Review into death of boy pinpoints decision of magistrates to refuse EPO

A “very unusual” Magistrates’ Court decision to refuse the grant of an emergency protection order (EPO) for a baby boy disempowered agencies, a serious case review into his death has concluded.

The SCR – conducted by the Derby Safeguarding Children Board – examined the death in 2012 of the boy, known for the purpose of the review as DD12.

The boy was born with very complex medical needs and had received significant levels of support from a wide range of professionals including health and children’s social care.

An incident in February 2012 first brought DD12 to the attention of children’s social care.

Following initial investigation, there was no suitable explanation for the injury. Social workers wanted the boy to be cared for by a foster carer on a temporary basis, whilst a detailed assessment was carried out. The parents were unwilling for this to happen and a suitable family member was not available.

The local authority therefore applied to the Family Proceedings Court for an EPO on the basis that urgent action was required.

The magistrates decided that the grounds for an emergency protection order were not met. The lawyers for the parents asked the magistrates to determine whether or not the injury had been caused accidentally.

“This circumstance was exceptional and it is very unusual for Magistrates to make a ‘finding of fact’ with regards to an injury at an EPO hearing as the amount of evidence and time needed to determine a ‘fact’ is not usually available at such a hearing,” a summary of the SCR said.

But the magistrates decided to weigh up the conflicting views about the cause of the bruising to DD12 and determined that, on the balance of probability, the injury was caused accidentally.

The report said: “The magistrates’ legal adviser should have made it clear to the magistrates that whilst the parent’s legal representative asked that they should determine whether the injury was accidental or not, their considerations should have focussed on whether or not an EPO was appropriate.

“The lawyers in the court did not assist the magistrates in addressing the issues which were relevant to deciding whether to grant the EPO application. The magistrates believed that the bruising was accidental; the relevant professionals in the case continued to believe the opposite.”

The summary  said it was not possible to establish to what extent the ‘finding of fact’ prevented immediate and decisive actions being taken to establish a plan to protect DD12 “but it did appear to disempower professionals”.

The SCR found that there should have been a debriefing meeting of all professionals involved in the boy’s care where the legal ramifications of the finding could have been explained.

“Furthermore this meeting could have defined a high level and vigilant child in need plan and ensured that this was put in place,” the SCR said. “The finding of fact appeared to undermine professional scepticism.”

With the application for an emergency protection order refused, the boy returned home. Professionals continued to visit but they focused on his health needs. They were also new, so were not always aware of previous concerns.

In May 2012 the boy died as a result of internal bleeding caused by a head injury. His father was convicted of manslaughter in 2013 after pleading guilty.

The serious case review concluded that:

• DD12’s complex needs were being met by a number of health providers working together. However, the case “emphasised the need to provide coordinated early help across all children with disability services where families are experiencing difficulties”.
• Once a suspicious injury had been identified, decisive action was taken by all agencies. “More robust advice to the Magistrates should have been provided and the impact of the decision by the Magistrates that this injury was definitely accidental was significant. It left professionals unsure how to work with the family and whether there were ongoing child protection concerns.”
• Despite this, DD12 was seen regularly by trained professionals who did not see significant indicators of concern.
• Serious case reviews often identify lessons that have been learnt before but this one was unusual. “The review does not identify major failings in respect of agencies working together; it identifies features of good practice. However, there are lessons about ways in which professionals felt tied by decisions. He was not an invisible child, but one who was well known to local agencies during his short life and action was taken to try to protect him.”

The summary of the SCR said HM Courts and Tribunal Service (HMCTS) had assured the Derby Safeguarding Children Board that specific advice had been issued to all legal advisors on the management of any application for an emergency protection order.

All such applications are now referred to the senior family lawyer on site to ensure appropriate supervision, whilst the outcome of EPO proceedings are now reviewed to check that lawyers act in accordance with High Court guidance.

In all such future applications magistrates will, wherever possible, be advised by a member of a local specialist team of family lawyers.

“HMCTS is confirming that procedures at all courts dealing with emergency applications of this type are fully compliant with the current rules,” the SCR said.

It added that the creation of a Single Family Court would also mean that in future such applications could now be considered by judges as well as by magistrates.

“In light of this case, there is careful reflection when Emergency Protection Orders are sought when there is no safe alternative and to ensure that there is sufficient evidence to support the application,” the report said.

The SCR said action had been taken on all the recommendations arising from the review. Eight of the recommendations had been completed and signed off, whilst significant progress had been made to complete the other recommendations.

Christine Cassell, chair of the Derby Safeguarding Children Board, said: “The review does not identify major failings of agencies. In fact, the review concludes that the practice of professionals was at least competent and in many cases good.

“It does describe how agencies were disempowered by a Court decision that is very unusual and to our knowledge has not occurred before. This had implications for the way professionals felt able to protect this little boy when he returned home.”

A copy of the SCR can be viewed here.