The portal of doom cometh…

I’ve had my first taste of the new public law case management portal this week. By a process of trial, error, clicking, clicking, unfurling and furling, clicking, scrolling and yet more clicking – I have established that this is in fact an inter-dimensional portal into a parallel universe where logic does not apply, and where the three click rule has been inverted so that every action requires a minimum of 3 clicks, and every fifth action opens a new browser window, just for larks.

I’m sure it will improve with user feedback, but it is fair to say that my first journey around a case in portal world left me feeling a bit like the girl with a crush on Morten Harket in that ‘Take On Me’ video… (yes, yes we all had a crush on Morten Harket. I mean the girl who is taken by the hand and inside the comic book through a bright white maze of confusion).

Sadly, I did not find Morten Harket.

I did manage to upload a case outline. I’m not sure I put it in the right place or that anyone will ever find it, but it is there, listed under a heading where nobody would think to find it because I couldn’t find a more suitable location to put it. I am idly imagining that if the judge successfully navigates the maze and finds my case outline he will cry ‘Aha!’ triumphantly, in a style perhaps more reminiscent of Alan Partridge than of Morten…

Anyway, its been a long and surreal day here at Pink Tape towers. I just dropped by to say : welcome to the future, my fellow comic bookers… the portal is coming to a screen near you this autumn…

 

 

Choose your words with care, listen as if with someone else’s ears…

I want to talk about language. About the gap between how it’s meant and how it’s received. About what happens when our words are heard by someone standing in a different place to us, and who is wearing very different shoes.

‘Wrongful’

News stories about parents who are suspected of hurting their babies but who are later exonerated often use words like ‘wrongly’ or ‘falsely’ accused. That language, I know, is the language of the parents, although perhaps it suits the purposes of the media too. But I’ve noticed that by the time ‘wrongly’ or ‘falsely’ reaches the ears and eyes of those who are part of the system, it is often received as a direct, personal criticism of individuals as much as it is a way of describing the parents’ experience.

Whilst some of these exonerated parents are aggrieved at their treatment by individuals, others are merely describing what the child protection system has done to them – they are describing that, whilst the outcome was (eventually) right, the process did them wrong. To a parent who has irretrievably lost many months of their child’s early days, who has spent nights worrying whether they will be blamed for something they know they didn’t do, there is no other way to describe it than ‘wrong’. The parent has always known the suspicions were without foundation (false, wrong), and that the protective action was unnecessary. It is no less awful, perhaps harder to bear, to be told this pain was caused for all the right reasons and was well motivated.

For a professional with child protection responsibilities however, the action was necessary because of risk – even though by the end of the process it could be seen that the risk was never in fact there at all.

It’s no comfort to parents to say (as lawyers often do) that well, the process reached the right outcome in the end or (as social workers often do) that we had to act based on what we knew at the time. Those two things may both be true, but they do not erase the wrong done in the meantime, as experienced by the parents – and  by the child.

The problem is, we struggle to find words to differentiate between process and outcome, and between procedural necessity and substantive necessity as understood with the benefit of hindsight. Perhaps the media capitalise on this double meaning of ‘wrongly accused’ to grab a headline. But on another level, we as professionals might do better at acknowledging the consequences for those families who never needed the intervention we thought they did by accepting the description of the intervention as a wrongful accusation, even a false one (‘false’ does not only capture intentional falsehoods (lies), it can also mean unknowingly false, or a false premise).

In some cases the labelling of action ‘wrongful’ may reflect a failure on the part of individuals or the system, but in other cases will simply be those where a responsibly-run child protection process has just turned out to have got it wrong. There will always be some cases where, on the basis of the available evidence at the time, a child needs to be temporarily removed to ensure safety pending investigation, and where it later becomes clear the parents have not harmed the child. I dare say those parents still feel profoundly wronged, even if they may intellectually understand the ‘need’ (procedural necessity) for the professionals.

The cries of ‘damned if we do damned if we don’t’ I’ve seen lately are predictable – and true enough. Social workers in particular are given a great responsibility and, frankly, not a lot of support. They are often criticised for things that are not within their power to change, or where others should bear the blame. But we should be able as professionals to acknowledge the wrongness of the situation, and to accommodate and understand it when those wronged wish to express their pain and anger – without it triggering our defence mechanisms. All society can ask of those who carry out child protection functions is for them to do their best and to be thoughtful when exercising their power, and to acknowledge the unavoidable impact of their actions.

‘Lucky’ and ‘grateful’

So much for the language of injustice used by those observing it or subject to it. I’ve noticed too that our own language as professionals deserves some thought – and that it often has the same quality of meaning one thing to us and another to the families who are receiving it. As if perhaps we are speaking a language where the same word is code for something different depending on the intended audience.

By way of example, in a recent article in The Sunday Times we read that the parents of a baby accused of injuring him, but who were subsequently cleared (as a result of expert evidence adduced in family proceedings) were told by the social worker that they should feel ‘lucky’ that they were given contact to their baby five times a week whilst they were under investigation. Emily Dugan writes :

At first the couple were allowed to see Brody [the baby] four days a week in supervised 90-minute visits. The court eventually granted Amy [the mother] one extra visit a week. She said: “I got told how lucky I was to see my son Monday to Friday for an hour and a half a day. But that’s not lucky.”

The article also tells us an apology was given, by the way, although it doesn’t specify if this was one of the specific things the apology covered.

To give another example, in a recent judgment approving the withdrawal of care proceedings, a judge told another young couple who had been suspected of injuring their baby and who had, as a consequence, spent several hard months separated from him (including their first Christmas) that, whilst he was sorry for what they had been put through, they should be ‘grateful’ for the expert evidence that cleared their name*. The Sunday Times wrote about that case here. Louise Tickle (a journalist) was outraged at this language, saying that the language was “jaw-droppingly ill conceived, offensive + upsetting. Imagine being parents of young children removed unnecessarily and being told by a family judge you “should be grateful” for the medical evidence that exonerated you.”

https://twitter.com/louisetickle/status/1394349829430591493?s=20

I can see her perspective, because I winced when I read it – but I am also able to see it can be ‘read’ it in a different way from my own perspective as a lawyer within the system. Reading those words, originally spoken but now fixed on the screen, from the perspective of a parent, it is obvious better language might have been chosen.

But I also understand why the language of ‘luck’ and ‘gratitude’ is used : I am sure I’ve used it myself – albeit in some caveated, contextualised form whilst trying to help a client understand what is happening in the case and why everything is taking so long, and how things could frankly be (even) worse. I’m sure I’ve used it when discussing matters with colleagues – for professionals. It’s not unusual for there to be a struggle to find a decent expert who can report within a sensible timescale. I dealt with a hearing recently where the solicitors had been unable to find any expert at all in time for the hearing, and in the same week attended a webinar about the work of the Experts Working Party – so I have had two reminders of how much this is a current issue. And on contact levels, it is fair to say that contact at a frequency of five times a week is probably as frequent as it ever gets whilst a child is in foster care: contact two or three times a week is probably more typical even for babies, for a range of reasons. Whilst we professionals are well aware of the pressures on social workers to find contact centre venues or supervisors, these are neither obvious to parents unfamiliar with the system, nor are such ‘resource issues’ likely to feel to them to be a good enough reason for severe limitations on contact with their little baby who is changing and growing on a daily basis.

Let’s be frank: there is nothing ‘lucky’ about having your baby taken away from you when you have not hurt him, nor in having to snatch short bursts of time with him, missing his firsts and all the time never knowing if he will be coming back. And there is no need to say ‘Thanks’ when he is rightly returned. On the contrary, the whole process is traumatising and scarring, and particularly for first time parents it takes away something that can never be given back (both the Sunday Times pieces contain quotes from the parents spelling out the enduring impact on their relationships and family.

It is sadly inevitable that any system of child protection will sometimes do harm in trying to protect, and that sometimes it will turn out that intervention was unnecessary. That does not mean that we should shrug our shoulders or be surprised when those who are casualties of that inevitability are angry or distressed. This is not an omelette and families are not eggs. It does not mean we can tell ourselves ‘we were just doing our job’ and turn our backs to their complaints to avoid discomfort. To these families, what has happened is an injustice, notwithstanding the good faith and hard work of professionals, and notwithstanding that, formally, the ‘right’ outcome has been ultimately achieved through exoneration and return. The family’s lived experience will not have been be one of justice being done even if procedural fairness has been achieved.

Can we do better?

I’m sure I’m not the only lawyer who slips into using language that may inadvertently and thoughtlessly cause pain or offence, just as much as I’m sure it’s not just the one judge nor the single social worker referred to in the second Sunday Times article. These highlight a need for reflection on our collective responsibility as professionals to think hard about how we choose our language, to think about what presses buttons, and to think about what might insult or upset others.

I think, too, that what this language also masks is that we have become inured to the failures of a system which has normalised delay or resource-led decision making, and is – sometimes – too ready to default to the use of brutal solutions to the apparent risk. These include removal into foster care even where (as appears to be the case in the Sunday Times example) other options such as kinship care or supervision have not been fully explored. The fact that many of the parents who find themselves suspected of inflicting fractures or injuries, have in fact done something that they know or ought to know has caused harm, does not justify such cavalier and callous treatment of all parents. We have to protect children who might have been hurt, but we also have to remember at all times that these parents might well be completely innocent, that an apparent injury may be no more than a chimera on an x-ray plate or an injury caused by normal or perhaps inexperienced clumsy but non-malicious handling – and that this is all a terrible mistake. We need to remember the harm that removal itself can do and the indelible marks it can leave on families even once children are returned home. While we are protecting children from potentially harmful parents, we need also to be trying to protect the family from the worst consequences of what may ultimately turn out to be an unwarranted separation.

I would venture a guess that the judge’s ‘grateful’ was a reference to the fact that in that case the expert evidence that vindicated the parents came in far more quickly than it often does due to a chronic shortage of such experts – and to the fact that the parents were ‘only’ forced to endure being accused and separated for a couple of months when often it is far, far longer. Most suspected NAI cases (and most care cases generally) take many, many months more than that. In the webinar I attended recently on the topic of expert evidence, it was frankly acknowledged that the difficulties securing expert reports in suspected NAI cases may well mean a case comes out of the 26 weeks track, meaning cases will take longer than 6 months to complete.

Judges and practitioners are very used to seeing many months of delay in suspected NAI cases, waiting for expert evidence, for disclosure, or for a trial date – one’s perspective can become jaded when this is how it is in every case. How do we say to a parent, without diminishing the pain of a 2 month separation, that most parents must endure 6, or 12 months before a decision on whether they will get their children back at all? If we use a shortcut under pressure and don’t stop to think, we might say the 2 monthers are ‘lucky’.

The judge rightly acknowledged what the parents have been through :

My apologies from the Court for what they have been through. It is not the Court’s fault, it is not the Local Authority’s fault, and they should be grateful for the expertise that has come in the medical reports which have now been provided.

but the value of the apology was unintentionally undermined by him telling the parents how they should feel about the last awful 2 months.

To us ‘grateful’ and ‘lucky’ (whether about how often contact is facilitated or how long it takes to get an expert report) is really an acknowledgment that the system is broken. Perhaps it is our clumsy lawyer-speak backwards way of trying to tell parents that we know it’s all a bit sh*t but we can’t help it, and of trying to make ourselves feel a bit better about it because we’ve got them a comparatively good result. But for me, seeing those phrases in print, forced me to think about how they may be received, and the truth is that they jar, and they make me pull a face because they are (unintentionally) disrespectful, even if we in passing acknowledge the pain of separation. And for every one of those jarring phrases that has been transcribed and made public, there will no doubt be many more that were spoken, perhaps captured on a court recording or in a blue notebook or in the memory of someone who noticed it. Some of them will be my words. Some will be yours.

There are lots of other examples of loaded or lazy language that we use habitually, either for our own convenience or without thought. Use of the label ‘mum’ and ‘dad’ by professionals instead of names  might sometimes be an important acknowledgment of the legal status of a participant in a hearing or in respect of their child’s life, but may also sometimes feel reductive or diminishing – as Malvika and Maddie discuss in their recent podcast. More controversially perhaps, the use of phrase ‘failure to protect’ to describe the behaviour of victims of domestic abuse may feel oppressive.

Small things have impact and words have power. We can all always improve our use of language, including those who make our living from our skill with words. I am going to work harder at making changes on this front and invite my professional colleagues to do so too. I expect we will all slip up from time to time, but we can make a commitment to think about how our words may be felt and received.

Post Script :

I’ve used examples throughout this post of exonerated parents – but of course these are in many respects atypical. Many, perhaps most, cases are far more nuanced and messy – not only is there no such thing as a perfect parent, but almost every parent’s weaknesses and failings are offset by strengths, and many parents struggle to meet the needs of their children not through lack of effort but for reasons outside their control. In my experience, the unredeemable parent is almost as rare as the entirely vindicated one. Most parenting is on a spectrum of imperfection somewhere, mine included.

 

*disclosure : although I wasn’t involved during the care proceedings, I was subsequently briefly involved in the application for permission to publish details of that case, acting for the child. At that stage the judgment had not been transcribed or published.

 

 

 

From a place of purity…

I’ve been wrestling with a couple of blog posts to post here for a while. They are stuck. I am snorkling through metaphysical, ethical, topical treacle with them. They may never be published. Luckily for you.

But this. This comes from a place of passion and purity and will write itself in a jiffy. And I will feel purified for getting it off my chest. Which I really need to do.

The damned templates.

I spent a long time today wrestling with templates. Time I don’t have and I don’t care to waste on inconsequential irritants.

Perhaps I should just submit my draft orders full of hanging brackets] and slashes / and occasional words in red or green. But quite apart from the twitching it induces, I like to think I’m vaguely professional.

I had hoped when I saw yet another iteration of the helpful templates that this time they would have taken heed of years of us griping about the awful, wretched formatting and would have spared a few minutes to sort it out. Before promulgating it to the entire family bar (and solicitors), to taunt and torture us daily. But no.

I don’t know if this is because the people who prepared the templates didn’t know, whether they just don’t care or whether they are just too technophobic to work out how to fix it. I prefer to think that they it was not a case of we know but can’t be bothered to sort it – after all, we have been given a short form order, explicitly in acknowledgment of the time pressures upon us (for which I am grateful).

But searching for an explanation is arid. What I do know, and what any other person who has ever had to use one of these templates knows, is this :

The templates do not save us time. They giveth with one hand and they taketh with the other.

The templates deploy a number of techniques :

  • Green text is commentary to assist the draftswoman (and should be deleted before filing – BUT NEVER IS (don’t start me on that one))
  • Red text denotes something that needs to be edited, deleted or inserted
  • [square brackets] are a placemarker for text that needs to be inserted, edited or deleted.
  • Where there is more than one option each item is book ended with [square brackets] and separated from the next square bracketed item with a / like this.

There is duplication of devices here.

Whilst the red text can (if one can resist the urge to do it sooner) be removed in two quick clicks at the end of the drafting process (ctrl+a to select all and then click in the font colour settings), the brackets and the dashes – which PERFORM THE SAME SIGNPOSTING FUNCTION are quite something else.

Let me illustrate the problem using template 8.3, the public law first CMO (sorry compadres who actually use these things, I know you know this – this is not for your benefit). In this document there are :

  • 166 pairs of square brackets (332 bracket ends, separated in each case by a word)
  • 19 instances of [ren] at the end of the word child : child[ren]
  • 11 instances of the feature [s] for example after the word parents : parent[s]
  • 44 dashes /

For a conscientious draftswoman EACH ONE of those items needs to be manually removed. Most cases involve more than one child so orders need to refer to ‘children’ 19 times, not child (and not child[ren] 19 times). To complete an order in a case involving multiple children the draftswoman must perform 114 entirely unnecessary keystrokes :

  • click to locate cursor after [ren]
  • delete ]
  • move cursor 3 spaces to the left
  • delete [
  • repeat 18 times

There are other ways of doing it but that’s the best IMHO. I know. I’ve tried the other ways.

Same thing for plurals of parent / parent[s]. 4 keystrokes times 11.

Not forgetting all those dashes… and whole words that need deleting.

This sounds utterly pedantic. But it does add up. This can add considerable time when drafting under pressure, as we usually are (And no. I’m not filing an order with those brackets still there. I still have a shred of self respect left).

[UPDATE: Thanks to JB who pointed out one can use ‘find and replace all’ to remove the [square brackets]. Truth be told I am usually in such a lather as a result of some sort of primeval response to paragraph numbering hell – see below – that I am scarely rational : it is hard enough to hold back from removing the red and green as I go, let alone leave all the brackets till the end, and I am in a perpetual state of ‘oh I must have got most of them by now’…I actually might need a holiday.]

When one combines this with the numbering problems it gets super infuriating.

Again, I’ll explain for the uninitiated (Trigger warning to advocates) :

The templates are prepared in Times New Roman, 12 point font (of course they are). And yet.

Every time you create a sub paragraph – you get an unheralded change of font and size.

The templates purport to have numbering. And yet.

Every time you try to create a new paragraph something wild happens with the formatting – font or size change, random indent. Mystery effects each time. Adds to the excitement.

The template appears to build in multi-level lists (sub paragraphs using a) b) c) or i) ii) ii) etc below an arabic numbered paragraph). And yet.

The templates are not in fact set up so that the paragraph numbering is ACTUALLY a single multi-level list. Oh no. They just look like they are. Which is fine. Until you try to create a new paragraph following an a) b) c). And get a new paragraph 1. And clicking ‘continue previous numbering’ won’t work because the ‘previous numbering’ is not the child of the main arabic numbering, meaning you have to un number and RENUMBER all the sub paragraph lines in the preceding paragraph to get you numbers to run on.

It gets EVEN MORE fun when you are in a track change war with your opponent and someone tries to add a new paragraph. Let’s not go there.

I sense this post may be losing it’s punchy quality at this stage. So I’ll conclude by saying this :

This is not rocket science. The legal profession, the judiciary, the court service – someone for goodness sakes – ought to be able to sort this out in our world class legal system. It is basic. And it is a simple step towards more efficiency, and I’d like to think towards respecting the workforce and improving our wellbeing.

So. I finally snapped today. I got VERY CROSS.

And fixed the bloody templates.

I’ve REMOVED THE [SQUARE STUPID BRACKETS] AND SLASHES. They serve no purpose – all you need is the red to show you where you need to customise, and you can clear that at the end. I’ve cleared and redone ALL the formatting, numbered it properly so paragraphs should run on without messing up your font size. And I’ve even made it into an ACTUAL WORD TEMPLATE so that you can open it and it will open a new Doc1.docx stopping you from accidentally saving over the original.

I’m a bit self righteously annoyed right now but I’ll cool down. In the end it didn’t take that long to do but it seems mad for ALL of us to spend time doing this, so here you go chaps. Use it if its useful. If you want to say thanks send a quid to my fave charity The Transparency Project.

I haven’t tackled the epic long precedent library yet – but I’ll get that up here too in due course, promise. Someone else can do the private law and money templates though.

Well, that WAS cathartic. I feel fully purified. Happy drafting campers.

Dowload from dropbox here.