Mrs Justice King’s Judgement

What has become known as the Khyra Ishaq case is a very difficult case to comment on. Ed Balls has made it a key argument in justifying his plans to license HE families in England. Using it this way, or should I really say abusing it, has made it necessary for home educators to express opinions on what may or may not be important factors in the case.

One thing which needs to be made clear, and this was emphasised when I tried to contribute to a BBC phone-in which I have commented on here, is that this case is not about the abuse of one child, but six!

I am not sure if it only came into the public domain after the end of the trial (but not the sentencing) of Angela Gordon, Khyra’s mother, but the next day I became aware of the transcript of the judgement from a hearing in respect to an application by Birmingham City Council for a care order under section 31 of the Children Act 1989 in relation to the five surviving children. The application was made in the High Court (Family Division) Birmingham District Registry and judgement was given on 6th March 2009. It can be found here on the web site of the British and Irish Legal Information Institute.

It is an harrowing account, but in the absence of the Serious Case Review it is essential reading for anyone who seeks to make serious comment on the sufferings of these six children. It is available as a RTF file from the above link and this runs to 43 pages in length. In the hope of motivating some to read it in full, what follows is a guide based on a briefing I have forwarded to the members of the House of Lords we are in touch with. What follows is not a full report; as I say the judgement should be read in its entirety, but it does highlight the key sections.

The different headings in the statement are:

  • The Law
  • Background
  • Weight & Growth
  • January to December 2007
  • M [abbreviation for one of the children who is autistic]
  • G P School
  • December to May 2008
  • The House
  • Food
  • Punishments
  • K’s [Khyra’s] death
  • Expert evidence
  • K: slipping through the net
  • Conclusion

1. The application before the court is an application by the Birmingham City Council for a care order under section 31 of the Children Act 1989 in relation to five children. They are: A who was born on [a date] (12 years/1 month), L who was born on [a date] (12 years), Z who was born on [a date] (10 years, 3 months), M who was born on [a date] (8 years/10 months) and B who was born on [a date] (nearly 5).

34 (under Background) – lists the special educational needs of 4 of the 6 children:

34. By the time JA moved into the house the mother was struggling with the children. This can be no surprise and at one level is not really a criticism. She had six children under ten. M is autistic and has very significant special needs. His behaviour can be challenging and he attended a special school. Both K and L had statements of special educational needs and Z had an independent educational plan to cater for his special needs. Despite their respective ages both K and L were in nappies at night and I am satisfied that K’s enuresis was a major issue. The mother was dissatisfied with where she was living. She wished to move and to leave the area, but the children had drawn all over the walls of the house and the mother had been told by her landlord that there would be no move until the house was tidied up. Money was short and the mother had got into substantial debt with various catalogues.

60 (M) – describes the concerns of staff at M’s school:

60. M’s class teacher, A Q, gave evidence. He is a teacher of considerable experience and was a very impressive witness. He spoke of M’s obsession with food which went he said beyond the obsessive behaviour one can see from time to time in children on the autistic spectrum. It was, he told the court, “the expression on his face that made the staff so sure it was not autism but hunger. You learn to read the children. None of the other children were ever as hungry as he was.” Mr Q told me quite openly how, seeing how hungry M was and knowing of the mother’s embargo on chocolate and second helpings, he arranged for the cook to give him extra large portions rather than seconds. On one occasion Mr Q caught M taking an apple core out of the bin so he found some fruit to give him.

170 & 171 (Expert evidence) summarises the reasons for Khyra’s death and the condition of the remaining children when they were admitted to hospital

170. At the end of the oral evidence the consensus between the doctors remained unshaken and was usefully summarised in simple terms by Mr Keehan and Mr Weston on behalf of the Intervenor in their written submissions. So far as K was concerned they summarised it as follows.

K on admission to hospital on the morning of 17th May 2008 was marasmic.

a) She was severely malnourished.
b) She was severely immuno-suppressed.
c) The primary cause of death was pneumonia.
d) There was evidence of meningitis in the brain but not of a degree to cause death.
e)A number of the bacteria identified from samples taken peri-mortem or post mortem were present as an artefact or contaminant. The various other organisms identified by the microbiologist were found in isolated parts of the body and there was no evidence of any histological reaction to support the presence of the bacteria. At its highest there is a possibility that the organisms were present.

171. So far as the other children were concerned it was summarised as follows.

a) A, L, Z and A were underweight.
b) Each child was to differing degrees malnourished.
c) L and Z were the most seriously affected and suffered Re-feeding Syndrome after their admission to the City Hospital, and
d) The cause of weight loss in respect of each child was a lack of intake of appropriate quantities of food.

191 (Expert evidence)

191 “I am satisfied in accordance with all the medical evidence that K died of pneumonia secondary to severe malnutrition and that all the other children suffered from malnutrition to a greater or lesser extent.”

192 (p31) marks the start of the “ K: slipping through the net” section and from here on it is worth reading the rest of the document as it details how different local authority staff conducted their work in respect to the whole family.

Ed Balls on BBC News 24 (26 Feb) claimed that because of HE laws no one had been able to visit the house. However:

212. On 8th February 2008 following receipt of the letter from SENAS, Mr I H went to visit the mother and children together with a Mr R L, a senior educational social worker. Prior to making the visit Mr H had written to the mother making an appointment. The letter made it clear that the purpose of the visit was to ensure that the children were receiving “an efficient full time education at home.”

213. Mr I and Mr R were seen in the rear sitting room. Mr R referred to a “rudimentary” classroom having been set up with a display board with writing on it on the wall although, he said, there were no chairs or other items that were what he referred to as “resources” for teaching. Mr I described there being some basic readers and one or two books around. Mr H’s assessment was that the mother seemed keen for the children to learn.

214. At the end of the session which lasted about an hour the mother was provided with a form called an Educating Otherwise Advisory report. This sets out recommendations in tick box form as to what should be taught to the children. In addition it recorded that teaching plans were to be sent by the mother to Mr H by the end of February.

219 to 225, relates to the testimony by Mr H (Birmingham CC’s ‘Educating Otherwise advisor’).

223. In the emails it shows that on 28th February Mr H spoke to a Laura Cartwright who was the reviewing officer at SENAS. Mr H confirmed that he had conducted the home visit and it is recorded that he had reported that the parents were able to supply adequate information about their plans for educating the children and that he was satisfied that they were sufficiently set up for home teaching.

225. Mr R L, the educational social worker who had attended the meeting at the house with Mr H on 8th February 2008 said in evidence that he was satisfied that he and Mr H had complied with the home education guidance and that by May 2008 the children’s needs were or were going to be met. Mr L said that he would not have expected the email confirming that the parents were able to provide adequate information as to the educational provision for the children to have been sent prior to the plan (which was due to be received at the end of February) having arrived. Mr L was extremely anxious to avoid any personal responsibility for what had happened and said firmly that Mr H had followed his own procedure and that it was not his job to see if the parents had the capacity to teach.

226 to 245, considers the evidence given by social workers who visited the home after repeated requests to intervene were made to them by the schools.

232. Miss G, standing on the doorstep, tried to tell the mother about the initial assessment and that it would centre around educational issues. Miss G told the court in her written material that as the referral was, as she put it “of an educational concern as opposed to a child protection concern”, that was how she had phrased it to the mother when she saw her on 21 February 2008.

This showed a fundamental misunderstanding of the nature of the referral on Miss G’s part. The referrals did indeed come from the school and an educational social worker but they were not educational in nature. The school’s referral was unequivocal, it was issues over the children being hungry, thin and cold which were of concern, concerns shared by Miss M once she had spoken to the school and had been exposed in the telephone call on 30th January to the mother’s aggression and irrational response to her visit.

233. Miss G wrongly told the mother that her consent was necessary in order for the initial assessment to be carried out. When it became quite clear to her that the mother was not going to give that consent she told the mother that they would leave so long as the children were seen.

237. Miss G spoke to her manager about the mother’s refusal to allow her to go and see the other three children. Miss G said in evidence that as they knew that Education Otherwise was involved, they agreed between them that another visit to see the other children would not be necessary and that as the referral had specifically concerned the three children they had in fact seen at the house that day, they would abandon any further attempt to see them. Had the referral of G P and Miss M been treated as it should have, that is to say as having raised child protection issues as opposed to merely issues of school attendance, it is hard to imagine that such a view would have been taken.

243. As it was, even though an Initial Assessment is deliberately designed to be a brief assessment which is not too onerous a piece of work for social services to undertake, it was not completed but simply shelved without even speaking to the children’s schools from where the anxieties had stemmed and the referral had been made.

244. The Initial Assessment was abandoned on the basis that Education Otherwise in the form of Mr. H was now to be involved. Miss G accepts that she at no stage spoke to Mr. H and that she herself agreed with the decision to abandon the assessment. She accepted that she knew the detail of the school’s concerns before the visit to the house and said in evidence that she thought in hindsight that “perhaps the welfare issues should have been considered in more detail.” In so far as I can see it, the welfare issues were not considered at all and should have been at the forefront of any social work enquiries about this family.

252 to 254, is where the judge agrees with “the Guardian’s” (not the newspaper) analysis of events.

252. I agree with the Guardian’s analysis. Social services, despite the concerns of the school and the unco-operative attitude of the mother when they visited the house, decided to rely on Mr H and the educational social worker and abandon their own investigations.

253. As a result of each professional carrying out his or her own duties in isolation, information was not passed on and relevant connections were not made. The most glaring example being that if only anyone had asked, they would have discovered that both M’s school and the other children’s schools had largely identical concerns.

256.  The fact remains however that M’s school was seriously concerned and the school of L, Z and K were voicing their concerns about these children, in particular their concerns relating to their belief that the children were not being fed properly. The schools did all they could to bring their concerns to the attention of the relevant authorities. These concerns were not taken sufficiently seriously and were not adequately investigated.

259.  K’s death was caused by and is the responsibility of her mother and the Intervenor, but on the evidence before the court I can only conclude that in all probability had there been an adequate initial assessment and proper adherence by the educational welfare services to its guidance, K would not have died. Merely looking at the photographs of the house and the conditions in which the children were living confirms in my mind that had social services even seen the bedroom in which the children lived or the Mer [sp. manner] in which they were fed, they would undoubtedly have intervened. [Emphasis mine]

The conclusion starts at 260 and is also worth reading in full.

Not surprisingly the Judge concluded that the care order threshold criteria were satisfied in relation to each of the five remaining children.

~~~ ~ ~~~

Reading this judgement left me with several questions, not about who is at fault, but whether politicians should be allowed to abuse children who have already been badly scarred by tragic events in their lives by seeking to make political gain from their misfortune? In this instance those concerns are heightened because Ed Balls, Secretary of State for Children, Schools and Families should have been aware of this judgement before he made a statement which, whilst not actually saying home education laws were responsible for the suffering of Khyra Ishaq and the other five children, made sure that that was the ‘take- home’ message both from his press release and his BBC News interview.

Who I wonder is going to safeguard these and other children from adults with political objectives which seek to wrest the responsibility for children from parents into the Government’s hands?

Ironically, this trial ended in the week when Ed Balls’ boss and close friend, Gordon Brown, made much of making a “full and unconditional” apology to tens of thousands of British child ‘migrants’ who were taken from their families and ‘exported’ without parental or personal agreement to Commonwealth countries between the 1920’s and the 60’s, and in some cases the 70’s.

On Wed. 25th Feb, in a statement to the House of Commons, Prime Minister Brown said,

The hope was that those children, who were aged between three and 14, would have the chance to forge a better life overseas, but the schemes proved to be misguided.

Perhaps, should the Balls-Badman plan to nationalise the nation’s children in order to “forge a better life” for them survive and become law, one day it will result in a Labour Prime Minister announcing in a contrite speech to Parliament that “the schemes proved to be misguided”.

Please don’t get me wrong, children who were taken by stealth from their parents and sent abroad require not just an apology from the Government, but understanding and care (perhaps compensation too,  if money could atone, which it cannot). However, my point is that in the same week as this apology was made, we also saw the CSF Bill complete its course through the Commons and a leading Government Minister misrepresent the circumstances of a child’s tragic death, in order to sway public opinion so as to grant him authority to overrule once again parents’ responsibilities for their children. His mantra? “It is in the children’s best interests!”