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Cheshire West fallout

There’s an excellent piece of investigative work by Community Care about the escalation in the number of Deprivation of Liberty cases since the Supreme Court made a substantial change to the law in Cheshire West.

 

If you have a chance to read the full thing, I heartily recommend it.  (the remainder of this article is my extraction and citation of what I considered to be the main issues)

http://www.communitycare.co.uk/2014/10/01/50-deprivation-liberty-safeguards-cases-breaching-legal-timescales/

 

Half of Deprivation of Liberty Safeguards (Dols) cases are breaching legal timescales for completion after a landmark Supreme Court ruling in March triggered a nine-fold rise in monthly referrals to councils, a Community Care investigation has found

 

In 2013-14 councils received 8,455 requests for Dols assessments; since April this year they’ve already had 32,988 referrals. The figures mean average monthly referrals have risen from 713 in 2013-14 to 6,643 in 2014-15. The effect of the dramatic rise in cases is clear. Last year 2.2% of cases breached timescales; so far this year 50% of cases were not completed in time.

 

Councils have also seen more legal challenges to deprivations of liberty and one local authority has sent a ‘systemic abuse alert’ to an adult safeguarding board warning that it could not meet the ‘Supreme Court challenge’ due to a shortage of resources.

 

 

The court ruling has also intensified a shortage of best interests assessors (BIAs), whose role is to determine whether a person is, or will be, deprived of their liberty and, if so, and whether this is in the person’s best interests. Councils are scrambling to train up more social workers as BIAs in a bid to boost assessor numbers, but many training courses are oversubscribed and, even if a place is secured, training can take months.

 

We found that the shortage of trained staff in councils means local authorities have already spent £1.4m on independent BIAs in 2014-15. That’s almost three times the £550,000 spent across 12 months in 2013-14.

 

 

  • Legal challenges are rising: In the first five months of 2014-15 local authorities had 61 legal challenges brought over deprivation of liberty cases. In the 12 months of 2013-14 the councils had received a total of 49 legal challenges.

 

  • Safeguarding concerns have been raised: Cornwall council raised a ‘systemic abuse’ alert with the local safeguarding adults board over the council’s inability to safeguard people under Dols, due to a lack of resources to meet the post ‘Supreme Court challenge’. The council said it wanted to ensure there was independent scrutiny of its response to the judgement. The councils said its “principal difficulty is one of resources and the availability of suitably trained staff to implement the DoLS for the greatly increased numbers. The council referred its concerns into the adult safeguarding process while it took urgent steps to address problem.”

 

  • Stacks of referrals have been held back: Evidence from council reports shows that the referrals received so far are only likely to be a fraction of those that could meet the Supreme Court test as care homes and hospitals are delaying applications. In some cases, council reports say this is due to them ‘ignoring’ or not understanding the implication of the Supreme Court judgement. In other cases it is deliberate:

We found one example of a council agreeing with a care provider to delay sending in 30 referrals to help with ‘backlog avoidance’.

In a second case, a council report showed that some homes had delayed in sending in referrals as they were ‘sympathetic’ to the pressures on the local authority. In the report, the council’s Dols lead said that this was often happening ‘to the detriment’ of the person. The report shows that the Dols lead contacted the homes and told them to make the applications.

◦A third council report we obtained showed that a local acute hospital had still to send in applications. The hospital had conducted an initial scoping exercise and identified a potential 35,000 referrals. This alone would lead to the Dols team facing a 350-fold increase in cases, the report showed.

 

Bloody hell.

 

Information drawn from the Health and Social Care Information Centre  from 130 of 152 councils make the point even more vividly. http://www.hscic.gov.uk/catalogue/PUB15475

A 600% increase in monthly referrals is a terrifying amount. There is simply no way that social workers, local authority lawyers, best interest assessors, lawyers for families, the Official Solicitor or the Courts can cope with that sort of increase.

 

The councils received 21,600 Dols applications from April to June 2014, compared with 12,400 in the whole of 2013-14, a 597% increase in monthly referrals;

  • of these, 51% were authorised, 12% were not authorised, and 36% had not been withdrawn or not signed off by the council as of September 2014.

 

(I’m really impressed with the work that Community Care have done on this, and I hope that everyone in the field reads their piece, hence my bigging it up here)

Research and stats round-up

 

A few important reports on statistics / research documents have come out in the last two weeks. I’m afraid that I don’t have enough time to write about each in depth, but I’ll give you the headlines and a link to each and if that whets your appetite, you can read the whole thing.
1. Serious case reviews

Ofsted have published statistics showing that the number of Serious Case Reviews have dramatically increased

http://www.ofsted.gov.uk/resources/serious-incident-notifications-official-statistics-release

A 53% increase on Serious Case Reviews since 2012.

You might think, as I immediately did – is this evidence that the new methods of working aren’t working and that children are paying a heavy price?

It may be much more prosaic than that. The real chance in Serious Case Review policy is that they went from being internal documents to published documents in 2011, and the numbers went down as a result. Public bodies that had been using them to learn lessons and discuss failings were less keen on doing so in published documents – the “washing your dirty linen in public” effect. And then last year as a result of that decline an independent board was set up to scrutinise decisions as to whether or not to hold a Serious Case Review. So the dramatic rise is just that independent board restoring normality.

However, the number of referrals of “serious incidents” to Ofsted did go up. “Serious incidents” can cover incidents that would warrant a Serious Case Review or that are likely to attract media attention. So a greater media interest in family justice might account for the increase.
2. Ministry of Justice Statistics show a 19% reduction in family cases

http://www.familylaw.co.uk/system/redactor_assets/documents/1657/court-statistics-quarterly-april-to-june-2014.pdf

Private law cases dropped by 41% from the same quarter last year, as those cases that had got in just before LASPO have now all just about ended.

The MOJ say that numbers of public law cases has been fairly stable since 2011 (so the figures earlier this year showing a decline was really just the effect of everyone pausing in new cases to make sense of the new PLO requirements rather than any real downturn in demand)

What is interesting is that despite the huge Government push on mediation being the way forward, the number of mediations in the last year decreased by 50% from the level that it was when parents could go and see a lawyer for free advice who would explain the benefits of mediation to them. That’s pretty damning, that a compulsory mediation service has lower take up than when it was voluntary.

http://www.familylaw.co.uk/news_and_comment/new-moj-laa-data-low-income-families-turn-backs-on-court-mediation-falls-50-compared-to-pre-laspo-times

3. CAFCASS research on care proceedings
This is an annual follow-up since the death of Peter Connolly, in which Guardians in public law cases are surveyed after the conclusion of the care proceedings and asked some general questions about whether they feel the LA was right to bring the proceedings, the quality of the evidence and whether the proceedings were brought too soon, too late or about right.

http://www.cafcass.gov.uk/media/217447/three_weeks_in_november_five_years_on.pdf

The headline from that is that “social workers are taking the right actions to keep children safe”

And that in 84% of proceedings, the Guardian felt that there had been no other choice than to issue proceedings. [Of course, the other way of looking at that is that 16% of proceedings are being issued when they didn’t need to be]

It probably isn’t the most impartial measure either – although Guardians are independent of social workers, the ethos of CAFCASS has been fairly obviously “safeguarding” as a priority over family preservation for a few years now.

If you were to ask parents whether the case should have been brought to Court I suspect 84% or higher would say no.  So it rather depends on who you are asking.

The really interesting research would be if you could get Judges to do this survey, keeping it all anonymised.

Cafcass note that the proportion of Guardians feeling that cases were being issued too late rose from 26% to 39% – they fairly note that this could be that delays are getting worse, or that cases have moved to pre-proceedings or that the greater focus on timescales and targets have made Guardians more sensitised to the issue and more critical of delays that would have been tolerable a year ago.

 

 

4. The Children’s Rights Commissioner says that legal aid cuts have detrimentally affected children
To which the MoJ have replied “Well it isn’t meant to”

So that’s all fine then.
“Behind the evidence in our research are countless heartrending stories of children and vulnerable young adults whose lives have been seriously affected by their inability to access legal representation,” Atkinson said. “This means, in effect, that they cannot seek, let alone receive, justice. We should not expect children and young adults to face the complexities of the legal system on their own. These systems are daunting enough for adults, let alone vulnerable children and young people.

“The system is so difficult to navigate that it leads to people having no legal representation. That in turn can prevent decision-makers making decisions properly, as well as stopping individuals obtaining the justice they need … Short-term savings to one part of the legal system – legal aid – are simply shifting costs to another, because judges direct that representation has to be funded.”

http://www.childrenscommissioner.gov.uk/content/publications/content_871

5. NSPCC research suggests that spending a bit more on family support where children are rehabilitated would be far cheaper than our present arrangement

http://www.nspcc.org.uk/Inform/resourcesforprofessionals/lookedafterchildren/reunification-costs-report_wdf104058.pdf

Over 10,000 children are returned home from care every year, however it is estimated that 30-60% of these reunifications fail, meaning children are then moved back to care, at great human and financial cost.

This process costs an estimated £300m, according to a study by the Centre for Child and Family Research at Loughborough University, commissioned by the NSPCC. The costs include social work costs, legal costs, decision-making and placement costs.

However, the researchers found that a £56m investment in providing effective support for families when a child returns from care could reduce the number of reunification breakdowns.
This is an interesting piece of research, and I know that sign up for the pilot scheme was very fast, with it being oversubscribed. If a new approach for support for children being returned home meant that more of them could stay there.

Quick caveat – I think some of the underlying maths is iffy. These are social scientists, not acountants. For example, there are some underlying assumptions that are weak

(i) That it covers s20 not just care
(ii) That a child who comes back into care will remain in care and the costs can be worked out on that basis (whereas some children in s20 might come back into care for a short period)
(iii) That it is fair to work into the costings of the child coming back into care that some children are in residential care (the most expensive type and frankly the ones who are in residential care are likely to be the ones least likely to get turned into successful permanent rehabs)
(iv) That for some reason the estimated legal costs of proceedings is calculated as being less than just the Court issue fee. If a Local Authority can manage to run the whole care proceedings for less than it costs to get the Court to start them off, that’s some wonder economics there
(v) That the figure for failed rehabs is 47%, which is something of a finger in the air taking an average of two other studies   (the headline numbers in those studies look extreme, but if a child is in care, goes home, and comes back into care, the “going back into care” might include a short respite period rather than permanent placement away from the family)

 

But my criticisms are really that the figures are slightly cooked to make the scheme seem even more desirable – I don’t think they needed to do it, the case for better support services is well made out in the body of the report.

This bit some people might find useful – we hear so much about “a low level of support” or “this family need a high level of support” – what does it mean in practice?

The report shows the real actual numbers

This comprises 6 months at a high level (8 hours 15 minutes social worker time plus 50 minutes team manager per month);

3 months at medium level (5 hours and 45 minutes social worker time plus 50 minutes team manager per month);

and 3 months at a low level (2 hours and 35 minutes social worker time plus 50 minutes team manager per month). These activity figures are taken from Holmes and McDermid (2012).
From that – high level of support is just over 2 hours a week of social work time. Medium level is about 1 ½ hours a week of social work time and low level is about 40 minutes a week.

Anything more than that would be accurately described as ‘exceptionally high levels of support’ although when you see the numbers it might not seem to be.

 

I absolutely welcome anyone trying to find out what the best way to make rehabilitation of children back home work better, and credit to the NSPCC for funding this sort of research. I hope that it makes a difference and that if so it is rolled out nationally.

Adoption breakdown research

 

A lot of people, including the House of Lords when they asked questions about the rate of adoption breakdown and found that there was no clear answer, have been wanting to see some good research on adoption breakdowns.

This is a piece of research on that very issue, commissioned by the Department for Education and conducted by Bristol university. I think it is solid.

The report opens by saying that there hasn’t previously been a national study on adoption disruptions – the previous studies have been with narrow subsets of children, leading to “rates of disruption having been quoted as ranging between 2% and 50%” (To paraphrase Paddy Power “I hear you” – I have heard over many years in Court, a wide variety of numbers being given as to how likely an adoptive placement is to break down, usually thirty seconds before a Jedi handwave and “the research is well known” – though not capable of ever being named)

There’s a LOT of it, and my summary isn’t going to be a substitute for reading it.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/301889/Final_Report_-_3rd_April_2014v2.pdf

There’s a decent summary over at Children and Young People Now

http://www.cypnow.co.uk/cyp/news/1143367/local-authorities-underestimate-adoption-breakdowns-study-suggests

The headline there relates to the difference between the prediction Local Authorities made of the chance of a placement breaking down before the age of 18 (3.4%) and that reported by surveys of adoptive parents (which was 9%)

So, is the adoption breakdown rate about 9%? Well, maybe not. [Actually, when you sit and read the report carefully, their conclusion is that adoption breakdown rates are somewhere between 2 % and 9%. Why is the number so wide-ranging? Well, ultimately because there are actually substantial variations between Local Authorities – where Erehwon has a breakdown rate of 2% and Llareggub has 9% - is the breakdown rate between the middle, or is it more accurate to say that nationally it is BETWEEN those figures?]

The research is looking at adoptions where an order has been made, and whether the placement continued until the child was 18, or ended (which is then classed as a breakdown or disruption, for whatever reason)

It looks at the previous research – Rushton 2003 which cited a breakdown rate of 20%, but that covered placements pre order, and obviously had a number where the placement ended after a very short period because the ‘fit’ wasn’t right , and Rushton and Dance 2006 (Although no lawyer actually knows the name of it or what it really says, this is the piece of research that gives the figure that has been bandied about and exaggerated over the last few years) that gave a figure of 19% – the study had been entirely of children who had been placed for adoption later in life than the norm.
An interesting aspect, to me, is the comparison the research does of 3 types of placements and their stability (frustratingly for me, there isn’t the comparison of stability of adoption v long-term foster care, which would now be extremely helpful to know)

The research says that they looked at:-

 

•37,314 Adoption Orders of which 565 were known to have disrupted
5,921 Special Guardianship Orders of which 121 were known to have disrupted
• 5,771 Residence Orders of which 415 were known to have disrupted
Peculiarly, although the research highlights that SGOs were anticipated to largely replace Residence Orders, the number of Residence Orders doesn’t seem to have gone down since their introduction.

I did my own number crunching on that, which worked out as a breakdown rate of 1.5% for adoptions, 2% for SGOs and 7% for residence orders.
So is THAT the breakdown rate?

Well no, it gets a bit more complicated (because the individual cases they were looking at were at different ages – to exaggerate wildly – if you imagine the residence orders were mostly dealing with teenagers and the adoptions mostly with pre-schoolers, then of course one group has had more chance to break down. Wild exaggeration, just so that you get the underlying concept, that some complicated maths has to be done to smooth out the differences)

Breakdown (or disruption) rate
The research says that over a 5 year period
•147 in 1,000 ROs would have disrupted (14.7%)

57 in 1,000 SGOs would have disrupted (5.7%)

•7 in 1,000 adoptions would have disrupted (0.7%)

And that over a five year period, the most stable form of placement was comfortably an adoptive placement.
But of course, a five year period isn’t necessarily it for adoptions – the research demonstrates that the most precarious time in an adoptive placement is in the teenage years , and that over a 12 year period the disruption rate went up to 3.2%.

The researchers suggest that by the time 1000 children who have been adopted reach the age of 18, those placements will have been disrupted or broken down for between 2 and 9% of them (i.e between 20 and 90 children – the corollary of that, obviously is that for every 1000 children placed for adoption somewhere between 910 and 980 of them will have placements that endure for their childhood)

Of those disruptions, nearly two thirds will be during the child’s secondary school years, with the average age of a child whose placement breaks down being 12 ½.
Influences

When looking at what influences a disruption, the research found that for children placed with adopters before the age of 4, only 1% of those placements had broken down. For children aged over 4 at the time of the placement, that went up to 5%. Three quarters of the children who had an adoption breakdown had been placed after the age of four.

Additionally, the more moves a child had had prior to the adoptive placement, the higher the chance of disruption. And the longer a child waited for a placement, the higher the chance of disruption – of the children whose placements had broken down, three quarters of them had waited for more than two years for a placement.

 

There is no real difference in terms of gender of the child as to whether a disruption is more or less likely (1.4% of all males placed had breakdowns, 1.7% of all females – a slight difference, but not statistically important – anecdotally it is mildly surprising that this is not the other way around). Nor was ethnicity a relevant factor in breakdown rates.

The reason for the child coming into care makes very little difference to the breakdown rates either.

Looking at the types of carer, the research SUGGESTS that single carers had a higher proportion of disruptions than would be predicted by pure averages, but are cautious about this because the data isn’t as full (the information about whether an adopter is married or in a civil partnership has only been collected since 2006)

The research also suggests that foster carers who go on to adopt the child don’t have (as many professionals would suspect or believe) lower disruption rates than stranger adoptions – if anything, it is slightly the other way. [The research points out that it may be more likely that foster carers who adopt are taking more damaged children than the statistical norm, that children have usually waited longer to be adopted if their foster carers adopt them and that foster carers who adopt might suffer more than stranger adopters when the LA backs off]
The percentage of adoption disruptions varied significantly between the Local Authorities sampled – from 0.7% to 7.4% (it is figure 20, page 55 of the research if you want to look at it).

Really hard, obviously, to unpick whether that is because of something that the LA’s are doing (picking adopters, supporting them, managing dramas) or whether it is that in any particular LA one has a higher proportion of older children, who wait longer in care. If it is the former, then we really want to get all of the Local Authorities learning from the best ones, because every single breakdown is a human tragedy for all involved.

 

•Between April 1st 2000 and 31st March 2011, 37,335 children were adopted and of these 565 were known to have disrupted post order and information was available in the database.
• Nearly two thirds of disruptions occurred during the teenage years.
• Gender and ethnicity were not associated with greater risk of disruption.
• The children whose adoptions had disrupted were significantly older at entry to care (average 3 years old) in comparison with children (average 1 year old) whose adoptions were intact. Nearly three-quarters of all the children had been abused or neglected.
• Children who had experienced a disruption also had significantly more moves whilst looked after and waited longer to be placed with their adoptive family compared with those children whose placements were intact.
• Children who were no longer living with their adoptive families were significantly more likely to have lengthier adoption processes compared with the children whose adoptions were intact. This was the case for those who entered care under the age of 4 years old and those who entered over 4 years of age.
• Three-quarters of the children who experienced a disruption were older than 4 years of age at placement with their adoptive family and a quarter were younger than 4 years of age. In comparison, 70% of children in intact placements were under the age of four.
• Children whose foster carers became their adoptive parents entered care at a similarly young age to those who were adopted by stranger adoptive parents. However, they waited on average two years before their foster placement was confirmed as an adoptive placement and were on average 5.2 years old at the time of the Adoption Order. In comparison, those adopted by strangers were only 3.8 years old at the time of the Order.
• Foster carer adoptions were not more stable than adoptions by stranger adoptive parents.
• The proportion of adoptions that disrupted varied by local authority

 

This is a bit that is fairly low key and probably won’t be picked up by the press reports, but I think is very important

 

“We asked adoptive parents whether there had ever been any difficulties with birth family contact through SMS, email or Facebook. Whilst 20% said this had been the case, many more feared that they would be facing these problems in the future”

 

If you wanted to find a person in the 1980s, you had to hire a private detective. Now, if you spend an hour on the net, you’ll know more about them than their own mother.

I think there are really good bits in the research dealing with how various local authorities dealt with requests for help from adopters, and some very honest and raw interviews where things that are normally unspoken were said out loud – the shame, the guilt, how hard it is to ask for help, and on the other side, how social workers can sometimes present as being very intolerant of the need for help and that the adopters took this child on and they just had to make it work. Many requests for help ended up being managed as s47 investigations, which escalated things badly.

There are some major criticisms of life story work (particularly about these books not being moved forward and age-appropriate for much older children, at the point where they really want to know more about their identity)
Conclusion

 
We began this study knowing very little about adoption disruption. To our knowledge, there had never been a funded study in the UK whose focus was on disruptions post order. The disruption rate was lower than we expected. The reasons for that became obvious when we met the families. The commitment and tenacity of adoptive parents was remarkable. Most parents, even those whose children had left, still saw themselves as the child’s parents and were supporting their children from a distance. An adoption manager who was interviewed for this study suggested that perhaps a revolving door approach was needed for some adopted adolescents, whereby they could spend time away from their families without it being seen as a failure. Instead, most of the families we interviewed spoke of an ‘all or nothing’ social work approach that blamed and judged parents when relationships were just not working, and parents needed respite or young people wanted to leave. A key value150 of social work in professional practice is compassion and respect for individuals. It is probably easier to practice if there is a clear duality of victim and abuser. Who was the victim and who was the abuser was unclear in families where there was child to parent violence. Splits and conflicts between children’s social workers and post adoption social workers then emerged. It left adoptive parents feeling blamed, demoralised and unsupported. It was apparent that many had lost faith in professionals of all kinds and felt betrayed.

The research makes a number of recommendations – they cover 6 pages in the report, starting at page 284, so I won’t rehearse them, but they are well worth reading, particularly for any professional involved in adoption work.

 

 

 

The Ofsted, and Action for Children research on neglect

You may have heard that Ofsted this week published some research on neglect, the over-arching theme being that some children are being left in neglectful situations for too long

 

http://www.ofsted.gov.uk/resources/childs-time-professional-responses-neglect

 

On the same day, Action for Children published their research into neglect

“Child Neglect : The Scandal that never breaks”

 

http://www.actionforchildren.org.uk/media/8678803/scandal2014.pdf

 

the over-arching theme there being that neglect is happening to far more children than you might expect – their headline figures being

 

73% of UK children know another child who is suffering from neglect. Urgent action is needed to help children and families get the help they need.

 

  • Since 2011, around a third (32% in 2013) of professionals have felt powerless to intervene when they have concerns about child neglect
  • 35% of professionals say Government spending cuts have made it more difficult to intervene in cases of child neglect. In particular, 65% of social workers said cuts impeded their ability to intervene in cases
  • 94% of the public agree people should do something when they are worried about a child but 45% want more information on where to get help

 

Of course, the big headline really depends on (a) how you define the term neglect and (b) whether you think children are the best people to identify neglect in other children that they know

 

Their major demand, that the Government ought to produce a national coherent strategy on child neglect, is a worthwhile one. Perhaps the one two punch of Ofsted and Action for Children saying similar things on the same day will have an impact. (I suspect that Ofsted have much more clout, because they don’t need to scare Government into action, they just have to scare Local Authorities that if they don’t have a Neglect Policy, they’ll get a bad Ofsted review)

 

There’s a bit in the Action for Children research that made me scratch my head. The researchers asked professionals what the barriers were that stopped them intervening on child neglect.

 

 

There are the usual suspects – lack of resources, gaps in services, the point at which intervention can take place being too high. But then there’s “It’s not my job to intervene”

 

10% of the social workers asked gave that as their answer. 10%….

 

That is very worrying to me. It’s at page 18 if you don’t believe me

 

 

The Ofsted research then. They looked at 124 cases, drawn from eleven local authorities. Those local authorities were a spread of inner-city and rural counties, from the North, the South, the East and the West   (though the heaviest proportion was the North West – Liverpool, Manchester, Lancashire, Wigan). They looked at the records, spoke to professionals, to children, to parents and to carers.

 The key findings :-

 

      The quality of professional practice in cases of neglect overall was found to be too variable, although in some of the cases examined at this inspection, children were making progress.

      Nearly half of assessments in the cases seen either did not take sufficient account of the family history, or did not adequately convey or consider the impact of neglect on the child. Some assessments focused almost exclusively on the parents’ needs rather than analysing the impact of adult behaviours on children.In a small number of cases this delayed the action local agencies took to protect children from suffering further harm.

      While the quality of written plans was found to be too variable, there was evidence of some very good support for children that was meeting the short-term needs of the family. However, there was very little evidence of longer-term support being provided to enable sustained change in the care given to the children.

      Some authorities are using effective methods to map and measure the impact of neglect on children over time and to evaluate the effectiveness of interventions. This results in timely and improved decision-making in some cases. However, not all local authorities have such systems in place to support social workers in monitoring the impact of neglect on children and the effectiveness of their interventions.

      Non-compliance and disguised compliance by parents were common features in cases reviewed. Although some multi-agency groups adopted clear strategies to manage such behaviour, this was not evident in all cases. Where parents were not engaging with plans, and outcomes for children were not improving, professionals did not consistently challenge parents.

      Drift was identified at some stage in the child’s journey in a third of all long-term cases examined, delaying appropriate action to meet the needs of children and to protect them from further harm. Drift was caused by a range of factors, including inadequate assessments, poor planning, parents failing to engage and in a small number of cases, lack of understanding by professionals of the cumulative impact of neglect on children’s health and development. Drift and delay have serious consequences for children, resulting in them continuing to be exposed to neglect.

      Front-line social workers and managers have access to research findings in relation to neglect, although the extent to which this is incorporated into practice varies. It is by exception that front-line social workers use specific research to support their work. The impact of training on professional practice with regard to neglect is neither systematically evident nor routinely evaluated.

      Routine performance monitoring and reporting arrangements to LSCBs infrequently profile neglect. Therefore most boards do not receive or collect neglect data except in respect of the number of child protection plans where the category is recorded as neglect. Most boards were not able to provide robust evidence of their evaluation and challenge about the effectiveness of multi-agency working to tackle neglect.

      Those local authorities providing the strongest evidence of the most comprehensive action to tackle neglect were more likely to have a neglect strategy and/or a systematic improvement programme across policy and practice, involving the development of specific approaches to neglect.

      The challenge for local authorities and their partners is to ensure that best practice in cases of neglect is shared in order to drive improvement.

 

 

They make a series of recommendations for Government (to review social work training to have mandatory material on neglect, to require Local Safeguarding Children’s Boards to have a strategy on neglect for their local area) ,

for Local Safeguarding Children’s Boards (to gather data on neglect and assess and monitor it in their area, to ensure front-line training on neglect for professionals, to get agencies working together on the issues, to ensure that all staff know how to escalate concerns, to ensure that all training represents best practice and contemporary research)

and on Local Authorities (robust management oversight of neglect cases to avoid drift, better methods of assessment, proper child protection plans for neglect cases, specialist training in neglect, consistent levels of threshold for intervention, a shift in focus on written evidence presented to Courts so that it is clear, concise and explicitly describes the cumulative impact of neglect on the daily life of the child)

 

The last is interesting, as we brace ourselves for the standardised model of social work reports (having seen the version that went out to consultation, I have serious doubts that this model is going to deliver what Ofsted are recommending)

 

The body of the report picks up as a theme that social work reports and assessments focused on the adults and the parents issues rather than analysis of the impact of this on the children. “Are children getting lost in the assessment in the same way in which they are lost within their own families?”

 and a later quotation  (from a Director of Children’s Services)

“social workers and schools may become desensitised to neglect”

 

 

The headline that was grabbed by the Press (they toss a coin, I think, to decide on any individual day whether social workers are jackbooted child-snatching fascists, or clueless Mavis-Reilly-esque do-gooders who are hopelessly ineffectual)   was that parents were given too many chances

 

66. In the cohort of cases where progress for children was not being achieved, a common feature was parental non-compliance or ‘disguised compliance’. Professionals did not consistently demonstrate clear strategies to manage this behaviour. For example in a small number of cases, the Public Law Outline (PLO) was used to address non-compliance and while this was effective in the majority of cases, where parents breached PLO agreements subsequent action was not always taken. This apparent reluctance by professionals to act assertively and in line with written agreements meant that cases were not escalated at the right time for children and there was a delay in action to protect them.

67. In some of the multi-agency meetings held during the thematic inspection professionals reflected on their practice and accepted, with hindsight, that they had been manipulated by parents. For example, in one case when a mother and father had a new baby, the child was made subject to a child protection plan because the parents both had a history of drug misuse and had had previous children removed due to neglect. When the mother tested positive for cocaine use and the father positive for heroin use, the case was escalated to PLO, but stepped down again very quickly when the parents appeared to cooperate with the plan. The child was removed from the parents some months later due to further evidence of parental drug misuse. The child protection chair told the inspector that they should have been more challenging of the lack of progress at a much earlier stage in the case, and described the parents as ‘very plausible’, ‘always coming up with a reason for not completing tasks that were required of them’.

68. In other cases parents were given too many chances because professionals had not fully recognised or assessed the level of non-compliance and were carrying on regardless. Overall, the evidence in these longer-term cases is of a failure by professionals and their managers to be consistent in identifying non-compliance and disguised compliance, and in some cases failing to assertively challenge parents who were not engaging with plans.

 

For local authority lawyers, Ofsted makes comments about their role in the process too (not particularly flattering comments)

 

74 . Further delays were apparent in some cases because of inconsistency in decisions about whether the threshold for proceedings had been met. A small minority of local authority legal advisers held the view that some courts were not giving enough consideration to the family history when making decisions as to whether the threshold for proceedings had been met. However, most legal advisers reported that the courts and Cafcass were well-informed about research findings and the significance of a history of parental neglect. In a further small minority of cases local authorities appeared too ready to accept legal advice that the threshold for proceedings had not been met. This suggests there was some lack of clarity as to who holds responsibility for making decisions to initiate court proceedings to protect children from significant harm.

75. The general view of legal representatives was that the quality of written and verbal evidence provided by childcare professionals in legal proceedings was not consistently robust. This resulted in some cases failing to progress to proceedings or, when cases did reach the court arena, not achieving the required outcome. Evidence needed to be gathered more effectively, risks and protective factors expressed more clearly, and the impact or potential impact of neglect on children identified. Partner agencies needed to collate evidence of the impact of neglect, including the impact on children’s behaviour and emotional development, from a very early stage.On the basis of this thematic inspection the lack of clarity around thresholds for legal proceedings is a signficiant concern, given that as a result of this some children remain in situations of neglect for too long

 

Of course, one of the issues on ‘threshold’ is that we are talking about two different things – the s38 or s31 ‘threshold’ of significant harm is very easy to identify, we all know that when we see it. But the ‘threshold’ of “If you go to Court and ask for these children to be removed will you succeed?”   is much more dependent on local Courts, local Guardians, knowing how your Courts view neglect, knowing how bad it has to be before you would meet that test, knowing whether your social worker’s evidence will be compelling in the witness box or tentative. How old are the children, how will they be affected, are you going to find foster placements to meet their needs? Of course the answer to the second question varies greatly from case to case, there is never a one-size fits all answer.

It is, of course, very important not to conflate the two questions

 

  1. Is the threshold met
  2. Is the evidence strong enough to persuade a Court to do anything about it

 

 

Neglect is always the hardest type of case to make decisions about – almost always you have missed the right time to issue the proceedings. Neglect is very rarely a steady downward slope, it is more of an undulation, a series of peaks and troughs – little improvements as support is provided, dips as the family struggles. And it always feels that the impact on the children of neglect is viewed less significantly by Courts than a broken leg, an allegation of sexual abuse. Even though the long-term impact of neglect can be very corrosive, there’s a feeling that it isn’t that bad, or that it has to get very bad indeed before anyone is willing to draw a line and say “no more”

As local authorities come under pressure to drop their numbers of looked after children (and they are doing, and a large part of that pressure is from Ofsted themselves), neglect represents the soft target for that reduction.

 

Not many local authorities are going to increase their tolerance for physical abuse at home, or sexual abuse at home. Which leaves, if you want to raise your threshold and lower your number of court proceedings and looked after children, tolerating more neglect at home.

Unless you’re going to put in services and support to change neglectful care into good enough care, but that’s a big ask at a time of cuts and reduction in services.

 

[It might, of course, be a good thing that there’s a recalibration of what is ‘good enough’ care where the State should support but not intervene, and what requires care proceedings and separation – one can’t argue with the fact that the number of children coming into court proceedings has gone up massively over the last ten years, and how do we know whether we are now at the right number and we used to be leaving too many children at home, or whether we were right ten years ago and over-reacting now?  ]

“I’m afraid I can’t do that Dave, as a result of subsection 9(b) (iv) (a)”

 

Another little thought experiment, on Judges this time. Now, clearly Judges at first instance have to very carefully assess the evidence, and the nuances and tone and demeanour of witnesses and attribute weight and balance to a variety of factors. The higher up the Court hierarchy you go, the less important that becomes, to the point where by the time of the Supreme Court, what a witness said or did not say in the box is almost neither here nor there.

 

In fact, what is very often happening in the Supreme Court is drawing together from a variety of sources – the legislation, the guidance and existing principles derived from authority, applying it to the legal dilemma in the case and achieving a decision that ends up being consistent with all of those decisions and perhaps extending the existing principles in a slightly new (yet consistent) direction.

 

Now, it occurs to me that as we reach the point of artificial intelligence, it would be theoretically possible to have all the legislation, all of the guidance, all of the previous authorities, held by a computerised mind, who could then just trace a path through them to reach the decision.  If all that one is doing is looking at the precedent decisions and seeing where they would logically take you in deciding the legal dilemma, a sufficiently wonderful computer can solve that logical problem.

 

Instead of seven law lords, what one would have is a dazzlingly brilliant super computer  S.U.P.R.E.M.E   and the legal dilemma would be inputted and a judgment would come out.

 If you’re like me, then you are probably shifting a little nervously in your seat at this point, and feeling that this is just uncomfortable. There’s more to Supreme Court decisions than just deriving the answer from the principles.

 But that in itself takes us into interesting areas.

 There seems to me to be some sort of qualitative difference between these two questions :-

 

(a)   What is 53,209 divided by 7.33 

 

And

 

(b)   Is a school’s admission policy to give preference to Orthodox Jewish children, looking for evidence that the mother of the child is Jewish by birth or by Orthodox conversion, discriminatory under the Race Relations Act 1976

 

It is not simply a matter of complexity – of course the latter question is more complex, since one can solve the first question in a matter of seconds with a calculator, and the second at the very least is going to involve reading the Race Relations Act and the school’s policy, and any decisions that help clarify how either ought to be interpreted.

 

But there’s still more to it than just complexity, otherwise S.U.P.R.E.M.E could answer both, given the right information (or access to Google to find it for itself)

 

Isn’t one of the differences between the two questions that the answer to (a) exists already – it is out there to be found, and it is utterly replicable. Anyone who does the calculations will arrive at the same answer, regardless of who they are.   (The same would be true if you swapped (a) for “What is the capital of Guina Bissau?”  – it is a factual question, and the answer is out there to be found)

 

The answer to (b) – maybe it doesn’t exist   (well, it does now, because the Supreme Court decided it  in R (on the application of E) v JFS : Governing Body 2009 UKSC 15) and it only exists ONCE the question is asked and answered. The answer is CREATED, not found.

 If question (a) is more like maths, or physics or geography – there’s a factual answer that is true for whoever answers it, then maybe (b) is more like history or english literature – there are certain things within it  “In which Shakespeare play does Ophelia appear?” which are definitive, factual answers (like cases which squarely correspond with precedent) and there are others which the person answering the question creates  “What is the nature of the character Hamlet?”

 

Once we start thinking in those terms though, we inevitably bump into the peculiar wrinkle that the highest legal authorities in the land, which bind future courts and cases and will in turn influence future legal authorities at the highest level are not OBJECTIVE TRUTHS found by the Court, but SUBJECTIVE decisions created by the Court.  And in turn that the Judges who sit on these cases bring something of themselves to that process; that’s why the concept of S.U.P.R.E.M.E deciding it makes us feel a bit edgy.

 

That must intrinsically be right, because all of the Judges in the Supreme Court hear the same arguments, have the same facts, have access to the same precedent authorities. Yet there are dissenting judgments. So what causes that must be that there’s an element, even in the rarefied air of the Supreme Court, of subjectivity to deciding how the legal dilemma should be resolved.  

 

[You may recall my previous blog about the impact of extraneous circumstances, such as proximity to lunchtime on judicial decisions 

http://suesspiciousminds.com/2013/09/30/your-honour-may-i-hand-up-my-case-summary-and-a-pastrami-on-rye/   ]

 

This piece derives from another interesting piece of research, which takes as an example the  UK Supreme Court’s decision in the Jewish Free School’s admission policy.

 My attention was recently drawn to this study, which is available in the Journal of Law and Society  (I’m afraid that it is behind a paywall, and as such I can’t let you peep at it, and I have to be limited in how much I can quote out of it)

 

 

http://onlinelibrary.wiley.com/doi/10.1111/j.1467-6478.2013.00642.x/abstract

 

The study was written by Rachel J Cahill-O’Callaghan of CardiffUniversityLawSchool  (which frankly is becoming a hot-bed of brainy talent, and one day I must try to visit and have my mind blown. Perhaps during the Six Nations…)

 It opens with a lovely quotation from Lord Reid, in which he manages in four lines to say everything I’ve been fumbling in the dark for, and does so beautifully to boot.

 “Those with a taste for fairy tales seem to have thought that in some Aladdin’s cave there is hidden the Common Law in all its splendour and that on a judge’s appointment there descends on him knowledge of the magic words Open Sesame… But we do not believe in fairy tales anymore”

 

 There has been a long debate about the make-up of the Supreme Court and whether it reflects the diversity of our society (hint, no, it doesn’t) but this research goes further than that, and analyses how a person’s position on Values is brought to bear on judgments and decisions.

 

“In reaching a decision, at least one not governed by precedent, a judge will support one or more values above another…. Although the law provides the basis for framing and constraining judicial discretion, in difficult cases at least, it is the personal values of an individual judge that influences how that judicial discretion is exercised and that, in turn, can influence the way in which the law develops”

 

The way that the research tests this is interesting, and involves  firstly identifying a series of values and defining those so that one knows exactly what to look for in relation to each value, then looking at the judgment in the authority, and analysing each line of it, looking at the emphasis that the individual judge places on particular values, which may compete (for example “flexibility in the law” v “Transparency in the law, Corporate responsibility v individual responsibility, freedom v responsibility).  

 

On a case such as this, where the Supreme Court was divided in its opinion, that analysis can then be used to see whether the judges who reached a particular conclusion (there was a breach of Race Relations Act) appeared to place similar emphasis on similar values, and do the same exercise with those who reached the opposite conclusion.

 

On looking at that, there are really stark differences between the values emphasised by the majority judgments and the minority judgments.

 

The author of the report acknowledges that what was not possible was to go back to the individual Supreme Court judges after the judgment, with that analysis, and ask them whether the analysis of the values that each judge “appeared” to prioritise accords with their own view of where their own values sit, but the research uses some clever techniques to try to fill in this gap.

 

 There’s an interesting conclusion that if personal values play a role in judicial decision-making and the framing of the law, then in order for the Supreme Court to represent society one doesn’t merely have to look at the very visible aspects of diversity  (gender, ethnicity, socio-economic background) but also diversity of personal values.

“Your Honour, may I hand up my case summary, and a pastrami on rye?”

Do judicial decisions fluctuate with extraneous factors, such as how hungry the Judge is?   Of course not, you foolish Suesspicious Minds…   Or rather, maybe they do, but only for those American judges, and even then only when they do criminal cases…  Or rather, gosh, I don’t want to be last case on before lunch anymore…

One of the joys of writing this blog is that as a result, smart people send me things. One such smart person has sent me this lovely piece of psychological research, by Danziger, Levav, and Avnaim-Pesso

http://www.pnas.org/content/early/2011/03/29/1018033108.full.pdf+html

I love that one of the tags on the research is “legal realism”  – I want to become a researcher into legal realism – how do you start, where do you go, who do you need to know?

What these researchers did, was gather information from Israeli criminal courts considering applications for parole.  They looked at whether the timing of the parole application had any statistical bearing on the outcome, and judged a “positive outcome” as parole being granted.

Now, the timing ought not to have any impact on this, the cases come in randomly and each case will be judged entirely on its merits.

But that isn’t what the study showed. What they say is that at the start of the day, the positive outcomes were around 65% of cases, and then as the cases got closer to the lunch interval the positive outcomes sank to almost zero. And then after lunch, the positive outcomes went back up to around 65%.

They weren’t able to say for certain whether it was the break that led to the positive outcomes going back up or whether it was the Judge being able to eat during that break, but it was clear that there was a clear decline in favourable decisions for defendants as the sessions went on, with that being wiped clean after a break.

They also look at previous research that suggests that “making repeated judgments or decisions depletes individuals executive function and mental resources which can in turn influence their subsequent decisions”

(If you are interested in whether Judges are creatures of pure reason, that sentence is a bit worrying – suggesting that the more judging you ask one to do in a given period of time, the worse they might do at it.)

This is also interesting – this mental depletion over time tends to lead to the decision that reinforces the status quo being made more often than a decision which significantly changes the situation. Obviously if you are in prison and want the judge to agree to parole, you don’t want the Judge to be drained and plumping for the easy option of the status quo.

Finally, our findings support the view that the law is indeterminate by showing that legally irrelevant situational determinantsin this case, merely taking a food breakmay lead a judge to rule differently in cases with similar legal characteristics.

 

Although our focus has been on expert legal decisions, we suspect the presence of other forms of decision simplification strategies for experts in other important sequential decisions or judgments, such as legislative decisions, medical decisions, financial decisions, and university admissions decisions. Our findings add to the literature that documents how experts are not immune to the influence of extraneous irrelevant information

 

 

 

I am of course sure that our own judiciary are utterly immune to these matters and are made of sterner stuff than our Israeli cousins, but nonetheless, if you are aiming for the status quo to continue, try to get in at about 12.30, and if you want to persuade the Judge to make a change, either get in at ten, or stall until 2.00pm.

And if you have a Judge who is floating the idea of sitting straight through and not having a lunch break at all, you may want to politely decline.

[Suesspicious Minds will buy a pastrami on rye for the first person who can genuinely confirm and independently verify that they have addressed a Judge and handed up this research]

 

 

[Edited because I had stupidly put that the study was of American judges, when it was in fact of Israeli judges... ]

I’m so mean I make medicine sick

 

Ward and Brown’s response to Wastell and White; and Neuroscience in the family justice system begins to be as much about the smack-talk as it does about the experiments and data.

 

I’ve written before about the scientific research presented to the judiciary by Ward and Brown, and then by the response to that from Wastell and White which basically questioned the conclusions drawn in the Ward and Brown research.

 I also more recently did a piece suggesting that if decisions in family courts are to be influenced by developments and research in neuroscience, it might be helpful to clear up this debate and have an idea as to which camp is right or whether the state of the science is just not sufficiently there yet to say definitively.  {If you want to read any of those, pop “neuroscience” into the search box to your left}

 

I will preface all of this by saying that I don’t have a neuroscience background and my only interest is in ensuring that any science informing court decisions is fair; I don’t have a boxer in this fight and am not taking sides.  I am instead just a young person by the school gates, watching two others go at it and shouting “Scrap Scrap, Scrap! ” rather than pledging support for one side or another.

 

What I have now seen is Ward and Brown’s response, which will be published in the September issue of Family Law.  That of course, is copyrighted to Jordans, so I can’t post it here, and though a summary of the article is up online, the full copy is not available online for me to link to.

 If you can get hold of it, however, it is worth a read.

 It would be fair to say that Ward and Brown come out swinging, and basically say that their original research is valid and robust and that Wastell and White are lone voices saying the reverse. (They say that they reviewed 482 pieces of research or papers, and say that the only controversy in this field is that authored by Wastell and White).

 I am going to repeat what Ward and Brown say about what their original research says, and what it does not say. I hope that this counts as fair use, and is not intended to impinge on Jordan’s copyright of it (in fact, I hope it whets the reader’s appetite for reading the full piece)

Given that we know that the judiciary have all had Ward and Brown’s paper, I think it is very important that we see what Ward and Brown themselves say about the conclusions, and the possible mischaracterisation of the conclusions.

 

WHAT BROWN AND WARD (2012) SAYS AND WHAT IT DOES NOT SAY

 

The research summarised in Brown and Ward shows that the first 3 years are an important phase in early childhood, that neurobiological development is shaped by the environment both before and after birth and that, because infants are so dependent on their caregivers for survival, a key feature of the environment is the attachment relationship. It also shows how extreme abuse and neglect in these early years may shape the way in which children develop in all areas: physically, emotionally, socially and cognitively. Children who experience extreme abuse and neglect in these years are more likely to fall behind their peers and develop a wide range of problems in later life. In addition, the longer the maltreatment continues the more likely it is to have a negative impact on development and the more difficult will it be to overcome the consequences.

 

The report does not say that these developments are inevitable or irreversible. It does not say that all children who experience poor parenting or grow up in poverty will develop problems. It does not say that children whose development is compromised by abuse and neglect cannot overcome the consequences. It does not say that parents with problems such as substance misuse, domestic violence and poor mental health cannot change. It certainly does not make the claim that courts should remove children from ‘a home environment where their brains are “shrunken” as a result of abuse and/or neglect’ (D Wastell, S White and A Lorek, ‘The child’s timeframe – a neuroscientific perspective’ (unpublished, 2013), at p 45). What the report does suggest is that if these children are to remain at home, proactive engagement with social workers and other professionals needs to begin early.

 

 

[When I look at those assertions, they seem fairly uncontroversial and probably right, and frankly almost to the point of being so obvious/bland that  they tell me nothing new or useful at all. There you go, something for both camps to like/hate in my summary there.  On the formulation above, it is hard for me to imagine a lawyer for either the LA or the parents urging the Court to make use of the research in the decision-making process ]

 

They robustly defend themselves from the critiques made by Wastell and White, and whilst criticising Wastell and White for intemperate language they don’t seem to shy away from it themselves. The passages in particular about Wastell and White’s criticisms of Harvard’s Centre for the Developing Child, might be considered pretty bullish. To describe this site as ‘selective’, ‘campaigning’, ‘a priori’ and ‘lurid’ is a travesty; no doubt Harvard will be dealing appropriately with these allegations

 

 

In effect, by the end of this response, what the non-neuroscientist takes away from it is that we have two camps   – both of whom effectively accuse the other of coming to the table with a political agenda and misrepresenting the science in order to further that agenda.  The agenda being either the furthering of more and faster adoptions, or an anti-adoption campaign. (Brown and Ward do point out in their response that they have spoken out about the rush for more and faster adoptions)

Perhaps this only looks like a scientific dust-up from the outside, and the real differences between the camps are very important to the scientists, but relatively minor for family lawyers and judges – or perhaps the intensity of the debate is illustrative of those differences being very large and important. 

[It seemed to me previously that the fundamental dispute was about plasticity and the difficulty of RECOVERING from neglectful experiences that occurred before the age of 3 - I don't know whether that dispute has dissipated given what Brown and Ward say that the research does NOT say.  ]

We family lawyers are simple folks, but we do have a recipe for dealing with experts who have differing opinions. Firstly, we ask them to meet up, with an agenda and some agreed questions, to see if they can narrow any differences and identify where there is genuine dispute.

 And secondly, if that does not result in a consensus, we have the evidence tested before someone independent, like a Judge.

 Some Judges even adopt a novel Australian approach called “hot-tubbing” where the experts effectively get into the witness box at the same time (which can be a tight squeeze)  and give their evidence concurrently, as more of a panel discussion than sequentially.  Perhaps the time has come for a neuroscience hot-tub time machine?

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