Working Group On Bar Reporters

The Scottish Government is chairing a working group – established in 2013 – to examine the role of court reporters in child welfare cases; typically those involving contact, residence, parental rights & responsibilities or specific issue orders.

“Inadequately trained people put into a position of incredible power.”

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“I don’t think there was any malice – an awful lot of stupidity – but no malice. I think the people involved really genuinely thought they were doing the right thing. … People involved in child protection and the whole social work field are poorly trained. Everyone goes on courses and that’s great. ‘I’ve been on a two-day child protection course so I’m now an expert’. That’s what worries me, I think it could happen again. Not the same scenario, but the same underlying problem: Inadequately trained people put into a position of incredible power.”

Surgeon Dr Helen Martini, wife of the now retired local GP, in an interview 20 years after the Orkney child sex abuse scandal

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“He is responsible for skill in his profession and want of such skill is regarded as a fault.”

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Spondet peritiam artis, et imperitia culpae adnumeratur

(Bell’s Commentaries (7th ed.) I, 489, Bell’s Principles)

The court had general power to make a remit to a reporter (a) to provide an opinion on a technical matter, (b) to investigate the circumstances and to report on them to the court, and (c) to preserve evidence. Read the rest of this entry »

… the practice of judges rubber stamping … [#2]

by Roy Mackay

See the previous post on this subject here .

And again compare this:

Mrs Justice Pauffley has noticed the practice of judges rubber stamping the wishes of [others] without even so much as checking the information they provide or examining it through a fair hearing. And whilst some may argue that judges rely on ‘experts’ to provide information and guide them on outcomes, the reports provided were never meant to be taken ‘as read’. That has become common practice in our courts and factors such as time pressures and resources are irrelevant here. Breaking procedure is simply not an option.

Judge of The Week: Mrs Justice Pauffley

… with the Scottish Government’s March 2016 “Instructions to Child Welfare Reporters” (formerly known as Bar Reporters):

Format of Report

Your report should set out clearly and concisely the facts which you have found established and which lead you to the conclusions and recommendations which you are making to the court. Your report has been ordered by the court in order to ascertain matters of fact and in order to enable the presiding sheriff to better regulate interim matters at a child welfare hearing. It is not appropriate for you to indicate that you have been unable to formulate a clear view as to appropriate next steps in the case and that the matter should simply proceed to proof. [Emphasis added]

Instructions to Child Welfare Reporters: Edition 1 (March 2016), page 3 [Published 22 March 2016]

This surely is a remarkable instruction, and given that the majority of Bar/Child Welfare Reporters are private practice solicitors without any welfare qualifications, training or experience (and the lack of any formal appointment criteria for these posts), a matter Read the rest of this entry »

“We need to understand where our competence is and isn’t.”

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“We are not good at reasoning with uncertainty. … At the very least we should recognise that and we tend not to.”

[Talking about Sally Clark’s wrongful conviction for murdering her two baby sons.] “At the Sally Clark trial, all of the lawyers just accepted what the expert said. So if a paediatrician had of come out and said to a jury: “I know how to build bridges. I’ve built one down the road. Please drive your car home over it.” They would have said: “Well paediatricians don’t know how to build bridges; that’s what engineers do.” On the other hand he [the paediatrician] came out and effectively said or implied: “I know how to reason with uncertainty; I know how to do statistics” and everyone said: “Well that’s fine; he’s an expert.“”

“We need to understand where our competence is and isn’t.”

Oxford mathematician Peter Donnelly reveals – in his Ted Talk – the common mistakes humans make in reasoning with uncertainty, and the devastating impact these errors can have in court. [If you’re pressed for time, start viewing the talk from 13:35]

Overconfidence .. the most “pervasive and potentially catastrophic” of all the cognitive biases ..

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Overconfident professionals sincerely believe they have expertise, act as experts and look like experts. You will have to struggle to remind yourself that they may be in the grip of an illusion. Daniel Kahneman

“making critical decisions .. based on little or no knowledge”, and doing so with an air of complete assurance.

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Rather than begin with the evidence and work towards a conclusion, the team members worked in the opposite direction. More egregiously, their scepticism about the possibility that something might really be wrong made them dismiss the need to gather more information …

… their conviction that nothing was wrong limited discussion and made them discount evidence to the contrary. In that sense the team succumbed to what psychologists call “confirmation bias” which causes decision makers to unconsciously seek those bits of information that confirm their underlying intuitions. These problems were also exacerbated by the team’s belief that it knew more than it did.

In other words, “they were making critical decisions .. based on little or no knowledge”, and doing so with an air of complete assurance.

The Wisdom of Crowds, Chapter 9, Committees, Juries and Teams:

“We need to act. And we need to act now.” [2004]

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Those who are critical of our family justice system may well see this case as exemplifying everything that is wrong with the system. I can understand such a view. The melancholy truth is that this case illustrates all too uncomfortably the failings of the system. There is much wrong with our system and the time has come for us to recognise that fact and to face up to it honestly. If we do not we risk forfeiting public confidence. The newspapers – and I mean newspapers generally, for this is a theme taken up with increasing emphasis by all sectors of the press – make uncomfortable reading for us. They suggest that confidence is already ebbing away. We ignore the media at our peril. We delude ourselves if we dismiss the views of journalists as unrepresentative of public opinion or as representative only of sectors of public opinion we think we can ignore. Responsible voices are raised in condemnation of our system. We need to take note. We need to act. And we need to act now.

The Honourable Mr Justice Munby
F v M [2004] EWHC 727 (Fam) (01 April 2004), [at 4]

The illusion of confidence.

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The illusion of confidence has two distinct but related aspects:

First … it causes us to overestimate our own qualities, especially our abilities relative to other people.

Second … it causes us to interpret the confidence (or lack thereof) that other people express, as a valid signal of their own abilities, of the extent of their knowledge, and of the accuracy of their memories.

Chabris & Simons, 2009, p.85

The Dunning-Kruger Effect:

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unskilled & unaware of it (graph image)

(Click on image for details.)

… it cannot be right … to allow an obvious “quack” … to speak to a subject in a supposed expert way in relation to which he has no qualifications …

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If the case, as this one was, is to be based, to a material extent, on expert evidence, it is of the utmost importance that the experts chosen by the prosecutor to provide evidence supportive of the charge of murder should have the relevant qualifications, competence, expertise and experience to speak to the matters they are invited to give evidence about. The matters about which they are to be invited to give evidence about must themselves be clearly defined so that their competence to speak to them can be readily identified and confirmed. In Dickson Evidence (3rd edition), the writer in dealing with the evidence of witnesses of matters of opinion at para 398 states:

“A foundation for such an examination must always be laid by ascertaining whether the witness is a person of skill or an ‘expert’ (the English term) under which is included those have a theoretical acquaintance with the subject, as well as one who speaks from practical knowledge”

A modern statement of the position is to be found in Davidson: Evidence at para 11.13 in the following terms:

“It is for the court to be satisfied whether a particular individual tendered as an expert does have sufficient relevant expertise to assist the court, and if this is not established the evidence of that witness is not admissible, even if the opposing party raises no objection.”

 

Putting matters colloquially it cannot be right for a trial judge to allow an obvious “quack” doctor to speak to a subject in a supposed expert way in relation to which he has no qualifications …

from [49], OPINION OF THE COURT, delivered by LORD CLARKE
[2013] HCJAC 47, Appeal No: XC42/12

Faculty of Advocates: Considerable confusion …

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Particular aspects of the law potentially in need of reform have been highlighted by the Faculty of Advocates in a submission to the Scottish Law Commission.

In its response to the Commission’s request for suggested projects for its ninth programme of law reform due to run from next January, Faculty has collected a number of issues which its members have identified as arising in practice.

One area is the question of looking after the interests of children involved in court proceedings. Differing practice across Scotland, the advocates say, has contributed to “considerable confusion as to the roles of a [court-appointed] reporter and a curator ad litem appointed at common law”, and the appointment, role and powers of curators ad litem at common law “would be worthy of the Commission’s consideration”.

The Journal of the Law Society of Scotland

… the practice of judges rubber stamping …

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Compare this:

Mrs Justice Pauffley has noticed the practice of judges rubber stamping the wishes of [others] without even so much as checking the information they provide or examining it through a fair hearing. And whilst some may argue that judges rely on ‘experts’ to provide information and guide them on outcomes, the reports provided were never meant to be taken ‘as read’. That has become common practice in our courts and factors such as time pressures and resources are irrelevant here. Breaking procedure is simply not an option.

Judge of The Week: Mrs Justice Pauffley

… with the Scottish Government’s own recent study:

A report can be obtained from someone other than a solicitor, such as a social worker or psychologist, but the majority of reports are prepared by solicitors. These reports are very often the basis for decisions which are made at in interim stage and, of course, almost inevitably become the foundation for the longer-term plans. The bar reporter becomes the ‘eyes and ears’ of the court. The bar reporter has an enormously influential role as it is rare for a decision to be made against the recommendation of such a report.

Child Welfare Hearings: A Scoping Study of the Commissioning,
Preparation and Use of Bar Reports [4.13]

The Despotism of Custom

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Prevailing attitudes quickly become entrenched and appear to carry the weight of authority, when in fact they are entirely contingent and based on very little reason or evidence.

The rules which obtain among themselves appear to them self-evident and self-justifying. This all but universal illusion is one of the examples of the magical influence of custom …

1.6

“I do not mean that they choose what is customary, in preference to what suits their own inclination. It does not occur to them to have any inclination, except for what is customary. Thus the mind itself is bowed to the yoke …”

3.6

John Stuart Mill
On Liberty, 1859

“We cannot make good news out of bad practice.”

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Edward R. Murrow

“The Deep Slumber of a Decided Opinion.”

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“… and what was understood would have been far more deeply impressed on the mind, if the man had been accustomed to hear it argued pro and con by people who did understand it. The fatal tendency of mankind to leave off thinking about a thing when it is no longer doubtful, is the cause of half their errors. A contemporary author has well spoken of “the deep slumber of a decided opinion.””

John Stuart Mill
On Liberty, Ch II. 1859

I can see any child – any child in the world – EXCEPT MY OWN. And anyone can see my child, except me.

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How can the present system possibly claim to act in any child’s best interest when the ‘resident parent’ can invite any new man or new woman into the home of that child, with no questions asked? .. No police-checks, no court appearances. New lover is presumed fine to be with that child from day one. I can see any child – any child in the world – EXCEPT MY OWN. And anyone can see my child, except me.

Roger Crawford, Blog Comment, 14 November 2013

.. the most drastic that any judge in any jurisdiction is ever empowered to make.

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I have said this many times in the past but it must never be forgotten that, with the state’s abandonment of the right to impose capital sentences, orders of the kind which family judges are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make.

Sir James Munby, President of the Family Division and President of the Court of Protection, from his speech at the Annual Conference of the Society of Editors ‘Freedom to Inform’ London, 11 November 2013.

“… the work on human cognition and probabilistic reason should be up there as one of the first things any educated person should know.”

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I would say, without hesitation, if somebody were to ask me what are the most important contributions to human life from psychology, I would identify this work as maybe number one, and certainly in the top two or three. In fact, I would identify the work on reasoning as one of the most important things that we’ve learned about anywhere. I argued at Harvard that when we were trying to identify what should any educated person should know in the entire expanse of knowledge, I argued unsuccessfully that the work on human cognition and probabilistic reason should be up there as one of the first things any educated person should know. I am unqualified in my respect for how important this work is. So whatever difference in emphasis is not on whether these are important profound discoveries, which they are, but where to take them, and how ultimately to explain them.

Steven Pinker, Edge Masterclass 2011

The respective roles of intuition and analytical reasoning.

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Private versus Public Law Cases

It is not only that these cases are time consuming. The most significant impact is the high level of emotion which characterises the contestants and rapidly spreads into the Proceedings. I was quite unprepared for these difficulties when I first began to report on these cases, despite having had years of experience of providing reports to Local Authorities and later to the courts in Care Proceedings. I soon learnt that the skills and literature which were relevant to assessments in Care cases were rarely applicable to assessment in high conflict contact disputes. This difference between public and private law cases is relevant to readers of this journal. It is my opinion that CAFCASS does not fully appreciate the very different set of skills, experience and background knowledge required in dealing with public and private law cases. Increasingly I find that CAFCASS Reporters and Guardians have had experience in child protection but not in private law. Read the rest of this entry »

Let’s hear it for the child;

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“No one would question the need to involve children in an age appropriate way in the decision making process which so obviously affects their daily lives. But the ever increasing emphasis on the sacred cow of listening uncritically to the unfiltered views and wishes of children, including young children, is in serious danger, I think, of undermining the family court’s authority and proper function which is to arrive at a decision which is overall, best for the child. Have we allowed this sacred cow to become too sacred and in so doing passed the buck to the child? ..”

Read the rest of this entry »

Terms of Reference

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WORKING GROUP ON BAR REPORTERS: TERMS OF REFERENCE

 Statutory background to child welfare hearings

Read the rest of this entry »