Author Archives: suesspiciousminds

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

Posted on January 21, 2013 by suesspiciousminds

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:-

https://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: –

The Foundations of Lifelong Health Are Built in Early Childhood.pdf

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.

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When to apply for prior authority (and how long the LSC thinks assessments take)

Posted on January 21, 2013 by suesspiciousminds

There has finally been some guidance published about this vexed issue. You may recall previous anguished blogs by me about this, most particularly that the last system (“don’t apply for prior authority as it will be refused, and we may arbitrarily slash the number of hours we will pay you for, but you won’t know that until the expert has actually invoiced you”) wasn’t really that workable if you factored in that (a) experts actually wanted to be paid and (b) solicitors actually wanted to get the money to pay them from the LSC, rather than out of their own pocket. Selfish of both of them, I know.

http://www.justice.gov.uk/legal-aid/newslatest-updates/civil-news/prior-authorities-for-experts-in-family-cases?dm_i=4P,18921,AV9ZJ,45QDV,

1 The LSC’s Standard Civil Contract states that there is a contractual right to seek or obtain prior authority only where: • the rate sought exceeds the codified rates introduced in October 2011, or • the item of costs is unusual in its nature or is unusually large. The guidance includes: • examples of factors that may indicate exceptional circumstances apply • benchmarks of ‘unusual’ hours below which prior authority should not be sought • ranges of hours within which prior authority applications have typically been granted for psychologists and psychiatrists, which represent the most commonly used expert types • details of expert witness information required on detailed assessment.

The guidance also confirms that prior authority is not necessary in relation to drug and alcohol tests – provided that the tests carried out reflect what has been directed in a court order. Case-by-case assessments ‘Typical’ hours outlined in the guidance are not caps. They are intended to help providers make case-by-case assessments about when they can submit prior authority applications. Prior authority itself is not a limit on the number of hours that may be carried out by an expert. Additional expert work hours may be justified on assessment, at the end of the case, to the relevant assessing authority. This may be either the LSC or the court

You are probably already spotting the gap in this new guidance. There is no sentence anywhere that suggests that the solicitor will get paid in full by the LSC for any expert report that comes within hourly rates and the benchmark number of hours. So there is still an element of uncertainty and risk. Hoorah.

But at least we now have the secret benchmarking of hours that the LSC claim to have been using. (I strongly suspect that the actual policy was just ‘cut them in half’, but I am a nasty cynical piece of work and that is just my own opinion based on lots of anecdotal observation)

They consider costs of more than £5000 per funded client to be unusual and need prior authority.

The hours above which prior authority should be applied for are:-

 

Pscychologist  (including child psychologist)  20 hours (for one party)  30 hours (for more)

 

Pscyhiatrist (including child psychiatrist)  15 hours (for one party) 25 (for more)

Independent social worker 30 hours (for one party) 40 (for more)

 

Radiologist (10 hours)

  These benchmarks include all aspects of expert service provision and not just the assessment of parties An item of costs is unusual in nature where, for example, more than 2 parties are to be assessed. The number of hours allowed on prior authority is not a cap on the work that may be done, it is authority for an amount of work based on the known relevant facts of a case at a particular time. Providers are always able to seek to justify on assessment/taxation why a greater number of hours were required

Hmmm, interesting. I’m not sure which psychologists they have identified who can read two lever arch files, assess a parent, prepare a report, possibly attend an experts meeting AND Come to Court to give evidence in under 20 hours, to establish that this is a reasonable level. [Given that most experts a year back were estimating 35 hours to WRITE the report, which I know was egregious padding and part of why they’ve been cut off at the knees, 20 hours seems very low.]

I am also a bit puzzled as to why a paediatric report, which is generally about a tenth of the size gets 75% of the hours, and why it takes an ISW 50% longer to assess a parent than a psychologist.

Also I am intrigued as to how radiologists in many of the cases I have blogged about in 2012 could be expected to have done all of the necessary work in 10 hours.

The guidance also clears up once and for all that Independent Social Workers will only get £30 per hour. You may be aware that there was a separate hourly rate of £65 per hour for “risk assessment” and many had simply attempted to switch over to that. You won’t be able to claim for “risk assessment” now in any cases that aren’t sexual abuse. [This is going to be very problematic for the important role of conducting assessments following findings of serious physical abuse, which is a very specialised piece of work and will now be either £30 an hour or farmed out to expensive and less timeous psychologists]

The Ministry of Justice and the Legal Services Commission have published guidance on how expert services identified as specialist risk assessments will be paid. The guidance highlights the factors that may arise in a case which would point to it being appropriate to pay the risk assessment rate.

Factors that may typically point to the expert service being that of a specialist risk assessment expert include where:

a. The court order specifies that a risk assessment is required; and

b. The work to be done is over and above that requiring independent social work expertise, for example where: • There is a substantiated criminal allegation relevant to the case in the immediate background of the case (such as a conviction or pending proceedings for a sex offence); and • A finding of sexual abuse relevant to the case has been made by a court

c.the report is specifically required to address the risk posed as a result of the above factors.

The guidance also clarifies that in considering claims where independent social work services are provided in non-family matters the LSC will have regard to the rates set out in Community Legal Service (Funding) (Amendment No2) Order 2011. Where there is no comparable rate in the funding order – for example for a social worker providing social work services – the LSC will have regard to the comparable rates for independent social work services in family matters introduced in May 2011.

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imPPPossible, surely? New research shows that Triple P has no effect on parenting

Posted on January 17, 2013 by suesspiciousminds

 

If this week’s blogging has taught us nothing, it is to be wary of what the headlines of research tell us and read the whole thing. (Unless it is research into what meat is in the burgers you ate last night, in which case best not to read it)

 

This is research published in the International Journal of Conflict and Violence, which sounds like bedside reading for a ruler of a Middle East country, but I assume is broadly anti conflict and violence, rather than photoshoots of girls with kalashnikovs. I daresay that they still have a hard time booking a venue for a Christmas party though.

http://www.ijcv.org/index.php/ijcv/article/view/263

 

But this is some research into whether Triple P, which has a lot of Government goodwill backing, takes a lot of public money, and which I spend hours per week hearing people whine about needing a referral to Triple P, actually makes any difference, and it suggests (at least in the headlines) not.  An important word in research terms, randomised, comes up, which is promising.  You need the study to be randomised so that the researchers didn’t come in with an agenda and pick the hundred best clients Triple P had, or the worst.

 

[Of course, as these were studies in Birmingham, perhaps it doesn’t tell us much more than one of  (a) The parents who use Triple P in Birmingham aren’t responsive to it, (b) the social problems in Birmingham don’t respond all that well to Triple P  – and as I recall substance misuse and crack cocaine were pretty frequent issues in cases there or (c) The Triple P deliverers in the Birmingham area are not doing it quite right. ]

 

But let’s read more.

 

The Impact of Three Evidence-Based Programmes Delivered in Public Systems in Birmingham, UK

Michael Little, Vashti Berry, Louise Morpeth, Sarah Blower, Nick Axford, Rod Taylor, Tracey Bywater, Minna Lehtonen, Kate Tobin

 

Abstract

 

 

 

The Birmingham Brighter Futures strategy was informed by epidemiological data on child well-being and evidence on “what works,” and included the implementation and evaluation of three evidence-based programmes in regular children’s services systems, as well as an integrated prospective cost-effectiveness analysis (reported elsewhere). A randomised controlled trial (RCT) of the Incredible Years BASIC parenting programme involved 161 children aged three and four at risk of a social-emotional or behavioural disorder. An RCT of the universal PATHS social-emotional learning curriculum involved children aged four–six years in 56 primary schools. An RCT of the Level 4 Group Triple-P parenting programme involved parents of 146 children aged four–nine years with potential social-emotional or behavioural disorders. All three studies used validated standardised measures. Both parenting programme trials used parentcompleted measures of child and parenting behaviour. The school-based trial used teacher reports of children’s behaviour, emotions, and social competence. Incredible Years yielded reductions in negative parenting behaviours among parents, reductions in child behaviour problems, and improvements in children’s relationships. In the PATHS trial, modest improvements in emotional health and behavioural development after one year disappeared by the end of year two. There were no effects for Triple-P. Much can be learned from the strengths and limitations of the Birmingham experience.

 

I’m not familiar with the Incredible Years model, but that seems to be pretty good, PATHS not too bad, and Triple P negligible.  Now, if that turns out to be a reputable and replicable study  (by which I mean someone else using those methods anywhere else in the country would get similar results) that’s a big deal. Firstly, as I said, Triple P gets a lot of State funding, and is a regular go-to resource. Secondly, parents pretty much only get one shot at an intervention to improve their parenting, so if what we’re sending them to isn’t as good at making a difference as it should be, that’s pretty important.

 

All this with the caveat that I am not a qualified interpreter of research – I am feeling more and more that we need a Ben Goldacre type to tackle the research that’s going around in family justice to tell us whether the conclusions are robust and fair.

 

As we know, Birmingham is a very large local authority, the biggest in the country, and it has a range of social problems, so it doesn’t seem like a bad pick for the area. It’s not like it has been skewed by picking Saffron Walden say and claiming that this is representative of the country at large.

Another telling thing is that this research is published, which means it is peer-reviewed and checked over, rather than just being something these guys have written and sent out a press release about. That makes me feel more reassured – the first 4 things I look for are :-

 

1. Is it peer reviewed

2. Is it randomised?

3. Did the initial sample get skewed?

4. Was it funded by someone with a vested interest in outcome?

And none of those red alarm bells are set off

 

My next concern is whether you can objectively measure a change in parenting or behaviour, or whether that is by its nature subjective, and if the latter, who is measuring it?

 

Lets see what they say:-

 

All of the evaluations applied the “intention to treat” principle, meaning that results include those children, parents, or schools that dropped out of the study. The findings therefore
reflect what happens in real-world situations, with many intervention recipients either not starting or not completing an intervention paid for by the local authority. Each
of the trials used a “waiting list” design, meaning that children or schools not receiving the intervention were given priority to receive it in future if the results of the evaluation
were positive. Children in the control conditions received “services as usual”, which in some cases involved substantial support – for example, the SEAL (Social and Emotional Aspects
of Learning) programme in the case of the PATHS trial. Participants in the programme groups could also continue to receive services as usual – that is, no services were
withdrawn – although it is acknowledged that logistically this may have been difficult (for example, if PATHS lessons
used curriculum time previously allocated to SEAL).

Typically, experimental evaluation is expensive. In order to reduce costs, the Social Research Unit sought only to replicate the findings established in other trials, thereby collecting considerably less data than is usually the case. The experimental approach was taken, randomly allocating units to control and intervention groups. Sample sizes reflect
a calculation of the statistical power needed for any programme effect identified by the evaluations to be greater than chance. Robust measurement was also required. These elements are typical of a good RCT. The focus on replicating findings from other trials offers a different angle, however. Specifically, the data collection was restricted to the factors in the logic model underpinning the evidence-based programme, including the risks targeted, the fidelity of implementation of core elements of the intervention, and the outcomes sought. Other hypothesised
moderators and other contextual information are excluded. The net result is a high-quality evaluation with less data and therefore less cost.

 

Well, the important thing here is that they didn’t discount those who dropped out – a common trick with research is to not include anyone who doesn’t finish the course of treatment, which of course skews out those people who didn’t feel it was working or had unpleasant experiences. I don’t know enough to know that this is bulletproof, but it is not yelling out at me that there are massive holes in it.

The evaluation of Triple-P was a parallel randomised controlled trial, with pre-post test design. It involved 146 children aged four–nine years whose symptoms indicated a
potential social-emotional or behavioural disorder, determined using the “high need” threshold on the SDQ “total difficulties” score (17 or above out of 40). The sample
comprised 105 boys and 41 girls. The mean age was 82 months (SD = 21). The sample also comprised a high proportion of low-income families: 62 percent of children
were entitled to free school meals compared to 33 percent for Birmingham as a whole.

The parent(s) of half (73) of these children were randomly assigned to attend Triple-P parenting groups, with the remaining half placed on a waiting list and receiving services
as usual. Researchers performed the randomisation foreach eligible child using an online programme, designed by NWORTH. Children were randomised on a 1:1 ratio, using
a dynamic allocation method, stratified by age and sex.

Baseline (Wave 1) data was collected on all children. Follow-up (Wave 2) occurred six months after baseline and included 137 children.2 The programme was delivered to
intervention group parents at some point during those six months. The missing nine cases (three control, six intervention) were made up of two formal withdrawals from the study and seven that could not be contacted. The primary outcome instruments were the SDQ and ECBI. Parenting behaviour was measured using the Arnold and O’Leary Parenting Scale (APS). Estimated mean differences were used to calculate the impact of Triple-P. ANCOVA tests controlled for children’s start scores on respective measures, the age and sex of the child, and the area from
which families were recruited.

 

I won’t put the figures in, because they’re a bit complex, without reading the whole report for yourselves.

But this is the telling paragraph in relation to Triple P

 

4.3. Standard Level-4 Triple-P
As Table 3 illustrates, the results for this programme are not promising. Children of parents attending Triple-P sessions improved their behaviour and were happier sixmonths after the course concluded, but at roughly the same rate as children in the control group receiving services as normal. These results are not consistent with most other Triple-P trials around the world. However, as far as we are aware, only four randomised trials (including this one) have been undertaken independent of the programme originator (see also Gallart and Matthey 2005; Hahlweg et
al. 2010; Malti, Ribeaud, and Eisner 2011). When these four studies are viewed together, the evidence of impact on child development is equivocal.

 

What that is obliquely saying is, that although there might be a great deal of research that Mars bars are really good for you, if you strip out all the research commissioned by Mars, it turns out the research shows that they’re not that good for you.

Their results were that the improvements and changes were no better in the Triple P group than in the group who didn’t have it – a PPPlacebo effect perhaps?  Food for thought at least.

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Ghosts in the judicial review machine (or, “I think it’s going to be a long, long time”)

Posted on January 15, 2013 by suesspiciousminds

 

A discussion of the decision of R and Naureen Hyatt and Salford City Council 2012   (which relates to judicial reviews, costs disputes and accommodation under section 21 of the National Assistance Act 1948 as it pertains to failed asylum seekers, so I hope you will forgive me for a flight of fancy and digression to liven it up)

 

I once read that the screen-writing Coen Brothers use a particular technique in creating tension in their films. They write a scene, and box the character into a corner, a predicament that there is no possible way out of.  They bat around possible solutions until they exhaust all possible exits that they can think of.

 

Then they leave the script for a week, a month, however long it takes, until they have hit upon an escape mechanism for that predicament – the idea being that if they are genuinely stumped at how to escape the scene, the audience won’t be likely to be able to second guess in a few moments the solution that took them months to hit upon.

 

 

In Ancient Greece, when playwrights constructed their plays, usually involving a combination of philosophy, fine wordplay and frogs, they often found that they had boxed themselves into a corner. The hero was faced with a situation that could not possibly be resolved.  A grisly death, a broken heart, an unsolveable dilemma, was all that lay ahead.  How to deliver a happy ending?

 

And their solution to this was the deus ex machina, the ghost in the machine. A crane type device would be used to lower an actor into the stage or arena, the actor playing a God. Of course, the God could solve any problem in an instant, resolve any dilemma, any drama.  That was a boon to the playwright, but of course robs the scene of any dramatic tension.

 

Imagine if you were watching an episode of 24 and Jack Bauer was trapped inside a volcano  in Hawaii that’s about to erupt, he is handcuffed to  the steering wheel of his car, and the ignition keys are in the beak of a paramilitary parakeet who we have just watched fly away, and then he learns that a nuclear bomb is about to go off at the Hoover dam in just two minutes and only his fingerprint can stop the bomb and then the credits roll. Tense, or what?   

 

volcano

 

If you tune in the following week, to see God fly down into the volcano, stop time and instantly transport Jack to the Hoover damn and unlock his handcuffs, you might feel disappointed by this resolution.  The next time there is a cliffhanger, you won’t feel apprehensive and nervous about how Jack will get out of it, you’ll just think “Ah, God will come down and sort it out”    – in short, the cheap device used to get the writers out of a tough spot will just make you feel cheated.

 

[The way I did when watching the black and white serial Rocket Man aged 12, when a “cliffhanger” showed a car in which Rocket Man was locked in the trunk plummet off a cliff, clearly showing that it went over the edge and that nobody got out of it so he was undoubtedly dead, and next week’s episode began  with completely different footage of him jumping out before it went off the cliff.   I remain bitter about this, to this very day, and I never watched another episode]

 

rocket man 

 

 

Curse you Rocket Man! !!

 

So, deus ex machina became frowned on as a narrative device, and to this day are viewed as a bit of a cop out, or cheap flimsy storytelling.

 

 

Anyway, on to the case,

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1795.html

 

 

Essentially, the claimant was a failed asylum seeker and wanted the Local Authority to provide him with accommodation under section 21 of the National Assistance Act 1948.

 

  1. Section 21 of the 1948 Act provides:

“(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing —

(a) residential accommodation for persons who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; and

(aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them

(1A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely —

(a) because he is destitute; or

(b) because of the physical effects, or anticipated physical effects, of his being destitute.”

 

So, his being a failed asylum seeker makes it very hard for him to get accommodation under s21, and he claimed his need was not as a result of destitution or physical effects of destitution, and the LA claimed that it was.

 

 Various demanding and defying letters were exchanged and a judicial review was issued.

 

By the time the case got into a substantive hearing, the claimant had managed to overturn the immigration authorities decision that his asylum claim was refused. That then gets rid of s 21 (1A) as a relevant factor.

 

Accord was reached that he would be provided with accommodation and the claim was withdrawn.

 

There then followed a debate about costs – the Claimant claimed that he should win his costs because he had achieved his desired result but had had to bring a JR case to do it, the LA claimed that costs should not be paid as the issue had not been litigated and the Claimant might well not have been successful if it had been.

 

The Judge decided that it was not possible to determine which side would have won had the issue been litigated, and made no order as to costs.

 

The Claimant appealed.

 

The relevant legal authority on this vexed issue of where costs fall in a JR case where the matter is settled rather than litigated is set out in  Re M  v Croydon LBC  2012

 

 

  1. On 8th May 2012 the Court of Appeal handed down its decision in R (M) v Croydon London Borough Council [2012] EWCA Civ 595, [2012] 1 WLR 2607. The claimant in that case was an asylum seeker, whose age was in dispute. The claimant brought judicial review proceedings to compel the defendant local authority to reassess his age. The action ultimately settled in the claimant’s favour, leaving only the question of costs to be determined by the court. Lindblom J decided that there should be no order for costs. The Court of Appeal allowed the claimant’s appeal and ordered the defendant to pay the claimant’s costs.
  1. Lord Neuberger MR gave the leading judgment, with which Hallett and Stanley Burnton LJJ agreed. At paragraphs 47 to 64 Lord Neuberger gave general guidance as to how costs should be dealt with following a settlement. In the latter part of that passage he dealt specifically with cases in the Administrative Court. He identified three different scenarios. The first scenario is a case where the claimant has been wholly successful whether following a contested hearing or pursuant to a settlement. The second scenario is a case where the claimant has only succeeded in part following a contested hearing or pursuant to a settlement. The third scenario is a case where there has been some compromise which does not actually reflect the claimant’s claims.
  1. At paragraph 63 Lord Neuberger gave the following guidance in respect of the third scenario:

“In case (iii), the court is often unable to gauge whether there is a successful party in any respect and, if so, who it is. In such cases, therefore, there is an even more powerful argument that the default position should be no order for costs. However, in some such cases it may well be sensible to look at the underlying claims and inquire whether it was tolerably clear who would have won if the matter had not settled. If it is, then that may well strongly support the contention that the party who would have won did better out of the settlement, and therefore did win.”

 

[This is a pain in the neck decision, since now when you settle a JR, you have to have an argument about who would have won, if you’d fought the whole thing, which is nearly as cumbersome as just fighting the whole thing] 

The Claimant argued that effectively, having settled the case and obtained his desired outcome, the original Judge ought to have determined that he had succeeded or would have succeeded had the case been litigated, and that costs should have followed.

 

The Court of Appeal disagreed , and you will see from my underlining, that they considered that the reason for the favourable settlement was the intervention of a third party – the immigration authority reversing their decision – a deus ex machina, and where that was the cause of the favourable settlement, one could not determine that the Local Authority were to blame.

 

  1. The second ground of appeal is that when one looks at all the factors which ought to have been taken into account, the judge should have been driven to the conclusion that the defendant should pay the claimants’ costs. The factors upon which the claimants rely are the following:

i) The claimants achieved the substantive benefit which they were seeking, namely long term housing and welfare support.

ii) The claimants achieved an immediate benefit, namely interim relief, which they could not have achieved without litigation.

iii) The claimants complied with the pre-action protocol and sent appropriate letters to the council before commencing proceedings.

iv) The conduct of the council was unreasonable. It resisted the claimants’ claim at every stage. It brushed aside the letters from the claimants’ solicitors. It did not provide interim accommodation for the claimants until it was ordered to do so.

v) The claimants’ case was strong. If the litigation had gone to trial, it is very likely that they would have won.

  1. Let me deal with those factors in the order set out above. As to the first factor, it is undoubtedly correct that the claimants have achieved their ultimate objective, namely long term housing and welfare benefits. On the other hand they have achieved that objective not because of any court order or concession by the council. The claimants have achieved that objective because of the Secretary of State’s decision to grant exceptional leave to remain. As Moore-Bick LJ observed in argument, this came as a deus ex machina. In my view the favourable intervention by a third party not involved in the litigation cannot be a reason to order the defendant to pay the claimants’ costs.
  1. I turn now to the second factor. The claimants applied for interim relief. The council opposed the application. The court granted interim relief. If the claimants had applied on 10th December 2010 for the costs of the interim relief application, Judge Waksman may have ordered the council to pay those costs. Alternatively, he may have ordered that the claimants’ cost of the application be costs in the cause. In the event, however, with the agreement of both parties Judge Waksman reserved the costs of the interim relief application, without any discussion of the basis on which costs were reserved.
  1. Since the underlying dispute between the parties never came to trial, I do not see any basis upon which Judge Stewart on 12th April 2012 could have ordered that the costs reserved by Judge Waksman on 10th December 2010 be paid by the council. Indeed in their lengthy written submissions on costs dated 30th March 2012 the claimants did not ask for an order that they be awarded the reserved costs of the interim application. I am therefore quite satisfied that Judge Stewart cannot be criticised for failing to make any separate and specific order in respect of the reserved costs.
  1. Mr. Wise relies upon the claimants’ success in obtaining interim relief as one of the reasons why Judge Stewart should have awarded to the claimants the entire costs of the action. He points out that the claimants got what they wanted in the teeth of the council’s opposition.
  1. The difficulty with this argument is that Judge Waksman was not adjudicating upon the substantive dispute between the parties. He began his judgment by saying that for the purpose of the current application the claimants had “a fairly modest task”. They only had to show their case was “prima facie arguable”. He did not even decide whether the claimants’ case was strong enough to merit the grant of permission to proceed. He simply made an order for interim relief to protect the claimants’ position until there could be a “rolled up” hearing.
  1. In my view, the fact that the claimants obtained interim relief does not mean that they were successful in the action. It is not a reason for awarding to the claimants the costs of the action.
  1. I turn now to the third factor. The claimants are to be commended for complying with the pre-action protocol. If following the commencement of proceedings the council had conceded the relief sought without admitting liability, they would have had difficulty in resisting an order for costs. The present case, however, is different. There has been no substantive decision by the court and no concession by the council. In these circumstances the fact that the claimants complied with the protocol is not a reason for awarding to them the costs of the action.
  1. I turn next to the fourth factor, the conduct of the council. The council, like the claimants, have been consistent. They have carried out assessments as required by 1990 Act. They concluded that they were not obliged to provide accommodation for the claimants pursuant to section 21 of the 1948 Act. This was the council’s position both before and after the issue of proceedings. Whether the council were right in their assessment of the position is a matter which has not been judicially determined. In my view, the council’s conduct in this case is not such as to attract an adverse costs order.
  1. I come finally to the fifth factor, the strength of the claimants’ underlying case. We have heard submissions from Mr. Wise as to why the claimants would probably have won. We have heard submissions from Mr. Howell as to why the claimants’ case was unfounded and they would probably have lost.
  1. It is not the function of this court on a costs appeal to give a substantive decision about litigation which never came to trial. Suffice it to say that both Mr. Wise and Mr. Howell put forward formidable arguments.
  1. For present purposes, it is necessary to focus on the material which was placed before Judge Stewart in April 2012. This comprised the parties’ written submission on costs and the court file. The court file would have included the pleadings and the evidence previously lodged. On reading and re-reading this material, I am not surprised that Judge Stewart was uncertain as to who would have won if the action had come to trial. I find myself in a similar state of uncertainty. In my view, it cannot possibly be said that the judge’s conclusion in this regard was either wrong or perverse.
  1. On reviewing all the circumstances of this case, I do not believe that the judge’s costs order can be faulted. The judge made no error of law or error of principle in the exercise of his discretion under rule 44.3 which would warrant intervention by this court

 

 

I know, this rambled about a bit *, but come on, you never thought you’d get Jack Bauer, volcanoes, Rocket Man, Greek theatre and parakeets in a law article on costs orders in judicial reviews, did you?

 

[* a lot ]

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The role of the Court in assessing alternative medical treatment

Posted on January 15, 2013 by suesspiciousminds

 

 A discussion of  An  NHS Trust v SR 2012

 

 

This case made a lot of the national press over the last month, and I wanted to wait for the judgment before discussing it.  It involves a child who is seven years old and has cancer, and a mother who disagreed with the proposed medical treatment and removed him from hospital.  You may recall that the mother and child then went missing, and the High Court took the unusual step of identifying them in the press so that they could be located, and an interim care order was made to convey the child to hospital once the child was found. The mother was prepared to speak to the press and put forward her arguments as to why the proposed treatments were not in her child’s interests.

 

The Court were asked to resolve this dispute and made orders directing that the hospital could undertake the treatment they wished to. 

 

[That decision was made potentially more simple by the parents disagreeing about whether the medical treatment should or should not happen, so the Court were in a position to treat it as a dispute over the exercise of parental responsibility, rather than both parents being adamantly opposed to treatment]

 

[Caveat – although I might well know some of the people who were involved in this case, I have not discussed it with any of them, and the discussion here is purely my own thoughts arising from the judgment]

 

The case can be found here :-

 

http://www.bailii.org/ew/cases/EWHC/Fam/2012/3842.html

 

 

Mr Justice Bodey sets out the factual background very succinctly, and I do not hesitate to steal his construction

 

  1. This is an application by an NHS Trust in respect of N a boy aged 7, who is suffering from a Medulloblastoma, a malignant brain tumour. The consultant paediatric oncologist “Dr A” and his multi-disciplinary team of child cancer experts at the hospital treating him (a recognised centre of excellence) are of the opinion that following surgery he now requires radiotherapy and chemotherapy. Generally speaking such a treatment package has about an 80% success rate, sometimes put at 86%.
  1. N’s father (whom I will call “the father”) agrees with the advice that radiotherapy and chemotherapy should now be delivered to N as soon as possible; as does N’s Guardian from CAFCASS who represents N in these proceedings. However, N’s mother (whom I will call “the mother”) does not consent, believing that there are alternative methods of treatment which should be used and which would avoid or reduce the undoubtedly detrimental long-term side effects of the treatment package being proposed. Since a child is unable to give the necessary consent for medical treatment, such consent is usually given by one or both parents. In law, medical professionals can act on the consent of either parent. However, when the matter is a very serious one and the parents cannot agree, it is accepted that an application will or may need to be made to the court for a declaration that the procedure in question is lawful. That involves a decision as to the child’s best interests, being the court’s paramount consideration. Hence this present application by the NHS Trust concerned to the High Court to determine the issue of N’s treatment following on from his brain surgery.

 

 

It is important to note that this is not a case where the mother was in denial that the child had an extraordinarily serious medical condition, nor one where she was flatly refusing that he should have any form of treatment, but rather that she felt that her reasons for opposing the radiotherapy and chemotherapy were compelling and persuasive, and that she was acting properly as a parent in objecting to them.

 

The Court had to deal with the mother’s reservations about the treatment and her alternative proposals. There was clearly an interesting day in Court where eminent cancer specialists were cross-examined by Queen’s Counsel about alternative therapies.   {The underlining for emphasis here is my own}

 

 

 

 

  1. Yesterday, Thursday 20th December 2012, the court sat again for further consideration and determination of the issue about radiotherapy. Early on, Mr Peddie QC handed up a report dated 19th December 2012 by a Dr D. Usually rules apply about expert evidence, such that the expert’s expertise is checked by the court in advance for its relevance and then his or her report, when prepared, is shared between all parties. Arrangements are made for the experts to meet or speak in advance, so to narrow the issues between them and thus their evidence is able to be dealt with in an orderly way. However, in proceedings of this nature and urgency, that is not always possible and in practice substantial latitude is allowed – although this may make, as here, for a somewhat disorganized hearing. Dr D’s statement makes clear that he is not a medical doctor and he does not purport to be so. His CV refers to him as ‘an internationally acclaimed expert in agricultural, environmental and health sustainability’. His work has focused on diverse issues including ‘the development of natural and sustainable approaches to health care’, and also to ‘the development of sustainable agricultural systems, the reduction of synthetic chemical load among urban and rural communities and the protection of natural ecosystems’. He sets out a number of alternative treatments and therapies which exist, but which I do not need to go through here, and he gives the names and addresses of a number of Harley Street doctors who practise complementary or alternative medicine. Mr Peddie cross-examined Dr A on these various alternative procedures referred to by Dr D, seeking to show that they are worth looking into further, as being actual or possible treatments suitable for N. Dr A dismissed the applicability of all of them here, explaining that they are either experimental, or else used with patients who are already in relapse, or who are otherwise unable to be treated with standard doses of radiotherapy and / or chemotherapy. None of the techniques put to him have, he said, been subjected to the rigorous clinical trials which would need to have been carried out before approving a course of treatment for a child. (The case of an adult is different, as he or she can weigh risks and take his or her own decision as to his or her preferred treatment).
  1. Late yesterday afternoon, Miss Butler-Cole asked the mother in cross-examination about her (the mother’s) folder of material on which she (the mother) was appearing to rely in the witness-box when referring to thousands of children who have survived cancers without mainstream treatment, including radiotherapy. It was arranged that overnight M would chose and produce the two papers or reports which she was putting forward and relying on as being the most supportive of her stated case about the existence of credible alternative treatments. That has been done this morning. Mr Peddie has cross- examined Dr A about her two chosen papers. To put it shortly, neither paper supports the suggestion that there should not be radiotherapy and chemotherapy for N. One of the reports is concerned with studies carried out as long ago as 1987 to 1994, which attempted reduced radiotherapy but which in fact turned out to be rather unsuccessful; and the other paper is actually one upon which Dr A is in any event basing the proposed treatment package for N. Nothing has been produced from the mother’s folder supporting the suggestion that there are Chinese or Russian or other reports which speak to thousands of children surviving cancers without mainstream treatment, including radiotherapy.
  1. The underlying issue is, as I said at the outset, whether radiotherapy and chemotherapy are in N’s best interests? The advantages have to be balanced against the disadvantages (of which there are several and to which I will come back). The “gold standard” orthodox approach contained in the CCLG guidance (the Childhood Cancer Leukaemia Group to which oncologists in this country belong) is that a package of radiotherapy and chemotherapy is necessary to produce optimum survival rates. Much research, investigation and deliberation by cancer experts over decades has determined the minimum dosages to produce maximum survival rates, with the minimum possible detrimental consequences as regards quality of life. Before radiotherapy was developed during the course of the last century, patients who had N’s cancer invariably or almost invariably died in spite of surgery.
  1. Various research papers have been placed before me and have been discussed in evidence. I do not need to descend to the detail of them, although I have read and carefully considered them. One particular statistic was extracted by Mr Tolson QC and is adopted by Mr Peddie QC. It is based on studies of infants (children under three years of age) who were treated by way of chemotherapy alone, that being reasonable treatment for that particular age group, since the detrimental side-effects of radiotherapy for children with developing brains are far worse than they are for children aged around 7, whose brains are that much more developed. Extrapolation from the studies concerned, being in respect of a different age group to N, is not therefore necessarily reliable in any event. The statistics relied upon on behalf of the mother are that with chemotherapy alone, 35% of the infants in the study achieved “event-free” survival at five years (i.e. survival without relapse) which compares with 80% of those who received both radiotherapy and chemotherapy. The statistic for “overall survival” at five years (i.e. the combined total of those infants who had not relapsed plus those who had relapsed) is tabulated as being 67.5%. That appears to compare quite well with the figure of 80% for those infants originally treated with both radiotherapy and chemotherapy (being only about 12.5% lower). However that figure of 67.5% for “overall survival” (set out under the heading ‘chemotherapy only’ in Mr Tolson’s table) in fact includes all those infants who had relapsed after treatment with chemotherapy alone and who had only survived to the five year point by being ‘rescued’ by subsequent radiotherapy and by further (and often more aggressive) chemotherapy. The disadvantages of radiotherapy are much the same whether it is administered as a first-line treatment or as a second-line ‘rescuing’ treatment after a relapse. Thus whatever the statistics may appear superficially to show, there is in fact a significant tested and reported difference regarding the survival rate of infants as between whether they are treated with chemotherapy only, or whether they have both radiotherapy and chemotherapy. Such tests do not exist in respect of children of N’s age because it has not been considered ethical, since radiotherapy began to be used, to treat them without it. There is another all-embracing series of studies which reports on the outcomes without radiotherapy, measured at 8 years on, as being lower still: 27% “event-free survival” and 42% “overall survival”. I add for completeness that the figures under discussion assume treatment starting without undue delay, which is not N’s situation now; his rate is likely to be or may be somewhat lower than it would have been, whether treated with radiotherapy followed by chemotherapy, or with chemotherapy only

 

 

It is fairly clear from that that the medical evidence was strongly in favour of the appropriate course of action for the child being that recommended by the hospital.   (Of course, as we know, today’s medical orthodoxy can become tomorrow’s discredited leech therapy, but the Court have to make decisions on the facts as best they know them)

 

That was one limb, the efficacy of the radiotherapy and chemotherapy as against alternative therapies. The second was comparing the negative consequences of the therapies, and here the mother made more headway

 

  1. I now turn to the disadvantages of the proposed treatment package, in particular radiotherapy. I put it that way because radiotherapy was the live issue when most of the evidence on the point was given on 7th December, 2012, since the mother was not then opposing chemotherapy. Dr A has from the outset acknowledged the existence of the detrimental side-effects on patients which the treatment package recommended by him and his colleagues has. As regards intellectual and cognitive impairment, his evidence was originally that one can expect to see about a 4 point per annum IQ loss over each of the four years after treatment, although it could be less or more. He thought there would be some intellectual detriment from radiotherapy, although said it could be minimal. Subsequent research by him has produced a later paper which suggests a very much less significant decline in IQ. He accepted that radiotherapy would decrease anyone’s chances of ‘growing up to be a lawyer or doctor’, but said that he has treated many patients with this disease using the standard treatment he recommends for N and that they even go to school with some additional help, play sports and do the normal sort of things which others do who have never had the disease. Generally, he said they cope pretty well with the side-effects. He expressed concern that the reduction in cognitive function attributable specifically to radiotherapy has been overstated. He did not consider that there would be any effect on the N’s personality.
  1. As regards hormonal detriment, Dr A accepted that there could be impact to the growth hormone, although he said the progress of the child is monitored and hormone replacement therapy is routinely given. Generally speaking, therefore, any loss of growth ‘…would not be noticed in the street’. As regards the thyroid, Dr A told me that a negative impact is much less common. It can make the patient more lethargic and cause a weight increase, but again this is monitored and is dealt with by tablets. As to fertility, Dr A accepted that there are risks of sub-fertility or infertility. He said that older patients are usually counselled to the effect that ‘…there is a risk of sub-fertility which, at its worst, could mean that you cannot have a child’. Nevertheless, he advises older patients to take contraceptive measures. Further, Dr A pointed out that chemotherapy (which, as I say, the mother was accepting) has a greater role to play in threatening fertility, roughly 60 to 70%, as compared with radiotherapy’s role of perhaps 30 to 40%. As regards the risks of secondary malignancy later on in life, Dr A accepted that such a risk exists. The most common such cancer is benign and therefore normally treatable by surgery. In ‘ballpark’ terms, he placed the risk of later-life cancer (of all types, benign and malignant) at a figure of some 2% to 4%, although the individual might have suffered such cancer in any event. There are one or two other downsides to the suggested treatment which I have well in mind, but do need to go into individually.
  1. I have heard Dr A give evidence at length. He has been a consultant paediatric oncologist for 10 years, with hands-on responsibility for child patients. His knowledge and experience of the subject matter is highly impressive, as would have been obvious to anyone in court. He and his team work at the cutting-edge of this discipline, anxious to keep up with the developing techniques as they are tested and reported on, both here and elsewhere. He told me how the team strives to strike the necessary balance in giving their children treatment which has the best possible rate of survival, but with the least possible detrimental side-effects. Having seen and heard Dr A, I find it hard to see that he and specialists like him would keep back or fail to explain the possible benefits of credible alternative therapies which work, or might work, for such very ill children. He told me of ongoing trials in the USA aimed at further reducing the standard dose of radiotherapy, but explained that these will not be reported upon until about 2016. For the moment, he regards the idea of using chemotherapy alone as ‘a big risk and a big gamble…reducing the prospects of survival by an experiment’. I accept Dr A’s evidence and I reject any suggestion that he has minimised the disadvantages of the recommended treatment package. I find that he has shown dedication to this case and therefore to N’s best interests, devoting much time to it, beyond the call of duty. He has been in court and available to assist throughout the hearings, except during the delivery of this Judgment. He has answered many questions both in court and outside court in writing, some inevitably rather repetitive (due to the change of legal representation) doing so clearly and with patience. I am satisfied that he has done his best to assist the court neutrally and fairly.
  1. The mother, having heard Dr A’s evidence and being asked whether it affected her view on radiotherapy replied that, following upon her many hours of research, she still feels there are other ways to treat N. She told me that to her mind the orthodox view of oncologists is the product of indoctrination. I cannot accept that. I find it on the evidence before me to be the best we have at the present time to deal with what the mother’s own expert, Dr X, described to Ward L J as ‘…a highly malignant disease’, and one which will very probably cause death if not conventionally treated. It may well be that some of the complementary techniques which the mother has in mind, for example as to diet and lifestyle, or as to oxygen therapy, can beneficially be used in conjunction with the mainstream therapy proposed. Dr A said he and his team have no problem with this and can work with parents along those lines, so long as the alternative suggestions do not conflict with or disrupt the primary treatment.
  1. The mother has been through a very stressful time. What the parents have suddenly had to confront over the past two or three months is every parent’s nightmare. I have every sympathy with them; and with the mother in not wishing to see N subjected to the risks and side-effects which conventional treatment carries with it. Her wishes and views as a parent are obviously an important part of the balancing exercise, both in their own right and because of their potential effect on N. But I am worried that her judgment has gone awry as to the extent of the seriousness of the threat which N currently faces. As I have said, she did originally agree to chemotherapy at the hearing on the 7th December, 2012; and, when Mr Peddie made his submissions at the end of this hearing, he spoke of her continued agreement to it, although in her evidence I noted her disagreeing to it, alongside her continuing objection to radiotherapy. During the course of Ward LJ’s judgment at the telephone hearing three nights ago, he observed that “… the mother is becoming increasingly implacable” and I too have the perception that her approach has hardened as these stressful days in court have gone on. It concerns me that she may have become somewhat overwhelmed by the process whilst this case has been in court, which is most unfortunate from N’s point of view. I express the hope that, when she has had time to stand back and reflect upon his best interests, she will come to terms with the court’s decision (as she told me at the first hearing she would) and support him through the very difficult times ahead. N clearly needs both his parents to be pulling together alongside the treating team and nothing could be worse than for him to pick up on any sense of maternal opposition to the treatment.

 

 

The Court had to make a decision, and the decision was fairly easy to predict

 

It will be obvious from the above what I have decided should happen. I accept the submissions of the father, the NHS Trust and the Guardian. The balance of advantage and disadvantage tilts well in favour of radiotherapy and chemotherapy, notwithstanding the detrimental side-effects. One cannot enjoy even a diminished quality of life if one is not alive. I shall therefore make a Declaration that the treatment package proposed by the NHS Trust is lawful.

 

 

 

There was then an issue about whether that should be a final decision, or whether the treatment should commence but be reviewed, with mother having an opportunity to fully assemble her evidence of the case both for her alternative therapy/treatment and against chemotherapy and radiotherapy  {Again, underlining for emphasis is my own}

 

 

  1. The question then arises as to whether this should be a final decision, or whether I should give the mother a further opportunity to marshal and call expert evidence on complementary or alternative treatments. The time for everyone to prepare for this case has been short and she clearly has her Article 6 right to a fair hearing. I am very conscious that she feels catapulted into this litigation, without proper time to get her case together. It is however the fact that the mother has been fully aware since early November 2012 about the opinions of the treating clinicians that N requires radiotherapy and chemotherapy. She herself mentioned today having ‘done a crash course on the issue over the last 6 weeks’ and she spoke earlier of having ‘numerous people working on it’. On both the 3rd December and 4th December 2012, Hogg J gave her permission to call expert evidence, although I accept that the mother’s having gone missing with N that week made it impossible in practice for her then legal team to do much about that. On the 13th December, 2012, by an e-mail order, I gave the mother further permission to call an oncologist. It is now clearer, with the emphasis at this hearing on entirely complementary therapies, that that may not have given the mother exactly what she may have wanted; but my order also gave her ‘liberty to apply urgently to seek further or other directions’. That was some eight days ago. The mother has had representation by and advice from Leading Counsel and solicitors since before the 3rd December 2012, as Mr Tolson QC prepared a robust Position Statement on her behalf for the hearing before Hogg J of that date. She changed her legal team during the hearing on Tuesday of this week (the 18th December 2012) and it follows that her current legal team has struggled to read into the case and to get very much together to support her position in the time available. She has referred several times to research from and treatments available in Russia and China and elsewhere, which research she has not been willing to pass across to the NHS team, although asked by them to do so, for fear (as Mr Peddie put it) that she might be seen as seeking support ‘from quacks’. Mr Peddie submitted today that the mother’s search has been hampered by the S.4 of the Cancer Act 1939, which prohibits the advertising of cancer services; but on her own case the mother has been able to carry out much research on the internet, which anyone can do without difficulty. Dr D set out in his report of 19th December, 2012 a list of Harley Street doctors who he says offer complementary medicines; but nothing has been heard from any of them.
  1. I have to keep firmly in mind what is required for there to be any realistic prospect of the court’s preferring some complementary alternative to the standard mainstream treatment for N’s condition. It is not just a question of demonstrating that there is research and experimentation going on out there; nor that there are ideas and possibilities being floated, nor even that there are reported success stories of cures occurring without the use of radiotherapy and / or chemotherapy. What is required is the identification of a clinician experienced in treating children aged about 7 having this kind of brain cancer; a clinician with the access to the necessary equipment and infrastructure to put the suggested treatment into effect and able and willing to take over the medical care of and responsibility for N. As Ward LJ said at paragraph 38 of AVS v NHS Foundation Trust [2011] COPR Con. VOL. 219: “… if there is no one available to undertake the necessary operation, the question of whether or not it would be in the patient’s best interests for that to happen is wholly academic…”. The treatment proposed by any such clinician would have to be (or should preferably be) properly studied, tested, reported on and peer-reviewed. To have any realistic prospect of becoming selected by the court (and I repeat that this is not a decision to be made by an adult for himself, but for a child) the proposed plan would have to have a prognosis as to probable survival rate not much less than (and preferably equal to) the sort of survival rate achievable through the use of the orthodox treatment universally applied at present by oncologists in this country.
  1. Giving the mother a review hearing date after Christmas, or just a “liberty to apply ” provision in my order, would also have an incidental downside to it. This is because everyone working at the hospital with N should ideally be able to go forward with as much certainty and confidence as possible that the necessary decisions have been taken. They need to be able to get on with making the necessary booking arrangements for the equipment, making the restraining mask and planning their commitments. They need to be able to prepare N with play-therapy which is able to be confidently delivered, and not in some half-hearted way because they are aware that the radiotherapy might never happen. It is not in N’s interests that everything should be ‘semi-on-hold’ awaiting notification after Christmas or in the New Year as to whether or not there is still to be further litigation. Whilst recognising therefore that the mother’s right to a fair trial is absolute, I am satisfied in all the circumstances (i) that she has had a sufficient opportunity overall to put forward a case for complementary treatment for N and (ii) that it is not unfair for this decision to be taken today, without there being any pre-ordained opportunity for her to apply at a further hearing after Christmas. Obviously, in any case involving the best interests of a child, a dramatic change of circumstances would enable a party to turn to the court, but that is not something for which I consider I should specifically plan.

 

 

I found these passages to actually be the most interesting in the judgment. The suggestion here is that it is appropriate for the Court to rule in favour of mainstream treatment unless a parent can show that the prognosis and survival rate in terms of the alternative treatment is “not much less than and preferably equal to the orthodox treatment universally applied by oncologists in this country”

 

The reasoning behind that is that the Court is looking not at the decision of an adult to make an informed decision about treatment for themselves, but on behalf of a child. Where the adult is aware that the treatment for themselves may not be as efficacious as the treatment they are rejecting, they are taking that decision for themselves and are entitled to more leeway in making a decision that other people might not make for themselves.

 

This does seem to me, to set the bar quite high, and perhaps does not fully take into account that there is more than simply the efficacy of treatment, there is also the negative impact of the treatment on quality of life, pain, discomfort etc, that a parent might legitimately want to shield the child from.

 

To put it this way

 

If  Treatment A has a score out of 100 (1 being bad, 100 being good) of

 

Prognosis  85     Patient comfort   20

 

 

And Treatment B has the scores

 

Prognosis  60  Patient comfort 65

 

 

And Treatment C has the scores

 

Prognosis 5  Patient Comfort 100

 

Well then a great many parents might well decide that the only factor that matters to them is prognosis, the survival chances of their child and Treatment A is obviously the right one. But others might well say that with both treatments, there is some chance that the child won’t survive and they don’t want the child to be in pain or distress during the treatment, so they would prefer Treatment B. 

 

It would seem fairly easy to reject Treatment C as simply not being good enough at treating the condition, and so there’s a point at which lower prognosis for higher patient comfort stops being a valid trade-off. I’d suggest that opting for Treatment C would be an unreasonable decision, if A and B were instead available for the child   [though it would be a viable decision for an adult to make for themselves].   Treatment C might for example, be sugar pills, which would have themselves no adverse impact on the child, but do very little for the actual condition itself.   [cough, homeopathy, cough, cough]

 

It might be that the average parent would go for Treatment A, but would a parent going for Treatment B be manifestly wrong, to the extent that a Court should intervene?

 

These numbers are of course plucked out of the air, I have no idea what evidentially the mother might have been able to produce that would show the prognosis on her proposed model of treatment, or the comparisons of pain, side effects, discomfort.

 

 

But I am a little troubled that this case, with those fictitious numbers above, would mean that a parent could not plump for Treatment B, because the prognosis is not  “not much less than and preferably equal to the orthodox treatment universally applied by doctors in this country”  

For the avoidance of doubt, I think the Court made the right decision in this case, and that there simply wasn’t the compelling evidence presented to them to diverge from the very clear and strong medical opinion that this child needed urgent and orthodox medical treatment;   and that the State has to have power to intervene where a parent ignores that medical advice and is seeking to provide treatment which is untested, or crackpot.  But is there some room in the middle where a parent can choose between two valid treatments, one of which is less efficacious than the orthodox one?

 

I always get worried, as a bleeding heart liberal, when parental autonomy is eroded. In this case with this evidence, choosing between what mum wanted and what dad wanted, was very straightforward, but that construction that a parent seeking to provide unorthodox or alternative therapy for a child has to show that the prognosis is as high as the orthodox treatment seems to me to set a very high bar, and to not fully take account of the other factors than prognosis that might properly influence a parent.

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Law society guidance to solicitors attending meetings with social services

Posted on January 15, 2013 by suesspiciousminds

 

Important reading for all lawyers involved in care, particularly local authority ones   (Thanks to @CelticKnot for putting this up on his twitter feed, which brought it to my attention)

 

http://www.lawsociety.org.uk/advice/practice-notes/attendance-of-solicitors-at-local-authority-children-act-meetings/

 

Clearly someone with a gripe has contacted them with a well-thumbed textbook, to suggest that a Local Authority lawyer being present at a meeting that the parents attend should have the consent of those representing the parent to be present, and the Law Society don’t go that far, but do give some clarification as to where care needs to be taken.

I think they chiefly mean case conferences, rather than Letter before action meetings, since they talk of giving advice during the meeting, but I think best to work on the basis that it applies to any meeting held outside of the Court building.

3. The role of lawyers in local authority Children Act meetings

3.1 If you are representing the local authority

If you are employed by a local authority, you will be called upon to advise as well as to act on behalf of their local authority ‘client’ in care proceedings. One particular function will be to advise the authority on whether the criteria for initiating proceedings under the Children Act 1989 have been met.

The local authority solicitor also has a particular function in relation to Child Protection Conferences. Paragraph 5.84 of Working Together to Safeguard Children, a guide to inter-agency working to safeguard and promote the welfare of children (2010) states that ‘those who have a relevant contribution to make may include local authority legal services (child care)’.

In this context, your attendance may be necessary to offer expert advice to the Conference on any legal issues which may arise, but not to be a full participant in the Conference.

You should not address substantive questions about the matter under consideration directly to parents for two reasons:

  • firstly, this could well mean asking questions of another solicitor’s client without his or her permission, and
  • secondly, you should not ask questions of a lay participant at a conference without his or her solicitor’s consent which should more appropriately be asked in court proceedings.

Questions directed to other participants in the Child Protection Conference will normally be limited to prompting an expansion or clarification of information or evidence already given (see 1.3 Professional conduct).

Further, legal advice to the local authority on their agency role in care planning and on initiating or pursuing court proceedings should be given outside the Child Protection Conference.

However, if the conference is considering making a recommendation to the local authority that care proceedings or other court action should be taken, you may give a view to the conference as to whether the evidence would support such a step being taken.

You may assist in the decision as to whether the criteria are fulfilled for making a child the subject of a child protection plan.

You may also suggest to the Local Authority that it consider initiating or pursuing court proceedings. However, any decision actually to initiate or pursue court proceedings should be made by the local authority outside the Child Protection Conference.

Care planning is essential to meet the child’s future needs, and your involvement could help to reach agreement as to the provision of services and support, which may either reduce the need to bring proceedings to court or alternatively to narrow the issues within care proceedings so as to avoid non-purposeful delay which is in itself harmful to the welfare of the child.

 

and at para 1.3 they make something explicit which most lawyers would have deemed implicit anyway

The Law Society’s guidance has been sought on the application to Local Authority Children Act meetings of Outcomes 11.01 and 11.04 of Chapter 11: Relations with Third Parties, in the Solicitors Regulation Authority Code of Conduct 2011.

  • Outcome 11.01 : ‘you do not take unfair advantage of third parties in either your professional or personal capacity’

It has been suggested that a l ocal authority solicitor attending a Local Authority Children Act meeting may fall foul of this rule if they were to listen to the discussion at the meeting in which parents are participating and then use the knowledge of that discussion to advantage in the cross-examination of a parent in any subsequent court proceedings.

It must be reiterated that the purpose of a Local Authority Children Act meeting is to share information about the care of the child, the child’s need for protection and to plan for future care.

It is outside the remit of the meeting to consider allegations of abuse against the parents except in so far as this may be relevant in formulating a care plan to meet the identified needs of the child.

In other words it is important to ensure that inappropriate investigations of abuse are avoided. If you are representing the local authority, you are responsible for advising the meeting to keep within its remit. It is then the responsibility of the chair of the meeting to ensure that the meeting does keep within its remit.

If it appears to you as the l ocal authority solicitor that, at a meeting where parents are in attendance without their solicitor, there is a need to discuss information which may be in conflict with the parents’ interests, you should consider advising the meeting that they must withdraw while this information is discussed.

It should not be assumed that there will always be a conflict of interest between parents and child, or parents and the local authority.

The concept of working in partnership should be pursued until the contrary is indicated. Equally, it should not be assumed that withdrawal from a local authority Children Act meeting should be routine – it should only occur in rare circumstances and in cases where prior warning of potentially damaging admissions is given and in order to prevent criticism at a later stage.

  • Outcome 11.04 : ‘ensuring that you do not communicate with another party when you are aware that the other party has retained a lawyer in a matter, except:
    • (a) to request the name and address of the other party’s lawyer; or
    • (b) the other party’s lawyer consents to you communicating with the client; or
    • (c) where there are exceptional circumstances’

It has been suggested that if parents have retained a solicitor who is not present at the local authority Children Act meeting, then the local authority solicitor can only attend with the parents’ solicitor’s consent. It is the Law Society’s view that this Outcome is not relevant in the context of local authority Children Act meetings and therefore should not be used to determine who should and should not attend such meetings.

 

I personally have always taken the view that Letter Before Action meetings aren’t about exploring factual matters or responses to allegations, and I would tend to not attend if the parent is either unrepresented, or has a solicitor and their solicitor doesn’t attend, but it is worth noting what the Law Society say.

There’s then some advice for solicitors representing parents at any meetings involving Social Services   (not just “for God’s sake take some billable work with you, or your firm will go bust doing this work for next to nothing”)

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3.4 If you are representing the parents or persons with parental responsibility

It is good practice for local authorities to invite you, or a representative of your firm, to accompany parents as a supporter to local authority Children Act meetings and that local authorities should be encouraged to adopt this approach.

This will facilitate a full exchange of information and also avoid the stressful situation of parents having to face a meeting of professionals without any professional assistance themselves.

If you cannot attend in person but instead send a representative of your firm, you must ensure that the representative is knowledgeable in child care law and procedures, and is fully informed of the circumstances of the case.

It is in any event, important to advise parents of the importance and benefits of their attendance at Local Authority Children Act meetings and to assist in preparing them for the meeting.

You should first discuss with the client who, if anyone, would be the most appropriate person to accompany them to the meeting (if it is appropriate and possible for someone to attend), and consider what the person’s role should be, subject to the agreement of the chair of the meeting.

If court proceedings are a possible outcome or these are already in existence, you should discuss with the client(s) the implications of giving information to the meeting, particularly if there is a possibility that they may later be cross-examined in court.

Where parents are unable to attend the meeting, you should encourage and assist the parents to prepare a statement to be read out at the meeting.

When you attend local authority Children Act meetings your role at the meeting should be outlined by the chair. In appropriate cases this might include clarifying whether or not you can ask questions or raise points on your clients’ behalf.

It is frequently the case that the chair of the meeting will meet parents (and their solicitors) before the meeting starts. Any queries over your role can therefore be dealt with at that stage.

There may be circumstances when it may be inappropriate for both child and parents to be present at the meeting at the same time. It will be for the chair to work out procedures to enable all parties to participate to the fullest and fairest extent.

However, where a young person decides to attend a meeting without being accompanied by a representative, but does not wish to disclose information in front of his or her parents, then it will usually be appropriate for the parents and their representative to withdraw from the meeting to enable the young person to participate.

In some cases, for example, where parents are separated, issues of conflict, competing interests and requests for confidentiality do arise as between parents or relatives attending at local authority Children Act meetings.

It may therefore not be appropriate for those persons and their solicitors to be present together during the meeting. Again, it will be for the chair of the meeting to determine appropriate procedures to enable the fullest and fairest possible participation of those concerned.

 

 

 

 

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Semantics, pedantics and Neuro-mantics

Posted on January 14, 2013 by suesspiciousminds

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 :-

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 https://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

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The Streisand effect and care proceedings

Posted on January 11, 2013 by suesspiciousminds

A discussion of Bristol City Council and Others 2012

This is the decision in the High Court that the Sun newspaper, and in due course no doubt many others, be permitted to report on a case (subject to restrictions about anonymity) whereby a girl who was in care made allegations that the foster carer had grabbed her by the throat, the allegations might not have been properly investigated, and that there was strong reason for suspicion that the foster carer had been viewing child pornography.  The LA had originally sought to restrict any reporting, but moved forward within the court proceedings to accepting that there was a legitimate public interest in reporting the broad facts, but wanted the details kept out.

As you may know, the Streisand Effect is the term given when an attempt to prevent publication makes the story even more delicious and juicy and gets ten times the attention it would have got. See also, the welsh footballer whose name you all know, but I still probably can’t say, save that you can find it if you search google for John Hemmings, plus footballer, as Mr Hemmings MP was legitimately able to name the footballer with the superinjunction in parliament – I am not an MP.

http://www.bailii.org/ew/cases/EWHC/Fam/2012/3748.html

The reporting restriction order made here, applies to me, of course, so am going to only give the information which is in the judgment – in fact, lets stick to the background given in the magistrates facts and reasons, and the preamble that was in the order itself

    1. In their written reasons for making a care order, the Justices set out the evidence that had been placed before them about these matters and in their findings of fact added these observations:

 

“We have heard and read considerable evidence concerning the care provided to A whilst subject to an interim care order. This is extremely concerning and deserves to be examined fully within a different forum. This bench is, however, of the view that these events are not germane to its decision as to whether care and placement orders should be made. All references to these highly regrettable events are made for the sake of completeness.

This bench believes that the local authority did not follow child protection procedures. As soon as A disclosed the assault and the contact worker noted the injuries, she should have informed A’s social worker, Ms P, or the emergency duty team. No such report was made and it was left to B, A’s father, to make the referral via the police. The bench does not consider that the local authority has been involved in a cover up which has been suggested by B.

The contact worker should not have disclosed the allegation to the foster mother until A had been interviewed. The foster mother denied the allegation on R’s behalf immediately. Having already been aware of the difficulties in the placement and of A’s fear of R, the authorities should not have allowed A to return to the foster home whilst the allegation was unresolved and it is reasonable to suppose that this increased the risk to A. We believe an immediate strategy meeting should have been called and A’s guardian should have been involved. It is a matter of very great concern that Mr N, A’s guardian, was not told by Miss P of the allegation at an earlier stage.

We strongly believe that A should have been referred to a doctor. A grasp to the throat accompanied by red marks to the front of a young child’s neck could denote internal injuries. In any event, the injuries would have been properly documented and their cause commented upon. It appears to us that the explanation provided for the injury by R was inconsistent with the injury itself.

A’s allegation of being assaulted does not appear to have been taken seriously by the authority….

It concerns us greatly that the alleged assault by R occurred at 2 am when T was cuddling S apparently whilst the foster mother was downstairs and that information did not cause the authority to act immediately.

At the time of the allegation of physical abuse, the local authority were already aware of other allegations relating to child pornography at the address. Despite this, and having parental responsibility through the interim care order, they failed to remove A for a period of 14 days.

With hindsight, Miss P acknowledged the risk of sexual, physical and emotional harm to A during the authority’s care of A between 14th May and 28th May 2012. It is clear to this court that the local authority knew about these risks on 14th May and did not take protective action as it should have done.

These matters concern us greatly and we believe should be thoroughly and forensically investigated and reviewed in an independent forum.”

    1. An order restricting publicity was originally made in the following circumstances. A journalist from The Sun attended the hearing of this matter in the Magistrates Court at Bristol on 9 October 2012. On the afternoon of 10 October 2012 Mr Cusack, an agency journalist attending the Magistrates Court hearing in this case on behalf of News Group Newspapers, was told that none of the legal representatives in the case were present at court but were instead at Bristol Civil Justice Centre seeking an injunction against The Sun. Mr Cusack went to Bristol Civil Justice Centre and attempted to take contact details for the local authority lawyer and to urge her to contact the in house lawyer for NGN. However Mr Cusack was unable to speak to the local authority lawyer until the hearing had finished and the order had been granted.

 

    1. At around 4.30 on that day, 10 October, HHJ Barclay, sitting as a s.9 judge, made an order preventing any reporting of the case, and of the names of the parties including Bristol. During that hearing no one appears to have drawn the judge’s attention to the Practice Direction applying to such applications, nor to s.12 of the Human Rights Act 1998, nor to Article 10 of the ECHR. The judge did note, despite this, that the press had not been given notice of this hearing and “arguably they should have been“. He also noted that it was a ‘great pity‘ that the press had not been notified.

 

    1. Bristol City Council at the hearing sought an order for Bristol City Council’s identity, and the social workers’ identities, to be “kept undisclosed pending an investigation”. It is unclear what “investigation” was referred to.

 

    1. Bristol City Council subsequently contended that they had been “prevented” from providing notice to News Group by the “urgency of the position”, and maintained that Bristol City Council had been correct to take this course. This is not a tenable position, given the presence in court on 9 October and the morning of 10 October of journalists who the parties knew were attending on behalf of The Sun. There was in fact no excuse at all for not putting the Sun, at the very least, on notice of the application.

 

    1. On 12 October Bristol City Council completed the checklist for applications for a reporting restriction, with a view to a video link hearing taking place before Baker J on the afternoon of 15 October. The application included a draft order, which provided for prohibitions upon (amongst other things)

 

a. Publishing anything at all relating to the care proceedings;

b. Publishing anything which identified the local authority;

c. Seeking information about the case from any employee of the local authority.

    1. In the skeleton argument served in support of the application, the LA maintained:

 

a. That there could be no public interest for the ‘unproven’ allegations about the use of pornography by the foster carer to be publicised.

b. That there could be no public interest for ‘unsubstantiated allegations of negligent social work practice made by the parents’ to be publicised.

    1. Bristol City Council subsequently changed its position concerning the reporting of the proceedings, conceding that News Group should be free to publish certain matters which News Group identified as being in the public interest, including the identity of Bristol City Council as the applicant in these proceedings. Bristol City Council maintained that certain items of information which News Group wished to disclose from the proceedings were inaccurate and should not be publishable.

 

    1. Bristol continued to maintain however that certain allegations made during proceedings should not be reportable on the basis that complaints were “ properly investigated by the local authority” and found to be without substance.

 

    1. During the course of these proceedings for an injunction, it became apparent to News Group that there was in existence a document entitled ‘Facts and Reasons’ dated setting out the findings of the Magistrates on the care application. News Group applied for permission to see this document, and then for permission to publish its contents in anonymised form. News Group maintained that the Facts and Reasons raised issues of considerable and legitimate public interest concerning the manner in which Bristol City Council had sought to discharge its duties.

 

    1. Bristol initially resisted the application by News Group for permission to publish the contents of the Facts and Reasons, then, during a hearing, conceded that the contents of the Facts and Reasons should be publishable in anonymised form.

 

  1. News Group made further submissions in respect of whether particular points of detail within the Facts and Reasons should be publishable. News Group contended that all the information within the Facts and Reasons should all be publishable in anonymised form, together with a limited amount of additional information from the proceedings.

Although the Court allow the naming of the social worker, I have chosen not to do so.

The case obviously contains very useful information on the balancing exercise between article 8 right to privacy and article 10 freedom of the press, and is helpful for that.  I don’t think there’s anything particularly novel in the law here.

The LA were obviously in a tight spot – they clearly didn’t want the girl to be identified, and were worried that she might be. The problem is, of course, that once the Sun got the story, they were always going to want to run it, and LA loses attempt to stifle the Sun is an even bigger story.  A tough position to be in.

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Imaginary written submissions

Posted on January 9, 2013 by suesspiciousminds

[These are imaginary written submissions, in relation to an application for an Emergency Protection order  – in reality, one wouldn’t have the opportunity to make them, but they bear some resemblance to what the advocate representing the mother might have said in addressing the bench, though almost certainly in less florid and melodramatic terms.  I have been very careful, as any advocate would, not to misrepresent any facts]

  1. This application for an Emergency Protection Order is made by the Local Authority. The mother has had very limited notice of the hearing, and very limited opportunity to see the case put against her. She has had to defend her position and persuade the Court not to make this most draconian of orders without having the opportunity to see the Local Authority case in writing, or to put into writing her own account of events.

It is for those very reasons that the Courts have set down authorities that making an order of this kind is draconian, and requires “compelling evidence”,  particularly, the decision of RE X (A CHILD) sub nom RE X (EMERGENCY PROTECTION ORDERS) (2006) [2006] EWHC 510 (Fam)

  1. I will come on to those matters in a moment; but the Court should have in mind the context that to remove a child from a parent at any stage requires cogent evidence that there are reasonable grounds to believe that the threshold is made out, but that beyond that, that the decision to remove is a proportionate one to make far in advance of assessments or a final hearing bearing in mind the alleged nature of the risk, and that to do so at an Emergency Protection Order stage requires extraordinarily compelling evidence that it is effectively the only thing to do, it is an order of last resort.  And that it should only be contemplated if imminent danger is actually established.
  1. The legal context is then set out in Re X, and the predecessor case, also Re X. In X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam); [2005]1 FLR 341,  

      Quoting from the earlier case :-

An EPO, summarily removing a child from his parents, is a ‘draconian’ and

‘extremely harsh’ measure, requiring ‘exceptional justification’ and

‘extraordinarily compelling reasons’. Such an order should not be made   

unless the FPC is satisfied that it is both necessary and proportionate and that

no other less radical form of order will achieve the essential end of promoting

the welfare of the child. Separation is only to be contemplated if immediate 

separation is essential to secure the child’s safety: ‘imminent danger’ must be

‘actually established’.

 

 

The evidence in support of the application for an EPO must be full,

detailed, precise and compelling. Unparticularised generalities will not

suffice.

The sources of hearsay evidence must be identified. Expressions of opinion

must be supported by detailed evidence and properly articulated reasoning

  1. So there must be a serious emergency, to justify having such an important hearing in such a rush, and there must be compelling and detailed evidence that an EPO is the only real course of action, and the applicant has to establish imminent danger; the burden of proof is on them to prove that there IS, not on the parent to prove that there ISN’T.
  1. Let us look at what the Local Authority claim this “emergency” is.  The child is thirteen months old.  It is said by them that he has been known to Social Services throughout his life, and that is true. It is also said by them that he has spent a period of time in voluntary foster care, and that is also true. He was in voluntary foster care for around two months, but has been at home with mother for nearly six months since then.  There have been periods of his life where he has been on the child protection register – the same is of course true of many children.
  1. It is accepted that there are positive reports from the health visitor and childminder, and the social worker accepts that the mother’s presentation around the child, and the child around her, is illustrative of a loving relationship.
  1. They say that the ‘emergency’ triggering event, is that yesterday, the mother took the child to a hospital appointment, and that the child had visible bruises.  
  1. That is also true. But what is also true is that the doctor who examined him has said is that the child was unwell and miserable and probably had a viral infection, that he had a history of aggressive behaviour including head-butting the floor, and that there is nowhere within the medical report a conclusion that those bruises were non-accidental, or likely to be non-accidental, or could possibly be non-accidental.  
  1. The best evidence about these bruises comes from the paediatrician – she saw the bruises, she saw the child, she took the history, she is after all, the expert in these matters. That’s the evidence before the Court, and it concludes that the bruises were caused accidentally. We deal in evidence, not mere suspicion.  Where there is suspicion and it is relied upon, there must be evidence to support that suspicion.
  1. The Local Authority say that there is a history of previous bruising, and again, that is true. But it is not for them to put two and two together and make sixteen. The doctor examining him saw the child, took the history from mother, read the previous history, and if the doctor felt that there were reasonable grounds to believe that the bruises were non-accidental, then she would have said so when asked to prepare this report for Court.
  1. The case has been brought to Court, for what I have to remind the Court is the most draconian type of order, requiring compelling evidence, because the social worker has made her own diagnosis that the doctor, who is qualified to examine children and draw conclusions, has got this wrong.
  1. Well, in the spirit of generosity, perhaps the doctor has got this wrong. Perhaps, and this is not the mother’s case at all, there is a history here which needs looking at with a fresh pair of eyes. The mother is confident that another paediatrician will come to the same conclusions and that these lingering suspicions will be removed. 
  1. But to REMOVE this child from mother’s care, because the paediatrician might have got this wrong, cannot be the right thing to do. If the Local Authority consider that there is something here which needs to be investigated, then they can issue an application for a care order, set out their concerns and their evidence for those concerns on paper, and the Court can consider whether an independent paediatric assessment of the child is warranted.  That is an argument for another day.
  1. What these circumstances do not add up to, in any way shape or form, is the sort of compelling evidence that this child has been suffering significant harm or is likely to do so, and that he should be removed from his mother’s care and put in foster care, much less so on such short notice, with such a paucity of evidence before the Court.  
  1. The Local Authority point to some historical bruising – seven months ago, there was some bruising. The mother says that this was caused in play with some other children. A medical report at that time felt that it was suspicious and might be non-accidental.  The child came into foster care during a police investigation – the mother cooperated with that, and as we have heard, two months later the child came home.
  1. What they try to do now, is to add that, where they have a medical report which does give rise to some legitimate concern, to the situation today, where they have a medical report that raises no concerns at all, and try to force the two things together. As I said earlier, this is a case of trying to make two and two make five.
  1. Respectfully, they cannot do that. If we had been here seven months ago, with the report from the doctor saying there were suspicious bruises, then perhaps there would be a case to deal with. But something can’t be an emergency, if you wait for seven months to bring it up. Something can’t require the court to urgently intervene to protect the child if the LA had him in care and were happy to send him home five months ago.  And something that the paediatrician who saw the child yesterday already knew about and had read in the medical records, when they decided that the child was safe to go home from hospital with his mother, can’t now become evidence that the child is not safe at home and has to be removed. 
  1. If the previous bruises made the paediatrician yesterday look at the bruises with a more cynical and suspicious eye, then that is one thing, but that isn’t what happened. In the light of knowing about those previous bruises, the paediatrician was satisfied that what mum was saying, what her own eyes showed her – an aggressive hyperactive child with a temperature and a virus who was head-banging, had got those bruises by doing just that.  
  1. The Local Authority essentially say, “well, she should have done”, but that is neither here nor there. In terms of actual evidence, she didn’t. There is no medical opinion that those bruises seen yesterday were caused non-accidental.
  1.  This isn’t an emergency. The child is at home with mum, safe and well. The hospital didn’t feel the need yesterday to say “this is risky, we can’t send him home”.  
  1. The child doesn’t need protection. There is no evidence of significant harm here. The highest it can be put is that the Local Authority would want a fresh medical opinion looking at all the notes.
  1. There is no need for an order, particularly the most draconian order that can be made by a Court. 
  1. Is the evidence here “extraordinary compelling”?   Have the Local Authority actually established imminent danger?   In setting out why the evidence of the social worker, who has not seen these bruises, should be preferred to that of the independent expert paediatrician, who has, have the Local Authority provided evidence which is “full, detailed, precise and compelling”?  With “detailed evidence and properly articulated reasoning”?
  1. In my respectful submissions, they have come nowhere near, and the application should be refused.

 

 

Well, unless you have been under a rock for a few years, you will know that the name of the child in the case is Peter Connolly, and you probably twigged that very early on.   

 

You will also know that the Local Authority DID NOT issue an emergency court application, on either the day the paediatrician saw the child or the day after.

 

If they had, would it have saved Peter? Probably not, as you can see here, the case against making the EPO is overwhelming.   I have to be candid and say that if they had rung me, with the medical opinion being as it was, I would have advised that an EPO had no prospect of success. It wasn’t even finely balanced.

 

You may be thinking that I have stacked the deck here, by making it an Emergency Protection Order, where the bar is so much higher following the Re X decisions than the test for an ICO. 

 

Well, I haven’t stacked the deck, because there were just two days, and only 1 full working day between the paediatrician seeing Peter and him being killed. So an Emergency Protection Order was the only order that Haringey could have applied for that would have had him out of the home before he was killed.

 

If such an application had been made, it would have been resisted, along similar lines to this – the test for an EPO is very high, it needs extraordinarily compelling evidence, the Court need to be satisfied that there is actual evidence of imminent danger, and that the paediatrician who examined the child didn’t make a diagnosis of NAI.

 

That’s not to defend Haringey – there were clearly mistakes made, largely at the point when having got an earlier paediatric report saying non-accidental bruises, they didn’t issue. Nor did they issue at the point where they had the child in foster care and the point came where he was going home to mother unless they got a Court order.

 

Nor is it to castigate those who would represent a parent in this situation. Far from it, those are exactly the points that should have been made, and any barrister or solicitor representing a parent against those facts would have been pretty shabby if they hadn’t left the court room with their client going home with the child.

If I’d been representing Peter’s mother on that day, with those facts, I would have fought to make sure the EPO wasn’t made. And it would have been the right thing to do, regardless of how it later turned out. The Court have to decide cases on evidence, and in this case, the medical evidence to justify an EPO wasn’t there.

 

My point is that it would have been extraordinarily hard to save baby Peter’s life AT that critical point, the last chance to intervene to save him simply would not have worked. If the LA had flown in the face of the paediatric evidence and sought an EPO, they would not have got one. The best they could have hoped for would be that there would be an ICO hearing a week later. By which time it was too late.

 

From what information there was, at the last possible moment to save him, you would not have persuaded a Court that he needed to be taken into foster care there and then.  It is very easy to make all sorts of different decisions in hindsight, but I do believe that it is worth bearing that in mind  – the media portrayal is that this was an inevitable course of action that could have been averted at any time, but I would suggest that things often appear inevitable when you are working back from a known outcome.  If you had been there, at an EPO hearing on that day, with the facts that were known at the time, you would have been appalled if the Court had granted the EPO.  

 

[of course, had the paediatrician seen all that was there to be seen, then firstly Peter would have remained in hospital instead of going home, and secondly, there would have been compelling evidence of imminent danger, and the whole case is transformed]

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There’s a small boat made of china, going nowhere on my mantelpiece

Posted on January 8, 2013 by suesspiciousminds

 

Laplace, prediction, and why we might, everywhere we go, always take the weather with us in care proceedings

 

By the start of the nineteenth century, scientists had discovered a great many of the principles of physics and particularly how various forces acted on objects in predictable and mathematical ways.  This led some scientists to hubristically predict that there was nothing new to be found in the world of physics   (obviously not aware that radioactivity, splitting the atom and quantum physics were completely unknown to them at that point).

 

Anyway, once you discover the various mathematical principles about forces and objects and how forces act upon objects, one starts thinking about whether you could predict something with absolute certainty if you had enough information.

 

Being a previously sad geeky sciency Suesspiciousminds Junior, I had certainly wondered in my adolescence whether you could, if you had really fast computers and knew everything, no longer be guessing a toin coss, but knowing how it would end up.  

 

That’s something which has also exercised the minds of a great many gamblers, since Roulette is essentially just an exercise in predictable physics (speed of spin of the table, angle and speed at which the ball is dropped) – predictable, but extremely complex, and if you could actually predict which slot the ball would drop into, with certainty, you would be an extraordinarily rich person.

 

Well, someone else,  Pierre-Simon Laplace took that a stage further, and suggested that with a great enough intellect (computers weren’t really around at that stage, other than Babbage’s mechanical one which was more of a theoretical concept than something you could actually boot up and play Farmville on), you could calculate the entire future of the universe and the movement of every particle.

 

“We may regard the present state of the universe as the effect of its past and the cause of its future. An intellect which at a certain moment would know all forces that set nature in motion, and all positions of all items of which nature is composed, if this intellect were also vast enough to submit these data to analysis, it would embrace in a single formula the movements of the greatest bodies of the universe and those of the tiniest atom; for such an intellect nothing would be uncertain and the future just like the past would be present before its eyes.”

 

This is really the birth of determinism, the idea that you can, given enough information, accurately predict future outcomes, or more broadly, that given a set of conditions, the outcome which emerges from those conditions is the only one which COULD have emerged.  

 

[Sadly, I learned when doing a bit of quick research, that Laplace’s other claim, that Pope Callixtus had once excommunicated a comet, was fallacious. I have a later essay planned on how the law has treated animals and inanimate objects, and that would have fitted perfectly with the excommunication of beetles and the pig who was put on trial for murder]

 

I won’t get any further into whether Laplace’s grand conjecture is true or not (if only in a deeply theoretical sense), and it is still debated – Einstein firmly lined up with Laplace on believing that there were firm mathematical laws and principles underpinning all matter and physics and that it would therefore be possible to predict things with certainly, but that there were just things that were yet unknown to us that prevented such predictions being made. Many others think otherwise, and that there’s an element of randomness, particularly at the quantum level that makes that impossible.

 

Let’s move away from correctly predicting the motion, position and velocity of every particle in the universe and onto a smaller scale, and some predictions which are common to every one of us, and which enter our homes on a daily basis.

 

And that allows me to  yank it back to care proceedings – in one of the dominant cases of the 1990’s, Re H and R 1996, the House of Lords grappled with the issue of what ‘likely’ meant, when considering whether a child was ‘likely to suffer significant harm’  and this is one of the more memorable passages from Lord Nicholls of Birkenhead :-

 

 

In everyday usage one meaning of the word likely, perhaps its primary meaning, is probable, in the sense of more likely than not. This is not its only meaning. If I am going walking on Kinder Scout and ask whether it is likely to rain, I am using likely in a different sense. I am enquiring whether there is a real risk of rain, a risk that ought not to be ignored. In which sense is likely being used in this subsection?

 

 

And if you know the law, you will grasp that the latter is where we ended up at in terms of likelihood  – it does not mean something that is more likely than not to happen, but a risk that cannot sensibly be ignored.

 

But in a real sense now, I am going to talk about the science of predicting the weather – will it rain on Kinder Scout today or not?

 

As you will know, the field of predicting the weather has moved beyond hanging up pine-cones or (my standby) looking at whether cows are lying down in a field   (a belief I can’t shed, despite knowing how stupid it is, and one which gets me regularly mocked by Ms SuesspiciousMinds)

Meteorology instead uses a combination of :-

 

  1. Gathering lots of information about the current situation
  2. Applying mathematical principles and formula to predict how features in one part of the system will interact with another
  3. Calculating therefore what a particular part of the system is likely to do at a future point

 

 

And thus, is a system that would make Laplace very proud.

 

 

The principles that govern whether we get rain, or snow, or a nice bright sunny day, are pretty uncontroversial. There isn’t a band of quarrelling meteorologists bickering about whether isobars are of any significance at all or whether the warm fronts we see so much of on the television are merely illusory.  So, the principles are all there. The mathematical models for what these set of conditions will do over the next few hours are there (based largely on thermodynamics and fluid dynamics), and have been refined and improved, the collection of information about those conditions has vastly improved over the last thirty years, as has the quality of computers doing the calculations.

 

But what is your first answer, quickly, when I ask

 

“Do you think we can reliably forecast the weather?”

 

 

Making my own little forecast, your instant reaction was no, or that we are hopeless. You may, if you are a fair-minded person, have had a momentary recalibration and decided that we are better at it than we used to be, or even that we are not bad at it now.

 

But let’s go back to Lord Nicholls – it is March, you are about to go up Kinder Scout  and the weather forecast says that it is probably not going to rain. Do you take a coat, or not?

 

Is the risk that the weather forecast will be wrong when it says there won’t be rain, a risk that cannot be sensibly be ignored, if you find yourself up on a mountain without a coat?

 

You may have had nagging at the back of your mind, or the front of your mind if you are a science geek or liked Jeff Goldlum’s character in JurassicPark, the notion of chaos theory at this point. You may even have recalled the image of a butterfly flapping its wings and causing a hurricane on the other side of the world   [incidentally, probably the most misunderstood image in the history of science  – it doesn’t CAUSE the hurricane, it is about how small factors can amplify and make things harder to predict]

 

Essentially, small factors amplify with time, and the way they amplify is hard to predict, so even the very best computer forecasts become more and more unreliable with the passage of time. Forecasts are far more reliable about the next few hours than they are about next week, and break down almost entirely after sixteen days.  In numerical models, extremely small errors in initial values double roughly every five days for variables such as temperature and wind velocity

 

[So every time the newspapers tell you that there are predictions that this is going to be a “barbecue summer”  remember that the accuracy beyond 16 days is all to cock]

 

 

Okay, so predicting the weather, which is based on inanimate objects, which act under the influence of known forces, in known ways, and which the science of meteorology has been refining and checking against known outcomes to improve the prediction models, isn’t all that accurate and is not very accurate at all after 16 days.

 

Now, I will pull us back to law.

 

At the conclusion of a criminal trial, things are simple  – did this person do what they were accused of, and has that been proven. It’s similar with any other sort of legal dispute  – did one person prove that x happened, and what punishment / compensation should the Court give.   The Court doesn’t really have to predict the future – a burglar isn’t convicted of an offence of burglary only if the Court think he will do another burglary next week.

 

 

Care proceedings aren’t like that – whilst we may well spend some time arguing about precisely what happened in the past and the Court may have to decide that if we can’t hit on a form of words which everyone can agree, mostly what we are doing is predicting the future.

 

  • Have the improvements seen in the mother’s parenting at a mother and baby placement, or in contact, mean that she can now safely care for the child, or is she going to slip back into her old ways once she stops being watched all the time?
  • Is this father, who has been using heroin for 6 years but has been clean for 4 months, going to remain clean, or will he slip back? (What if he was clean for 6 months, but had one lapse?)
  • Will the mother, now that she has seen how risky an individual her new boyfriend is, stay away from him when the proceedings are over, or will he be back in her life and have the chance to hurt the child?
  • Will the parents who broke their four year old’s leg by handling him far too roughly, ever do anything like that again?

 

 

I have probably sledge-hammered this point, rather than making it in a subtle way, but if top scientists with huge computers can’t predict whether it will rain on Kinder Scout tomorrow, how can we possibly predict with certainty whether the mother will succumb to text messages from the dodgy boyfriend and keep seeing him in secret?

 

Professor Monroe touched on this in her first report –  there was for a long time a body of thought in social work, or social work management, that we could avoid the twin pitfalls of social work    – being too soft and letting children get hurt, or being too hard and breaking up families who could have stayed together (Baby P at one end, Cleveland and Orkney at the other) by having more information, more accurate models, and getting the decisions just right.

 

1.43

Professionals can make two types of error: they can over-estimate or underestimate the dangers facing a child or young person. Error cannot be eradicated and this review is conscious of how trying to reduce one type of error increases the other.

1.44

The public tend to learn of cases of abuse after a child or young person has died or suffered serious harm and then, with the benefit of hindsight, make judgments on how it was easy to see that the child or young person was in danger and would have been safer if removed. This is of course not the way the issue looks for the professionals who only have foresight. Removing a child or young person can protect them from immediate risk of significant harm, but is understandably traumatic for them. Maltreated children or young people who come into care often benefit in the long term,  but although the outcomes achieved by looked after children have improved, in too many cases, the potential of the care system to compensate for early harm is unrealised for reasons which are well documented.

 

Our society rightly values the birth family as the primary source of care for children and young people and disrupting that bond is seen as a serious step to take, requiring close scrutiny before the courts will grant the legal authority to do so.

The birth family equally presents a mixture of benefits and dangers. A good assessment involves weighing up these relative risks and benefits and deciding which option, on balance, carries the highest probability of the best outcomes for the child. Neither option carries zero risk of harm.

1.45

In assessing the value of leaving the child in the same situation, professionals have to consider a balance of possibilities: to estimate how harmful it will be, to consider whether it might escalate and cause very serious harm or death. They also need to consider whether resources are locally available so that families can be helped to provide safer care and estimate how effective such interventions are likely to be.

1.46

All of these areas of uncertainty make decisions about children and young people’s safety and well-being very challenging. A well thought out decision may conclude that the probability of significant harm in the birth family is low. However, low probability events happen and sometimes the child left in the birth family is a victim of extreme violence and dies or is seriously injured is therefore very important. Public understanding that the death of a child may follow even when the quality of professional practice is high is therefore very important.

 

 

She says, and as you can see, I agree, that you just can’t hope to get every case right, when you predict the future, your predictions have limitations to their accuracy.  If you try to move down the safety first side of the scale, you will take children away unnecessarily. If you try to move down the keeping families together side of the scale, some children will be badly harmed at home.  The aim to just make the right decisions at the right time, in all case is simply never going to happen.

If the weather forecasters can’t get it right, neither can we.

You are dealing with people, with all their uncertainties, capriciousness and emotions, and you can’t predict exactly what they will do. The cases where you get it ‘just right’ may well end up being few and far between, and may well be more by luck than judgment.

 

A mother who is utterly resolute about remaining separate from her dangerous  ex-boyfriend, who understands what is at stake and how bad he is from her, may on any given day fluctuate about just how resolute she is. Maybe someone handsome smiled at her at a bus stop and she feels good about herself when he sends the text message and she deletes it without reading it. Maybe just before the text message came in, she caught sight of herself in a mirror and felt fat and unloveable. It is utterly impossible to predict that.  It seems easier to predict that a mother that tried to separate from ex boyfriend six times and always went back to him, and was caught out two weeks ago, probably won’t stick to her claims that it is all over and she will never see him again. But we can’t be SURE, we can only predict whether the risk is one that cannot be sensibly ignored.

 

 

None of that means that we simply give up, and either leave all children at home with their parents, or take away every child where there is a sniff of danger, but we do have to be honest with ourselves, and honest with society as a whole.

 

 

And we have to constantly test where we find ourselves on the scale of child rescue and family preservation – are we lurching too far down one end or another?  Are we risk averse, fearful of a Baby P headline and ignoring that those actions break up a family which could have stayed together, or running with a rule of optimism that small changes mean a good future prognosis and not seeing the full picture?

 

We are attempting to predict what human beings, with human emotions, will do in the future – not just in the next few days, or 16 days, but over the course of their children’s childhood.  And the very sort of parents that we attempt to do that with tend,  not always, but more often than not, to be emotionally fragile, damaged people who are chaotic and unpredictable in their actions.

 

 

 

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