Not guilty

If you were expecting an article on fostering and terrorism this week you may be disappointed. But read on for an equally, if not more, compelling and important story about hat happens when fostering goes wrong

Our Google news alerts on “fostering” and “foster care” have gone into meltdown over the last four weeks with the sector making mainstream news almost every day.

But instead of looking at what happens when a young person in foster care is arrested for terrorist activities and whether foster carers should be taught about the Prevent duty (discussions still ongoing), we are going to look at another, darker and perhaps more shocking fostering news story. One that was eclipsed by events in Sunbury-on-Thames. A story that illustrates what happens when foster carers’ biggest fears turn into reality.

On 5 October 2015, a Glasgow Sheriff Court jury convicted by majority verdict a registered foster carer of two charges of lewd, indecent and libidinous practices and behaviour and one of sexual assault, against two fostered children in his care. The carer was sentenced to three years imprisonment. This month, high court judges quashed the sentence following an appeal by the carer. Their reasons? “The conduct of the defence has deprived the appellant of his right to a fair trial, and there has accordingly been a miscarriage of justice.” Put bluntly, the defence lawyer did not do a good enough job of defending his client. So, what went wrong?

Let us start with the background. The carer, who provided short term foster care with his wife, was charged with sexual abuse against two girls that was said to have occurred over eight years while the couple were fostering one or both the children. This abuse was said to have occurred on a regular basis in a room that adjoined a kitchen in a busy household but not witnessed by any other family member. The jury in the trial found, by a majority, that the carer had committed the offences “beyond reasonable doubt” – a conviction that surprised the trial sheriff who noted, in a report to the appeal judges, that he had expected carer to be acquitted on the basis of the evidence provided or at the very least a verdict of “not proven” returned.

But in addition to this question mark over the jury’s verdict, the appeal judges also found further evidence should have been presented by the foster carer’s defence – namely the safeguarding procedures that the foster carers had in place in their own home to minimise the likelihood that the male carer would be left alone with the children. “The appellant had been advised to adopt such a protocol or practice having attended a course for foster carers organised by social services,” appeal judge Lord Menzies noted in his written opinion. “We consider that the appellant’s case would have been strengthened by evidence of such a rule or system which was rigorously enforced; this might well have caused the jury to have a reasonable doubt.”

The foster carer’s defence lawyer (referred to in the opinion as RM), who was “an experienced criminal practitioner” and had defended other clients on similar charges, appears to have thought otherwise and the evidence was not introduced. “He {RM} appears to have formed the view at the outset that such a rule or system was very odd, and would not be believed by the jury,” Lord Menzies wrote.

And despite his experience RM appears not to have understood the ‘unusual’ procedures that many foster carers follow – and some of the risky situations that they are placed in which could leave them open to allegations. So much so that he also did not request documents from the social services department (these were requested and made available in the appeal) that would have demonstrated the climate under which the fostering family operated. “It does not appear to us that he {RM} attached sufficient weight to the fact that the arrangements in the appellant’s household involved young children with behavioural problems,” Lord Menzies continued. Had the records been requested the jury would have been given a much clearer picture, and: “The records, and the evidence of an appropriate witness from the social work department, would have provided independent support for the assertion that there were rules in place which would have rendered it improbable that incidents such as those narrated in the indictment occurred.”

This case raises a number of troubling points for the fostering profession which we don’t have the information to fully cover. That said, for a jury to be convinced “beyond reasonable doubt” of a foster carer’s guilt on the testimony of two foster children – and to the surprise of the presiding sheriff – perhaps suggests a lack of understanding of some of the challenges faced by foster carers and the circumstances that result in children coming into care. More troubling though is the fact that an experienced practitioner dismissed some key lines of defence including the foster carers’ own safeguarding approach, on the grounds that they did not appear believable. Foster carers in a similar situation may question the value of such safeguarding protocols if a supposedly experienced defence lawyer does not consider them believable enough to be considered by the court.

You can read the full Opinion of the Court delivered by Lord Menzies on the appeal against the foster carer’s conviction.

Picture by Aaron Burden / Unsplash