RSS Feed

Tag 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

 

http://alc.org.uk/uploads/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.

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
http://www.familylaw.co.uk/system/redactor_assets/documents/1657/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.

http://www.cafcass.gov.uk/media/217447/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

http://www.nspcc.org.uk/Inform/resourcesforprofessionals/lookedafterchildren/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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a)   The FJB camp are right

(b)   Wastell and White are right

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

Are asked to say so.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

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

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

 

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

 

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

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

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

 That gave me some food for thought.

 

 

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

 

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

 

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

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

 

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

 

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

 

But let’s read more.

 

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

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

 

Abstract

 

 

 

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

 

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

 

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

 

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

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

 

1. Is it peer reviewed

2. Is it randomised?

3. Did the initial sample get skewed?

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

And none of those red alarm bells are set off

 

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

 

Lets see what they say:-

 

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

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

 

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

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

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

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

 

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

But this is the telling paragraph in relation to Triple P

 

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

 

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

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

Semantics, pedantics and Neuro-mantics

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

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

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

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

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

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

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

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

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

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

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

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

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

achilles

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

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

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

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

Let’s have a look at some detail

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

 

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

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

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

 

 

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

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

The importance of secure attachment is invoked:

 

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

 

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

 

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

(2011a: 15)”

 

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

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

 

Parents are to blame:

 

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

and years. (2011a: 15)”

 

 

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

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

step of his neurobiological argument:

 

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

 

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

 

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

 

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

 

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

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

brain size evident (see below).

 

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

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

 

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

 

(and later)

 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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