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Category Archives: family justice modernisation

I’m a sausage machine, a perfect sausage machine

 

Agatha Christie, the doyenne of ‘cosy’ crime novels and the creator of Hercule Poirot and Miss Marple, once said of herself that she was “A sausage machine, a perfect sausage machine”.  She was talking about how her publishers thought of her, which was that their only real thinking about her was whether she could produce another book and at the time of their choosing.

I spent Friday afternoon with one of my favourite social workers and when we reached the point of saturation on talking about the detail of the case and the task that we had to complete, she said something that has been kicking around in my brain for a while.

What she said was “Once you get a case into Court, the whole thing, every single conversation you have becomes about WHEN”

She’s right. When I started this job, the cases felt like they were about real children and real parents and real situations. When you went to Court, that was predominantly what you talked about – what was happening in the real world for this family and the PROCESS was secondary.  Over time, the discussion about process became longer and the discussion about the family became shorter. The orders got longer and more labyrinthine, and less easy for a normal human being to follow. The balance has got more and more out of whack, to the point where now, the entire time at Court can be spent talking about the Court’s process, and in particular just getting the clockwork mechanism in place to make the case conclude by week 26.  Sometimes I look over at the parents, who are in Court frightened or confused or worried and I can see that none of this sounds or feels as though it is about them at all.

Everyone in a Court case is just a sausage machine, and their job is to produce the goods on time. If you are someone who has a job that involves a lot of Court proceedings, your entire working week can be spent being a sausage machine – get this done, get that done, have you done that yet? Produce this report, observe this contact, speak to this relative. Make sure you get it all done on time.  And if you are a lawyer, it can be easy to slide into the trap of just being like Agatha Christie’s publisher and that your only communication is to make sure that the goods are being produced on time.  Social workers are people, not sausage machines. And parents and children deserve more than a system that treats them that way.

Of course everyone has to have targets and deadlines, and I’m not suggesting that the cases that just drifted and delay got piled up on delay was a good thing or a golden era to be returned to. But the NHS has targets and deadlines, but it is not so obvious in their client care and bedside manner – you might have a long wait in A&E, but they don’t add insult to injury by relentlessly talking about the target and performance measures when they should be looking at your injury.

I am finding that over the last year, I have social workers say to me that in order to make a rehabilitation work, or a placement with a relative work, or to get the right decision about a child more time is needed to do it properly, and I have to keep saying “Well, we can ask, but the Court is supposed to say no”.   That doesn’t feel very nice.

Again, in the past the phrase “constructive delay” was used as a blanket excuse to justify any delay, any extra assessment, any attempt to leave no stone left unturned, but in throwing it away as a concept, we may have lost something really important. Let’s not forget that what we are doing in care proceedings is making decisions about whether a child can be safe with their parents. That’s a process that involves to an extent an educated or informed prediction about the future – something that isn’t easy to do. If you have less information than you want to make you feel confident about your prediction, don’t you end up with people playing safe?

If the social worker conducting an assessment really feels that more time and more work would make that possible and can explain why, then surely that IS constructive delay and there should be a place for it?

 

I don’t mean that adjournments should be given out like sweets, and that delay isn’t a bad thing. If there’s something that ought to have been done and nobody got round to it yet, then asking for more time to get it done is bound to incur some judicial displeasure and rightly so. What I’m talking about is where the social worker has done the work, asked the questions and reached a point where the only right answer is that “we just need to give this some more time to get the right answer”

 

(That’s something that one of the midwives of 26 weeks, Ryder LJ was talking about in the Re K case recently. Not in that context, but in the sense that just because there’s a time pressure doesn’t mean that a Judge should not sometimes step back and say, “It is better to wait and get this right, rather than do it now and get it wrong”.   In the wise words of Billy the Kid  “Speed’s fine, partner, but accuracy’s final”)

 

A pivotal moment in any Agatha Christie novel is the scene where the detective gathers all the suspects together and reveals the solution to the case. That has quite a bit in common with a social worker’s final evidence. Everyone is waiting anxiously to see it, nobody is completely sure what it is going to say, we know it is going to be important. At some point, someone will say loudly that this is all complete rubbish. And like Poirot’s solutions, there might well be a very difficult Court hearing after it is revealed – it isn’t really the final word on the subject.

Well, Poirot gives his solution when he knows that he has got it right, when all the pieces are in place and he can be sure that what he is saying is right. If he was instead told that by a fixed time in every murder case, he had to gather everyone in the drawing room and tell the assembled suspects who did it, then he would get some of them wrong. Sometimes not all of the suspects have even appeared  (in care proceedings, relatives do come forward late on). Sometimes not all of the clues have come to light. Sometimes he might not even have a clue.

 

If Poirot says that he needs to do some further detective work to reach the right conclusion, he should be given the time he needs, and not be made to feel like he is a disgrace for even suggesting it.

I agree with Nick

Ah, those heady days of the televised election debates, where Brown and Cameron were falling over themselves to position as the party who most agreed with Nick Clegg, and for a time Nick Clegg had the brightest burning star in British politics…

 

No, this is about District Judge Nicholas Crichton, and his very firm views about the PLO.  For those who don’t know D J Crichton, he is the pioneering judge behind the Family Drug and Alcohol Court in London, which has done so much to help troubled families and children.  He is not the ,ost influential or powerful family judge in the country – the Daily Mail wouldn’t be able to call him “Top Judge” but he is one that most of the profession look up to as a thoroughly decent, committed and imaginative judge who has tried to help those who come before him.

Therefore, when he speaks out, what he says is worth listening to.

http://www.lawgazette.co.uk/practice/pioneering-family-court-on-the-edge/5038532.article

 

And what he says here is that the rigid 26 week mandate is a tyranny that will lead to grave injustice for individual families who could have turned things around given the time, and he urges solicitors to appeal decisions where the 26 week mandate is rigidly imposed.

I think regular readers of this blog will know that I share those concerns myself – not that aspiring to cut out delay and the ‘dead time’ in care proceedings where nothing happened other than waiting for experts is a bad idea, rather that the rigidity of ‘one size fits all’ was inevitably going to lead to some cases being decided at the wrong time for that family.  So yes, largely I do agree with Nick.

I possibly agree less vehemently than I would have done two months ago. I think that DJ Crichton suspects now, as I did then, that the 26 week mandate was part of a greater political drive to faster and more adoptions and that troubled families weren’t going to be given a fair and reasonable chance to turn things around.  My only interpretation of the recent batch of Court of Appeal cases is that there is some judicial moving around of chess pieces on the board to lay the foundations for less adoptions and more Care Orders at home, with Local Authorities being ordered to hold onto higher levels of risk than they have historically been prepared to, and to provide more services at home to families than have historically been available.

It might be argued that this is long overdue, it might be argued that as we have a Child and Families Bill going through Parliament, that a proper and thorough debate about what Society and Parliament wants to do about families who come into the family justice system – are we there to penalise them, to test them, to help them, to prop them up? would have been the appropriate place for such a shift in national policy to happen.

 

Sharing information between care and criminal proceedings

 

There’s a CPS protocol about Disclosure of information in cases of alleged child abuse

http://www.cps.gov.uk/publications/docs/third_party_protocol_2013.pdf

I really do know that there’s too much guidance and directives, and strategy initiatives descending on us, because it has taken me a week to force myself to open the document.  But then I remembered the unofficial motto and raison d’etre of the Suesspicious Minds blog , which is  “I read this stuff, so you don’t have to”

So, I’ll read it and give as short a summary of it as I can bear.  It all kicks into lively exciting being on 1st January 2014  (I’m really not selling this much, sorry)

 

Police to care proceedings

1. There’s a form in there (oh goody, another form) at Annexe D, for a Local Authority to fill in and send to the police, to get disclosure within 14 days.  That sounds as though it won’t be necessary to have a court order to seek the disclosure.  [though they might redact, or keep info back if it would prejudice the investigation)

2.  The CPS are apparently going to give priority to making charging decisions in cases of alleged child abuse where there are linked care proceedings  (so perhaps no more waiting to see how our finding of fact hearing panned out before they make that decision)

 

3. Restrict the requests to relevant material from the police, not a big fishing trawl through everything they’ve got.  Expect to see disclosure requests being more narrowly drawn.

4. Where there are no criminal charges brought, the police will let the LA know and give reasons

 

Care proceedings to police

1. The LA are to let the police know of care proceedings relating to alleged child abuse [again on a form in Annexe D]  – that might be a bit broad, I would tend to construe it as care proceedings where the allegations could consititute a criminal offence where the child is a victim  [I can't imagine that the intention would be to alert the police of every care case that arises as a result of heroin misuse, for example]

2. The LA let the police have their files, or access to them, expeditiously – but NOT docs filed in the care proceedings*, and let the police know what schools the children attend.  ( *They mean docs created expressly for the purpose of court, and say that for example medical report on the injuries which existed before proceedings but were filed within them, can still be given to the police)

3.  the LA can provide the police with docs from the care proceedings PROVIDED it is for the purpose of child protection, not the investigation of the criminal offence – but the police can’t USE this in criminal proceedings (including showing it to the CPS) without permission from the Family Court.   (That’s a change, since often the HAVE/USE distinction is viewed to allow the police to show the doc to the CPS to aid in charging decision/decisions about whether to make a full-blown disclosure application)

4. If the police/CPS want to make use of court docs from the family proceedings, they will make a formal application – though the guidance is that they won’t actually attend a hearing for that application unless the Judge directs them to, raising the spectre of four parties in the care proceedings rocking up once to say “we object” and then again a week later for the argument.

5. the LA must send to the police/CPS any transcribed judgment (redacted if necessary) that they get in relation to a case of this kind, and should ask the family court to expedite it where it is known that parallel criminal proceedings are ongoing/contemplated

6. There’s provision for Public Interest Immunity applications (I used to do those a lot, until the criminal courts thankfully determined that it wasn’t a DUTY to assert PII all the time, and the LA could restrict the applications for issues which were particularly vital or delicate that there was a wider public interest in not having social services docs get into the criminal proceedings)  – these days, it is only likely to be info on children who are not victims or anonymous referrers identity which is the subject of a PII consideration.

 

Linked directions hearings

 

This is actually new – I’ve done it once or twice in particularly tricky cases, but now there is a protocol which allows the Judge in either limb to consider whether it would be helpful to have a joint directions hearing of the care and the crime, so that any issues /conflict can be thrashed out.  If you were wondering, us family lawyers have to go to the criminal court – the people in wigs and gowns can’t travel to us.  The directions hearings will be linked, but not combined (there are some tricky differences in law and procedure that means just having a joint hearing is not possible). In effect the care people all go into the criminal one and listen, and then if necessary the crime people or some of them will ask to come into the care hearing.

 

Despite my reluctance to read it, it isn’t actually bad, and not as long-winded as it could have been. Nothing immediate springs to my mind as a terrible omission (apart from the guidance being utterly silent as to whether the police can charge for disclosure, which we were promised would be going away. One could argue that given that the guidance doesn’t say that they CAN, that means they CAN’T.  But no doubt those arguments will continue over the next few years)

 

Historical amputations and lessons

 

Warning, yet again this blog post contains testicles – like the last one (and no doubt, some critics would say, most of them so far have been b******s throughout)

 

In the early days of surgical procedure, one man stood as a giant amongst his fellow professionals. Liston, often called “The Fastest Knife in the West End”.  In those days, prior to anaesthetics, the priority was to get the job done quickly, to get the ordeal over with as soon as possible and hopefully leave the patient alive.  One of Liston’s specialities was limb amputation, and he was well reknowned for being able to remove a limb in less than two and a half minutes. Of course, during one of his lightening fast amputations he took the patients testicles along with the leg. On another, it is said that he was sawing and cutting so fast that he took his assistant’s fingers off in the process, and also accidentally cut a nearby spectator. As the patient, spectator, and assistant ALL died of their wounds, this is said to be the least successful operation in history, having had a 300% death rate.

BUT overall , the death rate in Liston’s procedures was 1 in 10, as opposed to the usual 1 in 4.  And of course, Liston left medicine with one of the biggest advances ever, being the man who introduced anaesthesia to British medicine and gave it world-wide credibility (the chloroform he used was in practice in America, but Liston popularised its use).  Ironically of course, this made his lightening fast surgical skills rather redundant, as for the first time a surgeon could work with care and precision without risking the patient’s life.

 

It occurs to me, therefore, and this little vignette seemed a decent illustration of it, that speed isn’t always the best measure of something, and that being faster and faster for the sake of it doesn’t necessarily achieve the best results. The Family Justice Review looked very carefully and thoughtfully at how we could make care proceedings more efficient – meaning both faster and less costly, taking as an unspoken premise that our system was already getting good results and what we had to do now was just get them quicker and cheaper.  We already had the leg amputation techniques down pat, we just needed to get more efficient at it.

As has been evident to me from writing this blog, and thrown into even sharper focus with the furore about the decision of the President in Re J 2013, there’s a counter opinion to that unspoken premise. There are plenty of voices saying that actually, we aren’t currently getting the core function of family justice (to achieve the right and fair outcome in cases) and that speeding up the process isn’t going to put that right.

Now, I happen to believe that in the overwhelming majority of cases, if one looked at them independently, they would be achieving the right and fair outcomes. One can’t realistically expect a parent who loses their child to feel anything other than hurt and aggrieved and devastated. You’re not ever going to reach a system whereby every parent nods at the end of the case and says “Yeah, that was a fair cop”, but are those who speak out about the system just parents who haven’t come to terms with an awful and painful (but objectively fair decision) or are they actually as they report, the victims of injustice? Are even some of them?

 

I don’t mean do social workers sometimes make mistakes? Of course they do. All professions make mistakes. I mean, do we have confidence that the system we have in place – which gives the parents the chance to see the evidence against them down on paper, to see all relevant records, to have free legal advice, to question witnesses who accuse them of things, to call their own witnesses to support them, and all of that being determined by a Court who are unbiased and fair and start from the principle that children ought to be at home with parents if at all posible – does that system, catch the times when social workers have got it wrong, have come to a conclusion that might not be the best for the child?

I personally believe and hope that our system does that, but it doesn’t really matter what I believe and hope. We deal in evidence.  When the State is given power by the Government, to make recommendations about whether children should live with families, or be adopted, and where the Court is given power by the Government to make the decisions about whether those recommendations are correct; we need to remind ourselves that those powers are exercised in the name of the public, and it is therefore essential that the public have confidence that a system is in place that whilst individual errors might sneak through from time to time, is not inherently flawed or failing.

 

This is a debate which needs to take place. Not just ‘how can we do it cheaper, how can we do it faster’   – but is the system strong enough to get things right and learn from those cases where mistakes are made?  It was very easy in Re J to allow criticism of social workers to take place in the public domain, but did the Court really “own” their own decision-making? That child was removed, and remained in foster care because the Court decided so. The LA ask for the orders, but the Court decide whether or not to make them. If there’s blame there  (and we really don’t know about Re J, because no information about the case is in the public domain) part of that blame rests with the Court too.

With that in mind, I can see why the President is in favour of greater transparency, both in his plans to publish anonymised judgments as a matter of routine and in the RE J case of allowing criticisms of the system in language that might seem emotionally loaded to remain in the public domain (so long as the identity of the child remains secret). In doing so, an awful lot changes, and as yet, we don’t know how much will change and in what ways. As the ruler of China said about his thoughts on the French Revolution “It is too early to say”

 

With these changes, the 26 week timetable, the financial pressure on family law solicitors and the prospect of more and more advice deserts spreading across the country, these are watershed moments for family justice.  I’ve seen in a relatively short few years, cases move from the occasional parent being a heavy cannabis smoker to large proportions of cases being about heroin and crack addiction; I’ve seen the internet move from dial-up and “Page not found” – effectively a slower form of Ceefax, to becoming a fixture in most people’s lives, somewhere that can make publishers, documentary makers, journalists of almost anyone who chooses to be one. The times, they are a changing.

Triborough a little tenderness

 

A dash through the evaluation of the Tri-borough project aimed at completing care proceedings within 26 weeks.

 

This is a valuable assessment, being the first evaluation of how the new PLO 26 week timetable works in the wild  , and you can find it here

 

http://www.uea.ac.uk/ssf/centre-research-child-family/news-and-events/news/2012-13/Triborough

 

The Tri-boroughs are Hammersmith and Fulham, Kensington and Chelsea and Westminster, and they rolled out a plan to achieve the 26 week timetable in care proceedings.

 

Caveat to all of this – I couldn’t find anything that indicated that ALL of the cases in those boroughs were included in the pilot  - clearly if there was an “opt-in to the Pilot” then the findings become less valuable, since it would be simple to ‘weed out’ the cases that appear complex or problematic so that they never went into the pot.  It is also worth noting that over the course of the Pilot, one of the Boroughs had reduced their LAC numbers by 30%, which may have had some influence on volumes of proceedings.

 

Their findings are useful. The first thing to note is that whilst all professionals and the local judiciary were throwing the kitchen sink at finishing these cases within 26 weeks, by the end of the pilot period, as many cases took LONGER than 27 weeks as had finished within 27 weeks.

 

The timescales for concluding proceedings had however gone down massively with the new way of working – although they hadn’t hit the target of 26 weeks in over half the cases, they had cut the average duration of proceedings down from 49 weeks to 27 weeks.  And for the longest running cases – the outliers, they had cut these down by almost half, from 99 weeks to 52 weeks. That is impressive, by any standards.

 

 

I think that these comments from the key summary points are helpful, and worth quoting in full

 

 

The fact that the median length of proceedings is now around 26 weeks means, of course, that half the cases are still taking longer than 26 weeks. This should not necessarily be viewed in a negative light since some case-by-case flexibility about the length of proceedings is surely necessary in the interests of children’s welfare and justice. The pilot demonstrates that some flexibility can coexist with meaningful efforts to bear down on unnecessary court delay.

 

 Proceedings involving a single child were shorter (median 25 weeks) than those involving sibling groups (32 weeks). Proceedings resulting in a care order, with or without a concurrent placement order were shorter (median 20 weeks) than cases resulting in an SGO (26 weeks) or in the child returning or remaining at home on a supervision order, with or without a residence order (29 weeks).

 

A lot of the professionals who were interviewed during the evaluation had been concerned (as am I) that attempting to artificially constrain the duration of proceedings might result in unfairness in individual cases even whilst it might be good for the system overall.  In reality in the pilot, it appears that those cases that NEEDED more time were given it.   That is a scheme that I would be behind, but the fear remains that pressure is being applied based on raw numbers and data to drive the duration down with unfairness in some individual cases being an acceptable collateral damage. I hope this lesson from the Tri-borough pilot is taken on board by The Powers That Might Be Giants, but am slightly doubtful.

 

What also interested me in the summaries above was confirmation that a longer duration of proceedings doesn’t automatically mean a bad thing. One can see that you can finish proceedings more quickly if you get what many would consider to be the WORST option (child adopted by strangers) and it takes the longest time to get the BEST option (child being successfully placed with a parent). I also hope that THIS lesson is taken on board – I am rather more doubtful about that.

 

 

I suggest moving through the report to the graph at figure 2.4.  This shows where at each stage, time savings have been achieved.

 

The time from pre-proceedings to issue was about the same. The time from issue to CMC was about the same. The time from CMC to IRH sped up from 26 weeks to 15 weeks, a big reduction in time.

 

But, look at the next bit – the time from IRH (the hearing at which all the evidence should be ready, and the case can either be concluded, or a final contested hearing take place) to final order  - this reduced from 15 weeks to 5.5 weeks.

 

This is an ODD figure.  Nothing that was going on in the pilot ought to have affected the waiting time between IRH and final hearing.

 

Here are the five possible explanations that my cynical mind has come up with:-

 

 

 

A)   s the figure is an average, the Pilot massively increased the proportion of the cases that concluded at IRH rather than final hearing. But the text discounts that, saying that actually the reverse is true – nearly one in six pilot cases finished at IRH, whereas nearly one in three pre-pilot cases finished at IRH. So it isn’t that.

 

B)   The time estimate for contested final hearings went down, thus giving the Court more hearings in the same time period, and making it quicker to list.  (reducing the waiting time from 15 weeks to 5.5 weeks seems a LOT for this) . The report doesn’t give me the data on duration of final hearings pre-pilot and during the pilot, which might be interesting for that. 

 

C)   Because there were less experts, the Court didn’t have to provide dates which suited that limited expert availability. (Under THIS theory, the Court had previously been offering dates quicker than 15 weeks which had, pre-pilot, been turned down due to not being suitable for the expert, but during the pilot could be made use of)

 

D)    There were additional judicial resources in terms of sitting days in the Tri-boroughs during the pilot. 

 

E)   When deciding the date for the final hearing at IRH, pilot cases were getting priority over non-pilot cases  (that’s my polite way of saying ‘queue jumping’

 

 

I would rather like to know more about this, because the 9.5 week saving here represents quite a big chunk of the 22 week time saving the Pilot had achieved as an average. I genuinely hope that it is as a result of B and C, and not the other factors.

 

One would need to know whether that was replicable across the country (i.e it was done fairly) before one could get excited about it.  Without that saving of time at the back-end, the average duration of care proceedings would be stuck at the 35-38 week point.

 

 

There’s an interview with a family law solicitor that expresses just this point, I think rather well (it isn’t me)

 

Now I am aware that the Ministry of Justice is going through a process of trying to make large savings in terms of judicial sittings and appointment of full-time judges, and I also wonder whether the courts can deliver on making courts available, judges available, to make decisions on time, so that we are not waiting four to five months for court time. Because if we are going to be faced with courts saying, ‘Well from the point of an IRH to when a care final hearing is listed, you have to wait four to five months,’ which is very common in the recent past and is not uncommon now, then any savings you make are just going to fly straight out of the window. You are sitting there everybody with their arms folded, the case beautifully presented and no court available to make the decision. So…it is not just the local authorities, it is also court availability and that seems to me problematic. The thing is we are going to be told I am sure, that with a unified court, that’s going to solved, I am doubtful personally, from what I see day in day out in court….And I fear that courts won’t be able to deliver on this in the year. (Family solicitor, Int 3)

 

And

 

I think where it won’t be sustainable is in the ability of the court to accommodate hearings as quickly as they did. (Local authority solicitor, Int 9)

 

 

Both make me suspicious that the savings on the “Wait from IRH to final hearing” weren’t necessarily achieved by replicable means.

 

Of course, if in the headline Pilot study, where the suspicion exists that extra judicial resources AND priority status was given to listing final hearings, it is pretty worrying that it STILL took 5 ½ weeks from IRH to get a final hearing. Since we know that for run-of-the-mill work, we have six weeks from IRH to find a final hearing…. cough, cough… ooh look everyone, an elephant!

 

 

And the report also touches on the ever present difficulty of Pilot studies, that being part of a Pilot tends to focus and energise people and that knowing whether that could be sustained in a national roll-out.

 

 

The concern then is that the pilot has benefitted from unusually favourable conditions (relatively wealthy boroughs, changes in staffing levels at Cafcass, special treatment in the courts), and that it has required, as we discussed earlier, if not more actual time, then higher than average levels of commitment, effort, focus. We discussed previously the fact that views were surprisingly diverse as to whether the pilot added or subtracted from staff workloads in terms of time but it does seem clear that more effort (also described by participants in terms of being ‘strong’ or ‘robust’ or having ‘energy’) is needed to work in this new way.

 

 

The report also echoes the findings of Masson, that the duration of pre-proceedings work had no positive bearing on the duration of the proceedings. In fact, oddly (and this may just be a quirk of a relatively small sample size), the cases where the formal Pre-Proceedings Protocol was used took slightly longer to conclude than those where it wasn’t. (figure 5.2)

 

One of the fears of the new PLO was that delay would be shifted to pre-proceedings rather than during court proceedings, but the pilot evaluation showed that not only did this not happen, there seemed to be a sharper focus on issuing proceedings at an earlier stage. For cases other than newborns, the time between issue of Letter Before Proceedings and issue of proceedings came down from an average of sixteen weeks to an average of six weeks.  (Figure 5.3)

 

(One might query whether six weeks is long enough for a parent to turn anything around, but clearly this figure isn’t showing that the delay was just moved to pre-proceedings)

 

The time children had spent on child protection plans before proceedings were issued had also come down, quite considerably.

 

Pre-proceedings drift, a major worry for many professionals, does seem to have been avoided by the Tri-boroughs pilot, and for that, if nothing else, there must be some valuable lessons to be learned.

The sky is falling, the sky is falling – balance, and yes, more neuroscience

A lot of television and radio shows, particularly news or discussion shows, approach things on the principle of balance. You’ve got to show both sides of the debate and give them equal air-time.

So you get expert number one, Chicken Little, come on and say “The sky is falling, the sky is falling”

Expert number two, puts the counter position “The sky isn’t falling, the principles of gravity don’t work that way, and in the unlikely even that the sky was ever to fall, here would be some catastrophic signs and evidence that we would get”

And then the presenter wraps up, often with the expression “Well, the controversy rages on”

So the listener/viewer doesn’t learn much more than that some people think the sky is falling, others think it isn’t.  Some people think that Evolution is a load of nonsense and that the existence of bananas prove that*, others think it isn’t.  Some people think that the Holocaust is a fake Jewish conspiracy and it never happened, some people don’t. Some people think we should intervene militarily in Syria, some people think we shouldn’t.

[*Re – Bananas disprove evolution. I am not kidding, this is actually an argument]

The overwhelming message is that there are two sides to every story, there are no right or wrong answers.

What we don’t get is any analysis of whether Chicken Little is someone to be relied upon, or whether a detailed look at Chicken Little’s claims mean that almost anyone with an informed view would disagree.

And so you end up with Chicken Little’s views being just as much air time and weight as the counter-opinion, in order to have ‘balance’

I’m all for balanced debate when the issues are balanced – you can learn a hell of a lot from listening to people who have a contrary view. But it is helpful to know whether the debate is actually balanced (the Syria thing there are genuinely good and awful points on both sides, and though I might have views I wouldn’t say that the other camp is wholly wrong) or whether frankly one side is just wrong (The Holocaust really did happen, Evolution is not nonsense, the sky is not falling)

Long-term readers of the blog may well be aware that the Family Justice Board published some research on the neuroscience behind neglect – it’s all available and discussed here:-

http://suesspiciousminds.com/2012/11/05/taking-neglect-seriously/

And then Wastell and White published a critique of that research, essentially saying that it is being misused to make political decisions and justify a direction of travel that the individual studies simply don’t support

http://suesspiciousminds.com/2013/01/14/semantics-pedantics-and-neuro-mantics/

In very brief summary (the two articles tell you much much more, as do the source papers cited within them), there are two camps on what the neuroscience says. The FJB camp says that the neuroscience shows that there is hard evidence that neglect is very damaging to the underlying structure of children’s brains and that this neglect is difficult or not possible to recover from and that timely intervention and stopping the neglect early is thus vital. The Wastell/White camp say that the scientific evidence for these assertions is simply not there, that the studies the FJB camp rely on are either irrelevant or have been wildly overstated and that in particular, there is neuroscientific evidence that brains are more ‘plastic’ than the FJB camp claim – i.e that where damage occurs, the brain recovers and repairs that damage.

I candidly said in the second piece that not being a neuroscientist, I have no idea whether Wastell and White are correct in their demolition of the FJB research, or whether they are wrong.

I don’t know who “Chicken Little” is in this scenario, or whether either of the camps are “Chicken Little”, but that given that the FJB research has been an important underpinning “child-focussed” reason for the drive towards faster intervention and faster resolution of care proceedings, it is rather important that people who ARE in a position to say :-

(a)   The FJB camp are right

(b)   Wastell and White are right

(c)   One of them is probably more right than the other, but there are some real gray areas that need more studies and better evidence to be confident about deciding the issues

Are asked to say so.

If we are going to make policy decisions, or case decisions, we really do need to know if there is genuine doubt here and the extent to which that doubt impacts on how confident one can be about the research, or if one of the camps is a Chicken Little.      [For what it is worth, I really don’t believe that Wastell and White are Chicken-Littling here.  But I am no neuroscientist]

What I learn recently is that whilst the judiciary were all of course sent the FJB research (on the basis that finally, the Courts were going to be given some research on which decisions could safely and properly be taken)

they have now also been sent, without comment, the counter critique of Wastell and White.

Specifically, they were sent THIS document, which was produced for a conference organised by counsels chambers, 14 Grays Inn. As what I am doing here is linking to their website featuring it, and naming that 14 Grays Inn produced it and Wastell and White authored it, I don’t believe I am treading on anyone’s toes re authorship or copyright (but will take down the link if people object)

I think it is pretty important that people who are arguing cases in front of Judges know what research material the Court has been sent, and it may help to know that all Judges have been provided with access to both the FJB research AND this paper from 14 Grays Inn which critiques it.

http://www.14graysinnsquare.co.uk/The_childs_time_frame_%20a_neuro-scientific_perspective.pdf

What of course they DO NOT have, is any objective independent peer review of both documents, to answer the questions I have set out before. Which effectively makes the research fairly useless. We are left with the stereotypical TV presenter summary of “well, the controversy rages on”

I wonder if the same is going to be true once the FJB publish their research on the level of contact which is desirable for children (yes, it will), or the impact of drug misuse on family life and the ability of parents to recover from drug misuse (yes, probably)  and whether if all the Judges are getting are a set of controversial research papers and effectively being told that the science is controversial on all these issues, whether there is any value to it at all?

I was very supportive of the FJB producing some framework research which would answer some vital underpinning questions in child protection, but it seems to me that this has value only if the Courts who are potentially relying on that research have clear understanding of whether that research represents accurately the mainstream thinking of professionals within that field, and where any gaps are that  result in the need to be more cautious about certain aspects.

[The 14 Grays Inn paper is worth reading in any event, and I would urge you to do so, if you can find the time. A lot of the neuroscience is similar to already linked to on my earlier two blogs, but there is some new stuff. The “Error at the Door” piece about initial assessment is really very good]

“Sunlight is the best disinfectant”

Transparency, openness and the family Courts, and the President’s proposal for changes.

 

The title of this piece comes from an American Supreme Court Justice, Louis Brandeis, and is a remark often quoted by the President of the Family Division, meaning that exposing something to scrutiny is the best way to make sure that it is clean.

 The President has long been a believer that the best way to manage the family Courts beleaguered reputation is to have the information about the way cases were decided out in the open, rather than remaining secret. Having transparency means that an informed debate can be had, rather than one based on supposition and partial accounts, and suspicion.

 There’s obviously the balance and tension between making cases public and preserving the confidentiality of the children concerned, but the constant cry from the Press and commentators that the secrecy of the family Courts is proof that miscarriages of justice are routine and that the system is flawed, perhaps even corrupt, means that transparency was always going to be required at some point.

 

If the system is flawed and children are being removed by the State for the sort of reasons that the Christopher Brookers of this world claim, then it is vitally important that the evidence and information that would allow that claim to be proved is out there and available to those campaigners.  That is important even if it is only a few cases where these things are happening.

This is the DRAFT practice guidance, issued by the President on 13th July [sorry 13 July]. It is not in force yet, but I would anticipate it coming into force in the foreseeable future.

 

http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/annex-b-draft-transparency-in-family-courts.pdf

 

 Unlike the other guidance published the same day, which for some inexplicable reason considers that what words are capitalised and whether one writes 17 May 2013 or 17th May 2013 is the pressing issue facing the family courts  (rather than financial meltdown, injustice etc)  http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/annex-c-family-orders-project-house-rules.pdf 

 

I am actually rather supportive of the transparency proposals.

 The draft guidance effectively proposes that the STARTING point in all care proceedings, adoption cases or deprivation of liberty cases should be that an anonymised version of the judgment should be published, and posted to Bailii unless there are compelling reasons not to do so.   [I would be slightly interested to know whether the MOJ are going to give Bailii some money for this project, I hope so]

 

Other categories of cases should have anonymised judgments available on request.

 

I happen to believe that it is appropriate (providing that the anonymisation process is done carefully so that the identity of children cannot be deduced) that the public are able to see the reasons for the State making orders, particularly Care Orders or Placement Orders about children.

 

At the moment, anonymised judgments are available only where the case involves an important legal principle, or is an appeal hearing.

 

This proposal of all judgments being published will  be across the board, not limited to cases of a particular type, and will allow firstly, journalists reporting on a case to actually read the judgment in the case to have an INFORMED understanding of what happened, and secondly, allow for proper analysis of the reasons for State interventions and patterns, themes and trends that emerge.

 

It will also give researchers the opportunity to collate information from cases overall, mapping out whether there are trends, differences in areas, differences over time.

 

It will also allow for proper, evidence-based research and debate over things such as emotional harm, when we can see the extent to which emotional harm (or obesity, membership of UKIP, or any other “hot-topic”) is a factor in State intervention.

 

I have 3 thoughts that come to mind :-

 

 

1. There does need to be some thought as to how these cases will be searched for or stored on Bailii  – the signal to noise ratio problem.  At the moment, practitioners know that every family law case posted on Bailii has something of potential significance and wider principles on it, and can read it (or read the summary of such cases that family law bloggers write).

 

But those cases of wider significance are a very small proportion of the cases being decided every day (and soon to be published every day). Each and every one of those cases is deeply significant for the people involved, and will be statistically significant for research purposes, but in terms of practitioners spending time reading them most of them are very fact-specific and not of wider interest.

 

Do we increase the chance of the cases of wider significance being missed or drowned out by a volume of material? 

 

 

  1. In amongst all of the other judicial duties, including the much more robust case management ones being imposed by the revised PLO, will the Judges be allocated time to the careful anonymisation work that is necessary? 

 

  1. This one is undoubtedly more fanciful, but it might be worth some thought. Knowing your tribunal is always helpful, but this system would allow the carefully prepared to look at the decisions and judgments that an individual judge has made, and to pick up on themes, trends, perhaps even idiosyncrasies. Perhaps Judge Anderson seems to very often go with the conclusions that Dr Burner reaches, but doesn’t care much for Dr Honeydew. Perhaps Judge Broad seems to be quite hard on substance misuse cases, but has a soft spot for parents who had been in care themselves.  Perhaps it appears that Judge Finn prefers local counsel to out of towners – perhaps even that Judge Trott has certain counsel who always seems to do well in front of him, and you should book them for your case, but that they really don’t like Alastair Smoothie of local chambers.  All of this is currently about by hints and anecdotes and suspicion, but if the hard empirical evidence of all the cases were known it would be a bit different.

 

 

[Of course, one might say that Judges ought not to have those little foibles and idiosyncrasies and should come to each individual case as a tabula rasa and judge each case entirely on its own merits; and the overwhelming majority of them do, but one might argue that it would be a GOOD thing that the MOJ could potentially work out where this was not the case.]

 

If that raw data is there, one could also extrapolate, if one had the time and resources, some actual league tables – of the 81 cases that Alastair Smoothie represented parents on, what were the outcomes? How does that compare to Juliet Handwringer?   That could be a good thing, if parents and solicitors had hard data on which barristers are more likely to produce good outcomes – it could also be a bad thing, if counsel fight shy of taking on the more difficult cases to win if they are worried about their place in the informal league tables.  

 

 

[In reality, I don’t think that anyone will have the time and resources to undertake those exercises with the raw data, but just in case, I’m going to trademark  Compare The Counsel.   Simples]

 

 

None of my 3 thoughts are, in my humble opinion, good reasons not to go ahead with transparency. It is an idea whose time has come.

 

 

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