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View from the President 2 : Into Darkness ?

The President of the Family Division has published his second bulletin/speech/rallying cry/let’s get ready to rumble.

This is backing up a lot of what is rumoured to be in the new PLO and represents a significant shift in judicial mindset from the current practice. Less paper, more analysis, is the “too long, didn’t read” summary

 

It is an important precursor to the PLO and is worth reading in full

 

http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/pfd-process-reform-revised-plo-may-2013.pdf

 

 

It confirms that the thinking is for a CMC on day 12  (I’ve already written about what that would mean for any parent solicitor seeking an expert assessment)

 

It confirms the thinking that we would basically have three lots of material – that filed in the Court bundle  (slimmed down, almost to ring binder status), a set of primary disclosure which is given to the parties and choice bits might find their way into the Court bundle but it doesn’t go to the Judge until that sifting process is done, and effectively a list of unused material which the parties may seek discovery of.

 

This reinforces really that counsel who will be running the case on behalf of the parents needs to be involved throughout – it won’t be any good someone sitting down and prepping a five day trial on the Friday before, because it will be too late to realise that there’s something useful in those papers which haven’t been before the Court.  Of course, continuity of counsel is great and very important anyway, but it comes at a price – there has to be some resolution of the conflict between counsel’s availability and when the Court can accommodate hearings, and I’m yet to see a proposal for this.

 

It confirms that the Court don’t want to see any documents that are older than two years   (for my own part, I assume that for that purpose they don’t necessarily mean to exclude thresholds or judgments of previous proceedings, but everything else would go)

 

At the same time, there is a strong imperative to produce documents that are focused and succinct. The social work chronology must contain a succinct summary of the significant dates and events in the child’s life. The threshold statement is to be limited to no more than 2 pages.

 

 

Well…. yes with a but.  If you pick up a file of previous proceedings that was dealt with by someone else, from years ago, or from another local authority, the final determined threshold is a really decent way of seeing what the problems and concerns in the case were – not the allegations, but what was finally determined. A two page one isn’t going to be much use (unless we have to run alongside it an old-fashioned meaningful Guardian’s report which draws together the entire case)

 

We must get away from existing practice. All too often, and partly as a result of previous initiatives, local authorities are filing enormously voluminous materials, which – and this is not their fault – are not merely far too long; too often they are narrative and historical, rather than analytical. I repeat what I have previously said. I want to send out a clear message: local authority materials can be much shorter than hitherto, and they should be more focused on analysis than on history and narrative.

In short, the local authority materials must be succinct and analytical. But they must also of course be evidence based.

I worry there that we are just going to have hour upon hour during final hearings of  ” Well, this isn’t in your statement”      and rightly “My client hasn’t been able to see this in your statement, and therefore hasn’t been able to deal with it before now”

And on the issue of experts

 

 

One of the problems is that in recent years too many social workers have come to feel undervalued, disempowered and deskilled. In part at least this is an unhappy consequence of the way in which care proceedings have come to be dealt with by the courts. If the revised PLO is properly implemented one of its outcomes will, I hope, be to reposition social workers as trusted professionals playing the central role in care proceedings which too often of late has been overshadowed by our unnecessary use of and reliance upon other experts.

Social workers are experts. In just the same way, I might add, CAFCASS officers are experts. In every care case we have at least two experts – a social worker and a guardian – yet we have grown up with a culture of believing that they are not really experts and we therefore need experts with a capital E. The plain fact is that much of the time we do not.

 

 

Social workers may not be experts for the purposes of Part 25 of the Family Procedure Rules 2010, but that does not mean that they are not experts in every other sense of the word. They are, and we must recognise them and treat them as such.

 

 

One assumes that the Court of Appeal  (which has several of the drivers of the family justice modernisation sitting on it) will this time around, back Judges who make robust case management decisions, rather than slap them, which is what brought the PLO and the Protocol to their knees.

 

I’m not so sure – it seems to me that faced with an individual case where rigorous application of the new 26 week principles seem to result in unfairness and prejudice to a child’s chance to be brought up within a family, the Court of Appeal will do what is best for that individual child, rather than the system as a whole. That’s what they are charged to do, and it seems to me proper that they do that.  It will depend, of course, on the detail and flavour of the first cases that come before them on   :-

 

(i)                 I was refused an expert because it would have gone out of timescales

(ii)               I was refused for my Auntie Beryl (who used to be a foster carer in Croydon) to be assessed, because I didn’t realise it was going to end up with adoption, so I didn’t tell her my child was in care until week 19.

(iii)             The expert said I could parent my child and make the changes if I was given six months of help, but the Court made a Care Order.

 

 

And whether the cases that come before the Court of Appeal are strong on their facts.

[If you are thinking, by the way, that the subtitle to the article is a gratuitous excuse for a Star Trek reference and a chance to put in another picture of Benedict Cumberbath for the benefit of Ms Suesspicious Minds, you would be correct]

benedict

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

3 responses

  1. …Social workers may not be experts for the purposes of Part 25 of the Family Procedure Rules 2010, …

    Yet social workers are deemed to be experts for the purpose of Part 35 of the Civil Procedure Rules????

    Keep up the good work.

  2. I guess it all begs the question what an ‘expert’ actually is.

    The best definition I ever heard is: “An expert is someone who knows more and more about less and less until he/she knows everything about nothing”. (Source unknown)

    In the care proceedings context at the very least one would expect a social work expert to:

    a) possess up-to-date research and practice knowledge about the issues of concern;

    b) have the ability to critically evaluate research findings, their implications and limitations;

    c) have the ability to synthesise and analyse complex information and dynamics;

    d) have the ability to promote constructive professional relationships with (often) highly stressed parents and family members;

    e) have the ability to evaluate the ‘pros and cons’ of possible outcomes from a neutral perspective;

    f) have the ability and willingness to self-monitor susceptibility to forces that promote cognitive and emotional biases; and

    g) be personally responsible for all opinions formed and expressed.

    Sadly, and alarmingly, many (or all) of these factors are often absent in documents I see presented to courts by local authority social workers as part of care proceedings.

    a) Research references are randomly sprinkled into reports without any linkage to topic, and without any discussion of limitations of research. Or research is ignored completely (probably on the instruction of the local authority solicitor who knows that the social worker will be undermined through lack of research knowledge on cross examination).

    b) Very few (and rapidly diminishing) numbers of local authority social workers demonstrate that their training has equipped them to understand research methodology, or the extent of relevant research to the issues in the case.

    c) So often local authority social work reports to courts are turgid, repetitive, descriptive accounts with no synthesis or analysis. it is almost as if the weight of the local authority bundle is considered to be the most effective way to get the court to agree the care plan.

    d) Parents report time and time again that their social workers (there are excellent exceptions) have neither the time, inclination or basic social skills to engage in constructive discussions. Some parents involved in complex and contentious care proceedings say they never see their social worker outside of formal meetings; others report having frequent and unannounced changes of social worker. In my visits to social work offices, it appears to me that the culture of local authority social work increasingly resembles that of a call centre: impersonal, ‘hot-desking’, computer-inputting and rapid staff turnover.

    e) In so many cases I am involved in, the local authority has clearly decided from a very early stage that it wishes to pursue forced adoption, and on that basis other alternatives are not given full and proper consideration. Policy determines plan – which in the field of complex human/family relations and risk assessment is not expertise.

    f) This is the transference/countertransference issue that is central to many forms of therapeutic training: maximising awareness of sources of personal cognitive and emotional bias on perceptions and opinions. Particularly common examples in many local authority social work reports is the phenomenon of ‘seeing only what fits the theory/policy’. So many parents (noted extensively throughout international research) say that “social workers only see and write down the bad bits”. This is also known as the verificationalist bias – observations are only made and reported of material that supports the pre-existing belief/plan.

    g) The question of whether local authority social workers in this context are ‘expert’ – begs a question whether they can be considered to be professionals. A fundamental component of professionalism is the authority to personally form justifiable and informed opinions. Far too often in current care proceedings cases that I come across, the social workers are administratively implementing decisions that have been made by others (often a combination of previous social workers and managers). Such an implementation role is barely professional; and hardly expert.

    A long time ago whilst working for a local authority I had the role of Mental Welfare Officer, which included being part of a process for arranging compulsory psychiatric admissions. Through a legal quirk, it was always the case (at the time) that the MWO was personally legally and professionally responsible for such actions (event though being employed by the local authority). It certainly focused the mind on the professional and momentus nature of the task (along with a strong impetus to search for non-coercive alternatives).

    I suspect the practice of local authority social work would be very different if all social workers were personally responsibly for all coercive actions that they took or recommended as part of their role.

    In this context, there is – to say the least – significant doubt that local authorities are going to be able to deliver what the President of the Family Division appears to be expecting. Like Eileen Munro, I would like to see it happen; but how is a skilled, knowledgeable, stable, professional – and expert – local authority social work workforce going to emerge?

  3. Edna Fletcher

    Very insightful analysis by Dr Dale. The lack of expertise in social work and the behaviours of only fitting theory/ policy to what is observed rather than thinking, exploring and understanding actually occur in all areas of social work. Take adult safeguarding in the context of someone very elderly with dementia- you not only have to have a good knowledge of the health and other issues associated with ageing as well as behaviours of those with dementia. This is rare indeed in social work from my experiences.

    A social worker could only attribute delerium to a UTI, yet the list of things that can give rise to delerium in the elderly is large. A nurse told me of a social worker visiting a care home and hearing a ‘rant’ that an elderly person was having about not being given any food. On a second visit, (‘safeguarding’ work initiated), the social worker was ‘pinned down’ in a rant by the same person door closed, scared she then only realised the rant was part of a behavioural issue.

    These people become social workers with very little real knowledge base or understanding of the persons they have ‘duties of care’ towards and so their assessments are very defective… but they get away with it with the elderly. An old person dying through their poor work will have ‘old age’ put down to explain the death… cannot do that with children. Be scared to grow old and need a social worker.Aside from being the only way to access social care services they serve little purpose, to those in real need of help, as 9-5ers.

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