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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a)   The FJB camp are right

(b)   Wastell and White are right

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

Are asked to say so.

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

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

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

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

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

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

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

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

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

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

“How safe are our children?”

The NSPCC report on child abuse and neglect.

 The report can be found here

http://www.nspcc.org.uk/Inform/research/findings/howsafe/how-safe-2013-report_wdf95435.pdf

 and is interesting and well worth a read. It is quite stat heavy, but there are decent graphs which make the points well, and they set out how the stats were arrived at. (One of their core ones, I have an issue with, but will deal with that a bit later on)

The latter bits of the report set out the risk indicators for children, nearly all of which are not likely to come to a shock to anyone working within the family justice system.

You are more likely, as a child, to be physically abused or neglected if these factors are present in your family :-

Domestic violence, substance misuse, parents with mental health problems, parents with learning difficulties, children with physical or mental impairments, children from certain ethnic or minority backgrounds,  parents who suffered abuse themselves as a child, and poverty.

 The poverty one is interesting, because it is the elephant in the room at the moment. Is part of our child protection system, as might be argued by John Hemming and perhaps Dr Dale, a punitive way of dealing with the poorest members of our society (and perhaps even a redistribution of children from those who have them, to those with greater means and income who would adopt them?)

 Also of course, from everything we know about the political climate of the country at present, poverty is only going to get worse over the next few years (unless you were on the Board of HBOS or are a stockholder in Vodafone, Starbucks, Google et al)

 Here’s what the report says about poverty as a risk factor [underlining is mine, as I think this is a VITAL point]

 Children living with poverty, debt and financial pressures

Why is this a risk factor?

Although there is no evidence to show that poverty causes child maltreatment, poverty and child maltreatment share many similar risk factors. Numerous explanations try to explain the relationship between poverty and child abuse and neglect. The impact of the stress associated with poverty and social deprivation on parenting is the most common explanation.

Researchers have found that parents with a low income are four times more likely to feel chronically stressed than parents with higher incomes. Stress levels of parents living in poorer neighbourhoods have been shown to be high. One study identified a “strong relationship between parents’ levels of stress and greater use of physical discipline”. Another associated being in a lower socio-economic group with a more significant level of physical discipline and abuse.

An analysis of women’s childhood experiences of abuse and neglect found evidence that women from poorer childhood homes were twice as likely to have suffered from abuse or neglect and three times as likely to have suffered from more than one form of abuse than those from more well-off childhood homes. Emerging findings from research in England highlight the impact of poor and inadequate housing on families and poor housing is a common characteristic of families in poverty. The unsafe environment and the impact of parental stress have been found to be factors in some SCRs and where children are subject to child protection plans.

 

This does not mean that parents who are poor will abuse or neglect their children. The relationship has been described as “circular and interdependent as opposed to linear and causal”.

 

What we know about prevalence

The Institute for Fiscal Studies estimates that the number of children living in relative poverty in the UK85 was around 2.5 million in 2012, rising to about 2.9 million in 2015.86

 

 Being poor doesn’t mean that you will neglect your children, but being poor of course means that you are much more likely to have to make difficult choices about budgeting and poor choices have a much more detrimental effect.  (If you are choosing between whether to spend £80 or £110 one week on food shopping for the next week, choosing the latter one week doesn’t massively affect your family, but if you are choosing between whether to spend £15 or £25 on shopping that week, and perhaps to spend the extra £10 means not having the heating on, those choices do make a proportionately greater difference to the wellbeing of the family.

 There is an interesting tack in the main body of the report. The NSPCC calculate that for every child known to the authorities to be suffering from abuse or neglect, there are another 8 who are not known.   [This is the statistic I am most cautious about, since it is drawn from an extrapolation of their 2011 study that showed children self-reported abuse or neglect  (6% of over 11s, and 2.5% of under 11s) and applied that to the population at large. For me, I would need the 2011 study to be much larger and more robust before you could start extrapolating it to the population at large – for example, if you are asking a 14 year old whether they have been seriously mistreated by their parents in the last year, that 14 year old’s idea of serious mistreatment might be very different to society’s idea of it. There might well be days when almost any 14 year old would say that his parents were mistreating him]

 But, setting aside my quibble about the number of children who are the bottom part of that iceberg, under the surface and unknown to professionals, the NSPCC say this

 The gap is unlikely to close

Could services ever reach all maltreated children? Even if this were desirable (and few would consider this level of state intrusion into family life appropriate) it is very unlikely in the current context. If children’s social services were to become aware of just one quarter of those children who were maltreated (but not currently known to them), we estimate the number of children subject to child protection plans or on registers in the UK would triple. The resources required for this would be significant: an estimated additional £360 million to £490 million in public spending. In today’s fiscal climate this kind of investment is unlikely; to close the gap altogether is highly improbable. Nor is this the most effective approach. While it is vital to support children and adults in speaking up about abuse, in order to stop abuse in its tracks, this will never be enough to prevent children from being harmed in the first place.

 

 

This seems to be a bold, if pragmatic, thing to say about child abuse. Particularly for an organisation has been campaigning for the last few years on the basis of ending child abuse.  Cruelty to children must end, FULL STOP (remember?)

They are now accepting that society simply can’t end it or stop it. There will always be child abuse and neglect.  And as they point out, even if you raised detection levels to a much higher point, that would have a huge and detrimental impact on freedom and privacy and family life, and the resourcing of the services would be utterly unmanageable for our society to fund.

 So, are the NSPCC throwing in the towel?  Unsurprisingly, not. What they instead posit is moving towards the very early period of child abuse and neglect and nipping that in the bud before it escalates into more serious problems.

 We need a different approach to child protection

 

Which is why a different approach to child protection is needed, one that does more to prevent abuse “upstream” rather than intervening to stop it once it has already happened. Most public spending goes towards picking up the pieces rather than into “upstream” prevention. The National Audit Office estimates that only 6 per cent of public expenditure is focused on stopping problems from emerging in the first place.

 

While intervening to address abuse once it is known will always be a moral and legal imperative, child abuse and neglect will never be substantially reduced unless we become smarter at preventing it from happening at all.

 

Understanding the circumstances in which children are at increased risk is essential for prevention. Research points to the personal characteristics, family circumstances and environments that place children at greater risk of abuse and neglect. In Part 3, we set out the available evidence on this, highlighting nine key risk factors. There is no direct causality between these factors and abuse; they are not predictive of maltreatment. But by recognising that children living in such circumstances are at heightened risk, greater support could be directed towards families to reduce the chances of abuse and neglect from occurring at all. While this support comes at a price, it is ultimately more cost-effective to prevent abuse from occurring than to meet the many costs that fall across society because of the damage caused to children who were abused or neglected in their childhood.

 

Wider society also has an important role to play. Abusive behaviour cannot be stamped out by the state alone; individuals, families and communities must also be responsible for the change. Most adults think parents, families, friends and neighbours have a responsibility to prevent child abuse – and that greater responsibility lies with these groups than with government.

 

So while government can do much to influence the conditions in which children live and while professionals play an important role in intervening to protect children and helping those who are at risk of abuse, wider society has a responsibility too. However, all too often people frame this responsibility in terms of being willing to act if worried about a child, rather than being willing to address faults in their own or others’ behaviour. Perhaps it is time to reassert our responsibilities to children as citizens.

 

 

I can’t say I’m sure how the NSPCC vision here gets translated into action, but I think it is a legitimate and interesting debate to have as a society.  I thought the report as a whole (although I don’t agree with every aspect) was a challenging and thought-provoking document.

 There are some very mind-boggling figures in it

 There were a total of 21,493 sexual offences against children recorded by police in the UK in 2011/12.*

 There were 4,991 rapes of children recorded by police in England and Wales in 2011/12.

 There were 7,812 cruelty and neglect offences recorded by police in the UK in 2011/12.

In England, justice is open to all, like the Ritz Hotel

Is there a difference in family justice provided to middle-class parents? A discussiony paranoidy rant…

As you may know, the title of this piece is drawn from a remark by an English Judge, Sir James Mathew and was made in the Victorian era. It is intentionally barbed.

It had quite a flurry of revival in popularity  last year, as the Government debated and then implemented legal aid cuts that removed free legal advice from large chunks of the most vulnerable in society.

Private law

In terms of private law dispute, my initial question is likely to be true, sadly, as we go past April 2013.  After that time, a parent who is denied contact is going to struggle to get their case off the ground and into court unless they are (a) literate (b) articulate or (c) a person of financial means.      One might be cynical and say that the three things are interwoven, and that having three possibilities isn’t much use if they mostly capture the same group.

Of course, a person can represent themselves in court proceedings and a great many people do very well at it.  (I’d recommend Lucy Reed’s book “Family Courts without a lawyer”  for anyone who wants to do this  http://www.amazon.co.uk/Family-Courts-without-Lawyer-Litigants/dp/0956777406/ref=sr_1_1?ie=UTF8&qid=1359383824&sr=8-1 )

But even then, the litigant in person will either need to pay the Court fee for a contact application, which will be £200, or (if they are of limited means) navigate the byzantine system by which you can avoid paying the Court fee if you can satisfy an unsatisfiable bureaucracy of your entitlement to do so, a task which exhausts many private law solicitors who are well accustomed to trying.

[A bit like the Groucho Marx line that banks will lend money to people who can prove beyond doubt that they don’t need it]

Moving beyond that, you will as a wealthy or moderately wealthy person, have an option, a choice, which is denied to the non-middle class.  You can decide whether to represent yourself or have a specialist used to navigating the courts, who speaks the same language as the judge, who can advise you.  That’s a choice that won’t be open to someone who is not middle-class.  [using middle-class as shorthand for someone who has a professional job which pays them average or better income, regardless of family background and such  – of course there are plenty of plasterers who earn more than bank clerks.   Perhaps the class debate is better expressed as ‘haves or have nots’ but is a shorthand for this piece]

If you are faced with allegations of violence or abuse, you won’t get a lawyer to represent you and defend you against them unless you have money. The other parent, the one making them, might well get a lawyer, even if the allegations are false.

More and more private law cases these days are descending into these sorts of allegations, and probably more and more will in the future, as the funding system says that making them gets you a lawyer, whereas defending yourself against allegations that you say are false, doesn’t. 

Care proceedings

What about care proceedings though? The law says that if you are a parent and the State might be intervening in the way you bring up your child and might be contemplating your child no longer living with you, you would be entitled to free legal advice.

Everyone is on a level playing field then.  Family justice is like the Ritz, it is open to everyone.

But how true is that, really?

Here are some names that you will have seen in care proceedings, often many times, if you work in this field  – Zac, Jordan, Chantelle, Destiny.

Here are some names you have probably NEVER seen in care proceedings, Oliver, Crispin, Sophia, Harriet.

You might well say, and you’d be partially right, that a large tranche of care proceedings relate to neglect, and neglect in part springs from poverty.  So, a middle-class family don’t face the same social problems as a poor family, since they have choices and options.

A middle-class parent who struggles with managing household tasks has an option to get a cleaner, or to have someone do the ironing, they don’t have to prioritise between food and electricity, or gas or a toy for their child.

I would argue that not all poor families end up neglecting their children, and that it is possible, and indeed the vast majority of poor families do it, to get their children brought up in clean, safe and loving environments despite a lack of resources.

But it is certainly true that you’re at far greater risk of living in neglect if money is very tight than if you are affluent.

 

[Subsequent to writing this, I came across an excellent blog post in Community Care on why more poverty does not mean more neglect :- http://www.communitycare.co.uk/blogs/childrens-services-blog/2013/01/poverty-does-not-equal-neglect-benefit-cuts-will-not-see-more-children-taken-into-care.html   and is an interesting counterpoint to this debate. I don’t think we are miles apart, though I think if you increase the basic numbers of families in poverty, you may well increase the numbers of those families who don’t manage that sort of poverty well enough]

[This is reminding me of one of my favourite books, George Orwell’s “Down and Out in Paris and London”

It is altogether curious, your first contact with poverty. You have
thought so much about poverty–it is the thing you have feared all your
life, the thing you knew would happen to you sooner or later; and it, is
all so utterly and prosaically different. You thought it would be quite
simple; it is extraordinarily complicated. You thought it would be
terrible; it is merely squalid and boring. It is the peculiar LOWNESS of
poverty that you discover first; the shifts that it puts you to, the
complicated meanness, the crust-wiping….

 

And there is another feeling that is a great consolation in poverty. I
believe everyone who has been hard up has experienced it. It is a feeling
of relief, almost of pleasure, at knowing yourself at last genuinely down
and out. You have talked so often of going to the dogs–and well, here
are the dogs, and you have reached them, and you can stand it. It takes off
a lot of anxiety.

I have been, in case you doubt, exceedingly poor, as both a child, and as an adult, and recognise what Orwell says, particularly in his passages about how when you are truly truly hungry, nothing else in the world much exists than that hunger, that preoccupation with food and filling your belly with something.

So, perhaps the care proceedings net doesn’t cast over the “Haves” because neglect isn’t much of an issue in the “Haves” world.

But what about violence, what about sexual abuse, what about alcohol abuse?

I’m fairly certain that the disease of alcoholism, and the effect that it has on parenting, is not a class issue – it can take anyone.   In fact, I have worked, in the past, with people who drank a bottle of wine a night or more, and who would on that basis fail the sort of psychiatric examinations that we were sending parents to.

I have also encountered paedophiles from all walks of life – yes, very many were from damaged and impoverished backgrounds, but many others were teachers, professionals, doctors.

And I fail to believe that it is only poor people, only ‘common’ people, only ‘rough’ people, who reach the end of their tether, lose control and do something to a child that they should never have done.

There’s sort of a feeling, an unspoken one, in the Court rooms of this country, that child abuse is not done by people like us, that it belongs to a different world, another one, that we can look at, and judge, but not one that we truly belong in. There’s very little “there but for the grace of god” in child abuse cases.

As we know, and must remind ourselves, “The plural of anecdote is not data” and therefore it is of only  limited (or indeed no) evidential value that most of the times I have seen parents with middle-class jobs, accents, bearing and relations, facing allegations of physical mistreatment of children, a reason has been found as to why the medical evidence is wrong, and why they can be exonerated.

Efforts seem, again anecdotally to me, to be found by a mixture of professionals  (and again, I don’t claim that this is a conscious or deliberate action) to be more amenable to accepting that people like us couldn’t have done these dreadful things, than when similar things are alleged of people who live in a different sort of world to our own.

I don’t know how one could do the research on whether the outcomes for middle class parents are better for them than those for other parents – there’s no box on the application form for “Is the parent a bit posh?”    or “Do they shop at Asda or Waitrose?”   “Do they say napkin or serviette?”   but I’d like to see some, if someone wants to set out to do it.

So there is  at least the possibility of an unconscious bias of favouring or being more amenable to accepting the evidence given by people like us.

Can it go even further than that? To the overt stage, where actual cash, actual financial resources buys you a greater opportunity in a family case?

I don’t mind bribery, obviously. I don’t think that bribery plays any part in English justice. Call me naive if you want, I just honestly don’t believe that.

I had recently a conversation which prompted me to think about this piece, about a case (not one I was involved in, even tangentially and not necessarily a recent one) of suspected non-accidental injury, where the parents wanted to get a further piece of medical evidence, a fresh report. The Judge refused it, for good reasons about delay and proportionality.

The parents then pipe up that they could pay for the report themselves, rather than through legal aid, and lo and behold, there’s a reconsideration and the report is directed.

The justification, perhaps not unreasonably, is that the report is likely to be accelerated, expedited, on-time, if the expert knows that people are paying for it privately.  So the delay might not be so long, and the expert report will probably not hold the case up so much.  And of course, in the world we operate in, the Judge knows that the parents writing a cheque saves at least 2-3 weeks of messing around with the Legal Services Commission and prior authority, so the report probably will get done quicker.

Is that okay, or does that feel wrong?

It feels wrong to me that a person gets the chance to have a report not because of the merits of their case or the circumstances of the case, but because they, unlike someone else, can write a cheque and get it done.

[I couch all of this with the caveat that it wasn’t my case, I wasn’t there, I don’t know the detail – there may well have been very compelling reasons I am unaware of to have taken that course of action, but even just looking at it in the theoretical sense, would it be right in this hypothetical case below to allow the report?

 

Doctor says “I can do the report in 12 weeks, on public funding, but if it is paid for at my private rates, which are higher, I can do it in 5” 

 

If the Judge was going to refuse the report on basis that 12 weeks delay was too long, should she allow it in 5, if the parents are able to pay for it privately?    Or, is refusing it, if 5 weeks is considered reasonable delay, unfair just to preserve equality with some notional other parents who couldn’t pay the private fees?]

 

 

Can you go off and pay for your own expert without the Court’s permission?

Well, there have been some important decisions about that.  Firstly, you need leave of the Court to give the papers to the expert, and then  if you get leave of the court to instruct an expert, you have to cough up the report even if it is not favourable to you (unlike in crime)   [Re L : A Minor : Police Investigation : Privilege 1996 1 FLR 731 and then Re V (Care Proceedings : Human Rights Claims 2004 1 FLR 944]

 

If you don’t get leave of the Court and go off and get the report anyway, it still has to be disclosed.

[If there are ongoing criminal proceedings, the parent can keep those reports secret and even refuse to say if there are any expert reports and who has written them, and can keep legal privilege when discussing those reports with their care lawyer  S County Council v B 2000 2 FLR 161]

One clever way around this was tried in RE J (Application for shadow expert) 2008 1 FLR 1501

Where the applicant sought permission not to obtain a report that would have to be disclosed whether it was positive or negative, but instead an expert to basically advise the lawyer and formulate good questions for cross-examination and be a sounding board for the barrister’s theories. 

The Court felt that this was not appropriate and would not be granted. And of course, it would only have been a course open to someone paying for the report privately.

Can you get a better barrister by paying money?

A parent relying on a barrister who is being paid with public funding (or what all sane people call “Legal Aid”) will get proper advice, from someone who works hard and does their best and is bright.  All barristers who have experience in care proceedings do legal aid work, so you can’t get some better barrister, better advice by paying privately.  There’s not a Premier League of barristers who know about care but don’t do legal aid work.

I would NOT, for a second, suggest that the average barrister works harder or better on a case that they are earning more money on, I don’t think money comes into it. Honestly, I don’t.

But what you can get, potentially, is a QC.  If you are willing to pay for it, you can get a QC in a case that the LSC (legal services commission, or what sane people call the legal aid board) would not let you have one for free. 

That QC is the best of the best, and may give you an edge in the case.  Though some barristers who don’t have QC after their name are better advocates than some QCs, in general, a QC is going to be better.

It may well send a subliminal message to the Court about your case and the quality of it. Certainly there’s always an impression that the Court treats a QC with more respect than a run of the mill advocate.

Or you may not even need to go that far. Suppose you think about your barrister doing your case for public funding – they will work hard at your case, and put in effort. But they have another case the week before where they are doing that, and another the week after.

Might you get better representation from the same barrister, if you were willing to pay them to take two or three days off the week before your case to prepare?

We can’t know for certain, but I’d suggest that we all work better when we’re not shattered.

That’s an option available to those who have money that doesn’t exist for those who don’t.

Ring your solicitor up and say “I think my barrister should really only work on my case and nothing else the week before the hearing”, and you’ll get this answer if you have no money “That’s a nice idea, but I’m afraid it doesn’t work like that”   – and if you have lots of money, this answer  “They don’t normally do that, but we could see if they would – it would be very expensive though, you’d be paying for seven days of their time instead of five. Do you want me to speak to them about it?”

So, is English family justice really like the Ritz, or am I just crackers?

Neglecting neglect

 

The Parliamentary report on child protection, and a discussion of it.

One of the nice things about doing this blog is that some of my visitors will from time to time send me something that I might otherwise have missed.  I knew that this Parliamentary enquiry had been going on, but not that the report had yet been published.

 

You can find it here:-

 

http://www.publications.parliament.uk/pa/cm201213/cmselect/cmeduc/137/137.pdf 

 

 

They seem, on the whole, to be broadly supportive of the system, which is no doubt a disappointment to many of my readers.  They do recognise that there are serious problems within it, and make some recommendations.  They particularly felt, as the mainstream media picked up, that the child protection system isn’t a great fit for adolescents and that they get marginalised by the process.

 

 

One of the topics they looked at was neglect  (see also all of the blog posts I’ve done recently on the neglect and neuroscience issue)

 

Neglect

 

Neglect is the most common form of child abuse in England. Having looked at both the criminal and civil definitions of neglect, we recommend that the Government investigate thoroughly whether the narrow scope of the criminal definition contained in the Children and Young Persons Act 1933 is causing problems in bringing criminal cases of neglect, but we have seen no convincing evidence that the civil definition is insufficient.

 

To get a better picture of the scale of neglect, we recommend that the Government commission research to investigate whether similar situations and behaviours are being classified as neglect in different local authorities.

 

There is evidence that children have been left too long in neglectful situations. To tackle this, child protection guidance for all front-line professionals should include an understanding of the long-term developmental consequences of neglect and the urgency of early intervention. Securing positive outcomes and meeting the needs of the child should come before all other considerations, and there needs to be a continued shift in culture so that there is earlier protection and safeguarding of the long-term needs of children. The Government must be prepared to act if there are signs that improvement in the responsiveness of local authorities to neglect is not being sustained.

In cases of domestic violence, the focus should be on supporting the abused parent and helping them to protect their children, but the interests of the children must come first.

 

 

It did seem to me (subject to rigour in how the research is done) that a piece of research on how neglect is managed throughout the country, and whether there are fluctuations in what is considered to be neglect in different regions, is a valid and worthwhile exercise.  Child protection is a massively expensive and resource-intensive undertaking in this country, and if there are lessons that could be taken from the way certain local authorities tackle and overcome neglect, that would be useful information to share around.

 

 

They also looked at the issue of adoption, and in particular the competing current desires of the Government to speed up adoption and the campaigners against ‘forced adoption’

 

216. We endorse the Government’s current policy emphasis on increasing the number of children adopted, speeding up the process and facilitating foster-to-adopt arrangements. Adoption is clearly the preferred route to permanence and stability for some children. However, the same goal can be achieved by other means and it is vital that the Government and those in local authorities continue to concentrate effort and resources on prioritising stability in placements for all children, whether through longterm fostering, Special Guardianship or residential care. We would welcome greater debate on policies which might bring this about and greater encouragement from Government for these alternative solutions. In particular, while we recognise that an artificial limit on the number of times a child can be moved within the system would be unworkable, there should be increased emphasis in central guidance aimed at limiting the disruption and damage caused to vulnerable children by frequent changes.

 

217. We have listened with sympathy to concerns about widespread ‘forced adoption’, and to the very personal and moving stories that often lay behind them. It is evident that there are rogue misjudged cases with terrible consequences for those involved. This should not happen and those affected are right to fight against such injustice. Nevertheless, the weight of research evidence, matched by evidence to our inquiry, concluded that that the balance tended to lie with authorities not taking children into care or adoption early enough, rather than removing children from their parents without due cause.

 

We note that the Minister spoke of “work in progress” to look at “what further safeguards we might be able to institute whereby there is a sort of appeals mechanism”. This would have to be balanced against the further delay to a permanent solution for the child which would inevitably occur as a result.  An appeals mechanism against “forced” adoption is an interesting idea and we look forward to examining the Minister’s proposals when they are published.

 

 

As do I.

 

I’m rather surprised that the Minister spoke to them about introducing a ‘sort of appeals mechanism’ given that there is already an actual appeal mechanism.

 

So either :-

 

(a)   He doesn’t know that there is already  an appeal mechanism

(b)   He is planning to lower the test for appeals in Placement Order or adoption cases, from mistake in law or the Judge being plainly wrong to something lower

(c)   He is planning to introduce a mechanism whereby the Placement Order or adoption order can be appealed at a different stage in the process  (which would have to be later than at present)

OR even

(d)   That there is a plan for an appeal mechanism for Placement Orders which will sit outside of the legal appeal process, i.e that the appeal would be considered by a body outside the judiciary, and contemplating different principles than at present.

 

 

I’m not sure which of those possibilities I find most problematic, but any of them without a lot of proper thought first is worrying.  

 

 

I noted in the passage above that that the Committee touched upon the evidence of Martin Narey

 

215. The importance of permanence and stability is underlined by the shocking evidence we received of the number of times some children move in the course of their time in care.

 

It is clearly damaging to children to move from one form of care to another frequently; and yet we spoke to children who had moved multiple times—in one case up to 16. Martin Narey told us that he had “met countless children who have had 24 or 25 foster placements and 21 or 22 different schools”.396 He added: “We would never dream of doing this to our children and for some children the very best option for them is […] high quality residential care”.397

 

 

 

Well, I agree with all of the principles set out there, and I am sure that the Committee really did speak to children who had moved up to 16 times, which is an awful and horrific tragedy. I am also sure, sadly, that there have been children in the care system who have had 24 or 25 foster placements.

 

I am somewhat sceptical, to put it mildly, that Mr Narey has met “countless” such children.  I think this is rather on a par with his comments about having asked to see a child’s social work files which were then literally brought into the room in a wheelbarrow.

 

I don’t think this sort of hyperbolae helps, when it comes from someone helping the Government form really important policy.

 

Every child who has multiple placements is a bloody tragedy. Those children who have had dozens or more are a huge tragedy. Every child who has had 24 foster placements is a disgrace   (there might well be really strong underpinning reasons, usually connected with the child’s damaged behaviour but that doesn’t stop the outcome being disgraceful)  and we really should learn as much as possible from it and stop this happening to any child in the future.  But to suggest that it is happening to so many children that Martin Narey has met “countless” is I think rather disingenuous.  

 

Or perhaps my concept of countless is more than Mr Narey’s – it depends on how good you are at counting, I suppose.

 

[All just my personal opinion, perhaps Mr Narey really has met over a thousand children, which would be around where I’d consider a number to be countless, who have had 25 placements.  I guess if he is disputing my suggestion that he hasn’t met ‘countless children’, he would need to show that he had met a significant number, which would mean him counting them, so they couldn’t then  be countless…]

 

Let me be plain, I consider that a single child who has 24 foster placements is a child too many. I just don’t care much for hyperbolae when giving evidence.

 

The Committee also talked about newer and more specialised forms of abuse and risk, they considered the technological side of things with paedophilia over the internet, child trafficking, child prostitution, forced marriage, and suggested that there was a need to build up specialist expertise in this area, and for those authorities who were encountering it to share their expertise with others

 

We recommend that the College of Social Work take a leading role in co-ordinating and promoting awareness of CPD training in specialised forms of abuse and in encouraging other disciplines to participate in relevant courses. For more general use, if the guidance on specialised forms of abuse is to be deleted from Working Together, the Government needs to make clear where such guidance will be found in future and how it will be updated and signposted to social workers and other professionals. (Paragraph 133)

 

17. We are also concerned that professionals faced with a specific type of abuse with which they are not familiar should have an identifiable source of expertise to consult in person. Local authorities should nominate a specialised child abuse practitioner to lead on such matters. Where an authority has a low incidence of a particular form of child abuse, they should be able to draw on the expertise of nominated practitioners in other authorities. (Paragraph 134)

 

 

 

I think the most controversial paragraph, and certainly the one which will provoke ire in some quarters, will be this one:-

 

 

We welcome the research by Cafcass into applications for care orders and recommend that this work be repeated on a regular basis. An assessment of the reasons behind the local variability in care applications is needed. We also believe that it is essential to promote a more positive picture of care to young people and to the public in general. The young people to whom we spoke were generally very positive about their experiences, including those who had spent time in children’s homes. This is backed by academic research on outcomes. Ministers should encourage public awareness of the fact that being taken into care can be of great benefit to children.

 

In the words of Bill Hicks – “it’s not a popular opinion, you don’t hear it very often”

 

 

Perhaps in that vein, the next Commons Committee will be on “Assessing the Costs and Benefits of using terminal ill people as stunt doubles.”

 

[And I know that makes no sense to you whatsoever if you’re not familiar with the work of Mr Hicks  “I know to a lot of you this might sound a little cruel… ‘Aw Bill, terminally ill stunt people? That’s cruel’…. Well hear me out..”]

Neurology, new neurology, old neurology, neurotic neurology… let’s have a heated debate!

Am beginning to think that I should move into the new field of paediatric neurology law blogging, as it seemed very popular last time.   [Although I am going to have to work harder on titles if I have to do a fourth, because I’m running dry]

This is my third post on this issue.

The last one was here:-

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

 

Which was about the Wastell and White report suggesting that too much political weight is being placed on headlines of neuroscience research when the actual research is more fragile than the headlines would suggest.

You may recall that the thrust of that was whether the impression that is being disseminated that neuroscience is at one on the principle that neglect in early childhood can cause longstanding harm to children, possibly even irreparable harm in the first years of life, is a genuine one on which important decisions can rightly be taken, or whether there is a schism within neuroscience which might need resolution before we start constructing metaphorical housing estates on those foundations.

The key debate seems to be about plasticity of the brain in an infant – is that damage long-lasting and irreparable, or does the brain form new structures and overcome it (obviously ideally with the neglect ceasing and positive parenting being in place) ?

I don’t think anyone would argue that children suffering neglect is BAD, the issue here is whether science is now showing that it is FAR MORE BAD than we had previously believed. 

As a result, a kind subscriber has sent me this new report “The Foundations of Life” compiled by Harvard University, which is firmly in the Family Justice Review camp, of neglect causing much greater and more irreparable harm than had earlier been understood.

My initial reading suggests that this is not new research, or commenting on fresh experiments or studies, but again a drawing together of existing research and formulating conclusions from it.

That report can be found here: -

http://developingchild.harvard.edu/index.php/resources/reports_and_working_papers/foundations-of-lifelong-health/

There is a summary of essential findings, which I shall set out here.

(The analysis of whether those findings are made out from the research is a task beyond me, but some of my new readers who have lovely neurosciency brains will probably set to work on considering that).

Advances in molecular biology, and genomics have converged on three compelling conclusions:

Early experiences are built into our bodies.

Significant adversity can produce physiological disruptions or biological “memories” that undermine the development of the body’s stress response systems and affect the developing brain, cardiovascular system, immune system, and metabolic regulatory controls.

These physiological disruptions can persist far into adulthood and lead to lifelong impairments in both physical and mental health.

Messages for Decision-Makers

The biological sciences have two clear and powerful messages for leaders who are searching for more effective ways to improve the health of the nation.

First, current health promotion and disease prevention policies focused on adults would be more effective if evidence-based investments were also made to strengthen the foundations of health in the prenatal and early childhood periods.

Second, significant reductions in chronic disease could be achieved across the life course by decreasing the number and severity of adverse experiences that threaten the wellbeing of young children and by strengthening the protective relationships that help mitigate the harmful effects of toxic stress.

A New Framework for Early Childhood Policy and Practice

The following four interrelated dimensions offer a promising framework for innovative approaches to improving physical and mental well-being. The biology of health explains how experiences and environmental influences “get under the skin” and interact with genetic predispositions, which then result in various combinations of physiological adaptation and disruption that affect lifelong outcomes in learning, behavior, and both physical and mental well-being.

These findings call for us to augment adult-focused approaches to health promotion and disease prevention by addressing the early childhood origins of lifelong illness and disability.

From the report itself, this is interesting – the suggestion that child abuse should start being treated as a public health issue, and treatment programmes designed and delivered.

Child Welfare.

For more than a century, child protective services have focused on issues re¬lated to physical safety, reduction of repeated injury, and child custody.

Now, recent scientific advances are increasing our understanding of the extent to which the toxic stress of abuse, neglect, or exposure to family or community violence can produce physiological changes in young children that increase the likelihood of mental health problems and physical disease throughout their lives.

Based on this heightened risk of stress-related illness, science suggests that all investigations of suspected child abuse or neglect should include a comprehensive assessment of the child’s cognitive, language, emo¬tional, social, and physical development, followed by the provision of effective therapeutic services as needed. This could be accomplished through regularized referrals from the child welfare system (which is a mandated service in each state) to the early intervention system for children with developmental delays or dis¬abilities (which provides services under an en¬titlement established by federal law).

Although the most recent federal reauthorizations of the Keeping Children and Families Safe Act and the Individuals with Disabilities Education Act both included requirements for establishing such linkages, sufficient funding has not been provided, and the implementation of these requirements has moved slowly.

The availability of new, evidence-based interventions that have been shown to improve outcomes for children in the child welfare system168 underscores the compelling need to transform “child protection” from its traditional concern with physical safety and custody to a broader, more science-based focus on health promotion and disease prevention.

The Centers for Disease Control and Prevention has taken an important step in advancing this issue by promoting the prevention of child maltreatment as a public health concern.169,170

I remain in the dark as to whether the current path we are on, of policy decisions being taken, and perhaps individual ones too, on the basis of neglect being irreparably harmful to infants and that our timeframe for making decisions is much more narrow than previously believed, is the right one and that we have some mavericks suggesting otherwise, or whether the current trendy thinking on that is wrong and the naysayers are actually pointing out that this emperor has no clothes on.

I would like someone to find out. Or perhaps we lawyers just have an over-optimistic view of the social sciences, and think that there is a definitive answer out there to be found out (like there really is a definite number for the co-efficient of the expansion of brass and that every scientist in the field would agree on what the number is, and how you could prove it). Maybe there isn’t.

Perhaps the truth of the world of neuroscience is that we are still stumbling in the dark and that every theory is going to have its proponents and opponents.

In which case, we perhaps ought to know THAT, and not be treating the findings and theories of neuroscience as though they represent the final word on any given subject.

Semantics, pedantics and Neuro-mantics

A discussion of the  fascinating “Blinded by neuroscience – social policy, the family and the infant brain”  paper by David Wastell and Sue White

I was sent this compelling and interesting paper by a colleague, and it makes an interesting companion piece to the official family justice research paper on neglect, which I blogged about here :-

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

The paper can be found here :  –    (you need to click on the PDF to read it, but it is free)

http://www.ingentaconnect.com/content/tpp/frs/2012/00000001/00000003/art00008?token=005015070f39b6e58654624315142576b7921766b3c252e5e4e2663433b393f6a333f256698c60b5

Now, why this is interesting generally, rather than just specifically because it is an interesting paper, is because the authors are positing that the Government is about to go in a direction based on scientific research that neglect :-

(a)   causes much more long-standing damage on children than previously understood

(b)   that poor quality of care in the early years of a child’s life causes damage to the structure of the brain which is hard to overcome

(c)   and that as a result, earlier intervention, and where necessary removal is the way to tackle this

And of course, the very first piece of research published by the Family Justice Review team is on these very issues, and although it doesn’t advance as far as (c) explicitly, it certainly comes up to the shoreline and says that speed of decision making is critical and that children under two can’t wait for decisions. It certainly endorses unequivocally the viewpoint that science has demonstrated (a) and (b)

What this article does, is question the scientific studies and research that lead to (a) and (b) and suggests that a careful analysis of the source material suggests that it is not so concrete as the FJR research suggests. And if (a) and (b) are not solid foundations, moving to (c) as the public policy seems to be doing at present may be even more risky than it appears.

[As a sidebar, this argument of if (a) and (b) are right, is (c) right, reminds me of Lewis Carroll’s dialogue between Achilles and the Tortoise, and you can find that here, and shows that you simply can’t prove anything at all with logic, if you are arguing with a smart-arse :-   ]

http://www.ditext.com/carroll/tortoise.html

achilles

In detail, the authors of this paper suggest that the thinking the Government are working on, that the infant brain is readily susceptible to permanent and irreversible damage from poor care, is wrong and that the truth is rather that the infant brain is resilient and has a plasticity  (by which they mean it is flexible and can adjust and will recover from early delays)

Initial caveat  –  I was concerned by the strident tone of this paper, and I was also concerned that neither of the authors (eminent and smart as they obviously are) are actually neuroscientists.   [That will teach me to judge by the titles that people give at the end, have been contacted by one of the authors, who very politely tells me that he is indeed a neuroscientist – ignore every other time I say that in the piece]

I would be terribly interested to learn whether this is a genuine schism in the field of neuroscience as it relates to children, neglect and brain development in infants, or whether one side or the other is cherrypicking data and quotes.  I simply don’t know. I’m not a neuroscientist, and though I can make sense of what is said by both sides, I am in no position to weigh up who is right.

Having critiqued the strident tone, I suppose that if the authors are right, and the Government is about to lurch into a public policy on neglect, child protection and quick adoptions based on ‘hard science’ when what they believe the ‘hard science’ says is wrong, I might be pretty forceful in my tone too.

Let’s have a look at some detail

We argue that the neuroscientific claims supporting current policy initiatives have receivedlittle critical commentary. They appear to be operating as powerful ‘trump cards’ in what is actually very contentious terrain, suppressing vital moral debate regarding the shape of state intervention in the lives of children and families.

 

In this article, we interrogate the nature of the scientific claims made in key documents and the ideological thrust of policy that they have engendered. We examine Allen’s first report in detail first, before developing a more general critique of what Tallis and others have dubbed neuromania: ‘the appeal to the brain, as revealed through the latest science, to explain our behaviour’ (Tallis, 2011: 5; Legrenzi and

Umilta, 2011). Bruer’s (1999) deconstruction of the ‘myth of the first three years’ will feature prominently in our argument, paving the way for a broader critical analysis of the ‘new’ brain science and its influence on policy. We contend that neuroscience is re-presenting an older ideological argument about the role of the state in family life in terms of a biologically privileged worldview. We suggest that there is a great

deal of difference between ‘early intervention’ as defined in the Allen report and what Munro (2011: 69) refers to as ‘early help’, which includes a much wider range of family support activities. Neuromania, we conclude, is the latest of modernity’s juggernauts reifying human relations into ‘technical objects’ to be fixed by the state (Smith, 2002), which always ‘asks nothing better than to intervene’ (Ellul, 1964: 228).

 

 

Strong words there, and the phrase at the end that the State generally seeks reasons to intervene is resonant.  I feel personally that the State has moved much more towards a paternalistic approach to the lives of its citizens and away from a broad principle that people are autonomous and best placed to make decisions for themselves save in very narrow circumstances, and that the law has done the same in recent years.  People’s freedom to make bad, foolish and downright idiotic decisions for themselves has to an extent been eroded.

Criticising Allen’s report, on which a lot of the foundation of the neglect causes irreversible damage in infants is based, the authors say   (their quotes from Allen are in italics)

The importance of secure attachment is invoked:

 

“Children develop in an environment of relationships.… From early infancy, they naturally reach out to create bonds, and they develop best when     caring adults respond in warm, stimulating and consistent ways. This secure attachment with those close to them leads to the development of empathy, trust and well-being. (2011a: 13)”

 

Predictive claims quickly follow regarding the long-term effects of such early attachment patterns, especially the beneficial effects of secure attachment and the dire impact of the failure to cement such bonds:

 

“Recent research also shows insecure attachment is linked to a higher risk for a number of health conditions, including strokes, heart attacks … people with secure attachment show more healthy behaviours such as taking exercise, not smoking, not using substances and alcohol, and driving at ordinary speed.

(2011a: 15)”

 

Two studies are cited as the basis for these ominous claims. But again the evidence cited is perplexing. These are not studies of children, but adults; both use ‘attachment style’ as a way of measuring the adult personality with self-report questionnaires. Neither study shows, nor purports to show, any link between early childhood experiences and

problems later in life. In subsequent paragraphs, damaged emotionality and damaged brains are soon united, and the perpetrator of all this devastation is unflinchingly denounced.

 

Parents are to blame:

 

“Parents who are neglectful or who are drunk, drugged or violent, will have impaired capacity to provide this social and emotional stability, and will create the likelihood that adverse experiences might have a negative impact on their children’s development … the worst and deepest damage is done to children when their brains are being formed during their earliest months

and years. (2011a: 15)”

 

 

If the authors here are right about the studies of attachment and impact on later life, and the flaws that they claim, my faith in the FJR research does wobble.  Again, I am not a neuroscientist, and neither are the authors, but if we are going to be taking the FJR research as agreed research on which the judiciary can base conclusions and decisions, we need to know whether the foundations are solid or built on sand.

Returning to Allen’s report, the following excerpt summarises the final

step of his neurobiological argument:

 

Different parts of the brain develop in different sensitive windows of time. The estimated prime window for emotional development is up to 18 months, by which time the foundation of this has been shaped by the way in which the prime carer interacts with the child…. Infants of severely depressed mothers show reduced left lobe activity (associated with being happy, joyful and interested) and increased right lobe activity (associated with negative feelings).

 

If the predominant early experience is fear and stress, the neurochemical responses to those experiences become the primary architects of the brain.

 

Trauma elevates stress hormones, such as cortisol. One result is significantly fewer synapses. Specialists viewing CAT scans of the brains of abused or neglected children have likened the experience to looking at a black hole.

 

In extreme cases the brains of abused children are significantly smaller than the norm. (Allen, 2011a: 16)

 

Those damaged brains again. For the claim of lasting damage from fear, stress and trauma, Allen cites no specific scientific support. A significant body of work does, however, exist on the possible damage caused by post-traumatic stress disorder, reviewed by Wang and Xiao (2010). Although there is evidence of reduced volume in one brainstem structure (the hippocampus), the seminal research involves war

veterans, not children; follow-up studies have not shown lasting hippocampal damage, and the scant imaging research on children has failed to find such impact. A recent authoritative review (McCrory et al, 2012) comes to much the same conclusion regarding the hippocampus, and another much-mentioned brainstem structure, the amygdala; only under conditions of prolonged rearing in orphanages is diminished

brain size evident (see below).

 

Digging into the specific (frontal) lobe evidence invoked by Allen, he cites a paper by Dawson et al (1994), which reviews psychophysiological studies of the children of depressed mothers. Dawson’s evidence, however, actually goes in the opposite

direction to that claimed in the Allen report. Referring to a study on the reactions of children when mothers left the room: ‘the infants of symptomatic mothers exhibited an unexpected pattern of greater left than right activation during the maternal separation condition’ (Dawson et al, 1994: 772). More ‘positive’ emotion it would seem. In truth, there is a vast gallimauphry of neuroscience research, but little settled knowledge. Evidence for policy making does not simply repose in journals ‘ready to be harvested’ (Greenhalgh and Russell, 2006: 36). Rather, it is ‘rhetorically constructed on the social stage so as to achieve particular ends’ (Greenhalgh and Russell, 2006: 37). This seems an apt enough description of Allen’s modus operandi.

 

Although ‘journal science’ is invoked, he seems not much interested in what it actually says. This is ‘prejudice masquerading as research’ (Furedi, 2001: 155), of science being enrolled to legitimate an a priori ideological position favouring a larger arena for public intervention in the lives of families.

 

(and later)

 

It should now be clear that neuroscientific knowledge is at an early and provisional stage. As Bruer (1999: 98) avers, after more than a century of research we are still ‘closer to the beginning than the end of this quest’.

 

This point was reinforced recently by Belsky and de Haan (2011: 409–10): although the brain ‘packs a punch’ for policy makers, they conclude that ‘the study of parenting and brain development is not even yet in its infancy; it would be more appropriate to conclude that it is still in the

embryonic stage’. Neuroscientists may know the limitations of their research, but such caveats are not what politicians and proselytisers wish to hear;

Again, I am in no position to judge whether what the author’s say of Allen’s report is accurate, fair comment, or a scurrilous attack. I simply don’t know and can’t say.  But what does seem clear to me is that simply ignoring the counter arguments and pressing ahead on the basis that there is clear research with firm conclusions on which future plans can be built is problematic unless that research addresses the criticisms of it head on.

We have much the same problem with the vexed issue of contact levels for infants in care.  I have blogged before about this being presented in the Family Justice Review research as being strong, almost overwhelming views about how high levels of contact are detrimental to infants, and this underpinned entirely the Government consultation on contact, and how there is a contrary view out there and criticism that the research just isn’t robust enough to bear the weight that is being placed upon its branches.  Particularly Dr Peter Dale’s critique of the original research

[See http://suesspiciousminds.com/2012/09/11/family-preservation-versus-child-rescue/                            ]

Again, I am not a scientist or researcher practising in this field, so I can’t resolve those debates and come to a firm conclusion about who is right. But that may well be the problem – neither are the politicians who are setting the course, or the Judges who will be deciding individual cases.

We need clarity as to whether the science on infant brain development is as claimed in the Family Justice Research, or as claimed here, or whether it is simply too early to tell, likewise with the impact of contact on children.

It also raises broader and deeper questions  – when, as the Family Justice Review intends, we collect research with a view to identifying the current state of play in a particular area and what that means for us, how are we, as lawyers, social workers, judges, politicians, in a position to assess whether that research actually shows what the headlines suggest ?   Do we have to get under the bonnet of the individual studies to realise that what was being tested was NOT the central hypothesis, but some ancillary matters from which large extrapolations are being drawn?

I don’t think it is controversial to say that neglect is harmful to children, but if we are working on the basis that science has proven that neglect is not only harmful to children but that such harm carries on into adult life and that harm caused by neglect in the first two years is irreparable, so decisions have to be made very quickly, then we had better be confident about that proof.

I’m not at all saying that the authors here have overturned the research – they are, as I have emphasised a lot, not neuroscientists. But what they have certainly done is gone up to the duvet and said “are you sure that’s someone asleep under there, rather than just some pillows?”

If you do happen to be a neuroscientist, I’d love to have a discussion about this, though it will need to be taken slowly – I’m strictly an amateur.

I’ll conclude with some wise philosophical words, from Descartes via 1980s Manchester

Does the body rule the mind, or does the mind rule the body? I dunno

Take my breath away

A discussion of A Local Authority v A mother and others 2012    (which has to be the most anonymous of anonymisations I have seen to date… I  almost wish they had called it  Some organisation versus Someone 2012  – or  Applicant versus Respondent 2012, you can’t get much more anonymous than that)   – let’s call it “the Asthma case” so that we can remember it.

 

 

The case can be found here

 

http://www.bailii.org/ew/cases/EWHC/Fam/2012/2969.html

 

 

It is a High Court case, dealt with by the Honourable Mr Justice Peter Jackson (of whom regular readers of this blog will know that I have something of a brain-crush on)

It is an interesting one  – the child in question is nine, and has had an extensive history of medical treatment and interventions arising from her asthma

 

  1. The circumstances relating to J are highly unusual. She suffers from asthma, which has since her removal from her parents been well controlled by common basic inhaled steroid medication (Seretide) and occasional use of an inhaled bronchodilator (Salbutomol). Her asthma does not currently impinge on her daily life to any significant extent, although she had one hospital admission for two days in March 2012 for exacerbation of asthma following an infection. She does not suffer from any other life-limiting conditions. Her regular clinical reviews are all clear. Her attendance at school has been excellent and her participation has been full, in the physical and social aspects of school life as well academically. She is currently a well child physically, and there are soundly-based professional hopes that her current medication can progressively be reduced. Asked how she was in July 2012 by the jointly-instructed medical expert Dr H, J said she was ‘much better now’.
  1. A year ago, before her removal from her parents, J’s apparent health status could hardly have been more different. Her asthma was uncontrolled, despite receiving the most extreme treatments available. She was on intensive treatment to combat reported nocturnal desaturations (reduction in blood-oxygen levels). She had also suffered a number of reported Apparent Life-Threatening Events (ALTEs) while in the care of her parents.
  1. J, aged just 8, then described herself as ‘a very poorly little girl’. This is not surprising, because since she was under a year old she had been under continuous medical care and her condition had baffled and defeated the efforts of the country’s leading specialists, despite every conceivable strategy to control her asthma and to diagnose the cause of desaturations and ALTEs. None of the three specialists who gave evidence had encountered a child who has had more varied or intensive treatment.
  1. J’s medical records spanning 8 years run to over 4500 pages (12 lever arch files). The history is set out in full and uncontested detail in the reports of Dr H, referred to above, and Dr C, referred to below. Any summary is bound to be incomplete, but it must include:

A Specialist care

J has had the following care:

  • Primary: her GP
  • Secondary: her local hospital, under Dr O, since September 2004
  • Tertiary: the leading regional hospital, under Dr C, since October 2006
  • Quaternary: the leading national hospital, under Professor B, since January 2007.

B Hospital admissions

Between 2005 and 2011, in addition to countless routine hospital appointments

  • J was admitted to hospital over 50 times, ranging from overnight to a three-month admission in April 2010.
  • these admissions included 22 by ambulance, frequently at night.

C Medical examinations

J has been assessed or examined during planned reviews or emergency admissions by

  • her GP
  • a Paediatric Dietician
  • a Consultant Paediatric Cardiologist
  • a Consultant Child & Adolescent Psychiatrist
  • a Consultant Paediatric Neurologist
  • a Consultant Community Paediatrician (Dr O)
  • a Clinical Psychologist
  • a Consultant Ear, Nose & Throat Surgeon
  • specialist Respiratory Nurses
  • a Consultant in Paediatric Respiratory Medicine (Dr C)
  • two further Consultants in Paediatric Respiratory Medicine at leading specialist hospitals
  • a Professor in Paediatric Respirology (Professor B)
  • a Consultant in Paediatric Intensive Care, Respiratory and Sleep Medicine (Dr H, providing an independent overview for these proceedings)
  • many specialist Registrars locally and across the country
  • numerous other doctors not listed above

D Intensive medical treatment

For her asthma, J’s treatment progressed rapidly through the recognised stages of asthma treatment, in accordance with the British Guidelines on the Management of Asthma, and then beyond those guidelines. The following are prominent among the many drugs that she has been given:

  • inhaled bronchodilators (Salbutomol)
  • inhaled steroids (Seretide)
  • oral steroids (Prednisolone)
  • eventually, unlicensed drug treatments for a child of her age:
    • Omalizumab (Xolair) by highly distressing monthly intramuscular injection
    • Triamcinoline, an intramuscular steroid
    • Methotrexate, an oral steroid to suppress her immune system
    • Terbutaline (Bricanyl), delivered subcutaneously via an infusion pump visibly attached to the body for four months prior to her removal from the parents

For her reported desaturations, J had since 2006

  • slept wearing a positive airway pressure face mask (BIPAP)
  • slept with an oximeter (blood/oxygen level monitor) attached to her toe
  • had a large oxygen concentrator at her bedside

E Tests

J has had

  • sleep studies at three hospitals
  • blood tests and sweat tests
  • an echocardiogram, an ECG and a CT scan (whilst sedated)
  • a barium swallow
  • a bronchoscopy (under general anaesthetic)
  • an ENT investigation, leading to removal of her adenoids

F Side effects

The physical risks from this escalating treatment were substantial. For example:

  • Steroids can cause weight gain and change in facial appearance, slowing of growth, adrenal suppression, and in the long term high blood pressure and diabetes
  • Methotraxate is used in chemotherapy. It carries the risk of nausea, severe infection, liver or renal damage, gastro-intestinal upset and suppression of bone marrow; it requires weekly hospital blood testing to check blood count
  • General anaesthetics carry their own risks

Fortunately there is no evidence that J has suffered lasting physical side-effects, but it cannot be known that she has not been affected in some way in the longer term.

G Pain and suffering

J’s overall treatment is described by Professor B as having been invasive and unpleasant. She was often extremely frightened and sometimes had to be held down. She developed needle phobia. The distress caused to J by the Xolair injections was such that the nursing staff became so concerned that they asked for the treatment to be discontinued, which it was.

H Emotional, psychological and social consequences

J has been profoundly affected by her experiences. Writing this year, an educational psychologist describes her as ‘a youngster who is the product of her life’s experiences which until very recently have been those of a child with a life threatening condition requiring considerable accommodation to her medical needs by J herself and all those in contact with her.’ During each of her three years at Infant School her attendance record was just 55-60%. A child with no apparent learning difficulty, her spelling and reading is delayed by two years or more. Her social development has also suffered severely. She adopts an adult style of conversation, speaking with knowledge and fluency about her medical condition, which until recently has been a fixation for her. She does not relate well to other children, and has had no friends. Dr H described the amount of medical intervention as being comparable to that with a child with leukaemia. He said that J has had ‘a very, very stressful life’.

  1. In the light of the above, it is sad and indeed shocking to record that there is now a firm medical consensus, ostensibly accepted by the parents during the course of this hearing, that most of the treatment that J has received down the years has been unnecessary.

 

 

 

What happened, eventually, is that one of the doctors in the case alerted the Local Authority and recommended that J be placed in foster care, because he was of the view that the extreme treatments this young girl was having were not required by her condition and that her being away from the parents might demonstrate that.

 

To an extent, they did – in foster care, her asthma condition was entirely controlled by the same twice-daily administration of steroids through an inhaler as the parents had been told to give the child.

 

On the face of it, this looked like it might be a factitious illness case (we don’t call them Munchausen’s Syndrome any more, that being rather tainted, and we never did call it the correct name which was Raspe’s Syndrome  – as Munchausen was invented by Raspe and is a fictional character, although actually there’s some doubt as to whether it is a syndrome at all, rather than just being a small subset of behaviour… end of sidetrack)

 

But the thrust of the case and the medical evidence  rather than being whether the girls symptoms were being faked, eventually turned on whether the parents were actually giving this very poorly young girl the twice a day inhaler that she needed. Straightforward, though particularly unusual, neglect

 

  1. The LA’s case, in reliance on unanimous medical opinion, is that the parents failed to administer J’s steroid medication (Seretide and possibly also Prednisolone) to her, either properly or at all, and that this explains why her asthma remained uncontrolled for so long. It also alleges that the parents have misrepresented and exaggerated descriptions of J’s desaturations and ALTEs.
  1. In their written evidence, the parents denied any shortcomings in the way they have managed J’s care. Faced with her statement about not having a purple inhaler, they said that they administered the Seretide to her morning and night while she was asleep. During the hearing, they then admitted that on a significant number of occasions (a quarter, M thought, though F thought fewer) they did not administer steroids and that there were other times when they did try but when J would not accept her medicine. They also stated on the first day of the hearing that they were giving half the prescribed dose of Seretide (i.e. one puff twice a day rather than two puffs), saying that this was as a result of a misunderstanding. They now say that they accept the medical opinion that their failure to administer the correct doses regularly was the cause of J’s uncontrolled asthma.
  1. As to the desaturations and ALTEs, the parents say that these were real and frightening events. Insofar as they may ever have mishandled them, they point to the huge stress of looking after such a sick child, latterly with a new baby in the household. M in particular is described as having been permanently exhausted.

 

 

 

On this key issue, the Judge determined that the parents had not been giving their daughter her medication and that this is what had led to her asthma being so uncontrolled and problematic

 

  1. The evidence in relation to J’s apparently intractable asthma is clear. Over 95% of sufferers have their asthma readily controlled by the use of common safe and effective remedies such as Salbutomol (a reliever of symptoms) and Seretide (a preventer of symptoms). In the remaining number, half are resolved by ensuring compliance with the drug regime and improving inhaler technique.
  1. The probable explanation for J’s uncontrolled asthma is simple. As Professor B put it, there is a strong argument that very little steroids of any kind were being given, in the light of the fact that her asthma has for the last year been controlled by two puffs of Seretide twice a day, and little else.
  1. Dr H considers that lack of adequate Seretide led to poor asthmatic control, and that it was tantamount to no anti-inflammatory drug being delivered to J. Had it been delivered, the escalation of treatment that took place over the years would not have been expected. There has been no change in environmental factors to explain the change in J’s health. The only other explanation for her presentation now is that she has severe asthma that is coincidentally in remission, a prospect that cannot absolutely be dismissed but is remote.
  1. Dr C considers that J cannot have been given her oral Prednisolone either, as this would in her view have delivered a substantial dose of steroid, which J cannot have been getting. In this she differs from Dr H. I do not find it possible or necessary to resolve this issue.
  1. The parents’ account is that they did their best to give J her Seretide (which she did not like) by giving it when asleep, and her Prednisolone by dissolving the tablet and administering it orally by syringe, rewarding J with chocolate for taking it. They missed some occasions, and J sometimes refused, but they honestly thought they were doing what was required and using the required doses.
  1. It was at first thought, including by Professor B, that evidence about prescription uptake strongly demonstrated a gross underuse of Seretide and Prednisolone. On closer inspection, it shows an overuse of Salbutomol and a somewhat lower uptake of the steroids than would be expected, but not such as might lead to any definite conclusion. Likewise, the amount of drugs discovered in the home after the children’s removal does not suggest hoarding.
  1. There are a number of possibilities in relation to the prescription evidence. It is on the face of it not inconsistent with the parents’ evidence that they were giving J the quantities that were dispensed, at the level they thought was being prescribed. Alternatively, the parents may have disposed of unused medication, something that they deny.
  1. Taking the evidence as a whole, I accept the unanimous medical evidence that J was not receiving any Seretide. My findings go further than the parents’ concessions:

(i) I reject their case that they were routinely giving J Seretide while J was asleep, a convoluted and inconvenient procedure.

(ii) I do not accept that they genuinely believed that administration of Seretide to a sleeping child would be effective. Any reasonably competent parent would realise that this could not possibly be so, and M, as a nurse, would know that it was absurd. I do not accept that the parents learned to do it by watching nurses administer a different drug (Salbutomol) during sleep, or that they were encouraged or allowed to do so themselves; if that happened, it can have been on no more than an insignificant handful of occasions.

(iii) The fact that the parents never spoke to anyone about a practice of administering drugs to J in her sleep, even remaining silent when J’s inhaler technique was being checked, makes it highly improbable that they were in fact doing it.

(iv) I accept the evidence of Dr C that both she and the nurses would repeatedly reinforce the need for good inhaler technique to M and that the parents knew that J needed a good dose of steroids every day.

(v) I do not accept that the parents genuinely thought J should be on one puff of Seretide twice a day, when she had been prescribed two puffs for more than two years. The fact that some letters and labels described the dosage in different ways did not in my view mislead the parents; they are now relying on it after the event. If there was any doubt about whether the parents know the correct dosage, it is firmly dispelled by Mrs H’s evidence about her conversation with M on 10 November 2011.

(vi) M is unlikely to make careless mistakes about J’s prescriptions. She was punctilious with the school about J’s medication, and took a zero tolerance approach to any stepping out of line on their part.

  1. My view of the parents’ evidence about Seretide causes me to doubt that they administered Prednisolone in the way that they described (orally by syringe, rather than simply dissolving it in J’s breakfast), but I can reach no clear conclusion about this. At all events, I find that she was probably receiving considerably less Prednisolone than was being prescribed:

(i) M understandably did not like the use of steroids.

(ii) J did not like taking her medication, and the parents are both notably ready to defer to her.

  1. Insofar as the prescription records show an inflow of steroidal medication into the home, I conclude that it cannot have been effectively administered to J. The medical opinion is to this effect, and I accept it.
  1. My assessment of the parents is therefore that they are not reliable witnesses in matters relating to J’s health, either in relation to the administration of medication, or in relation to the management of J’s acute episodes. Their evidence about asthma treatment has evolved in response to the case as it has developed. The concession that ‘only one puff’ of Seretide was being given was made on the opening day of the hearing. Their evidence about J’s supposed ALTEs is, I find, exaggerated and unreliable in its detail. They have both given unreliable descriptions of J’s condition to the school and to the emergency services.

 

 

The final part is what lifts the case from being very fact specific  (I’ve done an insane amount of care proceedings in twenty years of practice, but have never come across one that arose from parents not giving their child asthma medicine  – some that come close on children with naso-gastric tubes for feeding perhaps) to one of broader interest.   (the underlining is my own, for emphasis)

 

  1. My final observation is that each of the doctors recognised that there are lessons to be learned from J’s case. Paediatricians are conditioned to trust parents, particularly where a child has a genuine medical condition. That instinct was strong in this case, despite indications that it needed to be examined. Dr C had concerns about the reliability of these parents as long ago as 2008 but, having taken advice from her child protection lead, she did not pursue her doubts, a decision she regrets. The doctors will form their own conclusions, but those may include the following:

(1) Faced with a possible conflict of interest in circumstances involving serious consequences, the preservation of a working relationship with parents cannot take precedence over the interests of the child.

(2) The principle of diagnostic parsimony (c.f. Occam’s Razor) proposes that simple explanations for medical conditions are exhausted before complex and unusual treatments are attempted.

(3) Fragmentation of responsibility between different hospitals carries the risk that the whole picture is not seen and understood by anyone – in J’s case, no proper meeting was held until November 2011, and even that did not involve the LA.

(4) Where dilemmas of this kind arise, involving social as well as medical issues, doctors and schools should not be reluctant to call for a comprehensive assessment that can only be carried out by the ordinary child protection services.

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