The climbié inquiry - Context and critique

Journal of Law and Society

Volumn 33, Issue 2, 2006, Pages 221-243

  Masson, Judith ^a  

^a UNIVERSITY OF BRISTOL   (United Kingdom)

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EID: 33646738737     PISSN: 0263323X     EISSN: 14676478     Source Type: Journal    
DOI: 10.1111/j.1467-6478.2006.00356.x     Document Type: Article

References (146)

1. H. Ferguson, Protecting Children in Time (2003) 7, 9:
2. N. Parton, Governing the Family (1991);
3. J. Massen, 'From Curtis to Waterhouse: State care and child protection in the UK 1945-2000' in Crosscurrents, eds. S. Katz et al. (2000) 565-87, at 584.
4. Department of Health et al., Working Together to Safeguard Children (1999). Working Together is issued under the Local Authority Social Services Act 1970, s. 7. Local authorities are required to carry out their social services functions in compliance with s. 7 guidance.
5. London Borough of Brent, A Child in Trust: Report of the Inquiry into the Circumstances Surrounding the Death of Jasmine Beckford (1985) (Chair: Louis Blom-Cooper QC).
6. R. Dingwall, 'The Jasmine Beckford Affair' (1986) 49 Modern Law Rev. 489.
7. R. Stainton Rogers and W. Stainton Rogers, Stories of Childhood (1992) 11-12.
8. N. Parton, The Politics of Child Abuse (1985);
9. Department of Health, Child Abuse: A Study of Inquiry Reports 1980-1989 (1991).
10. N. Manning, Social Problems and Welfare Ideology (1985).
11. The Victoria Climbié Inquiry: Report of an Inquiry (2003; Cm. 5730; Chair, Lord Laming) para 1.17 (available at ). These were occasions when Victoria or her carer came into contact with local services but action to safeguard Victoria was not taken because Victoria was not recognized as being 'in need' or in sufficient need to justify a service and because child protection concerns were not identified by senior staff.
12. Nationality, Immigration and Asylum Act 2002, Schedule 3 as amended by Asylum and Immigration (Treatment of claimants etc) Act 2004, s. 9;
13. see, also: M v. Islington LBC [2004] 2 FLR 867 CA and R (O) v. Haringey LBC and SS for Home Dept. [2004] 2 FLR 476 CA.
14. Victoria Climbié Report, op. cit., n. 8, para 1.17.
15. C. Pollitt, 'Joined-up government: a survey' (2003) 1 Political Studies Rev. 34-49.
16. Under s. 81 of the Children Act 1989, s. 84 of the Heath Service Act 1977, and s. 49 of the Police Act 1996 (Victoria Climbié Report, op. cit., n. 8, para. 2.4).
17. Cabinet Office, Wiring it up (2000) para. 1.6.
18. Every Child Matters (2003: Cm. 5860), available from .
19. There have also been a series of required self-audits for organizations with child inspection responsibilities: see CHI, HMIC, and SCI, Key Findings from Self Audits of NHS Organisations, Social Services Departments and Police Forces (2003)
20. and second Joint Chief Inspectors' Report
21. see CSCI et al., Safeguarding Children (2005).
22. As she had a home in France she was 'intentionally homeless' and therefore not qualified for accommodation under the Housing Act 1996. Under the Nationality, Immigration and Asylum Act 2002, Schedule 3, Second Class, Ms Kouao, as an EEA citizen, would be ineligible for a range of last-resort services.
23. This is standard practice: local authorities have powers to provide assistance under s. 17 of the Children Act 1989 to children in need and their families. Three local authority housing departments and four local authority social services departments had involvement with Ms Kouao.
24. Victoria Climbié Report, op. cit., n. 8, para 2.5, 1.
25. .
26. Victoria Climbié Report, op. cit., n. 8, para 17.3.
27. Health Committee, Sixth Report, The Victoria Climbié Inquiry HC (2002-3) 570, paras. 35 and 36.
28. J. Bowlby, Child Care and the Growth of Love (1953, 2nd edn.). This work was originally commissioned by the WHO in 1949.
29. J. v. C. [1970] A.C. 668.
30. Re EO (a minor), Times, 16 February 1973, CA;
31. Re O. (a minor), Times, 27 February 1973, CA;
32. Re B (minors), Times, 27 January 1977, DC:
33. Re A. (a minor) (cultural background) [1987] 2 FLR 429 FD.
34. J. Eekelaar, 'Parental responsibility: state of nature or nature of the state?' (1991) 13 J. of Social Welfare and Family Law 37.
35. S. Day Sclater and C. Piper, 'Remoralising the family? Family policy, family law and youth justice' (2000) 12 Child and Family Law Q. 135-51.
36. The courts have been given powers to fine parents whose children misbehave, and to make parenting orders, requiring parents to attend courses: Prevention of Crime and Disorder Act 1998, s. 9, as amended by Criminal Justice Act 2003, schedule 34.
37. and .
38. and .
39. W. Utting, Children in the Public Care (1992)
40. and People Like Us (1997).
41. People Like Us, id. (1997), paras. 1.31-1.33, 1.30-1.42, 8.38-8.42.
42. People Like Us, 1997, id., paras. 4.36, 7.3, and 7.7. There are clear examples of children not being believed in many of the inquiries into child abuse, particularly those about abuse in residential homes.
43. People Like Us, 1997, id., para. 6.4.
44. Victoria Climbié Report, op. cit., n. 8, para 3.5. Para. 1 of the Terms of Reference was: 'To establish the circumstances leading to and surrounding the death of Victoria Climbié'.
45. Evidence of Ms Miran, a lecturer at SOAS.
46. 'Cultural relativism is an agency justification. Justifications concede that, in some sense, the ascription of deviance is correct but that, in practice, the observed conduct is permitted or required. In the present instance it amounts to saying that the mistreatment of the child was somehow unavoidable. The acts complained of are not abusive or neglectful but positive attempts to comply with alternative normative standards that would allow them to be recognized as appropriate parental behaviour.' R. Dingwall, J. Eekelaar, and T. Murray, The Protection of Children (1983) 82.
47. E. Goody, Parenthood and Social Reproduction: Fostering and Occupational Roles in West Africa (1982);
48. U. Isiugo-Abanihe, 'Child Fosterage in West Africa' (1985) 11 Population and Development Rev. 53-73.
49. Innocenti Digest. Child Domestic Work (1999) 5, 8.
50. UNICEF, Child Trafficking In West Africa Policy Responses (2002) 13.
51. Child Trafficking in West Africa Policy Responses, 2002, id., p. 5.
52. Cooperation agreement between Mali and Côte d'Ivoire on Combating Trans-border Trafficking of Children, September 2000, see Child Trafficking in West Africa Policy Responses, 2002, id., p. 11.
53. State Party Report to UNCRC, Ivory Coast 1999 due 1993 CRC/C/8/Add.41.
54. CRC/C/15/Add. 155. (Concluding observations/Comments) paras. 55 and 56.
55. In Ivory Coast more than 20 per cent of children live away from home: see M. Ainsworth, 'Economic Aspects of Child Fostering in Côte d'Ivoire' (1996) 8 Research in Population Economics 25-62.
56. Victoria's elder brother had spent some years in the home of his uncle and Victoria together with two of her siblings had already spent a summer holiday with her grandfather. Such patterns of care were not universal. None of Mrs C's half-brothers and sisters experienced care from relatives; Victoria replaced another child, Anna Kouao, whose parents did not agree to her going to France. Being brought up by relatives was linked for both Victoria's parents with educational opportunity and the ending of their parents' marriages.
57. The Protocol against illegal trafficking in migrants by land, air, and sea. General Assembly Resolution 54/129 of 15 November 2000 (not yet in force).
58. id., Article 3 (a).
59. Although she gave oral evidence, Ms Kouao did not cooperate with the inquiry and give a truthful and coherent account.
60. Victoria Climbié Report, op. cit., n. 8, paras. 3.8 and 3.11.
61. Victoria Climbié Report, n. 8, id., para. 4.56. The police officer heading the inquiry into Victoria's death stated that the photograph in Ms Kouao's passport was 'clearly not Victoria'.
62. The Secretary of State for Education and Skills and the Inland Revenue Commissioners are the only non-local bodies required to provide information for the database to be established under the Children Act 2004, s. 12. The DfES, Cross-Government Guidance on Information Sharing for Consultation (2005) para 11.2 refere to trafficked children as 'likely to be at risk of harm' and notes that they should be spoken to 'whenever they are identified' but does not indicate how this might occur.
63. Clearly Victoria's parents could not be expected to be aware of government messages for parents in the United Kingdom. But to make no comment suggests that all the responsibility lies with the local agencies in London which failed her.
64. Victoria Climbié Report, op. cit., n. 8, paras. 13.25-13.37 and 14.51-14.82.
65. Victoria Climbié Report, n. 8, id., para. 15.25.
66. Victoria Climbié Report, n. 8, id., paras, 15.26-27.
67. Victoria Climbié Report, n. 8, id., recommendation 92, para. 13.24.
68. Victoria Climbié Report, n. 8, id., para 15.46.
69. Victoria Climbié Report, n. 8, id., recommendation 106, para. 15.46.
70. DfES et al., Keeping Children Safe (2003; Cm. 5861) para. 22.
71. HMIC, Child Protection: Thematic Inspection (1999) paras. 1.6 and 2.1.
72. HMIC, Keeping Safe, Staying Safe (2005) para. 2.4.
73. HMIC, Keeping Safe, Staying Safe (2005), op. cit., n. 59, para 1.3. During this period almost all forces established a specialist unit with responsibility for investigating child abuse within the family.
74. C. Adams and C. Horrocks 'The location of child protection in relation to the current emphasis on core policing' in Children, Child Abuse and Child Protection (1999) 143-58.
75. See Utting, 'The location of child protection in relation to the current emphasis on core policing' in Children, Child Abuse and Child Protection, op. cit. (1997), n. 29, 143-158, paras. 20.5 and 20.8. Utting was unable to examine the figures for sex crimes against children over the age of 14 because these were not separately recorded (para. 20.6).
76. J. Morgan and L. Zedner, Child Victims (1992) 5.
77. S. Edwards and A. Halpern. 'Protection for the victim of domestic violence: time for a radical revision' (1991) 13 J. of Social Welfare and Family Law 94;
78. R. Dobash and R. Dobash, 'Violence against women in the family' in Crosscurrents, eds. S. Katz et al. (2000) p. 495.
79. M.D.A. Freeman, The Rights and Wrongs of Children (1983) 111;
80. P. Newell, Children Are People Too (1989) 97. This was not just an issue of policing but of societal acceptance, demonstrated, for example, in the acquittal by the jury of the step-father in the case A. v. U.K. [1998] 2 FLR 959 ECHR and the government's unwillingness to ban corporal punishment.
81. Children's Rights Alliance for England, The State of Children's Rights in England 2004 (2004) 22. Before 1995, the age of the victim was not recorded for offences of rape or indecent assault:
82. Utting, The State of Children's Rights in England 2004, op. cit. (1997), n. 29, 22, paras. 20.6-8.
83. J. Spencer and R. Flin, The Evidence of Children (1993, 2nd edn.).
84. Utting, The Evidence of Children, op. cit. (1997), n. 29, para. 20.16.
85. J. Wilson and G. Davies, 'An evaluation of the use of video-taped evidence for juvenile witnesses in criminal courts in England and Wales' (1999) 7 European J. of Crim. Policy and Research 81-96.
86. Law Commission, Children: Their Non Accidental Death or Serious Injury (2003):
87. Domestic Violence, Crimes and Victims Act 2004, s. 5.
88. Sexual Offences Act 2003, ss. 80, 104.
89. Protection of Children Act 1999, s. 7.
90. C. Keenan and L. Maitland, '"There ought to be a law against it" - police evaluation of the efficacy of prosecution in a case of child abuse' (1999) 11 Child and Family Law Q. 397-410. This seems to have been done without any formal assessment framework and therefore risked arbitrary decisions. Moreover, one factor - whether the prosecution was in the child's interests - appears to have been more influential on officers from CAIUs than other officers, suggesting that offences investigated by CAIUs were less likely to be prosecuted.
91. C. Keenan and L. Maitland, Child and Family Law Q, id., p. 402. The Children Act 2004 has removed the defence of lawful chastisement but not made smacking children an offence, see s. 58.
92. C. Cobley, '"Working Together?" - admissions of abuse in child protection proceedings and criminal proceedings' (2004) 16 Child and Family Law Q. 175-87, at 179.
93. There is no automatic duty to report injuries to children and no set protocol for investigating child deaths. In Cobley et al.'s study of children with subdural haematomas, it appeared that doctors were less likely to make referrals to social services in relation to children of middle-class parents: see C. Cobley and T. Sanders, '"Shaken baby syndrome": child protection issues when children sustain a subdural haemaorrhage' (2003) 25 J. Social Welfare and Family Law 101-19. at 107.
94. Lord Laming nevertheless took the view that police officers training should equip them to question the views of even eminent experts (Victoria Climbié Report, op. cit., n. 8, para. 14.73 and recommendation 100).
95. J. Geddes and J. Plunkett, 'The evidence base for shaken baby syndrome" (2004) 328 Brit. Medical J. 719-20
96. and see R. v. Harris [2005] EWCA Crim 1980 where the Court of Appeal quashed two convictions and reduced a third to manslaughter because of uncertainty about the force used to cause shaking injuries.
97. For example, in Cobley and Sanders's study of shaken babies, J. Geddes and J. Plunkett, 'The evidence base for shaken baby syndrome" (2004) 328 Brit. Medical J., op. cit., n. 77, there was evidence of previous injuries resulting in hospital admissions which had not been thoroughly investigated in some of the children (p. 108).
98. There is only one fully qualified paediatric forensic pathologist: H. Kennedy, Sudden Unexpected Death In Infancy: Report of a working group convened by the Royal College of Pathologists and the Royal College of Paediatrics and Child Health (2004) 8.
99. H. Kennedy, Sudden Unexpected Death in Infancy: Report of A Working Group Convened by the Royal College of Pathologists and the Royal College of Paediatrics and Child Health, id., p. 2;
100. R v. Cannings [2004] 2 Cr. App. R 7. Following Angela Cannings's successful appeal, a review of over 300 cases of convictions for abusing children was conducted and, as a result, Harris and other cases were referred to the Court of Appeal.
101. Children Act 1989, s. 17(1).
102. Department of Health, Children Act 1989, Guidance and Regulations Vol. 2 (1991) para. 2.4.
103. Children Act 1989, Guidance and Regulations, Vol. 2 (1991), id., para. 2.11
104. Alan Milburn, Secretary of State for Health, Statement to the House of Commons on the publication of the Victoria Climbié Report, 398 H.C. Debs., col. 737 (28 January 2003).
105. Victoria Climbié Report, op. cit., n. 8, para. 17.99.
106. Victoria Climbié Report, n. 8, id., para. 17.102.
107. Victoria Climbié Report, n. 8, id., para. 17.103.
108. R. (G) v. Bamet LBC; R (a) v. Lambeth LBC; R(W) v. Lambeth LBC [2004] l FLR 454 HL, paras. 32 (Lord Nicholls), 110 (Lord Millett), and 117 (Lord Scott), and see below.
109. Nevertheless the misleading terminology encouraged attempts to establish an enforceable duty. A Department of Health policy advisor even published an article in an academic journal asserting that 'the [Children] Act requires that: . . . the child is provided with services": J. Gray, 'The interface between the child welfare and criminal justice systems in England' (2004) 13 Child Abuse Rev. 313.
110. J. Masson, 'Implementing the Children Act 1989: action at the centre and local reaction' (1992) 19 J. of Law and Society 320, at 335.
111. s. 47(1) and (4). The provision largely re-enacts s. 21 of the Children and Young Persons Act 1969.
112. X. v. Bedfordshire County Council [1995] 2 FLR 276 HL.
113. Z v. U.K. [2001] 2 FLR 612 ECtHR.
114. D. v. E. Berkshire NHS Trust [2005] 2 FLR 284 HL. There was a long battle to establish liability after the Lords held in X. v. Bedfordshire that the local authority had immunity in relation to its child protection functions. After Z v. UK, the ECtHR held that automatic immunity of public bodies could breach Art. 6 (Osman v. U.K. [1999] 1 FLR 193;
115. E. v. U.K. [2003] 1 FLR 348). This led the Court of Appeal to accept that a duty of care was owed by local authorities to children but not adults harmed as a result of negligent child protection investigations. That decision was upheld by the House of Lords.
116. Department of Health, Child Protection: Messages front Research (1995) 55.
117. P. Reder and S. Duncan, 'Making the most of the Victoria Climbié Inquiry Report' (2004) 13 Child Abuse Rev. 95-114, at 104.
118. Department of Health, Children Act Now (2001) at 22 and 117.
119. The Climbie Inquiry was established on 20 April 2001 and oral hearings took place between September 2001 and July 2002. The report was published in January 2003.
120. [2002] 1 FLR 353 and see Adoption and Children Act 2002, s. 116.
121. Re K (secure accommodation orders) [2001] 1 FLR 526 CA:
122. Re W and B (Children: Care Plan) [2001] 2 FLR 582 CA. In both these cases he represented the Department of Health.
123. [2004] 1 FLR 454 at para. 93.
124. id., at para. 50.
125. Lord Nicholls and Lord Steyn would have allowed A's appeal and required the more suitable housing which the A family had been assessed as needing to be provided.
126. [2004] 1 FLR 454, per Lord Scott, at para. 115.
127. Lord Scott, id., para. 118.
128. Lord Scott, id., paras. 139-140. Their Lordships accepted that the duty in ECHR, Art. 8 meant that younger children for whom separation could be particularly damaging would have to be accommodated with their parents: Lord Nicholls and Lord Steyn, id., at paras. 51-58.
129. Health Committee, Re W and B (Children: Care Plan), 2001, op. cit., n. 20, para. 42; evidence, para. 16.
130. The notion that any request for services by a parent requires a separate social services assessment of the child's needs is wasteful and unrealistic; it may also be offensive to parents. For example, a parent of school-age children seeks food vouchers because her benefit giro has been stolen. If the children have to be spoken to, this can only occur out of school hours, may necessitate them travelling to the social services office and knowing about the mother's finances.
131. Victoria Climbié Report, op. cit., n. 8, recommendation 13, para. 17.111.
132. The clarification such guidance might provide is somewhat reduced by the fact that it exists alongside the earlier guidance, DH et al., Victoria Climbié Report, op. cit., n. 2.
133. DfES, Victoria Climbié Report, op. cit., n. 58.
134. Children Act 2004, s. 18. The Act also places the inter-agency structure for child protection on a statutory basis, ss. 13-16 and provides the framework for a system for information sharing about children, s. 12.
135. id., s. 11(2)(a).
136. id., Explanatory Notes, para. 67.
137. Explanatory Notes, id., s. 10.
138. id., s. 10(5), (6). In Re T (local authority decisions concerning child in need) [2004] 1 FLR 601, the High Court struck down a decision to provide services within the authority for a child rather than pay for a specialist residential placement because it was Wednesbury unreasonable (see Assistant Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). One reason the local authority had acted in the way it had was the Educational Authority's failure to complete an SEN assessment and contribute towards the placement. It would seem that the new duty would not materially change the power of the courts in such a case.
139. Children Act 1989, s. 27(2). On this basis a social services authority could request a housing authority to house a homeless family which did not qualify under what is now the Housing Act 1996.
140. R. v. Northavon D.C. ex p. Smith [1994] 2 FLR 671 HL.
141. Quoted in Utting, R. v. Northavon D.C. ex p. Smith, op. cit. (1997), n. 29, p. 187.
142. V. Bogdanor, Joined-up Government (2005) 14.
143. Performance and Innovation Unit, Better Policy Delivery and Design: A Discussion Paper (2001) 4.
144. In his statement to the House of Commons on the publication of the Inquiry Report (Better Policy Delivery and Design: A Discussion Paper, (2001) 4. op. cit., n. 86), Alan Milburn stated, 'I hope the report provides [the parents] with some comfort as it seeks to answer . . . what went so wrong? What now needs to change to prevent services . . . failing . . .?'.
145. Few recommendations from the many inquiries into child protection failures in the 1970s and 1980s resulted in provisions in the Children Act 1989, and those that did, namely, guardians ad litem (Maria Colwell), and Child Assessment Orders (Kimberley Carlisle), were subject to considerable modification. The Cleveland Inquiry largely adopted proposals from the Child Care Law Review but its proposed Office of Child Protection was not taken forward.
146. N. Parton, 'From Maria Colwell to Victoria Climbie: reflections on Public Inquiries into child abuse a generation apart' (2004) 13 Child Abuse Rev. 80-94, at 84.