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Category Archives: research

Research by ALC on “Fire-eating Courts” (sorry, “Settlement Conferences”)

 

 

We are still waiting for the Ministry of Justice research on the settlement conference pilot.  I think we’re two years overdue on the publication of the research into the impact of the legal aid cuts, so I shall not hold my breath on that research.

 

The Association of Lawyers for Children, have done their own research, conducted by Dr Julia Brophy. To be fair, I will caveat the research with these three propositions

 

  1. The ALC were very clear as to their doubts about Settlement Conferences before the pilot was launched
  2. The research is what we call ‘qualitative’ – as in it is asking people for their experiences, rather than the mooted MOJ research which has access to Court statistics and can say how many Settlement Conferences happened, how many achieved an agreed outcome, what the cost savings of not going on to final hearing were and time savings for decisions for children versus the ones that didn’t, and just built in an extra hearing
  3. The sample size of 19 respondents is small (and as the research says, was self-selecting, in that it was people who responded to the ALC’s request for volunteers, so perhaps that tends to select those who are unhappy rather than those who were happy)

 

(The fire-eating Court, in the title, is a callback to my blog about the risible conference where The Powers That Might Be Giants tried to placate legitimate concerns about Settlement Conferences with fluffy responses telling us we were all just silly)

https://suesspiciousminds.com/2016/12/21/fire-eating-pilot/

 

I’ll give my own caveat for this post – I was extremely dubious about Settlement Conferences and my own Courts have been a pilot.  I remain very dubious that a national roll-out would be advisable – but I’ve had some positive experiences of Settlement Conferences, as well as one that was sadly ghastly and ended with people in tears. My own experiences would be more positive than the sample size in this research  (but even then, I’d say that just like FDAC it is the skill and approach of the individual Judge rather than the idea and philosophy itself that makes the difference between success and failure.)  I have certainly not observed the judicial pressure spoken of in the research, but have been told about it by lawyers in other parts of the country and I know it happens.

 

The ALC research, even with those caveats is damning.  In every regard

 

Click to access Settlement_Conference_Research_Report_.pdf

 

 

Some of the things that really struck me

 

The Protocol Principles (2016) were not applied consistently by judges. Variation in approaches

covered the delivery of a preamble, attention to consent during the procedure, pressure on

parties and advocates, and approaches to the involvement of advocates.

 

Very few judges made explicit their criteria for selecting cases; almost all respondents (17/19)

did not know how or why their case(s) had been selected. In one court all cases were selected,

in others, respondents thought selection was random or idiosyncratic.

 

Some respondents (8/19) had not observed imposition of the procedure on parties but there

were concerns that once a judge presented the procedure as ‘routine’/the ‘norm’, it becomes

very hard to resist.

Similar numbers (7/19) reported the procedure had been imposed on a party. Examples

included parents with limited capacity, some who did not really understand the proposal and

some reported as bewildered by the procedure

 

A small number of judges were variously described as brutal, harsh, blunt and insensitive with

parents, with the latter effectively backed into a corner.

 

A minority of judges were described as not exerting pressure on parents to concede an order;

most however applied some pressure: it could be direct and forceful – or it could be subtle but

potentially disarming – or it could be both.

 

Some parents were unhappy about the approach of some judges in trying to persuade them

to agree to an order; some left the court in distress, some reported feeling bullied, threatened,

intimidated and coerced.

 

Overall, 5/19 respondents experienced at least one procedure where it had not been possible

or it was difficult to give a client advice during the procedure

 

The picture is mixed; very few respondents (2/19) said unreservedly, the procedure was fair;

5/19 respondents said it had not been fair.

Many (8/19) had mixed experiences; it had been fair in some cases but not in others. A small

number (3/19) said while procedures were fair ‘in the main’, there were pockets of concern

and thus caveats.

 

Overall, most advocates said a properly conducted IRH could have reached the same result but

restrictions on the time allocated to the IRH mean it is now largely ‘administrative’ with little/

no time for judicially led discussion, negotiation and party reflection.

 

There has been little discussion or analysis of issues of power and due process implications29 when

a judge bypasses an advocate and negotiates directly with a vulnerable parent about complex and

difficult issues, some of which may be issues of evidence30. For some parents who are subject to public

law proceedings, issues of ‘learned helplessness’ may influence their responses to a judge31. They may

also not fully understand that having agreed to try the procedure, they nevertheless are free to leave at any point; they may lack courage/not know how to call a halt during what may be an intense, judge led discussion. They are likely to need special preparation where there is a potential for them to agree to an order that results in the permanent removal of a child and which order will not be open to future challenge or appeal.

8 There is little/no evidence of robust research – or proposed research about whether/how parents –

often with profound problems, are prepared for settlement conferences, whether they fully understand and are able to engage in the procedure on equal terms, whether they feel it was fair and what they understand about the benefits of a hearing and due process.

9 It would be naïve to suggest that the impact on parties and parents in particular, of judicial

utterances is negligible – that would be to deny the inherent power held by judges by virtue of their

role and status, and to ignore the profile of parents subject to care proceedings.

 

 

For example, one advocate discussed a settlement conference which started exactly like a hearing, the judge then asked the local authority and the guardian to leave the room, the mother and her advocate remaining. Seated beside the mother, the judge told her that her case was “totally unrealistic”. The mother broke down and ran out of court in tears. Her advocate followed to take further instructions.

 

[10/25] respondents raised concerns about the approach of judges. In one case a judge was described as blunt, insensitive and brutal with parents, conveying their prospects of success harshly, and in circumstances where the dispute was about the proposed adoption of the child. Another advocate compared two completely different approaches:

one judge talking very softly to the parents, explaining patiently and clearly what sort of order he

would make and why; another judge did not consider the parents’ feelings or difficult circumstances in

delivering his view as to likely outcome.

The first judge was described as no less child-focused than the second judge however his delivery was

of a different calibre: calm, patient and respectful, trying to get the parents to focus on the best interest

of the child – albeit his message as to the likely order was “clear and firm”. The second judge’s style

with parents was “quite blunt, and insensitive”. This respondent continued:

“where [a] case concerns placement for adoption, what parent is going to agree to adoption?

But my experience of [this settlement conference] was that it was quite brutal really. [The judge]

conveyed his view on their prospect of success, harshly – and the parent’s advocate wasn’t

impressed with that either. [He] also felt it was insensitive.” [R-2]

 

 

This respondent along with others said a lot of parents attending settlement conferences are likely to have learning difficulties or were otherwise highly vulnerable, and it was a cause for concern:

“It feels unfair that quite often they’re being encouraged to settle [although that is not their

instructions…] and if they don’t want to settle they have right to hearing …notwithstanding [any

advice as to] likely success. So, I find it difficult that a lot of the people going to these settlement

conferences and settling are parents who have learning difficulties [and who] would sometimes

benefit from having their case heard and getting their views, wishes, feelings across…I would say the majority of cases [I] have dealt [in settlement conferences] concern parents with learning difficulties”. [R-4]

The respondent was asked if he had any ideas for support to mitigate effects for vulnerable parents:

“The difficulty is, the whole process is quite overwhelming for them; a lot of them find meeting

judge, and judge sitting next to them also quite overwhelming. It seems that sometimes the

procedure results in [an agreed order] because the parent is sometimes just completely taken

aback by it.” [R-4]

 

A minority of respondents [4/19] said in their case(s) the settlement conference judge had not applied any pressure on parties

One respondent spoke of a case in which a mother had been strongly encouraged to accept the LA plan at a Settlement Conference, did not do so, and then at final hearing secured the child living with them. That’s just a horrible thought, that if the mother had been less able to stand firm, she would have lost her child when testing the evidence the right thing was for the child to be with her.

Overall, nine respondents reported settlement conferences where clients complained about the

approach and behaviour of a judge: some expressed it at the time, for example, by leaving the court, some complained to their advocates about feeling bullied, coerced, intimidated, cornered, and not listened to by the judge.

One parent said bullying by the judge was aimed at getting him to “cave in”. Some of these

experiences were confirmed by advocates. For example, in one case where a parent reported being

bullied by the judge, the respondent concurred with the client’s appraisal of the judge: ‘it had felt quite abusive at times’ [R-16].

 

About a third of advocates were not confident of continuous consent from their client; too

much pressure was exerted by judges and indications of distress and other signs of client

anxiety were not picked up by the judge as indicating, at least, a need to revisit ‘consent’ or

as indicating consent was effectively being withdrawn/the procedure should stop.

 

Just two respondents (2/19) had no concerns about fairness in the procedures they attended

 

 

As I said, even with all of the caveats, this is a damning report.

 

So I expect the MOJ report, when it arrives, to focus on savings and roll it out nationally.

Making Special Guardianship Order before child has lived with prospective carers

This Court of Appeal decision raises a number of interesting and important issues.

(It doesn’t have anything amusing in it or any 80s references, but you can’t have it all.  If you want, you can momentarily imagine that this is some litigation involving Barry Chuckle and Jimmy Krankie having a dispute as to who gets custody of a tiny hedgehog in a hat and that the key pieces of evidence involve (i) Jean Claude Van Damme doing the splits in the witness box (ii) how many ferrets Fred Dineage can pop down his trousers and (iii) the enduring mystery of exactly how much smack Zammo Maguire hoped to obtain by stealing and pawning Roland Browning’s alarm clock, thus making Roland late for an exam.  It  has none of this.  I remain on the lookout for such a case)

 

P-S (Children) [2018] EWCA Civ 1407 (18 June 2018)

http://www.bailii.org/ew/cases/EWCA/Civ/2018/1407.html

 

Essentially, the Court at first instance, was invited by the LA and the Guardian to make Special Guardianship Orders to grandparents for two children – S aged 2 and P aged 5. The parents were seeking the return of the children to their care – it had been a FDAC (Family Drug and Alcohol Court) case and the parents had withdrawn from that process – the judgment does not deal much with the parents case, as it was not the subject of the appeal.

 

[The parents had withdrawn from the Court process, thus at final hearing it was only the Local Authority and the Guardian playing an active part, both of whom supported the making of SGOs]

 

The Court declined to make Special Guardianship Orders, in part relying on a letter circulated by Keehan J to Judges on the Midlands Circuit to the effect that

“a special guardianship order should not be made, absent compelling and cogent reasons, until the child has lived for an appreciable period with the prospective special guardians.”

 

The Court instead made a full Care Order – in effect deciding that the Local Authority, in consultation with the grandparents, should decide the point at which the case should come back before the Court with an application for a Special Guardianship Order. That also, in effect, envisaged the Care Order being a short-term order, rather than the permanent or long-term order that it is commonly viewed as.

 

The Court of Appeal judgment deals with a number of issues :-

 

  1. The need for solid evidence-based research about whether SGOs being made before a trial placement are a beneficial or adverse approach
  2. The status of the guidance given by Keehan J – and the representations made to the effect that it was being followed by the Courts in the Midlands circuit as though it were binding upon them
  3. What role prospective Special Guardians should play in the Court process
  4. What approach the Court should take, where potential suitable carers come forward late in the process.

 

All of this is useful.

 

 

 

  1. There are three strands to the errors that all represented parties before this court identify in the family court’s decision: a) the lack of any adequate reasoning for making care orders rather than interim care orders or special guardianship orders, b) the reliance of the judge on informal guidance that was neither approved guidance nor peer reviewed research capable of being scrutinised or challenged by the parties and c) procedural unfairness. I shall take each in turn. The court is mindful of the fact that each of the represented parties before it (except S’s father) have taken the same position in respect of each issue and accordingly the court has tested with the interveners each of the propositions in respect of which they would otherwise have reached a consensus.

 

 

 

  1. The propositions about which there is a large measure of agreement are as follows:

 

 

 

 

  1. The judge was wrong to make care orders: no party who was present supported the making of the same and on the merits and in particular having regard to the un-contradicted special guardianship assessments, the care orders were disproportionate;

 

  1. b. The judge’s characterisation of the care orders that were made as ‘short term care orders’ was wrong in principle given that there is no statutory mechanism for the making of time limited care orders or orders that will be discharged on the happening of an event, including the expiration of time;

 

  1. The judge was wrong to rely upon the extra-judicial guidance of Keehan J to the effect that children should live with proposed special guardians for a period of time before a court entertains an application for an SGO;

 

  1. The judge was wrong not to make provision for effective access to justice for the grandparents by their joinder, the disclosure of documents to them, time for advice to be taken by them, the facility for them to take a proper part in the proceedings, an adjournment or otherwise.

 

  1. It is helpful to trace the judge’s reasoning by setting out how he came to his conclusion in his judgment. The following extracts are sufficient:

 

 

 

 

 

“1….It is not a case in which I must consider rival realistic options in terms of the children’s future placements. Instead, the main question for me to resolve is the appropriate legal order which should govern a placement with the children’s respective paternal grandparents……

 

 

7.…the local authority and the Guardian contend that the children’s placements should take place under special guardianship orders………During the trial it has largely been left to me to raise concerns as to whether special guardianship orders in favour of the two sets of grandparents would be premature…….

 

 

  1. In this case the children might be placed with the paternal grandparents under either a care order, a special guardianship order, or a child arrangements order. These are very different orders. A care order creates parental responsibility in the local authority which, under section 33(4) of the Act may be exercised by the local authority if they are “satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare”…….

 

 

  1. Section 14A provides for those who may make an application for a special guardianship order…….the grandparents come within the definition of those who may apply for a special guardianship order.

 

 

  1. There is also a power for a court to make a special guardianship order of the court’s own motion. That power is found at section 14A(6)(b).

 

 

  1. ……It suffices to say that during my time as designated family judge here at the Central Family Court I must have made upwards of 30 special guardianship orders. I have, however, yet to encounter an application for such an order. On every occasion I have been invited by the local authority, whether opposed by another party or unopposed, to make the order of my own motion. That is not just the default position, but it appears to be the universal practice amongst authorities who use this court centre. This is the largest family court centre in England…….My purely personal impression is that the practice has changed in recent times.

 

 

  1. Whilst I do not suggest that these children should be the subject of care orders for their minority, the real balance in the case is in my judgment between special guardianship orders now and care orders (although not interim orders). The care plan under such care orders would be that if all goes well, then applications for special guardianship orders should follow in due course. By the expression ‘in due course’ I mean ‘when the new placements are regarded as settled and working well for the children’. In this case that might perhaps be in about a year from now…….

 

 

  1. ……both sets of grandparents have been assessed in accordance with the Statute and the accompanying Regulations. The assessments are positive……

 

 

  1. My first concern is, however, that neither child is currently living with the proposed special guardians. During the course of argument, I mentioned that, last year, a letter had been written to interested parties by Keehan J, the Family Division Liaison Judge for the Midlands Circuit. It discussed the use of special guardianship orders. The view promulgated by Keehan J, as a result of a meeting with the chairs of the Circuit’s Local Family Justice Boards, was that “a special guardianship order should not be made, absent compelling and cogent reasons, until the child has lived for an appreciable period with the prospective special guardians.” Such guidance is not, of course, binding upon me but in passing I observe, with some deference, that it appears to amount to sound common sense……

 

 

  1. All this leads me to believe that someone has to be in charge of a process which oversees not just the move of the children to a new home, and their settling in, but also the implementation and progression of a closely controlled contact regime in circumstances where it is unclear what the parents’ reaction will be to the children’s move and equally unclear as to how they will handle time with the children in the very different circumstances which would apply……

 

 

  1. 30. The next matter which concerns me is the position of the grandparents – within these proceedings as well as towards the children. As I listened to the case being developed, I did so in the complete absence of the grandparents – of the proposed special guardians. They were not parties. They were not represented. They were not present. They were not intended to be witnesses. Had an application been made – properly sponsored by the local authority which after all is the prime mover in this change to the children’s lives – then the grandparents would have been parties, represented, present and witnesses……

 

 

31 ….I have had the conduct of this case since the IRH on 3 February 2017. I could then have (i) made the grandparents parties (although that would not necessarily have secured representation for them); (ii) asked them to file a statement; (iii) invited them to give evidence; (iv) encouraged a special guardianship application at that stage. I did not take any of these steps, nor was I invited to do so……In truth, however, with the exception of my concerns surrounding their lack of participation in the process, the grounds on which I propose to reject the local authority case for special guardianship orders would have remained whatever step had been taken at the IRH. I know a great deal about the grandparents. I am not making special guardianship orders, but it is not because I lack information about the proposed special guardians.

 

 

  1. I invited the grandparents into court before they spoke to the professionals (all of whom were of course advocating special guardianship) so that at least they could hear the guardian, the representatives and myself debating the issues as the guardian gave evidence. They spoke with professionals afterwards. The result of this exercise was that they confirmed their wish to be special guardians immediately and for the children not to be subject to care orders…….I remain concerned, however, as to the process here. I am not convinced that the grandparents have been sufficiently involved. It is stating the obvious to observe that the effect of making an application to a court is to involve the applicants closely in the process.

 

 

  1. A short-term care order meets many of the concerns expressed in the previous paragraphs…..It is common ground that the transfer of the children to the grandparents, which is happening as I write this judgment, will not be delayed for want of special guardianship orders, or by any further assessment process.

 

 

  1. ……There would remain untested placements.

 

 

  1. ……the Guardian…….emphasised that “there was enough of a relationship that it is not an impediment to a special guardianship order…….”

 

 

The Court of Appeal considered this carefully

 

 

 

16.It is evident that the judge recognised that the only realistic placement options that he had were with the paternal grandparents. His concern was the viability of those placements: not because they were unassessed but because they were untested in the specific context of the possible interference with them by the children’s mother and the father of S. It was in that context that on the merits the judge wanted to be assured that the control and parental responsibility which vests in special guardians would be sufficient to manage the relationship with the parents. The alternative was control and parental responsibility being vested in the local authority through care orders. The problem to be solved was whether the relationships and capabilities of the grandparents were strong enough or needed to be supported and tested before SGOs were made.

 

 

 

  1. The solution to the problem was in the choice of order: SGO, care order or interim care order and an adjournment. The route to the solution lay in an evaluation of the evidence including oral evidence from professional witnesses, the parents and the proposed carers i.e. the paternal grandparents. It is clear from the judgment and from a transcript of the judge’s discussions with the advocates during the hearing that the judge had the problem and the solutions in mind. What was missing was a route to the preferred solution. Having identified the problem and the range of solutions the judge did not go on to evaluate that evidence. That necessarily meant that the propositions advanced in the discussion and the conclusions reached in the judgment take the form of assumptions that were not reasoned and which are now challenged.

 

 

 

 

 

 

  1. As I remarked at [16] and [17] it was the absence of any testing of the assumptions raised in discussion which created the problem with which this court now has to grapple. The judge was concerned about the relationship between the grandparents and each of the children in the context of continuing discord with the mother and the father of S. It is also right to note that it was not until the commencement of the appeal before this court that the special guardianship support plans were agreed between the local authority and the grandparents. The judge identified what were potentially adverse factors to balance against the positive factors in the special guardianship assessments which might lead to the conclusion that a trial placement of the children was required before vesting parental responsibility and control in the grandparents. That deserved more than a cursory analysis not least because the local authority and the children’s guardian had come to a clear and agreed contrary opinion on the basis of rigorous assessment material that apparently demonstrated that the positives outweighed the negatives.

 

 

 

  1. In order to test the assumptions the judge had described in his discussion with the advocates, he could have heard evidence about them and from that drawn conclusions. The judge records in his judgment that he heard some oral evidence but it is plain from his judgment that such evidence as there was either did not touch on the issues that he was raising or was unhelpful. That may be unsurprising given that the local authority and the children’s guardian disagreed with the judge and were agreed among themselves and also that no advocate was pursuing the issues the judge wanted to pursue. In that circumstance, as inquisitorial tribunals know, there must be an enhanced caution in a judge not to ‘simply’ rely on his or her own pre-conceptions or opinions and to ensure that as provisional conclusions are formed in judgment they are adequately tested so that they are soundly based on evidential conclusions.

 

 

 

  1. It would also have been legitimate, if properly reasoned, for the judge to conclude that he needed more evidence with the consequence that the time for the proceedings might need to have been extended. In order to come to either conclusion the judge needed to identify the risk that he sought to protect the children against and reason the options that were open to him on the evidence. He ought to have tested his own assumptions and the opinions of the professional witnesses in oral evidence and by hearing evidence from the paternal grandparents. He would have been assisted by evidence from the mother and the father of S but, as has sadly been the case more than once in these proceedings, they had absented themselves and the judge was left with a history from which only inferences could be drawn. Had the judge reasoned his concerns on the evidence he would have had a proper basis for conducting an evaluation of the benefits and detriments of each order that was available to him.

 

 

 

  1. In that context, it is not surprising that the judge’s evaluation of the merits of each option and the available orders was incomplete. The judge agreed with the parties that a child arrangements order was not in the interests of either child and he was right to do so on the merits. No-one pursues that option before this court. That left SGOs, full care orders and interim care orders with an adjournment.

 

 

 

  1. I agree with the paternal grandparents of S that if and in so far as the judge needed more time to ensure that the relationship of the grandparents with the child and the parents was such that it was in the interests of each child to make an SGO, that could, if reasoned, have been an appropriate basis upon which to adjourn the proceedings

 

 

 

Runaway train, never going back

The British Association of Social Workers, BASW, commissioned an independent report to look at adoption. The report has just been published.

There’s a summary piece at the Guardian about it

https://www.theguardian.com/society/2018/jan/18/adoption-has-become-runaway-train-social-workers-cannot-stop

In summary of the summary, concerns about a lack of ethics and human rights approach, concerns that adoption has been politically pushed and dominates thinking, concerns about lack of support for families and adopters, concerns that there’s rigidity in thinking about contact (and the report compares the English approach of an assumption of no direct contact with Northern Ireland where the assumption is that there should be direct contact four to six times per year) and critically that there’s not enough attention being paid to poverty (and austerity) being the driving force behind children being removed from families.

The impact of austerity was raised by all respondents to different extents but was a particular
concern for social workers. Cuts to family support and social work services were a recurring
theme, with the decreasing availability of early help highlighted. Very costly resources are being
used in care proceedings. As a result, less is available for earlier interventions that could support
children to stay at home safely.
Most respondents wanted a better balance between support and assessment, with families
currently too often subject to repeated assessments rather than actually helped. A number felt
social work had become increasingly risk averse and fearful of blame, with the high rates of care
applications one key example given of the impact this has on practice.
A lack of resources once children had come into care or been adopted was similarly seen as
impacting on the effectiveness of services. There were many observations about decision-making
being impacted by the lack of resources and examples given of the results, such as siblings not
being placed together.

Having read the report, I think the summary is a fair one – the report does raise all of those issues. The report is careful to say that just as treating adoption as a perfect solution for all families is not realistic or helpful, demonising all social workers is not realistic or helpful either. Adoption is the right outcome for some children, and some adoptive families thrive and prosper. But there needs to be a genuine debate about whether it is being sought too frequently.

The report is here

Click to access basw_55841-1.pdf

I’m not going to attempt to critique it or deconstruct it – it’s a long and thoughtful piece, taking on board views of a wide variety of people involved in the process, notably hearing from both birth parents and adoptive parents who had very similar viewpoints on some issues. I have had the opportunity to read it twice, but I honestly feel I want more time with it and to reflect on it. So I don’t know whether I agree with it all, but it says things that I genuinely think needed to be said and need to be discussed and thought about. And I wanted to alert people to its existence and hopefully get people to read it and have those conversations.

Nothing in family justice ever exists in a vacuum though – for every person who reads the report and agrees with it, there will be ten who think it doesn’t go far enough and that adoption should be burned to the ground, and ten who think it is ridiculously anti-adoption and goes far too far. That polarisation about adoption is, itself, part of the problem. The stakes are so high, the emotional devastation caused to those on the wrong side of adoption so great, the political capital invested in it, that it is hard to have the conversations that need to be had.

A particular issue that comes up within the report is the self-labelling by the social work system of social workers being ‘the social worker for the child’ rather than a social worker for the family.

The definition of the social worker role as being ‘the social worker for the child’ was a source of
concern, as it often led to a lack of support for birth parents:
‘Children are part of families – a social worker cannot only be the child’s social worker.’ (birth mother)

A lot of the respondents talked about the importance of the relationship that existed between the social worker and the family – and how the quality of that relationship can transform cases (for good or ill)

Repeatedly, across the range of family members, the importance of the relationship that was
developed with a social worker was stressed.
Birth family members gave accounts of both poor and good relationships. They related experiences of feeling deceived by social workers who they considered had not been honest with them. They described not understanding or being helped to understand why their child(ren) were
permanently removed; being unfairly judged/ labelled (‘the report said I was ‘hostile’ so he could not stay, but I was not hostile – I am ‘loud’’ – birth grandmother from a traveller background); and
generally being treated in what they perceived were inhumane ways.
Birth family members emphasised the importance of social workers listening to their views, being
respectful and honest, recognising strengths and displaying acts of kindness. It was considered
that the nature of the relationship could influence what happened with the child. Examples were
given of differing outcomes for children in the same family (i.e. adoption or remaining with the
parents) and these were, at least in part, attributed to the quality of the relationship with the
individual social worker. It was considered vital that social workers have the time to get to know
and work with the family in non-judgmental ways.

Many of the responses from adoptive parents repeated the themes found in the birth parents’
accounts. The relationship between the social worker and adoptive parents was considered to be
key, with the importance of professional but caring social workers highlighted. Adoptive parents
and adopted people also spoke about the importance of good communication, honesty, being
listened to and treated as an individual human being.

The use and misuse of power was a key issue

Families stressed that social workers have a great deal of power in relation to assessment, the
provision of help and decision-making. There were many examples given by birth families,
adoptive parents and adopted people of how they had experienced the exercise of social workers’
power, both positive and negative.
Birth family members repeatedly mentioned the lack of attention by social workers to the social
contexts in which they lived. A number of respondents reported that housing, or the lack of it,
was used as evidence against them in assessments.
The importance of practical support was stressed; ‘a washing machine for example would have made a big difference’ (birth parent). One birth mother spoke of the lack of adequate interpreting facilities in her contact with social workers and legal professionals. Other birth family members also felt discriminated against because of their cultural practices (e.g. a traveller background) or for being working class or having a lack of secure immigration status.
There were many examples provided by birth parents of feeling powerless in a climate that was
seen as very risk averse. Risk of future emotional harm was described as being frequently used,
and was seen as a particularly unjust basis for permanent separation. Birth mothers reported high
levels of domestic abuse and suggested they were being punished for having a violent partner
and/or having experienced domestic abuse in childhood.
Fear of an unsympathetic and punitive response was seen as inhibiting families from asking for
help when it was needed. Parents with mental and physical health problems and learning
difficulties all reported concerns about asking for help because of the emphasis on risk. They
reported receiving an assessment rather than support and feeling they were being scrutinised
rather than helped.
Being judged and stigmatised simply for having a history of care and/or abuse was an issue. Care
proceedings, involving newborn babies, were identified as being particularly traumatic, with a
lack of attention, in particular, to the impact of having just given birth on the mother. Residential
settings were described as being too often focused on monitoring risk rather than providing help
or therapeutic support. Women with disabilities highlighted the disabling environments in which
assessments were carried out.


The report concludes with recommendations (I suggest reading them in detail, but I’ll just put the bullet points here, for reasons of space)

Recommendation 1: The use of adoption needs to be located and discussed in the context
of wider social policies relating to poverty and inequality
Recommendation 2: UK governments should collect and publish data on the economic
and social circumstances of families affected by adoption
Recommendation 3: The current model of adoption should be reviewed, and the
potential for a more open approach considered
Recommendation 4: There needs to be further debate about the status of adoption and
its relationship to other permanence options.
Recommendation 5: BASW should develop further work on the role of the social worker
in adoption and the human rights and ethics involved

Cheshire West fallout

There’s an excellent piece of investigative work by Community Care about the escalation in the number of Deprivation of Liberty cases since the Supreme Court made a substantial change to the law in Cheshire West.

 

If you have a chance to read the full thing, I heartily recommend it.  (the remainder of this article is my extraction and citation of what I considered to be the main issues)

http://www.communitycare.co.uk/2014/10/01/50-deprivation-liberty-safeguards-cases-breaching-legal-timescales/

 

Half of Deprivation of Liberty Safeguards (Dols) cases are breaching legal timescales for completion after a landmark Supreme Court ruling in March triggered a nine-fold rise in monthly referrals to councils, a Community Care investigation has found

 

In 2013-14 councils received 8,455 requests for Dols assessments; since April this year they’ve already had 32,988 referrals. The figures mean average monthly referrals have risen from 713 in 2013-14 to 6,643 in 2014-15. The effect of the dramatic rise in cases is clear. Last year 2.2% of cases breached timescales; so far this year 50% of cases were not completed in time.

 

Councils have also seen more legal challenges to deprivations of liberty and one local authority has sent a ‘systemic abuse alert’ to an adult safeguarding board warning that it could not meet the ‘Supreme Court challenge’ due to a shortage of resources.

 

 

The court ruling has also intensified a shortage of best interests assessors (BIAs), whose role is to determine whether a person is, or will be, deprived of their liberty and, if so, and whether this is in the person’s best interests. Councils are scrambling to train up more social workers as BIAs in a bid to boost assessor numbers, but many training courses are oversubscribed and, even if a place is secured, training can take months.

 

We found that the shortage of trained staff in councils means local authorities have already spent £1.4m on independent BIAs in 2014-15. That’s almost three times the £550,000 spent across 12 months in 2013-14.

 

 

  • Legal challenges are rising: In the first five months of 2014-15 local authorities had 61 legal challenges brought over deprivation of liberty cases. In the 12 months of 2013-14 the councils had received a total of 49 legal challenges.

 

  • Safeguarding concerns have been raised: Cornwall council raised a ‘systemic abuse’ alert with the local safeguarding adults board over the council’s inability to safeguard people under Dols, due to a lack of resources to meet the post ‘Supreme Court challenge’. The council said it wanted to ensure there was independent scrutiny of its response to the judgement. The councils said its “principal difficulty is one of resources and the availability of suitably trained staff to implement the DoLS for the greatly increased numbers. The council referred its concerns into the adult safeguarding process while it took urgent steps to address problem.”

 

  • Stacks of referrals have been held back: Evidence from council reports shows that the referrals received so far are only likely to be a fraction of those that could meet the Supreme Court test as care homes and hospitals are delaying applications. In some cases, council reports say this is due to them ‘ignoring’ or not understanding the implication of the Supreme Court judgement. In other cases it is deliberate:

We found one example of a council agreeing with a care provider to delay sending in 30 referrals to help with ‘backlog avoidance’.

In a second case, a council report showed that some homes had delayed in sending in referrals as they were ‘sympathetic’ to the pressures on the local authority. In the report, the council’s Dols lead said that this was often happening ‘to the detriment’ of the person. The report shows that the Dols lead contacted the homes and told them to make the applications.

◦A third council report we obtained showed that a local acute hospital had still to send in applications. The hospital had conducted an initial scoping exercise and identified a potential 35,000 referrals. This alone would lead to the Dols team facing a 350-fold increase in cases, the report showed.

 

Bloody hell.

 

Information drawn from the Health and Social Care Information Centre  from 130 of 152 councils make the point even more vividly. http://www.hscic.gov.uk/catalogue/PUB15475

A 600% increase in monthly referrals is a terrifying amount. There is simply no way that social workers, local authority lawyers, best interest assessors, lawyers for families, the Official Solicitor or the Courts can cope with that sort of increase.

 

The councils received 21,600 Dols applications from April to June 2014, compared with 12,400 in the whole of 2013-14, a 597% increase in monthly referrals;

  • of these, 51% were authorised, 12% were not authorised, and 36% had not been withdrawn or not signed off by the council as of September 2014.

 

(I’m really impressed with the work that Community Care have done on this, and I hope that everyone in the field reads their piece, hence my bigging it up here)

Research and stats round-up

 

A few important reports on statistics / research documents have come out in the last two weeks. I’m afraid that I don’t have enough time to write about each in depth, but I’ll give you the headlines and a link to each and if that whets your appetite, you can read the whole thing.
1. Serious case reviews

Ofsted have published statistics showing that the number of Serious Case Reviews have dramatically increased

http://www.ofsted.gov.uk/resources/serious-incident-notifications-official-statistics-release

A 53% increase on Serious Case Reviews since 2012.

You might think, as I immediately did – is this evidence that the new methods of working aren’t working and that children are paying a heavy price?

It may be much more prosaic than that. The real chance in Serious Case Review policy is that they went from being internal documents to published documents in 2011, and the numbers went down as a result. Public bodies that had been using them to learn lessons and discuss failings were less keen on doing so in published documents – the “washing your dirty linen in public” effect. And then last year as a result of that decline an independent board was set up to scrutinise decisions as to whether or not to hold a Serious Case Review. So the dramatic rise is just that independent board restoring normality.

However, the number of referrals of “serious incidents” to Ofsted did go up. “Serious incidents” can cover incidents that would warrant a Serious Case Review or that are likely to attract media attention. So a greater media interest in family justice might account for the increase.
2. Ministry of Justice Statistics show a 19% reduction in family cases

Click to access court-statistics-quarterly-april-to-june-2014.pdf


Private law cases dropped by 41% from the same quarter last year, as those cases that had got in just before LASPO have now all just about ended.

The MOJ say that numbers of public law cases has been fairly stable since 2011 (so the figures earlier this year showing a decline was really just the effect of everyone pausing in new cases to make sense of the new PLO requirements rather than any real downturn in demand)

What is interesting is that despite the huge Government push on mediation being the way forward, the number of mediations in the last year decreased by 50% from the level that it was when parents could go and see a lawyer for free advice who would explain the benefits of mediation to them. That’s pretty damning, that a compulsory mediation service has lower take up than when it was voluntary.

http://www.familylaw.co.uk/news_and_comment/new-moj-laa-data-low-income-families-turn-backs-on-court-mediation-falls-50-compared-to-pre-laspo-times
3. CAFCASS research on care proceedings
This is an annual follow-up since the death of Peter Connolly, in which Guardians in public law cases are surveyed after the conclusion of the care proceedings and asked some general questions about whether they feel the LA was right to bring the proceedings, the quality of the evidence and whether the proceedings were brought too soon, too late or about right.

Click to access three_weeks_in_november_five_years_on.pdf

The headline from that is that “social workers are taking the right actions to keep children safe”

And that in 84% of proceedings, the Guardian felt that there had been no other choice than to issue proceedings. [Of course, the other way of looking at that is that 16% of proceedings are being issued when they didn’t need to be]

It probably isn’t the most impartial measure either – although Guardians are independent of social workers, the ethos of CAFCASS has been fairly obviously “safeguarding” as a priority over family preservation for a few years now.

If you were to ask parents whether the case should have been brought to Court I suspect 84% or higher would say no.  So it rather depends on who you are asking.

The really interesting research would be if you could get Judges to do this survey, keeping it all anonymised.

Cafcass note that the proportion of Guardians feeling that cases were being issued too late rose from 26% to 39% – they fairly note that this could be that delays are getting worse, or that cases have moved to pre-proceedings or that the greater focus on timescales and targets have made Guardians more sensitised to the issue and more critical of delays that would have been tolerable a year ago.

 

 

4. The Children’s Rights Commissioner says that legal aid cuts have detrimentally affected children
To which the MoJ have replied “Well it isn’t meant to”

So that’s all fine then.
“Behind the evidence in our research are countless heartrending stories of children and vulnerable young adults whose lives have been seriously affected by their inability to access legal representation,” Atkinson said. “This means, in effect, that they cannot seek, let alone receive, justice. We should not expect children and young adults to face the complexities of the legal system on their own. These systems are daunting enough for adults, let alone vulnerable children and young people.

“The system is so difficult to navigate that it leads to people having no legal representation. That in turn can prevent decision-makers making decisions properly, as well as stopping individuals obtaining the justice they need … Short-term savings to one part of the legal system – legal aid – are simply shifting costs to another, because judges direct that representation has to be funded.”

http://www.childrenscommissioner.gov.uk/content/publications/content_871
5. NSPCC research suggests that spending a bit more on family support where children are rehabilitated would be far cheaper than our present arrangement

Click to access reunification-costs-report_wdf104058.pdf

Over 10,000 children are returned home from care every year, however it is estimated that 30-60% of these reunifications fail, meaning children are then moved back to care, at great human and financial cost.

This process costs an estimated £300m, according to a study by the Centre for Child and Family Research at Loughborough University, commissioned by the NSPCC. The costs include social work costs, legal costs, decision-making and placement costs.

However, the researchers found that a £56m investment in providing effective support for families when a child returns from care could reduce the number of reunification breakdowns.
This is an interesting piece of research, and I know that sign up for the pilot scheme was very fast, with it being oversubscribed. If a new approach for support for children being returned home meant that more of them could stay there.

Quick caveat – I think some of the underlying maths is iffy. These are social scientists, not acountants. For example, there are some underlying assumptions that are weak

(i) That it covers s20 not just care
(ii) That a child who comes back into care will remain in care and the costs can be worked out on that basis (whereas some children in s20 might come back into care for a short period)
(iii) That it is fair to work into the costings of the child coming back into care that some children are in residential care (the most expensive type and frankly the ones who are in residential care are likely to be the ones least likely to get turned into successful permanent rehabs)
(iv) That for some reason the estimated legal costs of proceedings is calculated as being less than just the Court issue fee. If a Local Authority can manage to run the whole care proceedings for less than it costs to get the Court to start them off, that’s some wonder economics there
(v) That the figure for failed rehabs is 47%, which is something of a finger in the air taking an average of two other studies   (the headline numbers in those studies look extreme, but if a child is in care, goes home, and comes back into care, the “going back into care” might include a short respite period rather than permanent placement away from the family)

 

But my criticisms are really that the figures are slightly cooked to make the scheme seem even more desirable – I don’t think they needed to do it, the case for better support services is well made out in the body of the report.

This bit some people might find useful – we hear so much about “a low level of support” or “this family need a high level of support” – what does it mean in practice?

The report shows the real actual numbers

This comprises 6 months at a high level (8 hours 15 minutes social worker time plus 50 minutes team manager per month);

3 months at medium level (5 hours and 45 minutes social worker time plus 50 minutes team manager per month);

and 3 months at a low level (2 hours and 35 minutes social worker time plus 50 minutes team manager per month). These activity figures are taken from Holmes and McDermid (2012).
From that – high level of support is just over 2 hours a week of social work time. Medium level is about 1 ½ hours a week of social work time and low level is about 40 minutes a week.

Anything more than that would be accurately described as ‘exceptionally high levels of support’ although when you see the numbers it might not seem to be.

 

I absolutely welcome anyone trying to find out what the best way to make rehabilitation of children back home work better, and credit to the NSPCC for funding this sort of research. I hope that it makes a difference and that if so it is rolled out nationally.

Adoption breakdown research

 

A lot of people, including the House of Lords when they asked questions about the rate of adoption breakdown and found that there was no clear answer, have been wanting to see some good research on adoption breakdowns.

This is a piece of research on that very issue, commissioned by the Department for Education and conducted by Bristol university. I think it is solid.

The report opens by saying that there hasn’t previously been a national study on adoption disruptions – the previous studies have been with narrow subsets of children, leading to “rates of disruption having been quoted as ranging between 2% and 50%” (To paraphrase Paddy Power “I hear you” – I have heard over many years in Court, a wide variety of numbers being given as to how likely an adoptive placement is to break down, usually thirty seconds before a Jedi handwave and “the research is well known” – though not capable of ever being named)

There’s a LOT of it, and my summary isn’t going to be a substitute for reading it.

Click to access Final_Report_-_3rd_April_2014v2.pdf

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

http://www.cypnow.co.uk/cyp/news/1143367/local-authorities-underestimate-adoption-breakdowns-study-suggests

The headline there relates to the difference between the prediction Local Authorities made of the chance of a placement breaking down before the age of 18 (3.4%) and that reported by surveys of adoptive parents (which was 9%)

So, is the adoption breakdown rate about 9%? Well, maybe not. [Actually, when you sit and read the report carefully, their conclusion is that adoption breakdown rates are somewhere between 2 % and 9%. Why is the number so wide-ranging? Well, ultimately because there are actually substantial variations between Local Authorities – where Erehwon has a breakdown rate of 2% and Llareggub has 9% – is the breakdown rate between the middle, or is it more accurate to say that nationally it is BETWEEN those figures?]

The research is looking at adoptions where an order has been made, and whether the placement continued until the child was 18, or ended (which is then classed as a breakdown or disruption, for whatever reason)

It looks at the previous research – Rushton 2003 which cited a breakdown rate of 20%, but that covered placements pre order, and obviously had a number where the placement ended after a very short period because the ‘fit’ wasn’t right , and Rushton and Dance 2006 (Although no lawyer actually knows the name of it or what it really says, this is the piece of research that gives the figure that has been bandied about and exaggerated over the last few years) that gave a figure of 19% – the study had been entirely of children who had been placed for adoption later in life than the norm.
An interesting aspect, to me, is the comparison the research does of 3 types of placements and their stability (frustratingly for me, there isn’t the comparison of stability of adoption v long-term foster care, which would now be extremely helpful to know)

The research says that they looked at:-

 

•37,314 Adoption Orders of which 565 were known to have disrupted
5,921 Special Guardianship Orders of which 121 were known to have disrupted
• 5,771 Residence Orders of which 415 were known to have disrupted
Peculiarly, although the research highlights that SGOs were anticipated to largely replace Residence Orders, the number of Residence Orders doesn’t seem to have gone down since their introduction.

I did my own number crunching on that, which worked out as a breakdown rate of 1.5% for adoptions, 2% for SGOs and 7% for residence orders.
So is THAT the breakdown rate?

Well no, it gets a bit more complicated (because the individual cases they were looking at were at different ages – to exaggerate wildly – if you imagine the residence orders were mostly dealing with teenagers and the adoptions mostly with pre-schoolers, then of course one group has had more chance to break down. Wild exaggeration, just so that you get the underlying concept, that some complicated maths has to be done to smooth out the differences)

Breakdown (or disruption) rate
The research says that over a 5 year period
•147 in 1,000 ROs would have disrupted (14.7%)

57 in 1,000 SGOs would have disrupted (5.7%)

•7 in 1,000 adoptions would have disrupted (0.7%)

And that over a five year period, the most stable form of placement was comfortably an adoptive placement.
But of course, a five year period isn’t necessarily it for adoptions – the research demonstrates that the most precarious time in an adoptive placement is in the teenage years , and that over a 12 year period the disruption rate went up to 3.2%.

The researchers suggest that by the time 1000 children who have been adopted reach the age of 18, those placements will have been disrupted or broken down for between 2 and 9% of them (i.e between 20 and 90 children – the corollary of that, obviously is that for every 1000 children placed for adoption somewhere between 910 and 980 of them will have placements that endure for their childhood)

Of those disruptions, nearly two thirds will be during the child’s secondary school years, with the average age of a child whose placement breaks down being 12 ½.
Influences

When looking at what influences a disruption, the research found that for children placed with adopters before the age of 4, only 1% of those placements had broken down. For children aged over 4 at the time of the placement, that went up to 5%. Three quarters of the children who had an adoption breakdown had been placed after the age of four.

Additionally, the more moves a child had had prior to the adoptive placement, the higher the chance of disruption. And the longer a child waited for a placement, the higher the chance of disruption – of the children whose placements had broken down, three quarters of them had waited for more than two years for a placement.

 

There is no real difference in terms of gender of the child as to whether a disruption is more or less likely (1.4% of all males placed had breakdowns, 1.7% of all females – a slight difference, but not statistically important – anecdotally it is mildly surprising that this is not the other way around). Nor was ethnicity a relevant factor in breakdown rates.

The reason for the child coming into care makes very little difference to the breakdown rates either.

Looking at the types of carer, the research SUGGESTS that single carers had a higher proportion of disruptions than would be predicted by pure averages, but are cautious about this because the data isn’t as full (the information about whether an adopter is married or in a civil partnership has only been collected since 2006)

The research also suggests that foster carers who go on to adopt the child don’t have (as many professionals would suspect or believe) lower disruption rates than stranger adoptions – if anything, it is slightly the other way. [The research points out that it may be more likely that foster carers who adopt are taking more damaged children than the statistical norm, that children have usually waited longer to be adopted if their foster carers adopt them and that foster carers who adopt might suffer more than stranger adopters when the LA backs off]
The percentage of adoption disruptions varied significantly between the Local Authorities sampled – from 0.7% to 7.4% (it is figure 20, page 55 of the research if you want to look at it).

Really hard, obviously, to unpick whether that is because of something that the LA’s are doing (picking adopters, supporting them, managing dramas) or whether it is that in any particular LA one has a higher proportion of older children, who wait longer in care. If it is the former, then we really want to get all of the Local Authorities learning from the best ones, because every single breakdown is a human tragedy for all involved.

 

•Between April 1st 2000 and 31st March 2011, 37,335 children were adopted and of these 565 were known to have disrupted post order and information was available in the database.
• Nearly two thirds of disruptions occurred during the teenage years.
• Gender and ethnicity were not associated with greater risk of disruption.
• The children whose adoptions had disrupted were significantly older at entry to care (average 3 years old) in comparison with children (average 1 year old) whose adoptions were intact. Nearly three-quarters of all the children had been abused or neglected.
• Children who had experienced a disruption also had significantly more moves whilst looked after and waited longer to be placed with their adoptive family compared with those children whose placements were intact.
• Children who were no longer living with their adoptive families were significantly more likely to have lengthier adoption processes compared with the children whose adoptions were intact. This was the case for those who entered care under the age of 4 years old and those who entered over 4 years of age.
• Three-quarters of the children who experienced a disruption were older than 4 years of age at placement with their adoptive family and a quarter were younger than 4 years of age. In comparison, 70% of children in intact placements were under the age of four.
• Children whose foster carers became their adoptive parents entered care at a similarly young age to those who were adopted by stranger adoptive parents. However, they waited on average two years before their foster placement was confirmed as an adoptive placement and were on average 5.2 years old at the time of the Adoption Order. In comparison, those adopted by strangers were only 3.8 years old at the time of the Order.
• Foster carer adoptions were not more stable than adoptions by stranger adoptive parents.
• The proportion of adoptions that disrupted varied by local authority

 

This is a bit that is fairly low key and probably won’t be picked up by the press reports, but I think is very important

 

“We asked adoptive parents whether there had ever been any difficulties with birth family contact through SMS, email or Facebook. Whilst 20% said this had been the case, many more feared that they would be facing these problems in the future”

 

If you wanted to find a person in the 1980s, you had to hire a private detective. Now, if you spend an hour on the net, you’ll know more about them than their own mother.

I think there are really good bits in the research dealing with how various local authorities dealt with requests for help from adopters, and some very honest and raw interviews where things that are normally unspoken were said out loud – the shame, the guilt, how hard it is to ask for help, and on the other side, how social workers can sometimes present as being very intolerant of the need for help and that the adopters took this child on and they just had to make it work. Many requests for help ended up being managed as s47 investigations, which escalated things badly.

There are some major criticisms of life story work (particularly about these books not being moved forward and age-appropriate for much older children, at the point where they really want to know more about their identity)
Conclusion

 
We began this study knowing very little about adoption disruption. To our knowledge, there had never been a funded study in the UK whose focus was on disruptions post order. The disruption rate was lower than we expected. The reasons for that became obvious when we met the families. The commitment and tenacity of adoptive parents was remarkable. Most parents, even those whose children had left, still saw themselves as the child’s parents and were supporting their children from a distance. An adoption manager who was interviewed for this study suggested that perhaps a revolving door approach was needed for some adopted adolescents, whereby they could spend time away from their families without it being seen as a failure. Instead, most of the families we interviewed spoke of an ‘all or nothing’ social work approach that blamed and judged parents when relationships were just not working, and parents needed respite or young people wanted to leave. A key value150 of social work in professional practice is compassion and respect for individuals. It is probably easier to practice if there is a clear duality of victim and abuser. Who was the victim and who was the abuser was unclear in families where there was child to parent violence. Splits and conflicts between children’s social workers and post adoption social workers then emerged. It left adoptive parents feeling blamed, demoralised and unsupported. It was apparent that many had lost faith in professionals of all kinds and felt betrayed.

The research makes a number of recommendations – they cover 6 pages in the report, starting at page 284, so I won’t rehearse them, but they are well worth reading, particularly for any professional involved in adoption work.

 

 

 

The Ofsted, and Action for Children research on neglect

You may have heard that Ofsted this week published some research on neglect, the over-arching theme being that some children are being left in neglectful situations for too long

 

http://www.ofsted.gov.uk/resources/childs-time-professional-responses-neglect

 

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

“Child Neglect : The Scandal that never breaks”

 

http://www.actionforchildren.org.uk/media/8678803/scandal2014.pdf

 

the over-arching theme there being that neglect is happening to far more children than you might expect – their headline figures being

 

73% of UK children know another child who is suffering from neglect. Urgent action is needed to help children and families get the help they need.

 

  • Since 2011, around a third (32% in 2013) of professionals have felt powerless to intervene when they have concerns about child neglect
  • 35% of professionals say Government spending cuts have made it more difficult to intervene in cases of child neglect. In particular, 65% of social workers said cuts impeded their ability to intervene in cases
  • 94% of the public agree people should do something when they are worried about a child but 45% want more information on where to get help

 

Of course, the big headline really depends on (a) how you define the term neglect and (b) whether you think children are the best people to identify neglect in other children that they know

 

Their major demand, that the Government ought to produce a national coherent strategy on child neglect, is a worthwhile one. Perhaps the one two punch of Ofsted and Action for Children saying similar things on the same day will have an impact. (I suspect that Ofsted have much more clout, because they don’t need to scare Government into action, they just have to scare Local Authorities that if they don’t have a Neglect Policy, they’ll get a bad Ofsted review)

 

There’s a bit in the Action for Children research that made me scratch my head. The researchers asked professionals what the barriers were that stopped them intervening on child neglect.

 

 

There are the usual suspects – lack of resources, gaps in services, the point at which intervention can take place being too high. But then there’s “It’s not my job to intervene”

 

10% of the social workers asked gave that as their answer. 10%….

 

That is very worrying to me. It’s at page 18 if you don’t believe me

 

 

The Ofsted research then. They looked at 124 cases, drawn from eleven local authorities. Those local authorities were a spread of inner-city and rural counties, from the North, the South, the East and the West   (though the heaviest proportion was the North West – Liverpool, Manchester, Lancashire, Wigan). They looked at the records, spoke to professionals, to children, to parents and to carers.

 The key findings :-

 

      The quality of professional practice in cases of neglect overall was found to be too variable, although in some of the cases examined at this inspection, children were making progress.

      Nearly half of assessments in the cases seen either did not take sufficient account of the family history, or did not adequately convey or consider the impact of neglect on the child. Some assessments focused almost exclusively on the parents’ needs rather than analysing the impact of adult behaviours on children.In a small number of cases this delayed the action local agencies took to protect children from suffering further harm.

      While the quality of written plans was found to be too variable, there was evidence of some very good support for children that was meeting the short-term needs of the family. However, there was very little evidence of longer-term support being provided to enable sustained change in the care given to the children.

      Some authorities are using effective methods to map and measure the impact of neglect on children over time and to evaluate the effectiveness of interventions. This results in timely and improved decision-making in some cases. However, not all local authorities have such systems in place to support social workers in monitoring the impact of neglect on children and the effectiveness of their interventions.

      Non-compliance and disguised compliance by parents were common features in cases reviewed. Although some multi-agency groups adopted clear strategies to manage such behaviour, this was not evident in all cases. Where parents were not engaging with plans, and outcomes for children were not improving, professionals did not consistently challenge parents.

      Drift was identified at some stage in the child’s journey in a third of all long-term cases examined, delaying appropriate action to meet the needs of children and to protect them from further harm. Drift was caused by a range of factors, including inadequate assessments, poor planning, parents failing to engage and in a small number of cases, lack of understanding by professionals of the cumulative impact of neglect on children’s health and development. Drift and delay have serious consequences for children, resulting in them continuing to be exposed to neglect.

      Front-line social workers and managers have access to research findings in relation to neglect, although the extent to which this is incorporated into practice varies. It is by exception that front-line social workers use specific research to support their work. The impact of training on professional practice with regard to neglect is neither systematically evident nor routinely evaluated.

      Routine performance monitoring and reporting arrangements to LSCBs infrequently profile neglect. Therefore most boards do not receive or collect neglect data except in respect of the number of child protection plans where the category is recorded as neglect. Most boards were not able to provide robust evidence of their evaluation and challenge about the effectiveness of multi-agency working to tackle neglect.

      Those local authorities providing the strongest evidence of the most comprehensive action to tackle neglect were more likely to have a neglect strategy and/or a systematic improvement programme across policy and practice, involving the development of specific approaches to neglect.

      The challenge for local authorities and their partners is to ensure that best practice in cases of neglect is shared in order to drive improvement.

 

 

They make a series of recommendations for Government (to review social work training to have mandatory material on neglect, to require Local Safeguarding Children’s Boards to have a strategy on neglect for their local area) ,

for Local Safeguarding Children’s Boards (to gather data on neglect and assess and monitor it in their area, to ensure front-line training on neglect for professionals, to get agencies working together on the issues, to ensure that all staff know how to escalate concerns, to ensure that all training represents best practice and contemporary research)

and on Local Authorities (robust management oversight of neglect cases to avoid drift, better methods of assessment, proper child protection plans for neglect cases, specialist training in neglect, consistent levels of threshold for intervention, a shift in focus on written evidence presented to Courts so that it is clear, concise and explicitly describes the cumulative impact of neglect on the daily life of the child)

 

The last is interesting, as we brace ourselves for the standardised model of social work reports (having seen the version that went out to consultation, I have serious doubts that this model is going to deliver what Ofsted are recommending)

 

The body of the report picks up as a theme that social work reports and assessments focused on the adults and the parents issues rather than analysis of the impact of this on the children. “Are children getting lost in the assessment in the same way in which they are lost within their own families?”

 and a later quotation  (from a Director of Children’s Services)

“social workers and schools may become desensitised to neglect”

 

 

The headline that was grabbed by the Press (they toss a coin, I think, to decide on any individual day whether social workers are jackbooted child-snatching fascists, or clueless Mavis-Reilly-esque do-gooders who are hopelessly ineffectual)   was that parents were given too many chances

 

66. In the cohort of cases where progress for children was not being achieved, a common feature was parental non-compliance or ‘disguised compliance’. Professionals did not consistently demonstrate clear strategies to manage this behaviour. For example in a small number of cases, the Public Law Outline (PLO) was used to address non-compliance and while this was effective in the majority of cases, where parents breached PLO agreements subsequent action was not always taken. This apparent reluctance by professionals to act assertively and in line with written agreements meant that cases were not escalated at the right time for children and there was a delay in action to protect them.

67. In some of the multi-agency meetings held during the thematic inspection professionals reflected on their practice and accepted, with hindsight, that they had been manipulated by parents. For example, in one case when a mother and father had a new baby, the child was made subject to a child protection plan because the parents both had a history of drug misuse and had had previous children removed due to neglect. When the mother tested positive for cocaine use and the father positive for heroin use, the case was escalated to PLO, but stepped down again very quickly when the parents appeared to cooperate with the plan. The child was removed from the parents some months later due to further evidence of parental drug misuse. The child protection chair told the inspector that they should have been more challenging of the lack of progress at a much earlier stage in the case, and described the parents as ‘very plausible’, ‘always coming up with a reason for not completing tasks that were required of them’.

68. In other cases parents were given too many chances because professionals had not fully recognised or assessed the level of non-compliance and were carrying on regardless. Overall, the evidence in these longer-term cases is of a failure by professionals and their managers to be consistent in identifying non-compliance and disguised compliance, and in some cases failing to assertively challenge parents who were not engaging with plans.

 

For local authority lawyers, Ofsted makes comments about their role in the process too (not particularly flattering comments)

 

74 . Further delays were apparent in some cases because of inconsistency in decisions about whether the threshold for proceedings had been met. A small minority of local authority legal advisers held the view that some courts were not giving enough consideration to the family history when making decisions as to whether the threshold for proceedings had been met. However, most legal advisers reported that the courts and Cafcass were well-informed about research findings and the significance of a history of parental neglect. In a further small minority of cases local authorities appeared too ready to accept legal advice that the threshold for proceedings had not been met. This suggests there was some lack of clarity as to who holds responsibility for making decisions to initiate court proceedings to protect children from significant harm.

75. The general view of legal representatives was that the quality of written and verbal evidence provided by childcare professionals in legal proceedings was not consistently robust. This resulted in some cases failing to progress to proceedings or, when cases did reach the court arena, not achieving the required outcome. Evidence needed to be gathered more effectively, risks and protective factors expressed more clearly, and the impact or potential impact of neglect on children identified. Partner agencies needed to collate evidence of the impact of neglect, including the impact on children’s behaviour and emotional development, from a very early stage.On the basis of this thematic inspection the lack of clarity around thresholds for legal proceedings is a signficiant concern, given that as a result of this some children remain in situations of neglect for too long

 

Of course, one of the issues on ‘threshold’ is that we are talking about two different things – the s38 or s31 ‘threshold’ of significant harm is very easy to identify, we all know that when we see it. But the ‘threshold’ of “If you go to Court and ask for these children to be removed will you succeed?”   is much more dependent on local Courts, local Guardians, knowing how your Courts view neglect, knowing how bad it has to be before you would meet that test, knowing whether your social worker’s evidence will be compelling in the witness box or tentative. How old are the children, how will they be affected, are you going to find foster placements to meet their needs? Of course the answer to the second question varies greatly from case to case, there is never a one-size fits all answer.

It is, of course, very important not to conflate the two questions

 

  1. Is the threshold met
  2. Is the evidence strong enough to persuade a Court to do anything about it

 

 

Neglect is always the hardest type of case to make decisions about – almost always you have missed the right time to issue the proceedings. Neglect is very rarely a steady downward slope, it is more of an undulation, a series of peaks and troughs – little improvements as support is provided, dips as the family struggles. And it always feels that the impact on the children of neglect is viewed less significantly by Courts than a broken leg, an allegation of sexual abuse. Even though the long-term impact of neglect can be very corrosive, there’s a feeling that it isn’t that bad, or that it has to get very bad indeed before anyone is willing to draw a line and say “no more”

As local authorities come under pressure to drop their numbers of looked after children (and they are doing, and a large part of that pressure is from Ofsted themselves), neglect represents the soft target for that reduction.

 

Not many local authorities are going to increase their tolerance for physical abuse at home, or sexual abuse at home. Which leaves, if you want to raise your threshold and lower your number of court proceedings and looked after children, tolerating more neglect at home.

Unless you’re going to put in services and support to change neglectful care into good enough care, but that’s a big ask at a time of cuts and reduction in services.

 

[It might, of course, be a good thing that there’s a recalibration of what is ‘good enough’ care where the State should support but not intervene, and what requires care proceedings and separation – one can’t argue with the fact that the number of children coming into court proceedings has gone up massively over the last ten years, and how do we know whether we are now at the right number and we used to be leaving too many children at home, or whether we were right ten years ago and over-reacting now?  ]

“I’m afraid I can’t do that Dave, as a result of subsection 9(b) (iv) (a)”

 

Another little thought experiment, on Judges this time. Now, clearly Judges at first instance have to very carefully assess the evidence, and the nuances and tone and demeanour of witnesses and attribute weight and balance to a variety of factors. The higher up the Court hierarchy you go, the less important that becomes, to the point where by the time of the Supreme Court, what a witness said or did not say in the box is almost neither here nor there.

 

In fact, what is very often happening in the Supreme Court is drawing together from a variety of sources – the legislation, the guidance and existing principles derived from authority, applying it to the legal dilemma in the case and achieving a decision that ends up being consistent with all of those decisions and perhaps extending the existing principles in a slightly new (yet consistent) direction.

 

Now, it occurs to me that as we reach the point of artificial intelligence, it would be theoretically possible to have all the legislation, all of the guidance, all of the previous authorities, held by a computerised mind, who could then just trace a path through them to reach the decision.  If all that one is doing is looking at the precedent decisions and seeing where they would logically take you in deciding the legal dilemma, a sufficiently wonderful computer can solve that logical problem.

 

Instead of seven law lords, what one would have is a dazzlingly brilliant super computer  S.U.P.R.E.M.E   and the legal dilemma would be inputted and a judgment would come out.

 If you’re like me, then you are probably shifting a little nervously in your seat at this point, and feeling that this is just uncomfortable. There’s more to Supreme Court decisions than just deriving the answer from the principles.

 But that in itself takes us into interesting areas.

 There seems to me to be some sort of qualitative difference between these two questions :-

 

(a)   What is 53,209 divided by 7.33 

 

And

 

(b)   Is a school’s admission policy to give preference to Orthodox Jewish children, looking for evidence that the mother of the child is Jewish by birth or by Orthodox conversion, discriminatory under the Race Relations Act 1976

 

It is not simply a matter of complexity – of course the latter question is more complex, since one can solve the first question in a matter of seconds with a calculator, and the second at the very least is going to involve reading the Race Relations Act and the school’s policy, and any decisions that help clarify how either ought to be interpreted.

 

But there’s still more to it than just complexity, otherwise S.U.P.R.E.M.E could answer both, given the right information (or access to Google to find it for itself)

 

Isn’t one of the differences between the two questions that the answer to (a) exists already – it is out there to be found, and it is utterly replicable. Anyone who does the calculations will arrive at the same answer, regardless of who they are.   (The same would be true if you swapped (a) for “What is the capital of Guina Bissau?”  – it is a factual question, and the answer is out there to be found)

 

The answer to (b) – maybe it doesn’t exist   (well, it does now, because the Supreme Court decided it  in R (on the application of E) v JFS : Governing Body 2009 UKSC 15) and it only exists ONCE the question is asked and answered. The answer is CREATED, not found.

 If question (a) is more like maths, or physics or geography – there’s a factual answer that is true for whoever answers it, then maybe (b) is more like history or english literature – there are certain things within it  “In which Shakespeare play does Ophelia appear?” which are definitive, factual answers (like cases which squarely correspond with precedent) and there are others which the person answering the question creates  “What is the nature of the character Hamlet?”

 

Once we start thinking in those terms though, we inevitably bump into the peculiar wrinkle that the highest legal authorities in the land, which bind future courts and cases and will in turn influence future legal authorities at the highest level are not OBJECTIVE TRUTHS found by the Court, but SUBJECTIVE decisions created by the Court.  And in turn that the Judges who sit on these cases bring something of themselves to that process; that’s why the concept of S.U.P.R.E.M.E deciding it makes us feel a bit edgy.

 

That must intrinsically be right, because all of the Judges in the Supreme Court hear the same arguments, have the same facts, have access to the same precedent authorities. Yet there are dissenting judgments. So what causes that must be that there’s an element, even in the rarefied air of the Supreme Court, of subjectivity to deciding how the legal dilemma should be resolved.  

 

[You may recall my previous blog about the impact of extraneous circumstances, such as proximity to lunchtime on judicial decisions 

https://suesspiciousminds.com/2013/09/30/your-honour-may-i-hand-up-my-case-summary-and-a-pastrami-on-rye/   ]

 

This piece derives from another interesting piece of research, which takes as an example the  UK Supreme Court’s decision in the Jewish Free School’s admission policy.

 My attention was recently drawn to this study, which is available in the Journal of Law and Society  (I’m afraid that it is behind a paywall, and as such I can’t let you peep at it, and I have to be limited in how much I can quote out of it)

 

 

http://onlinelibrary.wiley.com/doi/10.1111/j.1467-6478.2013.00642.x/abstract

 

The study was written by Rachel J Cahill-O’Callaghan of CardiffUniversityLawSchool  (which frankly is becoming a hot-bed of brainy talent, and one day I must try to visit and have my mind blown. Perhaps during the Six Nations…)

 It opens with a lovely quotation from Lord Reid, in which he manages in four lines to say everything I’ve been fumbling in the dark for, and does so beautifully to boot.

 “Those with a taste for fairy tales seem to have thought that in some Aladdin’s cave there is hidden the Common Law in all its splendour and that on a judge’s appointment there descends on him knowledge of the magic words Open Sesame… But we do not believe in fairy tales anymore”

 

 There has been a long debate about the make-up of the Supreme Court and whether it reflects the diversity of our society (hint, no, it doesn’t) but this research goes further than that, and analyses how a person’s position on Values is brought to bear on judgments and decisions.

 

“In reaching a decision, at least one not governed by precedent, a judge will support one or more values above another…. Although the law provides the basis for framing and constraining judicial discretion, in difficult cases at least, it is the personal values of an individual judge that influences how that judicial discretion is exercised and that, in turn, can influence the way in which the law develops”

 

The way that the research tests this is interesting, and involves  firstly identifying a series of values and defining those so that one knows exactly what to look for in relation to each value, then looking at the judgment in the authority, and analysing each line of it, looking at the emphasis that the individual judge places on particular values, which may compete (for example “flexibility in the law” v “Transparency in the law, Corporate responsibility v individual responsibility, freedom v responsibility).  

 

On a case such as this, where the Supreme Court was divided in its opinion, that analysis can then be used to see whether the judges who reached a particular conclusion (there was a breach of Race Relations Act) appeared to place similar emphasis on similar values, and do the same exercise with those who reached the opposite conclusion.

 

On looking at that, there are really stark differences between the values emphasised by the majority judgments and the minority judgments.

 

The author of the report acknowledges that what was not possible was to go back to the individual Supreme Court judges after the judgment, with that analysis, and ask them whether the analysis of the values that each judge “appeared” to prioritise accords with their own view of where their own values sit, but the research uses some clever techniques to try to fill in this gap.

 

 There’s an interesting conclusion that if personal values play a role in judicial decision-making and the framing of the law, then in order for the Supreme Court to represent society one doesn’t merely have to look at the very visible aspects of diversity  (gender, ethnicity, socio-economic background) but also diversity of personal values.

“Your Honour, may I hand up my case summary, and a pastrami on rye?”

Do judicial decisions fluctuate with extraneous factors, such as how hungry the Judge is?   Of course not, you foolish Suesspicious Minds…   Or rather, maybe they do, but only for those American judges, and even then only when they do criminal cases…  Or rather, gosh, I don’t want to be last case on before lunch anymore…

One of the joys of writing this blog is that as a result, smart people send me things. One such smart person has sent me this lovely piece of psychological research, by Danziger, Levav, and Avnaim-Pesso

http://www.pnas.org/content/early/2011/03/29/1018033108.full.pdf+html

I love that one of the tags on the research is “legal realism”  – I want to become a researcher into legal realism – how do you start, where do you go, who do you need to know?

What these researchers did, was gather information from Israeli criminal courts considering applications for parole.  They looked at whether the timing of the parole application had any statistical bearing on the outcome, and judged a “positive outcome” as parole being granted.

Now, the timing ought not to have any impact on this, the cases come in randomly and each case will be judged entirely on its merits.

But that isn’t what the study showed. What they say is that at the start of the day, the positive outcomes were around 65% of cases, and then as the cases got closer to the lunch interval the positive outcomes sank to almost zero. And then after lunch, the positive outcomes went back up to around 65%.

They weren’t able to say for certain whether it was the break that led to the positive outcomes going back up or whether it was the Judge being able to eat during that break, but it was clear that there was a clear decline in favourable decisions for defendants as the sessions went on, with that being wiped clean after a break.

They also look at previous research that suggests that “making repeated judgments or decisions depletes individuals executive function and mental resources which can in turn influence their subsequent decisions”

(If you are interested in whether Judges are creatures of pure reason, that sentence is a bit worrying – suggesting that the more judging you ask one to do in a given period of time, the worse they might do at it.)

This is also interesting – this mental depletion over time tends to lead to the decision that reinforces the status quo being made more often than a decision which significantly changes the situation. Obviously if you are in prison and want the judge to agree to parole, you don’t want the Judge to be drained and plumping for the easy option of the status quo.

Finally, our findings support the view that the law is indeterminate by showing that legally irrelevant situational determinantsin this case, merely taking a food breakmay lead a judge to rule differently in cases with similar legal characteristics.

 

Although our focus has been on expert legal decisions, we suspect the presence of other forms of decision simplification strategies for experts in other important sequential decisions or judgments, such as legislative decisions, medical decisions, financial decisions, and university admissions decisions. Our findings add to the literature that documents how experts are not immune to the influence of extraneous irrelevant information

 

 

 

I am of course sure that our own judiciary are utterly immune to these matters and are made of sterner stuff than our Israeli cousins, but nonetheless, if you are aiming for the status quo to continue, try to get in at about 12.30, and if you want to persuade the Judge to make a change, either get in at ten, or stall until 2.00pm.

And if you have a Judge who is floating the idea of sitting straight through and not having a lunch break at all, you may want to politely decline.

[Suesspicious Minds will buy a pastrami on rye for the first person who can genuinely confirm and independently verify that they have addressed a Judge and handed up this research]

 

 

[Edited because I had stupidly put that the study was of American judges, when it was in fact of Israeli judges… ]