False reporting is a threat to justice

In the context of changes to law and practice on the use of experts, the ‘glare of publicity’ is a many-sided animal not guaranteed to give the public a complete and accurate picture.

Muddied waters

A recent article in the Daily Mail (‘End to family court experts gravy train: Witnesses paid thousands in 90 per cent of care cases’, by
James Slack, 22 April 2014) illustrates perfectly this point.

For example, the Mail article muddled private and public law proceedings and published a quote, reportedly from the Ministry of Justice, which at best is problematic. It stated that a “growth in the use of so-called experts – often psychologists or independent social workers – was causing misery for children left stuck in care waiting for reports to be finished”.

However in terms of balance – and hard evidence – the article failed to alert readers to research findings on the use and value of independent social work reports (ISWs). Equally, the author clearly saw no reason to check the quote, ‘dig deeper’ about the work of courts and the need for clinical and other expertise – or to question the consequences for children where these expertise are not available.

Data on the use of ISWs does not support the views cited in the article and indeed following publication of a second report in this field (based on the views and experiences of senior judiciary) both the MoJ and the Association of Directors of Children’s Services (ADCS) acknowledged the value of ISW expertise in appropriate cases.

Notwithstanding the problems identified by the work of Professor Jane Ireland on psychological reports, throwing the ‘baby out with the bath water’ will not help courts or assist professionals in gaining access to the best available evidence and in the timescale now required by courts.

To reiterate some key findings on the use and value of ISW reports from a two-part evaluation, there was no evidence that ISW reports routinely cause delay. And in the second part, most senior designated family judges (DFJs) said despite allegations of frequent use, they were not ‘frequent users’ with estimates of 22-25 per cent of their case load. These figures suggest similar usage to that found in a national random survey of cases in the 1990s.

The main reasons judges commissioned ISW reports was lack of a local authority (LA) assessment, a poor quality or out of date or limited assessment, or where a LA had been unable to provide skills/resources to undertake the necessary work in the timescale necessary.

Just under a third of judges identified changes
to the role of guardians as contributing to the use
of ISWs.

Judges applied two caveats to use: the ISW must be able to dedicate time and report quicker than the LA could while maintaining quality and he/she should be a ‘tried and trusted’ expert with the confidence of the court and the LA. The main reasons for use of ISWs for kinship assessments were broadly the same.

Some judges had noticed a decline in LA involvement in instructions to ISWs (post 2011) but most had not – precisely because ‘need’ for such an assessment had had to be established in their court regardless of party views.

Some judges raised concerns about the impact of the new regime and a 26-week deadline. It was argued changes should not result in a ‘knee-jerk’ or ‘macho’ reaction by courts without proper exploration of the needs of the case within a framework that considers fairness and justice for children and parents.

Just over half of the judges said the quality of ISW reports was good or excellent - reports described as ‘outstanding’, ‘excellent’ and ‘exceptional’ and without exception. Others said reports were good but with instances of variability. Overall reports were analytical, reasoned, independent and comprehensive, built on sufficient time with parents/others for a robust assessment.

Most of the ISWs judges commissioned were reported as highly experienced practitioners with specialist skills, articulate and with detailed knowledge of public law, child development and the needs of the court.

With one exception, almost all judges were able to give examples of cases where an ISW assessment had changed the ‘direction of thinking’ and the order or placement proposed for a child. Judges also said ISWs could shorten cases and reduce litigated issues.

Delay was not a factor associated with ISWs. Most judges have only agreed a ‘late’ application if the report could meet an existing hearing date; few would countenance an adjournment – save in very exceptional circumstances.

Core assessment

Turning to the context in which judges used ISWs and with notable exceptions, judges indicate that so far as proceedings are concerned, the local authority assessment record generated by the electronic integrated children’s systems (ICS) is ‘not fit for purpose’. Relatively few judges saw the LA ‘core’ assessment as key at the start of cases (Public Law Outline stage I); even fewer routinely received it and most had ‘given up’ on it and did not read it.

Any restructuring and reshaping of social work practices with families (following the Munro Report 2011) and improvements in the timing of reports for courts (under the PLO 2013) are likely to be constrained by IT systems.

Moreover, there appears to have been a lack of policy attention to documents for work under part III of the Children Act 1989 (CA 1989) and those required under part IV. Attention to this interface was absent from the work of Munro, from the development of ICS(s), and from Working Together to Safeguard Children (2013).

It would have been useful for the reporter to have looked at these findings and to have sought a response not simply from the Department for Education (DfE) but from social workers at the coal face.

Data from Ofsted and the Care and Social Services Inspectorate Wales (CSSIW) on completion rates of local authority core assessments within 35 days, coupled with inspection findings on the quality of some work, also gives cause for concern.

For example, in some 44 per cent of the (90) authorities in the study, 80 per cent of assessments were completed in 35 days; in over half (56 per cent) it was between 70-79 per cent and in 29 per cent it was below 70 per cent. In a random sub-sample of 60 authorities, 58 per cent was judged to be ‘variable’; 18 per cent were ‘improving’; 5 per cent were ‘good’; and
5 per cent ‘unacceptably poor’. In a sub-sample
of inspection reports on 52 relevant authorities
in England, Ofsted graded 58 per cent of assessments ‘adequate’ (grade 3), 31 per cent ‘good’ (grade 2) and 8 per cent ‘inadequate’
(grade 4). Like judges, Ofsted and CSSIW inspectors identified problems with the ICS and the reports generated. Again that combined finding requires a response from government.

Several judges raised concerns about some decisions they are expected to make. Keeping vulnerable parents on an equal footing with other parties and the position of extended family members as potential carers for children were key concerns; both matters that might usefully be further addressed.

Some judges expressed concerns that LAs are subject to less scrutiny of their work by guardians than in previous times, that the latter have less time per case and some were reported as less experienced than previously. Judges addressed tensions between completion rates for cases and doing what was best for a child.

Obtaining permanence for a child quickly is important, but so is making the right decision for a child and thus obtaining timely, analytical, forensically driven reports on which the court can move forward with confidence and speed.

New regime

Whether judges were more or less likely to use ISWs, or that practice would remain unchanged following the new regime for family courts, the circumstances where they said they would use an ISW were the same. These were:

• where a local authority lacks the necessary skills or time;
• to undertake work faster than a local authority was able;
• in complex cases such as those with multigenerational abuse;
• where an assessment is compromised, biased, or lacks transparency;
• where several potential carers require an assessment.

The question then becomes how have courts coped with these circumstances – and what are the implications for children and their right to have the possibility of rehabilitation with a parent/extended family member properly tested?

The article also gives the reader a muddled impression of Professor Ireland’s study: it was not a study of the use of all experts, rather it focused on reports by psychologists; it was funded but not undertaken by the Family Justice Council.

A little deep drilling and some research – notwithstanding the problems Ireland identifies – would have indicated psychological evidence can be important for the court, and the child. Social workers are not, for example, competent to undertake cognitive testing of parents – and proceeding with cases concerning a parent with a possible learning disability in the absence of such evidence is highly problematic.

Specialists with the time and skills to undertake cognitive testing, followed where appropriate by a Parenting Assessment Manual (PAMs) assessment of parenting, help social workers and courts determine the best way forward for a child.

Moreover, psychological evidence is seldom if ever the only expert evidence in cases. Rather it contributes to the overall picture of parenting and its impact on the quality of care provided/likely to be provided for children. All available research indicates families in care proceedings have multiple problems: comorbidity is common and social workers and judges need clinical assistance to do their job – and sleep at night.

For accuracy, if not balance and a better informed readership, it would have been helpful for Slack to have looked at the evidence
regarding the experts commissioned in proceedings against the profile of parents and children and issues on which courts require evidence – it is easily accessed, mostly funded
by government.

Recent successes in the Family Drugs and Alcohol Court demonstrate that with the right skills and clinical expertise, courts can provide a framework for problem solving and for some children to be returned to parents: however, they cannot do that without expert input. SJ

Dr Julia Brophy is a principal researcher in family justice and sits on the executive committee of the Association of Lawyers for Children www.alc.org.uk