The search for EVIDENCE and ANALYSIS: a Judge's view HHJ CAROL ATKINSON Designated Family Judge for East London

The role of the Judge in Family Justice CASE LEVEL DECISION MAKING Hearing cases and making decisions Protecting children and promoting the right to family life The focus at this level is a NARROW one: these children - this family – this evidence… THE BROADER CONTEXT A BROADER and more subtle INFLUENCE on family justice as a whole Driven by the need to control/limit volume Deliberately or not, influencing the system as a whole

Fact finding [threshold] After issue……. Case management Fact finding [threshold] Final Decision [welfare analysis] evidence assessment 26 weeks

CASE LEVEL: THE PROCESS FACT FINDING Determining the FACTS on the available EVIDENCE  WELFARE ANALYSIS Considering EVIDENCE (including EXPERT ANALYSIS) and weighing the realistic options and outcomes. DECISION Choosing the best outcome for the child after thorough analysis giving full reasons.

FACT FINDING Cases are FACT SPECIFIC – but the facts are often in dispute.  THE STANDARD OF PROOF: ‘the balance of probabilities’/ 'more likely than not' The Judge's role is to determine what has been PROVED.... ….that is not the same as determining the 'TRUTH'

WELFARE ANALYSIS Against the essential factual background professionals/experts make their assessments/predictions of likely outcomes.  THE STANDARD OF PROOF is the same  The WELFARE OF THE CHILD (throughout his life) is PARAMOUNT: the welfare checklist guides The Judge's role is to identify the REALISTIC OPTIONS, weigh them, determine what best meets the child's needs....

EVIDENCE WE DECIDE CASES ON THE EVIDENCE What is evidence? Witnesses of fact SOCIAL WORK ASSESSMENT & ANALYSIS Other expert opinion what the parents/ family say

ANALYSIS The Judge carries out a 'global holistic analysis of the realistic options...’ Judicial discretion: there is no ONE right answer - decision is considered sound provided that there is proper process, full explanation and it falls within a range of reasonable decisions

The Family Judge needs to understand context “society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent” (Hedley J) Services and support before statutory intervention because parents/families should be assessed WITH that support in the final analysis ARTICLE 8 UNDERPINS EVERYTHING and the system is designed to keep families together.

SAFEGUARDING UNDERPINNED BY ART 8 Everyone has the right to respect for his private and family life… There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary …..for the protection of health or morals, or for the protection of the rights and freedoms of others. HUMAN RIGHTS ACT 1998 – ARTICLE 8

AT CASE LEVEL IT IS THE JUDGE’S ANALYSIS THAT COUNTS There are many reasons why that analysis might differ from the views of some or ALL of the professionals in the case. Lack of evidence. A different interpretation of the evidence/the facts. Seeing parents/ kinship carers from a different perspective. Weighing things differently in the balance.

Welfare analysis of the month…. Second option: “Placement with father”. “Arguments for”: (i) The children would be cared for by their biological father (ii) The children would maintain a sense of their identity. “Arguments against”:   FATHER IS DECEASED

CASE DECISIONS IN CONTEXT Proceedings Case level decision making is the tip of the Family Justice Iceberg; Far more activity below the surface…. Children at risk Children in need This Photo by Unknown author is licensed under CC BY-SA-NC.

Take 2018 (ADCS figures) About 25,000 children reach the Courts About 400,000 children in England were identified as meeting the threshold for statutory support without which their health or development is likely to be impaired (CIN) About 60,000 children were subject to a child protection plan, and were considered to have reached (or likely to do so) the same ‘significant’ harm’ threshold as on issue of proceedings About 25,000 children reach the Courts Take 2018 (ADCS figures)

THE OUTWARD FACING JUDGE MAJOR CHANGES TO THE FAMILY JUSTICE SYSTEM LEAD BY THE PRESIDENT OF THE FAMILY DIVISION Unprecedented increases in volume THE SEARCH FOR ‘EVIDENCE AND ANALYSIS’ ACROSS THE WHOLE OF THE FAMILY JUSTICE SYSTEM: Analysis of the family justice system as a whole; Analysis of performance at local level; Decision making level?

The research data challenging the system Recurrent mothers – 1 in 4 birth mothers returning within 7 years. Broadhurst et al. Born into Care. Using population level data held by CAFCASS. High incidence of newborns/ infants taken into care. Significant regional variations (London low and NW high). Research on Supervision Orders and SGOs (Judith Harwin) – highlighting regional variations/ 1 in 5 supervision orders returning to court within 5 years

PLATO The Children in Family Justice Data Share – longitudinal data on short and medium outcomes for children. ‘The Public Law Applications to Orders (PLATO) interactive tool presents analysis of the pattern of applications and orders made in public law…cases, both across geographical regions and for trends over time..’ Original period covered - 2000-2016

PLATO on East London and Greater Manchester Children in the Manchester DFJ area were 2.5 times more likely to be subject to public law proceedings than children in East London. The use of care orders is much higher in Manchester DFJ (57%) compared with East London (37%). The reverse is the case for the use of supervision orders (Manchester is lower than the national average at 10% compared with East London at 30%). Manchester and East London have similar levels of deprivation. In Manchester, there is a clear link between the level of deprivation in any single local authority and the level of care demand. In East London there is no such correlation.

ONE PERFORMANCE TRUTH (OPT): HMCTS performance data CARE MONITORING SYSTEM (CMS) – overview of all public law cases Management tool for leadership judges – age of case / number of hearings/ no of experts/ reasons for adjournments Filter by individual case/ Court centre/ allocated level of judiciary/ local authority/ allocated Judge Opportunities and challenges

Research data at case level Not generally received as ‘direct evidence’ in the case. More often introduced as support for ‘expert opinion’ Can be used as an ‘adversarial tool’ Seeps into background knowledge of experienced family judges (but possibly not with consistency?)

RANDOMISED CONTROLLED TRIAL IN CARE PROCEEDINGS? The trial is called the BeST? Services Trial. What is it ‘testing’?: an ‘infant mental health’ model developed in New Orleans and its impact on long term outcomes for children How? Delivering the model to families randomised to the service in care proceedings. First RCT in family proceedings.

CMH Effective IRH Qualifying family + CONSENT Non-qualifying family Qualifying family: not consenting RANDOMISATION CMH Effective IRH LIFT assessment Standard assessment

Effective IRH Final Decision LIFT RECOMMEND INTERVENTION SAU FAMILY/ LIFT DID NOT RECOMMEND INTERVENTION Effective IRH Final Decision 30-40 WEEKS 26 WEEKS

Any negative impact on a parent? No choice of parenting assessors. Limited choice anyway? Longer proceedings if LIFT recommend intervention. But that recommendation is also working towards rehabilitation. If LIFT does not recommend intervention OR if family not randomised to LIFT no opportunity to experience the intervention. Compare FDAC? There is nothing RANDOM about the decision making