“I’m on the edge, the edge, the edge, the edge…”

The Judith Masson (et al) research on families on the edge of care proceedings is now available 

http://www.bris.ac.uk/law/research/researchpublications/2013/partnershipbylaw.pdf

 It is a long and dense piece of research, but no less interesting for that. As ever with Judith Masson’s research, the paper itself is a lively read and if you wanted to get a real sense of context of the whole system of family justice, it would be a very good starting point.

 It really tackles the “pre-proceedings” element of intervention and working with families, which is going to become more and more important as the new changes come into force.

 Masson highlights how wide-ranging the participation in pre-proceedings work varies across authorities and indeed how wide-ranging the underpinning philosophies and aims of it are, from being a chance to bring about change, to an opportunity for parents to turn away from a course of action or get the help they need, to a recognition that it is fair and ‘right’ for parents to be warned of consequences, right through to it being ‘a mandatory’ step which has to be gotten through.

The research also shows how we ended up with this disparity and range of views, given that what happened was a top down imposition of requirements to have a meeting and a letter and to file a record of the meeting, but without there being any guidance or philosophy as to what was to be achieved.

The real headline from it is one which most professionals will recognise, that the Courts did not recognise or value pre-proceedings work,

 They [Judges}  preferred cases to come direct to court so that they could control what was done, and felt that the pre-proceedings process would only serve to delay cases which would inevitably need to come to court.

These judges were aware that local authorities were discouraged from undertaking assessments in advance of proceedings by court decisions to order further assessments and, particularly, to expect the local authority to contribute, financially, towards these. However, they felt constrained to allow parents to obtain further assessments, so the local authority’s assessment could be tested in a fair hearing; because they felt that local authority social workers’ assessments were not of the required quality and often merely reflected what their managers wanted; and to prevent their decisions being overturned by the Court of Appeal:

‘[The process] would work much better if there was a mechanism in court for us to say more robustly than we have in the past: you don’t need another assessment.’ Judge 6

‘[I]t’s so much easier to, say, spend £5,000 doing another assessment and the appeal won’t occur.’ Judge 7

These judges were not unique in mentioning the spectre of the Court of Appeal (Pearce et al. 2011). Indeed, the former President of the Family Division sent a letter to judges on case management in response to concerns hehad heard about the need to order further reports to avoid criticism of their decisions (Wall 2010).

and that as a result of Judges routinely commencing fresh assessments rather than actively considering the existing assessments, there was no real discernible difference in the time it took to conclude care proceedings in cases where there had been active and detailed pre-proceedings work from the ones that were issued with no pre-proceedings work.

And when Masson adds the work done pre-proceedings (after a formal meeting with parents and their solicitors) to Court proceedings, then it turns out to take nearly 70 weeks to get a decision for children if you do pre proceedings work, and around 45 if you don’t bother doing any.

She highlights this as being a core issue, going to the heart of care proceedings.  Is the purpose of proceedings “to explore solutions to the problems of parenting through ‘investigation, assessment and management of change’” (Hunt 1998)  OR is it “to determine matters by assessing the application, in the light of the evidence presented and the parents’ response”

I think either course is a valid approach for the State to take, and I would suggest that at the moment, we have currently the former, and may be about to move to the latter.  Personally, I think that there would have been a place for a proper debate about those issues, and it would have been nice for these to be transparent and up front, rather than a fresh approach being sidled in.

Masson also touches on the fierce debate about whether the removal of children is “too few, too late”  or “too many, too fast”  – she seems to me to come down more on the former, whilst recognising that much more intervention and support could be provided and properly targeted.

 Regardless of where you stand on those issues – I know many of my readers are on the “too many, too fast” side of things, it is interesting to see someone actually identifying that this is a genuine debate, with value on both sides and that the State really needs to decide what it wants from a child protection system.

 There are some really sound conclusions to the research, I hope some of them get followed   (better funding for parents solicitors so that they can devote the pre proceedings work the time it needs is particularly important)

 I was taken, particularly, with Masson’s comments about how large changes in the family justice system occur. Of course, she approaches this from the viewpoint of an academic and researcher, but it is a perspective I’ve not heard or considered before, and so I wanted to share it with you [underlining is my own, for emphasis]

 Many of the changes to care proceedings practice since the implementation of the Children Act 1989 have been made not as a result of research evidence or interagency consultation but through litigation. The removal of children under interim care orders, the requirements for without notice EPOs and the contact regime where new babies are not in their parents’ care have all been the subject of ‘guidance judgments’. These have imposed standards or procedures which have had major implications for local authorities, the police, carers and children.

The close consideration a judge gives to an individual case gives him or her the detailed knowledge of the factual scenario necessary to make a decision. It is neither designed nor intended to provide a wide understanding of the range of circumstances where similar issues arise. Moreover, in our adversarial system, the information the judge receives is not simply an objective account but is intended to influence the decision. For these reasons, it would be better if judgments which were intended to shape the operation of family justice were subject to review and discussion before they were published.

Research has a contribution to make to law reform. Understandings from theoretical work and experience in other jurisdictions can provide some indication about what might work, the problems and limitations etc. Empirical study of the operation of laws and legal procedures can provide knowledge about practice from a range of perspectives including from litigants themselves, countering beliefs based on anecdote, information derived from the unusual cases that feature in law reports, and from the most vocal in the system. It can supplement the limited information available from case management systems and reach parts of the process that such recording cannot reach. Without research evidence it will not be possible for the Family Justice Board to secure major improvements to the family justice system, or know whether many forms of improvement have actually been achieved.

 Now, if you’ve been following this blog at all, you’ll have picked up what a caselaw geek I am, but I think this makes a really important point.

 If you take as an example the contact case Masson raises, the decision that our now President made in judicial review case effectively (at least for a period of some years) overnight transformed the amount of contact that babies placed in foster care should have with their parents, and did so dramatically.  And that case, which had massive implications for family after family, child after child, local authority after local authority, was decided without hearing any evidence about what was best for a child, it was just what the Judge at the time, considering that case, felt was best.

 (Now, as we know, the current research on quantum of contact for babies is pretty fraught, and it is a hot potato; but people on both sides of that debate have at least attempted to research and establish whether contact twice a week is better or worse for infants than contact five times a week, rather than determining it on the basis of listening to four adversarial submissions and concluding which is better.  It is quite possible that overall  the lives of children were made much better by the President’s decision, it is quite possible that overall they were made worse, it is possible perhaps even likely that for some children having more contact was good and for some it wasn’t so good, but we had no way of knowing at the time, the whole system had to embark on a sea change in contact regimes as a result of one judicial opinion in one case)

 That gave me some food for thought.