The publication of the Serious Case Review in the very sad case of Shi-Anne (Keegan) Downer, murdered at 18 months old by her Special Guardian Kandyce Downer, has prompted a fresh round of press coverage of the circumstances of her death. Kandyce Downer was convicted of murder in May last year (and we wrote briefly about some inaccuracy in the coverage of that here), but the Serious Case Review (SCR) has only now been published.

You can read the Serious Case Review here.

This post will focus on the recent coverage, and highlight some interesting features of the SCR, focusing on the Family Court aspect.

The Times cover the SCR this way : Social workers “ignored” murdered toddler. They flag the SCR’s criticism of the lack of monitoring of Shi-Anne by social workers after the Special Guardianship Order (SGO) was made. The Times article says that social workers “…agreed a SGO should be granted…” without making clear that whilst this was the recommendation of social workers, and whilst the local authority agreed with the making of the order, it was the Family Court that in fact approved the order. The involvement of the Family Court is an issue raised in the SCR.

The Times article says :

SGOs are designed for children who are taken into care when they are much older and might struggle to settle in with a foster family, and adoption is out of the question. Social workers have come under pressure from the courts to find someone in the extended family. In light of this and other cases, the government has tightened up the rules, in particular making clear there has to be a strong emotional tie between the guardian and child.

This is not correct. An SGO can be made at any age, and commonly is made in respect of children who cannot remain with their parents, but who are able to be placed with extended family members. Nor is it the case that a child who might struggle to settle with a foster family will always be suitable to be placed under an SGO. The unusual feature of this case was that the child and Special Guardian were not related by blood at all.

Further, the Times say :

The foster carer who looked after Keegan had made clear to social workers that she had “concerns” about Downer’s motivation. It was thought money and the allowances that accompanied the SGO were an incentive. 

We would not ordinarily expect the negative views of a foster carer about a prospective carer who she (presumably) did not know well, to carry great weight. However, the SCR suggests that warning signs about motivation were present independently of the foster carer, and should have been given greater consideration.

The Mirror run with : Toddler handed to distant relative who savagely beat her to death after catalogue of social service failings. They still inaccurately refer to Kandyce Downer as an “evil foster mum” in a photo caption, and quote from the SCR, saying that “There is no evidence why Kandyce Downer changed from that loving mother into the brutal attacker. As a result… Shi-Anne’s death couldn’t have been predicted.” They also feature a quote from the relevant Safeguarding Children Board (Birmingham) stating that local practice and national guidance have both changed since the death of Shi-Anne. They also highlight that the assessment of Kandyce Downer as a Special Guardian was inadequate and conducted by an outside agency (as with the case of Ellie Butler, the Independent Social Work agency did not participate in the SCR).

The local, Birmingham Mail, coverage is useful : Live updates: How did toddler Keegan Downer end up living with woman who brutally murdered her?

It includes some chunky quotes from the SCR and an explanation of what an SGO is – which is unfortunately not accurate :

Special Guardianship is where you take on the responsibility of caring for your grandchild until they are 18 years of age 

Special Guardianship orders are often made in favour of grandparents, but. as this case illustrates, can also be made in favour of any other person willing and able to care for a child. A Special Guardianship order is not just an order about caring for a child – it is substantially different than, say, a child arrangements (residence) order in that it gives overriding parental responsibility to the special guardian meaning that they have a very limited duty to consult with or involve the birth parents. It is the closest thing to adoption short of adoption itself.

None of the coverage links to the Serious Case Review, but this is unsurprising since it is quite difficult to locate on the Birmingham Child Safeguarding Board and is not yet on the NSPCC repository. Most journalists will, like us, have been sent an embargoed copy of the SCR rather than via the CSB website.

The Serious Case Review – the role of the Court

Others will cover / have covered the apparent failures of assessment before the order was made, and of the absence of monitoring / visibility of Shi-Anne after the order was made. We are going to look briefly at the role of the court, as that is a feature of the SCR that has not received much attention, and this part of the process has been the subject of criticism and concern in other high profile cases such as Ellie Butler, where the SCR authors complained that the judiciary declined to participate in the SCR process to assist with the learning of lessons.

Firstly, it is worth pointing out that there will be no judgment relating to the decision to make Shi-Anne the subject of an SGO, because the decision was made by consent (or at any rate without the active opposition of any party), and because the case was dealt with by Magistrates. Whilst Magistrates are obliged to provide written reasons for their decision we would expect these to be brief in the circumstances, and they would not ordinarily be published. They are not referred to in the SCR, but we would have expected them to be provided to the report authors.

It is unclear how much information the authors of the SCR had about the court process in Shi-Anne’s case. Although the chronology includes the dates of the relevant hearings, it is somewhat surprising that there was a lack of information about what happened at certain hearings. The authors note that social work case logs were deficient in not recording the outcome of hearings, but since the Local Authority’s legal department participated in the SCR it is unclear why this information wasn’t available via that route (page 8).

Ultimately the plan for Shi-Anne was not the subject of a contested trial. The SCR says :

There is no indication of the source or evidence base for the assertion about the likelihood of challenge by magistrates compared to a single judge. The recent review of special guardianship in England, that resulted in new regulations and guidance, recognised that all levels of courts were making more SGOs in the past 3 years than previously.

As an uncontested final hearing, where the guardian supported the recommendation for the making of an SGO to Ms Downer, and this plan was supported by the Guardian and unopposed by the parents, and where there was no placement application to consider, it would be surprising if the court had embarked upon a scrutiny exercise of its own motion. Although it is conceivable that a more proactive judge (or bench) might have raised a query if it were strikingly obvious that the evidence base was insufficient to justify the making of the orders sought, experience suggests this is unlikely in a context where all parties were represented and none of them sought to undermine the assessment that formed the basis of the care plan.

The prior question is whether there was sufficient scrutiny of the assessment and plan by the local authority and guardian prior to its presentation to the court for approval. The report author suggests not :

…more scrutiny of the City Council assessments should have taken place by both CAFCASS, and the Family Court in this case. It is fully accepted that the hearing was uncontested with the care plan being fully supported by both the Local Authority, and the child’s solicitor, but the review author does feel that more scrutiny could have taken place by the Family Court in this case, as clearly gaps in the assessments were evident to all. The fact that the decision was made by Lay Justices (the Magistrates) may suggest that they are less likely to challenge the recommendation of the Local Authority supported by the Children’s Guardian than a Judge would have been and that this level of scrutiny needs to take place. (page 29 our emphasis)

There is some criticism of the Local Authority legal department (page 21) :

but it is difficult to know quite what to draw from this as the report does not give sufficient detail to be very meaningful.

This SCR raises a question about whether the Family Court could / should have done more in terms of scrutiny – we suspect there will be differing views about what the law demands and what is feasible in terms of scrutiny of agreed care plans – one view would be that the court has a duty to scrutinise the care plan in order to satisfy the best interests and no order principles, but another would say that if all parties and professionals are recommending a course of action, then that is ordinarily a quite sufficient evidential basis for the making of the orders. The answer may lie somewhere in the middle – the court is more than a rubber stamper of agreed orders, but it is not fully inquisitorial.

It is fair also to note that whilst the SCR identifies a number of risk factors that, with the benefit of hindsight, seem significant, there was at the time of the final order being made no concrete evidence of impaired parenting – so it is difficult to imagine that any judicially proactive scrutiny would have made to the outcome at that stage.

Some policy issues raised

The engagement or response of the judiciary in this SCR has been somewhat different than in the case of Ellie Butler, where the judiciary were criticised for non-participation for “constitutional reasons”. Although the judiciary did not participate directly in the SCR the Designated Family Judge for the area did respond constructively to the case :

The Designated Judge for the Family Court has reviewed the file for the case and has met with both the City Council and CAFCASS and stressed to them the importance of more in depth reports and to scrutinise assessments and proposals in more detail. This is now in place. However, it wasn’t at the time and more scrutiny of the City Council assessments should have taken place by both CAFCASS, and the Family Court in this case. (page 29)

although there is no indication of the DFJ stressing the importance to the local judiciary of scrutiny of assessments themselves (this might have happened but if so it has not been reported, which is unsurprising for reasons of judicial independence).

The SCR highlights that there were some flags raised by the receipt of Ms Downer’s DBS checks, but that these were not properly factored into the assessment of her. It’s author also suggests that IF an SGO were to be made it ought to have been made alongside an supervision order.

This is interesting because it was in the wake of Shi-Anne’s death that amendments were made to the Special Guardianship Regulations, to ensure assessments more robust. There was also some criticism of the (then) tendency to combine SGOs with supervision orders, the argument being that if there were sufficient concerns to warrant a supervision order the SGO should not be made in the first place (see for example here and here).

However, the Special Guardianship (Amendment) Regulations 2016, whilst including some requirements to assess the ability of the Special Guardian to meet the child’s longer term needs, did not add any requirement for DBS checks to be carried out prior to the making of an SGO (it is often assumed that such checks are required and in practice they are usually carried out but there is no statutory bar on the making of an order without them – see Special Guardianship Regulations 2005 (schedule) as amended by the 2016 regulations – no composite updated version is available online). This is a surprising omission, and anomalous when compared to the position for foster carers and adopters (and indeed even in private law applications for a child arrangements order CAFCASS would carry out some police checks on the proposed carer via the Child Arrangements Programme safeguarding process.

The completion/ publication of the SCR is likely to have been delayed by the criminal trial which concluded in May 2016, by which point the amendment regulations were already made and in force. It is unclear what stage the SCR had reached by the time the regulations were made, and whether the issues about the DBS checks were known – but either way they did not make it into the amendment regulations or into public debate about the risks of SGOs circulating in the wake of Shi-Anne’s death.