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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.

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

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.

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)

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


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

“Child Neglect : The Scandal that never breaks”


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 




(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   ]


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)


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

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.




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?

Violence against social workers


This is a curious little article in Community Care, based on a national survey done of social work/social care staff around the country. It covers an important topic of the violence that workers in social care encounter during their work.

It gives a useful colour coded map, in which one can use sliders to look at the number of the  incidents of violence against social work / social care staff over the last four years.

The grey areas show that none of those surveyed in that area reported any incidents of violence, and then the colours go from yellow, dark yellow, orange through to reds and dark reds. Each colour represents around 150 incidents, and you can click on any individual area to see the total number of reports.


Given what social care professionals have to do in their work, I am slightly surprised that it is not higher – not that I am condoning any of these incidents far from it, but there’s a context of having to make very challenging and emotionally charged decisions and interventions in people’s lives.  When you consider the number of people employed in social care and the number of interactions that each of them has with people very single day, even the high end is just a tiny tiny proportion of those interactions. That obviously doesn’t lessen the unpleasantness of any single one.

 In nearly 20 years of doing a pretty challenging job in legal, I’ve had one person take a bad swing at me and miss, one throw a table over in court, one massive steroid-assisted bloke with pecs like halved watermelons inform me that if I didn’t get out of his way he would “destroy me”, a delightful chap walk behind me in a corridor at Court and tell me that “If I had a knife in my pocket right now, I could stick it right in your kidneys”.  

I can understand the context of why all of those people felt that way about the horrible mess I was making of their lives, but it didn’t stop any of it being very very unpleasant to experience and I remember all of them pretty vividly. And I didn’t actually get struck in any of them.

So all of what follows is absolutely with the understanding that violence in the workplace is a really horrible and potentially traumatising event and that it can’t be acceptable.

Caveats over.

All of the gray areas are presumably no reported incidents at all, and that probably represents around a third of the map. The majority of what is left is somewhere between 1 and 300 incidents per year.

 But what I found rather intriguing was that there were bands or geographical pockets of the higher end, the orange and red areas that seem to be around 500-1000 reported incidents per year.  And some of these cropped up over and over. And they weren’t necessarily the ones that a lazy stereotype might pick out.


The ones for 2012 show  those hotspots as being :-


The very North of England – Durham, Cumbria, Northumberland (hold off on your stereotypes for a moment), Leeds, Sheffield and Nottingham (leave those stereotypes) and the South East of England, particularly West Sussex.  People working around Worthing and Bognor were much more likely to experience violence than those around Liverpool, Manchester, Birmingham, inner-city London in 2012.


2011 shows North of England, Leeds, a teardrop shape around Sheffield and Nottingham, bits of London and again West Sussex.


2010 show North East of England, the Sheffield/Nottingham teardrop again, bits of London and again West Sussex.


2009 – no red or orange in north of England, or Sheffield/Nottingham, or London. Norfolk is bad, Dorset is bad, and yet again, West Sussex is bad.


Of course, the number of incidents doesn’t tell anything about the seriousness of them. Perhaps the red/orange authorities are more rigorous about reporting and logging incidents that some of the other areas brush off and don’t record.  


Maybe not, maybe West Sussex workers should be asking for some danger money.

 Another portion on the Community Care story on this shows an infographic illustrating the violence inflicted on such workers – the larger the word, the more frequently it came up in the survey×900.jpg

 The heading being “knife throwing” and the sub-heading being “workers tell us what they have been attacked with”

 Then you look at the visual image and wince.

 When you first look at this, just as I did, the words that leap out at you are Chair, Knife, Thrown, Knives, Hammer, Face, Head,  Needle, Glass, Hit, Heavy, Objects Threatened.  

 Again, without wanting to trivialise this – nobody ought to be physically threatened or harmed when they are doing their job, even in the context of the very emotive nature of the job; when you look a bit closer at the infographic, you see words like


Etc, various, manager, parent, ready , another, support, number


Albeit much smaller. So clearly the graphic is not showing “things that workers have been attacked with” and how frequently such objects were used, but rather the frequency with which certain WORDS were used in the description of events.

 Unless it is that social care staff in West Sussex are being hit by another manager for not being ready.

 It is an important and serious issue, and for any worker who has gone out to do a difficult job and in the course of a day was threatened or hit with a stick, or a snooker cue, or a knife, that’s absolutely unacceptable and dreadful. I just think one needs to be careful about juxtaposing information like 712 incidents of violence in 2012 in Northumberland with a graphic highlighting the very most serious of such events.

 Nonetheless, I think it is an important issue;  to look at why these things happen and how they can be reduced and why there are such regional disparities; and I applaud Community Care for highlighting the issue and bringing it to life.

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:-

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

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.

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]


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