fracture. There wasn't an inch of his body that hadn't been hit. He was covered in bruises- deep, ugly, purple bruises- from his head to his toes. When Matthew Vaudreuil finally came to the attention of the Vancouver authorities, it was too late. The five year old was dead. He had been suffocated. His 27 year old mother, Verna Vaudreuil, was sentenced last week to 10 years in jail for killing him. Many people in Matthew's short life tried to save him. They called social services dozens of times. They asked for his mother to be charged with child abuse. None of them were successful. On March 3, 1994 an officer in the Ministry of Social Services Communication Division organised a conference call regarding the Matthew Vaudreuil case, to "discuss communications issues in anticipation of public and media criticism of the ministry arising from the Vaudreuil case."12 Rigaux decided, as a result of this call, to re-open the review into Matthew's death.13 Inspector Orla Peterson completed the first draft of that report on May 9. Rigaux, after receiving the report and obtaining comments from the Assistant Deputy Minister for Regional Operations responsible for the field staff involved, expressed her concerns "about the content of the review, the style of the review".14 Peterson did not personally revise, edit or restructure subsequent drafts of the report.15 The week long nIbid., at 167. "Ibid. 1 4 As per the testimony of Sheila Bitschy, ISU/ARD acting director, regarding a conference call made the evening of May 9 between Rigaux, Peterson and Bitschy. Bitschy also sent an 'urgent' email message to the area manager for the region including Fort St. John (where Matthew Vaudreuil was born and, periodically, lived), who had, apparently, received a copy of Peterson's first draft (partially completed): "The message explained that she and Peterson had reviewed the first draft with Rigaux and that the superintendant had asked them to 'make some substantial changes to the body of the findings and conclusions'. Bitschy asked Parker 'Please destroy that copy so there is no chance it will get released and become confused with our subsequent draft.' The manager replied, 'Will do. It never ends.'" 15 Gove Report, supra note 1, Volume I at 170. 151 revision process began with Rigaux, Bitschy and Peterson; by week's end, several senior ministry staff and members of the Ministry's Communications Division had attended meetings during which the report was substantially re-written: "Joyce Rigaux decided that Orla Peterson's report needed to be changed and she, by her own admission, was in charge of the revision process."16 Rigaux's report17 was significantly different18 from Peterson's first draft: "The report of Matthew's life and death that the Legislature and the public saw was an attempt to obscure inadequate practice by ministry social workers, and to shift blame away from the Ministry of Social Services."19 After release of Rigaux's review, Ms. MacPhail informed the House, on May 17, that an independent external inquiry would be conducted into Matthew Vaudreuil's life and death: Nothing in Matthew's story gives us reason to feel comfortable, and everything in it makes us feel sadness and anger. While we grieve for Matthew and are outraged over what he experienced, we must also learn from these events. More than anything else, its our mutual responsibility to do everything we can to prevent another child from suffering as Matthew did during his short life.20 The following day, MacPhail introduced the Child, Family and Community Service Act (then Bill 46) to the Provincial Legislature: 16 Ibid., Volume I at 183. 1 7 "Rigaux said that she made significant changes to the report before it was tabled in the legislature, because she wanted to ensure that she was going to be comfortable with the report: 'I was signing it. It was my report. The process had been very intense and I was certainly appreciative of all the help, but in the end, its my report.'" Ibid., Volume I at 173. 1 8 Detailed at Ibid., Volume I at 174-180 19 Ibid., Volume I at 185. 2 0 Joy MacPhail, British Columbia, Debates of the Legislative Assembly (May 17, 1994) at 10912. 152 Today I am introducing the Child, Family and Community Service Act to address the urgent public demand for change in this area. A child's greatest resource is a strong, secure family, and a family's greatest resource is a strong community.21 This rather tawdry prelude to the independent inquiry, in its own right a high profile media story, drew the public into the "crisis", and so set a public agenda for what the inquiry was going to be about: incompetence and cover-ups in child protection, child deaths and their disregard. Later, the report itself would shape, for the public, what "reform" in British Columbia meant ("child centred child protection" practice, an end to lazy and or dogmatic reliance on "services" to parents who did not want/ could not use them, improved co- ordination between services, focusing again, on the child2 2) in almost diametrical opposition to the reform context in which the CFCSA was initially posed.23 Matthew's Story 2 1 Joy MacPhail, British Columbia, Debates of the Legislative Assembly (May 17, 1994) at 10951. The government's "response" to the crisis posed as two pronged: openness (the independent inquiry) and change (the Act, a response to "urgent public demand"). 2 2 " The division of information and inhibited flows between child protection agencies, which have been criticised by many reports... can be analysed as a significant structural barrier to over-zealous intervention. The division of regulatory labour is not an organisational pathology but an important restraint on damaging allegations or intrusions against families." R. Dingwall, "Reports of Committees: The Jasmine Beckford Affair" (1986) 49 MLR No. 4 489. at 499. This issue, although apparently " mechanical", involves the same contradictions as " child centred" protection, requiring the same kinds of political choices (or "balance"). 2 3 Then Premier Michael Harcourt recalls, as his " over-riding" memory of child protection as a political issue pre-Gove, that Social Services Minister Joan Smallwood was under attack for her " child centred" position re child protection (personal communication, December 15, 1997). The CFCSA seems to have been positioned, pre-Gove, as a counter to that criticism: "Minister promises to trim incidents of removing children from families" " 'Removing children from troubled families will in the future be the last resort, not the only resort' social services Minister Joan Smallwood said Thursday [telling a] news conference new legislation [would be] announced in the spring to 'protect the interests of children while keeping families together'." Vancouver Sun, December 4, 1992. 24 Gove Report, supra note 1, Volume I. 153 The results of the Inquiry's review of other child deaths are troubling. Matthew's suffering and death was not unique. Many other children living in similar circumstances, known to the ministry through a child protection report or a request for services but not in the ministry's care, have died of unnatural causes. Some were killed by caregivers or other family members, some died in suspicious circumstances and some took their own lives. Many had been previously apprehended or were subjects of numerous child protection reports or investigations. What sets Matthew apart from these children is that Matthew's death became the focus of an inquiry and has attracted wide attention. They, on the other hand, are the " invisible ones". They died of abuse or neglect, alone and in obscurity... Many of these deaths have gone unnoticed and uninvestigated...When the Ministry did review children's deaths, significant practice problems were identified, hauntingly similar to what the Inquiry found in Matthew's Story. Regrettably children continue to die in similar circumstances.25 Matthew Vaudreuil was born on October 3, 1986 in Fort St. John, British Columbia. His mother, Verna Vaudreuil, was 20 years old. 2 6 By the time the Matthew was born, Verna Vaudreuil and Matthew's father, Ken Hutchins, were estranged.27 Six days after Matthew's birth, the public health nurse working with the hospital noted re Verna Vaudreuil: At risk for Parenting: mentally handicapped 20 yr. old girl living with father and brother in a deprived home with no reliable female role model for help with mothering... Nursing her baby well... will require assistance for learning parenting skills, [emphasis in original].28 z> Ibid., at 223. 2 6 This summary is taken from the Gove Report. It gives a bare framework of official involvement in Matthew Vaudreuil's life; the complete story is told in Volume I of the Report ("Matthew's Story") which contains far more detail than I can reproduce here. I have included some portions of the " Executive Summary" of the Gove Report to provide a sketch of the facts from which the subsequent analysis is drawn. I will discuss some parts of "Matthew's story" in more detail during the analysis which follows. 2 7 "According to Vaudreuil, the relationship was 'a living nightmare... he liked to bat me around a lot.' Hutchins testified that he was shocked and scared when he was told that Vaudreuil was pregnant. He was unable to provide a home for a baby and did not believe that Vaudreuil, who was unable to care for herself properly, was ready to be a mother. " Gove Report, supra note 1, Volume I at 21. Ibid., Volume I at 22. 154 On October 15 the public health nursing supervisor called a case conference to discuss the situation: Verna needs close supervision with her spending plans. She appears to have the mental capacity of a 10-12 year old. Assessment of Verna's mental capabilities not available at this time. ... A great concern at this time is safety, consistency and an ability to learn and manage time and stress. It is unknown what can be taught to Verna and how home situation will continue. PLAN: All involved services will meet in late October/November to asses what has evolved and how services can be efficiently and effectively co-ordinated.29 Despite this plan, however, the next case conference did not take place until December 1989, three years later. Verna Vaudreuil's "mental handicap" was uncertain, although her sometime official designation as "disabled" is important in the Vaudreuils' story. Doctors told her father that a fall at age three had caused learning disabilities, and Verna Vaudreuil believed the fall caused her speech impediment and partial hearing loss. At age 15 Vaudreuil was assessed, and her intellectual skills were found "within the borderline range of functioning". It was considered that Vaudreuil was not retarded, although she seemed to think she was.3 0 In 1982 Vaudreuil lived in a residence for youths with mental handicaps. When Vaudreuil applied for income assistance (on turning 19 and being discharged from Ibid., Volume I at 23. 3 0 " The team recommended that Verna be given a complete neuro-psychological assessment and be re- integrated from the skills development class she was attending into the normal school system: 'This should improve her self image (i.e. she considers herself retarded which she is not) and will also provide her with the appropriate peer role models, which she requires (emphasis in original).' There is no evidence that a neuro-psychological assessment was done." Ibid., Volume I at 18. 155 care) her social worker helped her to complete an application for Guaranteed Available Income for Need handicapped benefits: "Livingston [the social worker] felt that Verna would never be financially self-supporting and could use the additional money for shelter and support over a longer period of time provided by the handicapped benefits. On Verna's behalf, Livingston wrote, 'My disability is... mentally handicapped."'31 If Verna Vaudreuil was not mentally disabled, the Gove narrative describes a woman troubled by emotional and behavioural difficulties. She had been severely emotionally rejected, neglected and physically (in her biological home) and sexually (by her father and, allegedly, a foster father) abused, and was first taken into care at age eight, going through many foster care placements and home returns. Verna and Matthew Vaudreuil left Fort St. John's for the Lumby/Vernon area of B.C. when Matthew was 33 months old. By the time they left Fort St. John eight different ministry social workers had been involved in providing services and the ministry had recorded 17 reports of concern about Matthew Vaudreuil's safety and well-being (the Inquiry heard about two more which were not recorded). Matthew Vaudreuil was seen by 13 different physicians 45 times, and assessed by a speech-language pathologist, a psychologist and the medical director of the Child Development Centre. Services provided to the Vaudreuils included two home support workers, a homecare nurse, a 31 Ibid., at 20. "In testimony to the Inquiry, Livingston said that these answers might have overstated Verna's disabilities, but that Verna required supervision to fulfil normal daily functions." Ibid. 156 public health nurse, an infant development consultant, a life skills worker, two ministry- approved foster parents and shelter at a transition house. The following narrative is taken from the Executive Summary of the Report of the Gove Inquiry into Child Protection.32 The home support worker and infant development consultant who worked with Matthew and his mother during his first year became concerned about the risks to Matthew posed by his dirty home environment and Vaudreuil's limited parenting skills. Matthew also began demonstrating self-abusive behaviour such as head banging and biting himself. By the time Matthew was two, the ministry had received several reports that he was being neglected and physically abused, was often filthy and was living in appalling conditions. Matthew and his mother lived in a women's transition home for six weeks after she reported that she and Matthew had been physically abused. Vaudreuil sought advice from ministry social workers about Matthew's temper tantrums and self-abusive behaviour. She also took Matthew to the hospital emergency ward numerous times for minor ailments, and several doctors noted her apparent difficulties in parenting Matthew. Matthew's foster mother who babysat him when he was two and a half found that he acted violently toward both himself and another child in her home by scratching and biting. After three months, this behaviour led the foster mother to refuse to care for Matthew any longer. When Vaudreuil was later hospitalised for two weeks, a home support worker who lived with Matthew observed him to thrive: he put on weight, he laughed and his self-abusive behaviour stopped. When Vaudreuil returned, he deteriorated; he and the home grew dirtier and his tantrums and self-abuse returned. A psychologist who evaluated Matthew at the request of the Fort St. John Child Development Centre found that his severe language delay qualified him as a special needs child, and recommended that he attend the child development centre pre-school. In June, 1989 the Vaudreuils moved out of the Fort St. John area. On September 6 Verna Vaudreuil's social worker prepared a closing summary, noting Vaudreuil's "slight medical handicap" and that she "has quite literally had all the services available in Fort St. John."3 3 Ibid., Volume I at 9-10. Ibid, Volume I at 48. 157 Shortly before Matthew turned three, Vaudreuil and Matthew moved to Lumby, near Vernon, where she married. Ministry social workers in Fort St. John alerted social workers in Vernon to the need for the ministry to become involved with the family, noting that Vaudreuil was mentally handicapped and citing concern for her ability to parent Matthew. In spite of these warnings, the Vernon social workers made few efforts and never did locate Matthew and his mother in Lumby. Vaudreuil stopped living with her husband after two months. She claimed that he had abused Matthew. An RCMP officer took Vaudreuil and Matthew to a women's transition home, but concluded that Vaudreuil's allegations did not warrant further investigation. Transition home staff observed that Matthew screamed, bit himself, hit his head on the floor, and that Vaudreuil's seriously inadequate parenting skills aggravated Matthew's behaviour. They reported their concerns to a ministry social worker. After two months Vaudreuil and Matthew moved to the transition home's independent living residence. Vaudreuil did not participate in any of the counselling programs, and people in the residence observed her apartment to be dirty and disgusting. Matthew's self-abuse continued. When Vaudreuil told a ministry social worker that she could no longer care for Matthew, it was agreed that Matthew would be placed with a foster family for two weeks full time, and then on an intermittent basis. Home support services were cancelled when Vaudreuil did not co-operate. A child care worker hired by the ministry had found Vaudreuil resistant to meeting with her until Vaudreuil's social worker threatened to cancel the foster parent's services unless Vaudreuil co-operated. The foster mother eventually cancelled the intermittent care agreement on her own initiative. Vaudreuil was leaving Matthew longer than agreed and, without speaking to the foster mother, Vaudreuil's social worker agreed with Vaudreuil that the foster mother would babysit Matthew on the days that she was not contracted to provide foster care. Vaudreuil and Matthew moved in with a man she had met in a bar, but neighbours soon complained of screaming and of Vaudreuil's attempts to force them to babysit Matthew. The social worker took no significant steps to determine if it was an appropriate living arrangement for Matthew. The man eventually evicted Vaudreuil and Matthew. They moved back to the transition house, and, shortly thereafter, to Fort St. John. While in Vernon the Vaudreuils had contact with six social workers and the ministry recorded 11 reports of concern about Matthew Vaudreuil's safety and well-being (the Inquiry heard about at least one more which was not recorded). Matthew Vaudreuil was seen by 7 different physicians approximately 15 times, and assessed by an infant development consultant. Services provided to the Vaudreuils included a home support 158 worker, a child care worker, foster care, shelter at a transition house, and the child development centre pre-school. The Vaudreuils had also been in contact with the police.3 4 Vaudreuil and Matthew moved back to Fort St. John in April 1990, when Matthew was three and a half years old. Vaudreuil sought advice from her financial assistance worker about Matthew's tantrums and self-abuse. At the child development centre pre-school he was assessed as interacting with other children at the level of an 18 month old. In December, Vaudreuil asked ministry social workers to put Matthew into a foster home while she took course on parenting and anger. The social workers refused because they were not convinced of her commitment to making effective use of a break from parenting. The ministry continued to receive reports that Matthew was dirty, neglected and abused, and that the home was filthy and smelled putrid. The psychologist who had evaluated Matthew for the child development centre did so a second time, and concluded that Matthew needed a full scale behaviour management program at home, but that results were not likely to be achieved because of Vaudreuil's limited parenting abilities. In March 1991, while Matthew and Vaudreuil were living with her father, a child care worker found Matthew's living environment to be so filthy that she returned with a social worker. The social worker returned several times, threatening to remove Matthew if the situation did not improve, and ultimately insisting that Vaudreuil find her own apartment. This did not occur until May 1991. Over the next few months, Vaudreuil's apartment became a "flop house" for homeless and runaway youth. Vaudreuil reported to the police that her boyfriend had cut Matthew's penis with a knife, an accusation that the boyfriend denied and that was not substantiated. Matthew's uncle reported to the ministry that Vaudreuil was using drugs and was a prostitute, and that Matthew was not being fed. A social worker spoke with Vaudreuil, but did not visit the home or speak with the uncle, anyone else who knew the family or Matthew himself. A week later a youth took Matthew to the hospital at 1 am claiming Matthew had choked and stopped breathing. The youth reported that Vaudreuil was drunk and had gone out, and the youth did not know how long Vaudrueil would be gone. The next night the ambulance service attended Vaudreuil's apartment and found the same youth lying on the floor, apparently unconscious, and another youth in a closet apparently on drugs. Matthew looked dirty, underweight and neglected. During the summer there were more reports that Matthew was being physically abused and neglected, and that the apartment was filthy, with maggots on dirty laundry in the bathroom and mould growing on food in the fridge. Social workers visited the home and found it to be in a mess. Child care and home support services were provided, but Vaudreuil routinely missed appointments or did not co-operate. Ibid., Volume I at 70. 159 When Matthew was almost five, he was suspended from his day-care when workers felt they could not manage his difficult behaviour without the assistance of one to one care for him. He was subsequently terminated from the day-care altogether when his mother made a scene about his suspension. Vaudreuil then placed Matthew into a family day-care. The day-care provider reported to the Ministry that she could no continue to care for Matthew because he was acting out physically and sexually with other children in her home. Ministry social workers never investigated. In the autumn, a social worker referred Matthew to the Ministry of Health's Mental Health Services program.. A psychiatric social worker saw Matthew and his mother three times, and concluded that Vaudreuil's lack of parenting skills was the main problem. A three to four month treatment program was proposed but was never undertaken because Matthew and his mother missed the next two appointments. In December Vaudreuil began living with 18 year old Patrick Johnson. Around Christmas a ministry social worker investigated an allegation that Matthew had been physically abused by his mother. When the physician who examined Matthew could not find absolute evidence of abuse, the social worker left him in Vaudreuil's care. In January 1992 Matthew came to pre-school in soiled clothes, and he was observed hitting himself and other children. In February, after pre-school staff felt compelled to bathe him themselves and sent his filthy clothes home for Vaudreuil to see, he stopped attending altogether. In early March, after Johnson, Vaudreuil and Matthew moved to Vancouver, a ministry social worker closed the file, even though she recorded in the file that there were protection concerns and that Matthew might need to be apprehended. Prior to their move, Vaudreuil's Income Assistance file had been closed and both mother and son placed on Johnson's assistance file in order to give Johnson a greater sense of responsibility.35 During this period in Fort St. John, the Vaudreuils had contact with nine social workers and the ministry recorded 19 reports of concern about Matthew Vaudreuil's safety and well-being (the Inquiry heard about at least five more reports which were not recorded). Matthew Vaudreuil was seen by 8 different physicians over 15 times, and assessed twice by a clinical psychologist and once by a psychiatric social worker employed by the "Executive Summary", Gove Report, supra note 1, at 10-12. 160 Ministry of Health. Matthew Vaudreuil attended the Fort St. John Child Development Centre pre-school, summer day-care and the home of a private babysitter.36 On March 3, 1992 [in Vancouver], Johnson applied for income assistance for himself, Vaudreuil and Matthew. A week later a social worker filled in an Intake form based on her telephone conversation with the Fort St. John social worker who told her that there should be ministry follow up with this family. When the file arrived from Fort St. John on March 16, the social worker realised there were serious child protection concerns. The intake social worker who was responsible for the investigation made several attempts to contact Johnson, Vaudreuil and Matthew, but did not meet them face to face until May 21, 10 weeks after the intake telephone call the Fort St. John social worker was received. No Alerts had been placed on the ministry's computer system and the intake social worker never discovered that the ministry had placed Johnson and the Vaudreuils in a Vancouver hotel. The social worker's primary concern was arranging a special needs placement for Matthew with the school board. He did not examine or talk to Matthew privately, and did not perform a risk assessment. According to Johnson, when Matthew told him on July 8, 1992, that a man had been in Johnson and Vaudreuil's bedroom, Johnson went for a walk, feeling lost and confused. When he returned Matthew was on the sofa. When Johnson noticed that Matthew was not breathing, he asked Vaudreuil to phone 911. Matthew was pronounced dead just after midnight in the emergency ward of British Columbia's Children's Hospital. When Matthew died he was five years and nine months old. Not including supervisors, 21 ministry social workers had been responsible for providing him with services. At least 60 reports about his safety and well being had been made to the ministry. He had been taken to the ministry. He had been taken to the doctor 75 times and had been seen by 24 different physicians. The autopsy showed that Matthew died of asphyxia, a lack of oxygen. The cause of death was consistent with Vaudreuil's statements to police that she had put her hand over Matthew's mouth and nose to stop him from yelling. Although he was nearly six years old at the time of his death, Matthew weighed only 36 pounds. His face, arms, legs and back were covered with bruises. There were what appeared to be rope burns on his shoulders and wrists, as if he had been bound. His buttocks were covered in bruises and welts. He had a fractured arm, 11 fractured ribs and what looked like the imprint of a foot on his back. Matthew had been tortured and deprived of food before he was killed.37 Gove Report, supra note 1, Volume I at 102. "Executive Summary", Gove Report, supra note 1 at 12-13. 161 Situating Gove If the inquires have pinpointed time and again the failures of communication between professional social workers, they have also shown some quite enormous failures of communication between social workers and the public. They have an unerring way of showing up the gaps between facts and the truth... Truth, in the end, depends on where you sit, and social workers and the public- as represented by members of committees of inquiry and the mass media- sit in different places. Even the starting points are different. For social workers, they have to do with the complexity of relationships. For the rest of us, with hindsight, they have to do with the simple wrong that a child died. And if what social workers are trying to get across is that their job is a complicated one, the message they are getting back is that, complicated or not, their first duty is to protect children. This duty has now, as the whole apparatus of child abuse shows, become too important to be left to any one profession. It has also become too important to be left to professional workers' best efforts: the public will want to know why they fail if they do so. To social workers, this may look like a lack of trust in what they are up to. That's very probably exactly what it is.38 The themes and patterns discussed in Chapter Three run throughout the Gove Report: inconsistent and ineffectual use of authority ("ultimatums" without consequence);39 apparent misunderstanding of the law and pre-guessing court outcomes;40 compiling reports from parental accounts;41 blocks to recognition, including the inability to recognise unacceptable living conditions;42 failure to read warning signs;43 failure to assemble 3 8 A. Shearer, "Tragedies Revisited (3): "Have We Learned the Lessons?" (1979) 10 Social Work Today, (No. 21) 11 at 14. 3 9 See: Gove Report, supra note 14 Volume I at 78, 80, 86, 93, 99. 40 Ibid., Volume I at 35, 39, 75. 41 Ibid., Volume I at 33, 34, 54, 83. 4 2 Ibid, at Volume I 34, 35, 69-70, 78, 79, 101, 110 for particular examples; the following discussion of Verna Vaudreuil's disability, victimisation and "sad tale" also pertain to this idea. 43 Ibid., Volume I at 34, 36, 44, 58, 61, 63, 65-77, 88, 133. 162 accurate and complete information;44 inappropriate focus;45 inability to commit to a course of action;46 failure to take complaints seriously;47 and the "circumstantial elements" of re- organisation etc.48 "The Inquiry's investigations clearly established that the poor social work practice evident throughout Matthew's life was not unique. To the contrary, that practice was representative of the ministry's delivery of child protection services across the province. As I stated in Chapter Three, it is rather artificial and potentially misleading to separate the themes; it becomes apparent, reading the Gove Report (as with the others) that the patterns discernible merge, overlap and interact with one another. Considering the U K surveys, the separation had more purpose than it does here, considering a single report. Separating each theme within a single report seems not only artificial, etc., but unnecessary. Accordingly, I have structured the following discussion fairly loosely. 4 4 Ibid., Volume I at 55, 58, 68, 117-118. 4 5 Ibid., Volume I at 64, 67, 81, 135. 4 6 Bearing on the related themes of wavering authority and evasion of responsibility: Ibid., Volume I at 23 and 23 (the first case conference which begins the pattern in which action consists in making plans). 47 Ibid Volume I at 26 (the first phone in complaint), 29, 30, 31, 34, 79, 88, 92-3, 94, 96, 123, 139. 4 8 Ibid., Volume I at 35, 45, 95. Circumstantial or organisational elements should not be considered as " external" to an ideational analysis (or as the " real issue".) The organisational problems which appear endemic to child protection are a function of, and feed into, the fundamental contradictions and consequent " patterns of error" discussed in this paper; successive rounds of " fixing" a system which in fact "works" according to the "liberal compromise, but not according to its own stated agenda. The subsequent uncertainty generated by this "chaos" has an obvious impact on worker confidence about knowledge (the law, what to look for) and authority, and the ability to commit to and take responsibility for a plan of action. 4 9 "Executive Summary", Gove Report, supra note 1 at 30. 163 Bearing in mind the themes and patterns developed in the preceding chapter, the reader should be able to see them in the following passages, and to see the larger pattern they form: the "liberal compromise", and the "rule of optimism" which makes it work. Unfortunately, no "minority report" similar to Olive Stevenson's accompanies The Report of the Gove Inquiry. A fuller meaning for Gove's story depends on the contrast of a "minority" perspective. Without a doubt that story - the minority narrative- exists within the profession as an "unofficial version", or secret history.50 This kind of "secret history" has two unfortunate implications: the official version is subverted for "insiders", and is more generally compromised as simplistic and "untrue". A minority version would be no "truer" than Gove's; such accounts provide alternative perspectives: the "lesson" of child protection "disasters" may be found in the space between them.51 Within the Gove Report itself, however, a shadowy alternative version may be glimpsed in the facts of the narrative. Gove criticised social workers for treating each crisis in the Vaudreuils' life as a discrete event and failing to put the pieces together. Putting those events together himself, Judge Gove sees the ignored background against which workers made decisions about Matthew Vaudreuil: the child's "dangerous family". Social workers appear to be reacting, ineffectually, to each incident without reference to that background. 5 0 Elizabeth Pendleton's "no regrets" statement to the Inquiry gives us an idea: " [if] I had Verna and Matthew here now, I would continue the way I had been, as a family service worker, trying to provide the services to this young boy, and to his young mother as well." See infra, note 104. Cf. I. Grant and J. Mosoff, " Supporting Families, Protecting Children " The Vancouver Sun (Dec.8, 1995). 5 1 in which the "good professional decision" may have fatal consequences for the child at the centre. 164 It is possible, however, as in the Maria Colwell case, that social workers did assemble events and information to create a highly influential context for the Vaudreuils. (at least in Fort St. John, where mother and son lived for some time). Perhaps something like an over-contextualisation, focusing on Verna Vaudeuil's disabilities, victimisation and "sad tale", and Matthew Vaudreuil's behaviour, within the larger paradigm of "family centred" child protection, made the decision not to apprehend Matthew Vaudreuil appear the right one. It is this alternative context which becomes briefly discernible at moments in the Report, and one regrets the absence of a minority version to explore it more fully. Threats and Promises One striking feature of Matthew's story is the extent to which Verna Vaudreuil emerges as an active, sometimes dominant, player in her relationship with social services. An impressive array of resources were offered to and rejected by Vaudreuil. The narrative describes a woman who knew what she wanted- someone else to be responsible for Matthew- and openly dismissed the various services designed to "help" her to handle the responsibility. The Verna Vaudreuil in the Gove Report is not a passive figure defined by her "disability", "falling through the cracks" of an overburdened system. Verna Vaudreuil, it seems, simply did not want the help on offer. Social workers threatened to take Matthew away from Vaudreuil on a number of occasions if she did not "meet his needs"; these "ultimatums" were abandoned regardless of whether or not the demands made of Vaudreuil (or "goals") were met. The following passage describes events after the Vaudreuils' return to Fort St. John; it is worth noting 165 that Kevin Rushton was Verna Vaudreuil's previous social worker in Fort St. John, and that Child Development Centre medical director Richard Moody had known the Vaudreuils since Matthew's infancy.52 In January 1991, the Child Development Centre gave SPMH social worker Kevin Rushton several reports that Matthew was not attending regularly and that when he did, he was dirty and improperly dressed for the winter weather. This prompted Rushton to prepare a written summary, in which he noted protection concerns from both the Fort St. John and the Vernon offices... CDC staff are concerned about Matthew's mother's ability to parent. CDC staff members have to go and collect Matthew each morning that he is to attend pre- school; otherwise he will not be present. This service is not one they offer to any other child. On January 22, 1991, Dr. Richard Moody, medical director of the CDC, summarised recent events, concluding: The staff find this one of the more frustrating problems to deal with because of the home situation. Unfortunately, the odds are stacked very much against poor Matthew but we shall continue to give this family what support we can. On January 28, Vaudreuil [met with workers and the District Supervisor] at the CDC... Rushton's notes summarise the meeting: Verna was to think about things that she wanted different in her life and the F&CS Unit would provide a Special Services to Children worker to work... on some specific goals selected. It was also suggested... that she apply for Handicapped Status. This might help her more financially. ... [The District Supervisor] told the Inquiry that Vaudreuil was very co-operative at the meeting; he explained to her that they would have to take Matthew away from her if she did not meet his needs. [On February 11 Vaudreuil's] family service file was re-opened in order to provide a child care worker. The short-term goals of the contract were for Vaudreuil to learn 5 2 Dr. Moody evaluated Matthew Vaudreil's situation on May 12, 1987, noting his "domestic circumstances can best be described as sub-optimal, but although Ms. Vaudrueil may not be a competent mom she seems to be caring and I don't think there is any question of child abuse or neglect", while at the same time noting that Matthew's physical and intellectual development was at risk because of Vaudreuil's poor parenting skills. (Gove Report, supra note 1, Volume I at 26). The point is often made, by " realists" wishing to normalise child protection, that the " real problem" in child protection is lack of resources, lack of services, constant staff turnover with the result that clients cannot get what they need and workers cannot " know" their clients. One significant feature of the Gove Report story, (and here there is a strong parallel with Paul: Death Through Neglect The Bridge Child Care Consultancy Service for Islington Area Child Protection Committee, 1995) is the extent to which services were ignored or abandoned by Verna Vaudreuil - " every service available in Fort St. John" - and, before she left for Vancouver, the element of continuity in her care. 166 basic life skills, to work on housekeeping and to learn personal hygiene for herself and Matthew. The long term goals were to move out of her father's home and to find her own place, and to learn parenting skills. Versions of these goals, especially the short term ones, had been set repeatedly since Verna Vaudreuil herself had been in the care of the superintendent.53 On March 19 social worker Susan Cornell visited Vaudreuil, still at her father's home, after receiving a report from a child care worker of the home's "filthy" conditions: In her recording [of her visit] in the Family Service file, she wrote, 'The smell in the home was quite putrid and I could no longer stay after about ten minutes time.' She met Vaudreuil in her office the next day and told her that her home was unhealthy for Matthew, and that if Vaudreuil did not make a good effort to clean up the mess and health hazards, Matthew would have to live elsewhere for a while. According to Cornell's notes, Cornell 'told her we did not want to apprehend, but we may have to keep Matthew healthy.' Vaudreuil was given two days to make a difference. Meanwhile Matthew remained in the putrid environment.54 There follows a rather pathetic account of Vaudreuil "cleaning, but she did not appear to know how to go about the task."55 She was given three more days. . There was little change. She was given until the end of the week to move. The child care worker's notes state that Matthew would he apprehended unless he moved out. This was in mid-March. The Vaudreuils moved into their own apartment in May, which does not seem to have been an improvement, despite the optimistic hope of the child care worker assigned to help the family that "hopefully a new home will give her the drive to keep her home clean". Rather, the apartment became a "flop house" for runaway and street youths. The Gove Report, supra note 1, Volume I at 78-79. 54 Ibid., Volume I at 80. 55 Ibid. Although at one point in the narrative it is mentioned that Vaudreuil got a job as a chambermaid at a hotel; no detail is given about this. 167 Fort St. John Fire department ambulance team, responding to a midnight call at the Vaudreuil apartment found a youth "lying on the floor, apparently unconscious... There were four or five other teens in the apartment, including one in the closet who was apparently on drugs. The apartment was very messy, with beer and liquor bottles and clothing scattered around... [The Lieutenant] told the Inquiry that he saw Matthew carrying a bag of hot dog buns, complaining he was hungry and looking dirty, underweight and neglected. Concerned for Matthew, [the Lieutenant] phoned the Helpline at the end of his shift".56 As a result of the incident, a social worker visited Vaudreuil and told her "she had better clean up her place and stop allowing so many people over on a regular basis, because Matthew was being exposed to drugs, alcohol, suicide, inappropriate behaviour, etc."57 According to her notes, she told Vaudreuil Matthew would be apprehended if "such behaviour continued." Her notes also describe her risk assessment as a "borderline protection concern": [She] told the Inquiry that she described the case as " borderline" because Vaudreuil had agreed to clean things up and, in neglect cases, you had to give the parent the opportunity. She also testified that while she was well trained on child safety issues such as physical and sexual abuse, she was not nearly as well trained on assessing a child's "well-being", or recognising signs of neglect. 5 8 5 6 Gove Report, supra note 1, Volume I at 86. 51 Ibid. ssIbid. 168 The squalor of Matthew Vaudreuil's living conditions was a media focus after his death.59 Newspaper stories about appalling material conditions may be particularly worrying to the public as squalor would seem to be so obvious to any "common sense" observer. While bruising on a child, or behavioural problems, may be ambiguous to the extent that the "lay" observer can appreciate the social worker's difficult task of professional judgement, the inability to recognise and do something about "obvious" squalor may be understood by the public as incompetence or indifference. Yet, while their evaluation requires no special knowledge the framework of interpretation may discount the significance of material conditions.60 The proper application of "legal guidelines"61 is only one factor in the makeup of that interpretative framework; professional self-perception62 and the social worker's "territory 5 9 And a matter of professional concern from his infancy (Gove Report, supra note 1, Volume I at 24.) " A review of the Ministry's records for Matthew and his mother would have shown that extremely poor hygiene and housekeeping were constants in the Vaudrueil home. The records also showed that a lack of motivation to work on her parenting skills and a tendency to evade those who were trying to help her with this were hallmarks of Verna Vaudreil's behaviour, despite occasional spells of apparent caring and effort at parenting. There is some controversy over what standards should define an appropriate home environment; however, court decisions have given some legal guidelines. By any standards, Matthew's home environment was not fit for any child." Gove Report, supra note 1, Volume II at 86. 6 0 " Normality and deviance, then, are both outcomes of an interaction between what is available to be observed and the framework of ideas within which observations are actually made." Robert Dingwall, John Eekelaar and Topsy Murray, The Protection of Children: State Intervention in Family Life (Oxford: Basil Blackwell, 1983) at 244. 6 1 See, supra note 50. 6 2 From Paul: Death Through Neglect, supra at note 52, an inquiry report with many similarities to Gove, at 181: "The professional perception of the children as 'dirty, smelly but happy' went unchallenged. There may even have been professional pride in a position that value judgements should not be imposed on issues to do with hygiene." 169 of normal appearances"63 are also important here. The statement of the social worker above that in neglect cases "you had to give the parent the opportunity" notes the wider context which delimits decisions about material conditions. Within that context is the worker's "territory of normal appearances", and within that context is the context of the particular household, or "case". Dingwall, Eekelaar and Murray describe the idea of change64 as significant within the particular "case" context. Consistent, if unsatisfactory, living conditions, may be taken as an indication that the client is not "doing it on purpose" and cannot, therefore, be formulated as the kind of person capable of neglecting her child. 6 5 "Ultimatums" given to Vaudreuil consisted not only of threats to take Matthew away but, significantly, threats to force them together, by removing alternative care arrangements. Despite the supports offered to her[home support worker services], Vaudreuil called [Vernon social worker] Denise Gauthier on November 21, 1989 to tell her that she could not cope and that she could no longer care for Matthew. Ms Gauthier, after consulting with her district supervisor, decided to offer Vaudreuil a short term care agreement under which Matthew would be taken into temporary full-time foster care for two weeks, then intermittent foster care for a few days a week. The condition of the agreement was that Vaudreuil use this respite from parenting to take advantage of the services offered 6 3 " [Social workers] also can be seen to operate with a model of normal appearances grounded in the social ecology of their area.. Both groups [social workers and health visitors] must be sensitive to variations from their conceptions of normality as a warrant to undertake further investigations... those attempting to deceive either agency will model themselves as closely as possible to their idea of expectable conduct." Ibid, (referring to M. Sacks' discussion of the police officer's beat as a "territory of normal appearances" by which the officer distinguishes "suspicious" behaviour or circumstances; "Notes on police assessment of moral character", D. Sudnow, ed. Studies in Social Interaction (New York: Free Press, 1972)). Dingwall et al. supra note 60 at 244. M Ibid., at 59. 6 5 This last observation feeds into Verna Vaudreuil's purported mental disability, which, I suggest, coloured social worker perceptions of her culpability for the environment she and Matthew lived in. Ibid., Volume I at 61. 170 On December 4, 1989 Matthew began attending NONA pre-school three afternoons a week... Two days later the full time foster care contract expired and [social worker] Roundhill, filling in for Gauthier, extended it, changing the term to " intermittent": the Veritys (foster parents) would care for Matthew Monday to Wednesday, three days and two nights a week. Roundhill's reasoning was that Matthew would benefit from a structured family environment. Placing him with Verity offered a valuable opportunity to see if Matthew's behaviour as the same with another caregiver as with his mother. Roundhill also believed that Vaudreuil needed a break, a chance to meet the other needs of the parenting class. She needed the time to do some more healing and some more learning about herself.67 In any event, there is no evidence that Vaudreuil ever attended any of the support services that were arranged for her during her stay at the transition house or Second Stage in Vernon, including programs offered by Second Stage itself. The Vernon & District Home Support Society Supervisor met with Vaudrueil on November 23, 1989 to discuss her contract, which provided for two hour home visits twice a week. Vaudreuil agreed, but did not keep any appointments, refusing to open the door or telling the home support worker to come back later and then not being home. The contract was discontinued. Eileen Podanowski, a child care worker with North Okanagan Youth and Family Services had more success, meeting with Vaudreuil for private counselling sessions eight times over two months; Podanowski observed that "Vaudrueil seemed happy to have someone to talk to about herself, her relationships with men, and her own problems, but deflected talking about Matthew... parenting was clearly not Vaudreuil's priority. She testified that as a child care worker she had seen a lot of apartments of parents who need help, but that Matthew's home was unusually filthy."68 Gove Report, supra note 1 Volume I at 62. Ibid., Volume I at 63. 171 Jennifer Roundhill, who had been filling in for Gauthier, took over the Vaudreuil case. Ms. Roundhill testified "that she concluded that Vaudrueil needed more services, and that her strategy was to rely on community care givers to monitor Matthew: there have been a number of things tried and there will need to continue to be a number of things tried. Fortunately we are well disposed to provide a lot of services. Unfortunately, Verna Vaudreuil was not disposed to take them. At the end of her first week as Vaudreuil's social worker, Roundhill recorded that child care worker Eileen Podanowski had not been able to get in contact with Vaudreuil, that the home support service contract was cancelled and that Vaudreuil was leaving Matthew with Karyl Verity beyond the three days a week stipulated in the care agreement. Roundhill apparently told Verity to "put your foot down" and not help Vaudreuil take advantage of the ministry's services, and then left messages for Vaudreuil at Second Stage advising her that Matthew would be returned as scheduled.69 Jennifer Roundhill finally contacted Vaudreuil at the NONA pre-school on January 30, 1990. There she told her that if Vaudreuil did not agree to see the child care worker three times in the next two weeks, the respite care agreement would be cancelled: Vaudreuil would not receive services unless she co-operated. Vaudreuil agreed. In her testimony to the Inquiry, Roundhill stated that she had no intention of depriving Matthew of the positive environment of the foster home and that her statement to Vaudreuil may have been a "bluff. 7 0 On March 12, 1990 Verity cancelled the care contract; Verna was abusing the intermittent care agreement, consistently leaving Matthew for longer than the two night a week which had been arranged (in one seven day stretch Verity did not hear from Vaudrueil), and Verity had not been asked about providing additional daytime babysitting services for Matthew, a plan which Roundhill had offered Vaudreuil (without consulting with 6 9 Ibid. 70 Ibid., Volume I at 64. 172 Verity). 7 1 On March 14, 1990 Roundhill gave Vaudreuil a choice between intermittent care for Matthew in a new foster home or daytime babysitting, giving Vaudreuil a week to decide: My thought was this wasn't what Verna had been counting on. She's on her own. Let's see what happens for a few days until she decides what to do... it was a good opportunity to see what perhaps had changed for Verna and perhaps the plan would change accordingly. Roundhill felt that reducing contracted services placed the responsibility for Matthew's care more on Vaudreuil, which Roundhill thought was appropriate.... In testimony before the Inquiry Roundhill stated that: "The direction I was ultimately working towards was that Verna would be responsible for full time care of her son."72 That choice was never made. Vaudreuil called Roundhill on March 21 to say she would be going to Fort St. John to look after her ill father, and Roundhill decided to "see what happens next."73 That afternoon an intake social worker got a call that Vaudreuil, having been evicted, had left Matthew in a man's apartment.. The neighbour was willing to look after Matthew for the night. He phoned the ministry again the next day, and spoke to Roundhill, as did Vaudrueil, then at the neighbour's house. Roundhill recommended that Vaudreuil go to Transition House if she had nowhere else to go: "She asked Vaudreuil to let her know where she ended up staying", explaining to the Inquiry that "she saw Verna Vaudreuil as a mother who had lost her place to live and was having difficulty planning and finding reliable babysitters."74 7 1 The day after the cancellation Matthew was taken by ambulance to the hospital with damage to the soft tissue of the lower back, explained as due to a fall. 72 Ibid., Volume I at 67. 7 3 Ibid., Volume I at 68. 7 4 Ibid., Volume I at 69. 173 The 1981 DHSS study notes as striking "the number of cases in which parents or parent figures asked for children to be removed in one way or another"75 This is also a striking feature in the Vaudrueil case; Verna Vaudreuil explicitly requested that Matthew be taken into care, and repeatedly simply left him with others, apparently including people she did not know. 7 6 On many, many occasions she took Matthew to the hospital, even where there did not appear to be anything the matter with him; this seems to have been another attempt on her part to find someone else to take responsibility for him. One of these visits, poignantly, took place after social workers in Vernon referred Matthew to a paediatrician in October, 1989, after determining that Vaudreuil's file would be the primary responsibility of Family and Children's Services (as opposed to Services for People with Mental Handicaps) because of "grave child welfare concerns".77 The paediatrician found no "overt evidence of physical or sexual abuse", and although concerned by the history of abuse (attributed to others) told by Vaudreuil, he assumed there was no "immediate concern" as Vaudreuil had left her husband (although he noted 7 5 DHSS, Child Abuse: A Study of Inquiry Reports 1973-1981 (London: HMSO, 1981) at 33. 7 6 Dr. Susan Penfold, psychiatrist at BC Children's Hospital, who reviewed the case for the Inquiry, noted, re Vaudreuil's behaviour: "What I've noticed about parents, particularly when I was working with the child welfare agency, is that they'll often tell you that they want to parent their children but they're often demonstrating by their behaviour that that's the last thing they really have in mind, because... they don't turn up for appointments. They're always late. They don't collect their children from the foster home. They don't take the parenting courses you've suggested or they don't follow through. So that by their behaviour they're showing you that they're not really able to parent." Gove Report, supra note 1, Volume I at 133. 77 Ibid, Volume I at 58. The report also notes the SPMH worker's impression that Vaudreuil " did not fit the profile of a handicapped client: she was capable of doing things such as moving from Fort St. John, getting married, and checking herself in to a shelter." 174 the "mother needs help" and seemed a "lost soul" in need of direction).78 "That same day", the Report records, "Vaudreuil took Matthew to the emergency ward of Vernon Jubilee Hospital for nausea, vomiting and diarrhoea. According to the notes of the attending nurse, Vaudreuil told her that Matthew had seen by [the paediatrician] that day, but that she wanted Matthew 'rechecked.'" The implication of this act, now, seems terribly clear: you missed something- look again. Child care worker Eileen Podanowski noted in 1990, that although Verna loved Matthew she lacked the ability and common sense to care for him: "Perhaps her manipulation and overuse of others around her to care for him is her way of indicating that she needs Podanowski concluded that " Verna was on a roller coaster of highs and lows from one day to the next... The roller coaster, however, rarely contained Matthew or anything about him." Podanowski's report went to Jennifer Roundhill [Vaudreuil's social worker]. On April 5, 1990, Jennifer Roundhill learned from Transition House staff that Matthew and his mother had left for Fort St. John. She closed the Vernon file, noting in her closing summary that her primary concerns were Vaudreuil's intellectual impairment, her poor housekeeping, Matthew's special needs and Vaudreuil's inability to sustain change. She then notified Kevin Rushton in the Fort St. John office that Vaudreuil and Matthew were on their way, telling Rushton, according to her closing summary that: If service is requested or warranted by child welfare concerns, this client is in need of every available support in order to maintain the strong parent-child bond. Roundhill's closing summary was countersigned by acting district supervisor Marilyn Patton. When asked by the Inquiry why Vaudreuil should simply be allowed to move on, taking Matthew on what Eileen Podanowski described as a roller coaster ride, Jennifer Roundhill answered: "because that's the mother he was born to." 8 0 78 Ibid. 79 Ibid., Volume I at 69. 8 0 Ibid., Volume I at 69-70. 175 Back in Fort St. John, around Christmas 1990, Verna Vaudreuil went with two of her sisters to the ministry office. "A l l the sisters said that Vaudreuil wanted Matthew put in a foster home while she took courses on anger and parenting".81 Joanna Vaudreuil, who was credible and articulate in her testimony before the Inquiry, recalled that the man they spoke with at the ministry office made several disparaging remarks about Claudine Gayford [the other sister] having lost her children, and about the possibility that Joanna Vaudreuil was AWOL from her foster home in the Lower Mainland, an allegation that was untrue. According to Joanna Vaudreuil, the man said that Matthew had been in care three times before, and that his mother never followed through on her commitments to take courses or attend counselling. He said that under the circumstances they could not take Matthew away from Vaudreuil, because she treated it like a holiday and always expected to get Matthew back. He then ended the meeting, saying he could not help them and he had to go. Joanna Vaudreuil could not recall any discussion of a follow up meeting. Vaudreuil remembers the incident somewhat differently. She recalls asking a woman who identified herself as a supervisor for temporary foster care for about a year. She did not remember any discussion of another appointment, but when she left she believed that she was finally going to get the help she needed, [my emphasis]82 According to Vaudreuil, throughout the interview Joanna Vaudreuil did most of the talking. [The Recording Summary, dated December 28, 1990]: Verna came in requesting a Short-term Care Agreement for Matthew. It was [our position] that a Short-term Care Agreement could not be entered into until we had reviewed the files. Verna wanted the Short-term Care Agreement so she could work on personal problems.. When questioned though she agreed that she had three previous STCAs for the same reason but had failed to follow through, [emphasis in original]. It is our concern that Verna just wants a break. Therefore, an appointment was made for Friday, January 4(1 week hence) in the hopes the files have arrived by that time.83 81 Ibid., Volume I at 76. 8 2 Vaudreuil is articulating what is implied by her actions: the help she needed was not the services she kept being offered to teach her how or help her to look after Matthew, but someone to look after Matthew. 83 Gove Report, supra note 1, Volume I at 76. 176 The file was not requested from Vernon until February 11. Vaudreuil did not show up for her January 4 appointment and on January 15 the assessment file which had been opened when Vaudreuil requested the care was closed. The file was closed without an investigation; indeed, the social worker "did not question Vaudrueil about Matthew, nor could she recall being concerned about him". 8 4 Vaudreil's visit was characterised as a voluntary request for service.85 Excuses and Justifications The themes and patterns identified in the Inquiry Reports, including the Gove Report, and the "rule of optimism" analysis of Dingwall et al, describe the way "the system" works as essentially low intensity surveillance, allowing for State child protection within the wider liberal context. This kind of system is assumed to coincide with parental wishes (the notion/"device" of "natural love" described by Dingwall et al is important here, naturalising this coincidence and making it difficult for a parent to challenge it by requiring that the parent present themselves as wwnatural, even monstrous). Where a parent, like Vaudreuil, is able to make the request for separation explicitly, it seems the demands of ™Ibid., Volume I at 117. 8 5 Vaudreuil told the Inquiry about making another request for foster care in Vancouver, although there is no record of such a visit: " According to Vaudrueil, she and Johnson [the man she was living with] went by bus to a ministry office... and asked for foster care for a six month period and for a psychologist to see Matthew... She wanted 'to get help for my son and for myself and again [received] the same old treatment.' She believed that if her request for short term foster care was granted, it probably meant that Matthew would not be returned to her: i was prepared to accept it and try and get myself some help and get a psychologist for my son.'... Vaudreuil said that she was offered respite care three days per week and was upset that she was 'asking for one thing and getting another.' She did not follow up on her original request for foster care because she 'had tried so often in Fort St. John and nothing was done.'" Ibid., Volume I at 116-117. 177 the "system"- its operational rules combined, in the Vaudrueil case, with a particular social and political context86- will, where possible, continue to set the agenda. Of course, some children are take into care (including the children of Vaudreuil's sister, Claudine Gayford). The deciding factor may be the availability of what Dingwall et al called parental "excuses and justifications"87. The Gove narrative describes how these "excuses and justifications" are available to the system to further its agenda (here, an explicit political commitment to family maintenance reinforcing the "rule of optimism"), as well as to a parent. In Verna Vaudreuil's case, Matthew's characterisation as a difficult "special needs" child, as well as providing a "justification" in itself, seems to have added to her considerable "sad tale"- her troubled and deprived childhood, her disabilities, and her alleged victimisation88 by the men she became involved with. Indeed, the power of Vaudreuil's "sad tale", apparent although not given much detail in the Gove narrative, implies that it must have formed an important piece of Verna and Matthew Vaudreuil's context, as it would have been perceived and considered by the social workers who wanted to help them.89 The rule of optimism then would seem to filter moral character in such a way as to hold back some upper-, -middle-, and "respectable" working class parents, members of ethnic minorities and mentally incompetent parents while leaving women and the "rough" indigenous working class as the group proportionately most vulnerable to compulsory measures. This effect is achieved by tests which are not class biased in any See: The Wider Context: Child Protection with a Family Focus, infra 177. See Chapter One. Gove Report, supra note 1, Volume I at 32, 53, 55, 65, 83. This is another point at which the absence of an Olive Stevenson like "minority report" is regretted. 178 simple or overt sense but [is one] which various groups are differentially able to meet."90 The influence of Verna Vaudreuil's purported mental handicap on her progress through social services may also be understood through application of the "rule of optimism" and "cultural relativism".91 The facts of the narrative suggest that Verna's perceived "handicap" "explained" the Vaudreils' situation in a way that characterised apprehension of Matthew as unacceptably judgmental.92 Verna Vaudreuil, like her sister, could be characterised as a member of the "rough' indigenous [white] working class", but her official mental incompetence made Matthew's apprehension indefinitely deferrable. The Wider Context: Child Protection with a Family Focus 9 0 Dingwall et al, supra note 60 at 102. 9 1 The operational rule and its techniques- cultural relativism and natural love- were institutionalised in the "philosophy of service delivery" during the Vaudreil's involvement with social services: the " strengths approach", based on the " innate nurturing capacities of the parent" : " The focus on the adult as client is rooted in service delivery models developed in the U.S. to meet the needs of developmentally disabled and psychiatrically ill adults. The plan concentrates on the client's inherent strengths, rather than personal deficits." See Gove Report, supra note 1, Volume II, at 43. 9 2 " Its very difficult to define what neglect is. What may be neglect to you or me is not necessarily neglect to other people. Poor mothering skills, being mentally handicapped, doesn't necessarily mean that you neglect your child." Dr. Richard Moody, medical director of the Child Development Centre in Fort St. John, Gove Report, supra note 1, Volume I at 40. Judith Mosoff, considering the relationship of women with mental health histories to the child welfare system, concluded that official designation as " mentally ill" placed women in a very vulnerable position: " Once articulated, the label raises immediate concerns that her children are in jeopardy, not because of what she has done but what she might do in the future, based on who she is as defined by an expert." J. Mosoff, Motherhood, Madness and the Role of the State (University of British Columbia, L L M Thesis, 1994) at 8. Mental "illness" (as opposed to mental " disability"), however, has differences in connotation and implication which would seem crucial in child protection. " Mental illness" carries notions of violence, bizarreness (as opposed to mere incompetence, or slowness) and an element of personal control, or " character" (in contrast to the " blameless" mentally disabled): "As we have observed, mental illness, especially in its minor forms, seems open to being regarded as intentional or at least intentionally exploited." R. Dingwall et al, supra note 60. 179 Matthew Vaudreuil lived and died in British Columbia under the "protection" of the "non- legalistic, interventionist"93 Family and Child Service Act94 (the CFCSA's predecessor).95 The "emerging status quo"9 6, "child protection with a family focus", seems to have become the de facto guiding principle in social services by the time of Matthew's death in 1992.97 A 1991 Program Plan for Family and Children's Services (a division of the Ministry of Social Services responsible, at that time, for planning, policy development, budget preparation and legislative change proposals) described the Social Service Ministry's primary responsibility as "child protection with a family focus... Families are responsible to ensure that their children are safe from abuse and neglect... The Ministry is committed to maintaining children in their own families wherever possible."98 In March 1993, Joan Smallwood (then Minister of Social Services) announced that the Ministry was undergoing what she called a "fundamental shift in values- from a child 9 3 Richard Barnhorst, " Child Protection Legislation: Recent Canadian Reform " in Barbara Landau ed. Children's Rights in the Practice of Family Law (Toronto: Carswell, 1986) 255 at 256. 9 4 S.B.C. 1980, c. 11 9 5 For an interesting discussion of the FCSA and its history, see Marilyn Callahan and Brian Wharf, Demystifying the Policy Process: A Case Study of the Development of Child Welfare Legislation in BC (British Columbia: University of Victoria School of Social Work, 1982): "At the time of the writing of this study, the Act and policy have been in place two years, too soon to determine whether the Act has lived up to its promise to encourage positive preventative approaches and to have the removal from the home seen as a last resort." Callahan and Wharf, at 32. 9 6 Per Christopher Lasch: " not so much a demand for change as the description of a change in attitudes that had already come into being... [such criticism is in considerable demand where] defence of an emerging status quo usually takes the form of urgent calls for sweeping reform." C. Lasch, Haven in a Heartless World: The Family Besieged (New York: Basic Books Inc., 1977) at 12. 9 7 See the Gove Report, supra note 1. 9 8 Cited in Protecting Our Children, Supporting Our Families: A Review of Child Protection Issues in British Columbia (Victoria, B.C.: Ministry of Social Services, 1992). 180 centred system to a family centred system." In a Ministry Bulletin, Smallwood explained a "family centred system" as: "a different style of service provision. The greatest proportion of time, energy, and financial resources of the child welfare system must be dedicated to preserving families. The service will be geared to enhance the welfare of children in their own homes or to promptly reunify families when temporary placement is required."99 Bob Cronin, deputy manager at the time of Smallwood's announcement,