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Pink Tape

The moment I turned my ankle in that hole in the drive I had flashbacks to the pink plaster cast... As I sat in Friday night A & E I planned how I would get from A to B with my dozen lever arch files, and which suit trouser I would sacrifice to the walking boot...

Fortunately, it wasn't broken this time, though it is the same jinxed ankle as before, and it does blinkin' hurt.

But more to the point, the reason I was stepping in that flipping hole in the drive in the first place was because we are finally taking tentative steps towards getting back into our home on a regular basis, as the building works draw to an excruciatingly slow close. Everything is covered in plaster dust and nothing is *quite* finished, but we've located and wiped down the kettle, the toaster, pulled out a few towels, plugged in the fridge and the washing machine and we're good to go. The camping stove on a tressel table should only be temporary....

The last time I sat and wrote a Pink Tape blog post in this house was the spring. Now I am sitting at our kitchen table (this is the first time we've had a kitchen big enough for a kitchen table!) looking out of a transformed view, watching and listening to a congregation of chiff chaffs that have taken up residence in our abandoned garden whilst we've been away. The garden is full of bindweed and builders rubbish, but there is blue sky and a light breeze in the greenery and lots of sunshine. I am feeling very blessed this morning.

That said, I am busy with trial prep so can't stop long to gaze absent-mindedly out of my lovely new window or spend long typing here.

I will quickly tell you that I'm organising an event on 22 November in London :

Panel discussion : Allegations of domestic abuse : are family courts working for children & families?

We've got a great line up but these events also depend upon a varied and engaged audience. Do spread the word and come if you can.

The Elephant in the Room – how we aren’t always as objective as we like to think

Over the August bank holiday weekend a number of the transparency project team went to the Byline Festival in East Sussex. The festival was a mixture of music, rain, and workshops, talks and interviews about journalism (next year by the way The Transparency Project hope to be running a workshop for journalists on the family court). The session which I found most interesting and useful was a workshop run by Kris De Meyer, a neuroscientist at Kings College London : Truth for Elephants, or how to disagree.


The theme of the workshop is nicely summarized here in the opening paragraphs of an article by De Meyer on The Conversation website:


As a citizen, the growing divisions trouble me. As a neuroscientist, it intrigues me. How is it possible that people come to hold such widely different views of reality? And what can we do (if anything) to break out of the cycle of increasingly hostile feelings towards people who seem to be on “the other side” from us?


I missed the first few minutes (having stopped to check in on the 10 yo who was in the kids media tent making news), so the elephant connection was slightly lost on me. I *think* it was used as a metaphor for that part of the brain that deals with our automatic emotional responses – our instincts if you like.


As I listened to Kris delivering this workshop, through examples about Brexit and trump and the British and US political system I realized it had huge resonance in the field of the child protection and family justice system and how we talk (or don’t talk) about it.


So here goes, with my summary of the gist of what Kris De Meyer was telling us (apologies if I’ve got this wrong – the tent was rammed and I was peering in from the outside so may have missed or misunderstood some of it).


Apparently, babies have been shown to make social judgments from 3 months old – an example was given of babies showing preference for the ‘nice’ bear over the ‘mean’ bear. So, the implication is that we need to be alert at how much of our responses are driven by the elephant in us.


De Meyer used a really interesting diagram of a pyramid (the pyramid of choice) to illustrate the main mechanism (It is reproduced here with kind permission of @rightbtw based on an analogy proposed first by Elliot Aronson and Carol Tavris in Mistakes were made), and what follows is my attempt at an explanation of it.

Image courtesy of @rightbtw

The Choice Pyramid, courtesy of @rightbtw


When we adopt positions on a contentious issue (the example given here was Brexit before the referendum) many of us may start off from a ‘mildly convicted’ position (the top of the pyramid). But somehow, through the process of making a decision and expressing a position, we find ourselves pushed further down the side of the pyramid as we rationalize and justify the rightness of our decision in the face of challenge. We do this because of cognitive dissonance (which I think of as the unbearable noise of voices on your shoulder telling you you’re wrong).


Going back to The Conversation article for some assistance in expressing this more usefully / scientifically :


What people are less aware of is that dissonance drives opinion change. Festinger proposed that the inconsistencies we experience in our beliefs create an emotional discomfort that acts as a force to reduce the inconsistency, by changing our beliefs or adding new ones.


A choice can also create dissonance, especially if it involves a difficult trade off…That choice and commitment to the chosen option leads to opinion change has been demonstrated in many experiments.


…Almost 60 years of research and thousands of experiments have shown that dissonance most strongly operates when events impact our core beliefs, especially the beliefs we have about ourselves as smart, good, competent people.


And it’s a little bit like a rolling stone (or as De Meyer explains it ‘a cycle of self-justification’), and the more you justify (and the further down the slope you roll), the more challenging it is to hear a different view. And this process of sliding down opposite sides of the pyramid is something we are mostly not even conscious of – and if we think we are neutral or objective in reaching decisions we are kidding ourselves. We make decisions in a value landscape, and whilst this value landscape and the elephanty bit of us doesn’t determine what decisions we make and what actions we perform it does predispose us to polarization. And in political terms, pressure in the centre ground inadvertently pushes opinion to the sides and clears out the middle ground. This accounts in part for the polarization of politics, for example in the US.


And once things become that divided, all that is left is shouting abuse. We’ve all seen it and it doesn’t just relate to politics.


And the position we are then left with, which I think we will all recognize is that :


Paradoxically, this means that every time we argue about our position with others, we can become more certain that we are, in fact, right.


De Meyer’s message and aspiration I think was that in raising aware of these hidden processes, we might perhaps be better able to innoculate ourselves from polarization and from angry and irrational responses – using our conscious rational mind to pull ourselves back up the slippery slope.


Psychologically, there are 3 ways to deal with cognitive dissonance :

  • bat away the evidence
  • change your view of yourself as good or smart
  • ask what can I learn – the mindful approach


I suspect that those who listen to what parents who have had social workers come into their lives and homes are saying, and who are alive to their genuine fears will recognize a lot of this. But I suspect that there are a lot of my professional colleagues hunkered down at the bottom on one side of the pyramid of choice talking amongst themselves, whilst a lot of parents are shouting loudly from the bottom of the other side. I don’t think they can always hear each other.


It sometimes feels as if the more you try to explain that social workers are not all corrupt, baby snatching, financially motivated, target driven monsters, the more some parents believe it is so. It can feel futile. And the same is true I fear of some colleagues who seem to have their fingers in their ears and who go out of their way to avoid the cognitive dissonance that arises from parents saying loudly ‘something is wrong here’. The job of working to protect vulnerable children is emotionally tough, harder still when we are bombarded continually with criticism. Easier then not to listen. Except that sometimes it seeps in to the very fabric of what we are doing because parents and professionals are forced to work together and forced to expressed views of one another through the assessment, reporting and court processes. And increasingly often the result is ‘won’t engage’. Sometimes non-engagement is a two way street. Sometimes we are not mindful enough of the value landscape and the levels of cognitive dissonance that vulnerable parents are attempting to manage.


I asked De Meyer at the end of the session what individual lawyers could do to help their parent clients back up the side of the pyramid. His answer was depressing – he wasn’t sure how much could be done once somebody was right down at the bottom of the pyramid, the answer is to prevent them getting there in the first place. Easier said than done, but that is about wider public legal education and wider public confidence in the system. It’s about stopping the rot on a society wide basis and hoping that fewer parents find themselves caught in a perfect storm of societal distrust, bad advice and emotional vulnerability and limited insight.


Of course, professionals too need to be mindful of their own value judgments and self consciously drag themselves back up that slope again and again (I include myself in this). And we can self consciously listen to those fears and beliefs, try to understand them and why they are so compelling for parents, and try to discuss them with kindness, rather than pooh poohing them as stupid or wrong. Because the reality is that there are things wrong with the family justice and child protection system, both systemically and in individual cases. The danger is that in emotionally defending ourselves we have stopped listening to challenge and we aren’t hearing even those parts of the challenge that may have some basis in reality or that we may benefit from grasping.


Today, having written most of this post I took part in the #CPConf2018 Child Protection Conference. It was good to realise that the way in which the transparency project have been approaching issues has been pretty much along the right lines – listen, acknowledge, avoid being judgmental and be prepared to learn and change your mind. Although there were a few who preferred not to attend but to gripe on the hashtag from outside within the room there was a surprising amount of openness and consensus about what sometimes goes wrong, and a willingness to think about uncomfortable things, in particular the harm that we cause even when we are trying to do our best by children and families (whether parent or professional).


Recommended reading and viewing (which I’ve not had the chance to follow up on) includes

Legal Blogging – a dry run in the Court of Protection

Today I attended a Court of Protection hearing as a member of the public, with another colleague. I did so on an unplanned basis, as I was in court for another hearing and we could not resume our hearing until our judge had finished dealing with the Court of Protection matter in his list. So, spotting the Court of Protection public hearing injunction notice on the door of our courtroom, we asked the ushers if we could attend.

After a little shuffling around behind the usher's counter to find 'that transparency form' that we had to sign, and after being pointed in the direction of someone with a bundle who could show us the transparency injunction, we were able to sign in and huddle at the back of court to see what the case was all about. The impression was that people don't ask to sit in on Court of Protection hearings very often.

We read the injunction order, which seemed to be in template form, and chatted about the impenetrable complexity of its wording before being called in dead on the listed time.

it was an illuminating experience, but not entirely for the reasons I had expected.

The case was about care arrangements for a woman who lacked capacity, and one of her children was in dispute with his siblings and the local authority about whether or not she should move back home or should stay in a care home. Everyone apart from the son, whose application it was, thought she should stay where she was.

The judge decided that there was not enough time to deal with the hearing properly and listed it for a longer hearing on another date. In the meantime the woman would stay where she was, as one of the main issues in the case was whether an attempt to move her would be harmful or distressing, and whether it would be so harmful and distressing as to override all potential benefits of moving her.

What was interesting about this hearing was the difference in perspective between the lawyers row in court and the back of court. It feels very different as an observer, for a number of reasons - and my overwhelming thought throughout was that this experience gives some much needed insight into what it may be like as a litigant in person, or a party sitting behind their lawyer in court.

My experience was discombobulating and uncomfortable. It was very difficult to follow what was going on and the lawyers chuntered on, oblivious to how inaccessible the proceedings probably were to the family involved (one of whom was in person and spoke clearly and economically on behalf of his siblings).

Although the District Judge's courtrooms at Bristol Civil Justice Centre are relatively small, I was surprised at how distant and remote the judge was from the row of seats against the back wall. It was very hard to hear - the judge himself was softly spoken, but the biggest problem was in following the voices of the lawyers, which were all projected towards the judge. At times the voices sounded not unlike the teacher from Charlie Brown whose words are melodic and ebb and flow in a soothing way, but are utterly indistinct, like a soft trumpet.

Although everyone in court (included me) were introduced by name, these were skipped over swiftly in the expectation that everyone present knew who was who (to be fair it was apparent this judge had dealt with the case before, but at least one of the advocates was new to the case). Seeing only the backs of their heads made identification and remembering who was who harder. For me it took most of the hearing to work out who was representing who, how they related to one another and who the various people at the back of court were (mostly social workers). A reminder that as lawyers we ought not to assume that the litigants in court necessarily know who is who (reinforced by the fact that my client at the end of day 2 of a recent trial said 'who is that bloke with the beard'? That bloke was counsel for the local authority). I said to the lay parties in my case that I hadn't realised how difficult it was to hear further back - 'Oh yes', they said, 'We couldn't really hear the evidence yesterday'. We should not assume our clients are hearing, let alone understanding.

Part of the difficulty for me as an observer was the lack of documentation, which won't apply in quite the same way to parties. Although the press are entitled under the CoP Rules and PDs to sight of certain documents, there is no such automatic right for other observers, although I suspect if we had asked no particular objection would have been made. The hearing was made harder to follow by references to this position statement and that position statement, and in another case this might have entirely frustrated the purpose of attending, but in this rather languid meandering hearing there was just about time to pick up the thread and work out what was going on - for a lawyer with some experience in a sister jurisdiction. But for a non-lawyer I guess that it would have been much harder to process barely audible and unfamiliar terminology and shorthand at speed, and that even written documents would not really help much.

Much of the discussion between lawyers and judge was somewhat abstract and complex - there were some slightly tortured, circular seeming discussions about the difference between the possible, the practical and the appropriate, and whether such decisions were in the nature of a best interests decision at all - and on whether the court should conduct a truncated best interests exercise or not. Those ponderings took so long that ultimately, after half an hour, everyone concluded there was now not time to deal with the hearing anyway so it was just as well to adjourn until a longer hearing could be convened and a full rather than truncated best interests decision could be made. Lack of court time and the availability of various key players in the case meant that a hearing that would have been ready for a decision in mid September could not be accommodated until mid October. Our old Family Court enemy Mr Delay making an appearance here too...

When attending public hearings in the Court of Protection the only restriction (usually) on what can be published is information that might identify the family or that might identify their place of residence, care setting or contact details. I was reminded how different this will be from the scenario from October in the family court where legal bloggers will be allowed to attend court under a new pilot. Although superficially similar the scheme is different in some important respects, and narrower in its effect. Hearings will continue to be held in private, and s12 restrictions on the publication of information from these hearings will continue to apply unless the court relaxes them. Were this hearing about the care arrangements for a child attended under the pilot I could have reported little of it in this blog post without the permission of the court (Even if it had not posed any risk of identification). And, had I not been a lawyer I would not have been entitled to attend in any event.

There are many questions to be worked through when the new pilot comes into being on 1 October - faced with a situation like this would I have asked for sight of documents? would I have asked the judge orally at the end of the hearing if he minded me reporting the gist of the hearing without any geographical or identifying details? Would anyone have objected? Or would I have taken some other, more formal approach, such as making an application in writing? Would the judge have permitted this basic level of reporting or would she have postponed a decision until the end of the case, when perhaps a judgment might have been published anyway? And even at that stage, would I then be permitted to report those details not contained in the judgment - my impressions of the parties, the body language, the unfolding dynamics, the moments when the direction of the case obviously shifted? How are these issues best managed without disrupting proceedings or inadvertently frustrating time estimates?

In the Court of Protection hearing I attended our presence did not seem to impede or upset anybody and there was no resistance to our attendance. I am not sure that the reaction will always be the same in the family court but much (I suspect) depends on how we utilise and work with the proceedings in ways which make use of the opportunity without causing upset or disruption. Communication with the lawyers and parties in the case before being called in to ascertain the lie of the land is likely to be important.

I am looking forward to testing out the legal bloggers pilot but it is at once and interesting and daunting prospect.

More details of the legal blogger's pilot can be found on The Transparency Project website here.