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Tuesday 25 June 2019

Tortoise case file: State V Family

‘We are operating in the dark’

Decisions are made about the future of troubled families without good evidence, a senior judge warns

By Polly Curtis

Sir James Munby should have the answers.

If anyone can explain why, over the course of the past 25 years, there has been such a big increase in the number of children taken into care, it is the man who led the courts that made those decisions.

But the former president of the family courts returns repeatedly to the same warning: “We simply don’t know. We are very much operating in the dark.”

Munby served as president of the family court division of England and Wales from 2013 until last year. A thoughtful and fiercely independent reformer, he made judgments that challenged political doctrines to the limit of what is appropriate for a judge and brought in changes that improved the transparency of the famously secret courts, without jeopardising children’s anonymity.

The problem is, Munby suggests, the entire system is operating in an evidence-deprived vacuum. It’s not about a lack of evidence in the individual cases, the documentation of bruising or social workers’ accounts. It is about the wider research that tells you what that bruise might mean, what impact a decision might have, or what range of decisions have been made in particular scenarios in the past.

He paints a picture of a social work and legal system that is out of touch with the latest research on things as basic as bruising in babies, or the theory around how children form attachments at different ages.

Judges make decisions with care, but there is no mechanism to find out further along the line what happens to the children, so they never learn about what works best. Meanwhile the data that is available to explain who is going into care, where and why, is patchy and inaccessible.

“My fundamental point is that without the data – and without rigorous analysis – we are operating in the dark,” he says. “In all the time I sat as a judge I was only ever twice in the whole of that time taken to any specific piece of research.”

Considering the magnitude of the decisions that are being made and their impact upon children and families, his comments are startling. Munby says that instead of evidence, there are assumptions that get passed on through generations of lawyers unchallenged. “There are lots of what might be called articles of faith within the court system,” he says, turning to consider in detail the law in England which allows “non-consensual” adoption.

“For the first time over the last two or three years there are people beginning to question, in the mainstream, whether we’ve got it right on non-consensual adoption,” he says, pointing out that few other countries do it to the extent that the courts in England and Wales do.

“I think we need to look into it. We’ve just tended to assume that it’s the right thing. That assumption is based on elderly research. It’s something we’ve all grown up to believe. It’s simply part of our mental furniture.”

Munby is now chairing a new Family Justice Observatory, funded by the independent think tank the Nuffield Foundation, trying to gather the evidence that is needed. He hopes to draw together the most thorough literature review of research that should be considered in care cases, potentially creating an encyclopedia that lawyers and social workers could refer to so they are all “singing from the same hymn sheet”. The work will also identify gaps in the evidence and commission research to improve our overall understanding.

He wants to bring together the data – and importantly, to visualise it – that shows who is in the family justice system, and why, so we can start to answer in a more methodical way the question of why there has been such a big increase in care cases. It’s part of a wider movement in the sector to improve the use of research and data that the Ministry of Justice, the Children’s Commissioner for England and other dedicated centres are now focused on.



For now, he says there are only theories about the increase in care cases: “There are only three explanations for this: one is there is more abuse. I refuse to accept that’s the explanation. The second is we’re more adept at identifying the abuse there is. And the third is we are sweeping up more people into the system.

“What we still haven’t bottomed out is what the contribution to the increase is of being more adept at identifying problems that were always there, or to what extent it is the consequence of a new, less tolerant, or more rigorous approach, setting higher standards and being demanding of parents. We just don’t know.”

We meet in Munby’s Wiltshire home of 30 years, hidden in a wood and full of a jumble of books on political history and the law, and his grandchildren’s toys. He talks for two and a half hours about the lack of evidence, the “postcode lottery” in the rates of family separation in the UK, which the existing data has revealed, and how the middle classes are all but absent in the story. Does he believe that the system is fair?

“It’s by and large fair and just – within its own assumptions,” he says. “Everyone in the system is desperately striving, on the day and in a particular case, to be as fair and just as they can be… I suspect on a micro level people are doing their level best, but that’s within the parameters of the system as they believe it to be and understand it to be. People desperately trying to do individual cases fairly don’t have time to sit back and think about these things.”

He rejects vehemently some of the online rhetoric, including that of the notorious child protection vigilante Ian Josephs, who we have reported on for this series. The wildest critics of social work believe there are routine miscarriages of justice in the care system and encourage women to flee the state. The internet is awash with such “paranoid” stuff, he says. “I’ve no doubt there are a few cases of outright miscarriages of justice. They do happen, they are rare, we believe. Probably very rare.

“I suspect – but again I just don’t know and I may be being unfair – I suspect the biggest problem in the system is cases where people think ‘well this is a straightforward case’. They don’t consciously just go through the motions, but perhaps they don’t put so much real effort into it as others might.”

He talks about one case, for which a judgement was published this month, heard by Justice Stephen Wildblood in Bristol. The judgement documents the desperate efforts of a council’s social workers to try to keep a family together – parents who loved their child deeply, were trying their best, but were unable to care for him because of their learning difficulties. The judge ordered the child be adopted with “deep regret”. His careful attempts to consider ways the family could stay together are obvious.

But Munby says: “I have the uneasy feeling that with judges who are less meticulous and rigorous… it can be easier to say ‘this is another hopeless case’ and one doesn’t put one’s back into it. I fear that may be so.

“The point where you think the outcome is patently obvious is the danger point. If I’m thinking it’s obvious, I’m not looking as closely as I should.”

Munby at his home in Wiltshire. “The biggest problem in the system is cases where people think ‘well this is a straightforward case’.”

He walks me through the decision-making process end to end, social workers make recommendations and then judges’ decide. He details the complexity of weighing up decisions as a judge, clouded by unknowns – what might happen to a child if they remain at home; what might be the consequence of removing them. He talks about a deficiency in “analytical rigour” in this decision-making, hence the lack of curiosity among some professionals about research which might inform decisions.

Then he adds another factor: “Deeper and more profound is that taking the child away may be cheaper in the long run than supporting the family. When it’s asked what is needed to support the family with therapy and support, the answer is: we can’t afford it.

“I suspect that’s not a conscious driver. People in the system are desperately short of resources and they know that support costs a lot of money. Human nature being what it is, these pressures are quite subtle and it’s quite easy to persuade yourself to do the thing that costs less money.”

It is a shocking idea that some children are being removed from their families, however unconsciously, because it might save money in the short term. Councils and social workers would certainly deny it, but Munby has looked into the eyes of the people making these decisions and is now voicing his suspicions.

The Observatory will focus on working out who the families in the care and justice system are. Much is known about the gender of the children and the ethnicity of families, but relatively little is known about social class. And it is the most obvious factor to anyone who has spent as much time in court as Munby.

“The question that has gravely troubled me for years and years is how often do you see a middle-class family in a care case where there isn’t sexual or physical abuse? The honest answer is virtually never. In that sense, if you strip out the comparatively small number of cases which deal with sexual or physical abuse, the middle classes are largely invisible in the care system. You don’t have middle-class families in the care system.

“One of my suspicions is that if you are wealthy, middle-class with private doctors and private schools, those referral mechanisms I suspect don’t work in quite the same way as they do with the local state school. They get below the radar.”

In other words, schools and doctors in wealthy areas are not as vigilant about children showing signs of abuse or neglect.

He has another theory of why this happens: “Partly there is an assumption these things don’t happen in the middle classes – which is nonsense, of course it does. And partly I think people are less attuned to it. A lot of emotional harm and neglect cases start as a kid arriving at school dirty, unwashed and hungry. You only have to add on to that mum turning up smelling of drink. Well, there are plenty of alcoholic parents who probably turn up at a public school sports day or regatta stinking of drink. Nobody would think of ringing up social services.”

But then he returns to a familiar theme: “My experience is that there are certain sections of the community where people either disproportionately feature or disproportionately don’t feature. That’s the anecdotal experience. But we don’t know. We need to know.”

This story originally referred to the Nuffield Trust. We intended to say the Nuffield Foundation. This has now been corrected. 

Portraits by Andrew Testa

Other photo by Getty Images

Further reading

Sir James sets out his plan for the Family Justice Observatory in this speech ‘Born into Care – Infants in the Family Justice System’, October 2018