Author Archives: Sarah Phillimore

The Migrant Child with no Recourse to Public Funds

I am grateful for this guest post by Hal Fish who is a content writer for the Immigration Advice Service; an organisation of leading UK immigration solicitors that help migrant families regulate their immigration status.

Whilst there are numerous issues that affect and damage the many migrant families of the UK, the welfare of migrant children is a profoundly troubling matter which continues to be overlooked in mainstream media. Migrant children are being thrown into a state of vulnerability due to the immigration status of their parents. Street homelessness, poverty and other forms of dejection are rampant issues for these children as they grow up without access to the same public funding as those with British Citizenship.

The main reason causing this problem is the ‘No Recourse to Public Funds’ (NRPF) condition. Coming from theImmigration and Asylum Act 1999, the clause states that if a person is ‘subject to immigration control’ they will have ‘no recourse to public funds’.Without standard routes to public funding, the only support left to the children of migrant families can be found in Section 17 of the 1989 Children Act. This act places a duty on local authorities to safeguard and promote the welfare of children ‘in need’ in their area. This one source of provision has become a safety net for underprivileged migrant families; sadly, however, the children keep slipping through the many gaps of that net.

It seems that the government’s commitment to creating a ‘hostile environment’ for migrants is being prioritised over the commitment to providing safe living conditions for children in need. The Home Office have shifted their responsibility to support these children onto local authorities. However, pressures of austerity and other budgetary restrictions have left such authorities reluctant to provide financial support. With these limitations in mind, tactics such as misinformation, intimidation and unfair judgements on credibility are being employed by local authorities as to withhold their funds from impoverished migrant families.

It was found by Project 17, an organisation working with migrants fixed in the NRPF condition, that 60 percent of its clients were wrongly refused assistance when they initially contacted their local authority. On top of this, 22 percent of families were wrongly refused support on the basis of their immigration status. Habitually the reasoning for these refusals are arbitrary and baseless, often decisions are made before assessment is even conducted. Many families have been incorrectly informed that by requesting support under section 17 they were trying to claim ‘public funds’, whilst others have been told they can only be supported if they have leave to remain in the UK. One of the main problems is that local authorities seem much more concerned with trying to catch parents out for fraud as opposed to actually assessing the considerable needs of the children.

And even when support is granted, there is no statutory guidance on the rates of financial support provided under Section 17 of the Children Act 1989. This means that there is no set figure to determine exactly how much money families should be given. Different children have different needs, and therefore discretion should be used when judging just how much financial aid should be offered to each case – for instance, some children will have greater medical bills. But regardless, families with NRPF are overwhelmingly in need of basic level of financial support as to provide accommodation, food and other essentials for their children. Yet the Children’s Society found that some families received lower than the asylum support rate of £36.50 per person per week – a figure nowhere near the level required to alleviate destitution and one in breach of human rights law.

A report by Project 17, spoke to children living with NRPF and found that 41 percent of them felt unsafe as they were ‘homeless’, ‘moving around a lot’, ‘living with people they did not know’, ‘uncertain about their housing situation’, and ‘travelling long distances to school’. It’s clear that not enough is being done to keep these children safe and supported. Social worker and researcher Andy Jolly brought home this point when he recently said: ‘the death by starvation of Lillian Oluk and her daughter Lynne Mutumba in March 2016, while being supported by a local authority under section 17 of the Children Act (1989), illustrates the consequences of inadequate support for undocumented migrant families in the hostile environment.’

Worryingly, there is very little evidence to suggest a change in the Home Office’s or local authorities’ approach to families with the NRPF condition. Yet the number of families requiring support under section 17 has steadily been rising for years now: between 2012 and 2013 it rose by 19 percent. To exacerbate troubles, the Home Office have proposed cuts to asylum support contained in the Immigration Bill 2015. Which means, if passed, the number of children who rely on section 17 will increase as there will be even less financial support for them from other means. And rules such as those contained in the Immigration Act 2014, which limit rented accommodation to those migrants who have the ‘right to rent’, will lead to homelessness amongst migrant families; once more creating a greater need for section 17 support.

Ultimately, while section 17 support does provide a thin layer of protection for thousands of children in the UK, it does not offer enough. With minimal guidance given on how assessment should be made, and support administered, there is too much reliance on the discretion of local authorities; who often work with other (namely financial) concerns prioritised. There must be more done to fight against the harrowing circumstances and impoverished lifestyle that these vulnerable children are being exposed to. It is imperative that the government implements a consistent and adequate structure of support for migrant families living with the NRPF condition; one which is capable of offering the necessary level of provision for the children overwhelmingly in need.

 

Further Reading

Financial and Housing Advice.

 

 

 

Can you challenge a finding of fact in a family court?

This is a post by Sarah Phillimore

TLDR; yes  – but its difficult. Don’t rely on being able to challenge a finding after it is made – it is far, far better to challenge it at the time of your court case, if you have all the available evidence.  

However, if you discover evidence after the hearing that shows the findings have been made on an inaccurate basis, it is clear that there is a mechanism to challenge this. 

So anyone who asserts the the Judge ‘got it wrong’ at their hearing and they have the evidence to prove this – ask yourself (and them) why they haven’t asked the court to look at this. 

 

in cases involving children, it is clearly very important that decisions about their welfare are based on sound factual findings. See W (Children), Re [2009] EWCA Civ 59. But what does a parent do if they think the finding of fact was made on the wrong basis?

Section 31F(6) of the Matrimonial and Family Proceedings Act 1984 was inserted by the Crime and Courts Act 2013, section 17(6), Schedule 10, paragraph 1 and came into force on 22nd April 2014.  It gives the Family Court the power to “vary, suspend, rescind or revive any order made by it”. it’s an interesting provision as that undermines the principle in relation to finality of judgments and orders – but which itself is in tension with the principle that decisions about children, which have such long lasting consequences, should be made on the soundest footing.

in the case of Re E (Children: Re-opening Findings of Fact) [2019] EWCA Civ 1447 the  Court of Appeal held that the Family Court had the statutory power under the Matrimonial and Family Proceedings Act 1984 s.31F(6) to review its findings of fact at any time.

In this case, the children were removed from the mother’s care, after the youngest was found to have cigarette burns on her arm. The mother said it was an accident but her accounts were inconsistent. In the criminal investigation, the police medical evidence supported the mother and said she offered a plausible explanation for accidental burns. The mother then got permission to appeal out of time on the basis of that report.

The Court of Appeal found that a finding of fact was not “an order” in the strict sense of s.31F(6), but it could be appealed if it was integral to the order on which it was based and therefore came within the scope of section 31F(6). A finding of fact that the mother deliberately hurt her child was clearly integral to the order made to remove them.

Nor did section 31F(6) express that it was limited to a particular time after the hearing, given that findings of fact often have longstanding consequences for children and their families.

The court refused to follow G (A Child), Re [2014] EWCA Civ 1365  where the judge commented that when a sealed order, after a fact finding hearing, is challenged then that challenge must be to the appeal court and the mother should not have been allowed to apply to the first court to re-open factual issues.

However, the Court of Appeal in Re E dismissed the mother’s appeal and found she should apply directly to the trial court – the trial court was more likely to be in a better position than any appeal court to assess the true significance of the further evidence and was likely to be able to deal with the application more quickly and cheaply.

 

Applying to the first court to look at its findings again.

So if a parent wants to review a finding of fact the approach is set out in Re ZZ, (Children) (Care Proceedings: Review of Findings) [2014] EWFC 9;[2015] 1WLR 95.This case adopted a three part test first set out by Charles J in Birmingham City Council v H and Others [2005] EWHC 2885 (Fam):

  • the court must consider whether it will permit any challenge to the earlier findings
  • it then has to decide the extent of the investigation and evidence heard by the review
  • then it hears the review and decides whether or not the earlier findings still stand.

The court will not get beyond the first stage unless there is some ‘real reason; to believe that the earlier findings can be challenged. ‘Mere speculation and hope’ are not enough. The over arching question for the court will be whether there was any reason to think that a rehearing would result in a different finding,

 

Appealing to another court to about the findings

Or a parent could appeal based on further evidence but this might need an application to extend time, as applications to appeal have strict time limits.  Pursuant to CPR r.52.21(3) an appeal to the Court of Appeal would be allowed where the lower court decision was either wrong or unjust because of a serious irregularity.

Under r.52.21(2) any evidence not before the lower court would not be admitted without permission, looking at criteria in in Ladd v Marshall [1954] 1 W.L.R. 1489

  •  that it hadn’t been possible to get the evidence for use at the first hearing
  • if heard, the evidence would have had an important impact on the case
  • and the evidence was credible.

What happens when one parent wants to leave the country – but the other parent doesn’t

This is a post by Sarah Phillimore

If you are a person ‘connected to a child’ who is under 16 – i.e. you are that child’s parent – and you take the child out of the jurisdiction of England and Wales without getting permission from the other parent, then you could find that you are committing the criminal offence of child abduction.  See the Child Abduction Act 1984. However section 4 gives you a defence IF you have a child arrangements order which sets out that you are the person the child lives with AND you are out of the country for less than a month.

Therefore, if either parent wants to leave England and Wales – to either return to their home country or start a new life with a new job etc – that parent will either have to get the agreement of the other parent or a court order.

Such applications to court are known as ‘leave to remove’ applications. There is no specific provision in the Children Act dealing with relocation cases. The child’s welfare is paramount and the court will go through the welfare checklist.  It may need to ask CAFCASS to provide a section 7 report to help it determine the weight to put on the different items in the checklist.

The case of Payne v Payne [2001] for a long time was the key authority in this area, but there was increasing concern growing about how the courts interpreted this case and a perception that too much weight was being put on the disappointment of the parent who wasn’t allowed to leave.

Therefore, there has been a shift in more recent case law to considering more carefully the impact on the child of the loss of direct contact with the parent who remains behind.

Each case turns on its own facts and case law can be no more than a guide. The court will be keen to understand the motivations behind the move. Is it a genuine wish to return to a familiar place, with possibly more family support? Is it a wish to take up a job offer that represents a real opportunity? Or is the move possibly a tactic in an acrimonious relationship breakdown to prevent continuing contact between child and parent?

There have been a number of cases decided since Payne v Payne. One useful case is S v G (Relocation to Russia) [2015] EWFC 4 which considered if there should be any distinction between those cases where before the suggestion of relocating, one parent had ‘primary’ care or where both parents had more or less equal time with the child.

The legal principles can be summarised in this way

  • The child’s welfare is the court’s paramount consideration.
  • The court is to have regard to the welfare checklist in section 1(3) of the Children Act 1989.
  • Courts should not categorise cases in terms of concepts of shared or primary care but should use the facts of the case and the answers arrived at in consideration of the checklist to
    • describe the arrangements for care on the ground as they have been;
    • as they are at date of the hearing; and 
    • as the parties intended them to remain had it not been for the question of relocation.

In applying these principles the court will examine:

  • The applicant’s proposals for relocation; a ‘going home’ case may be less arduous than an entirely new venture;
  • The applicant’s motives – in particular is a significant motivation to exclude the other parent?
  • The motives of the respondent – are any objections truly child centred?
  • The impact of relocation upon the respondent.
  • The impact of refusal to permit relocation upon the applicant, insofar as this impacts upon the child.

How do you assess motivation?

In essence, by examining how well planned and researched any proposed move is. What plans have been made for where the child will live and go to school? What language will the child be speaking? What plans for contact with the other parent have been made? How easy is it to travel? If direct contact isn’t going to be possible more than a few times a year, what other arrangements such as Skype can be put in place? Is the child simply to too young to be able to benefit from that kind of indirect contact?

it is clearly very important to make an application to relocate in good time. These applications are unlikely to be dealt with in less than six months so if a move is planned to coincide with a new school term, it is important to give enough time for the court process to conclude.

Similarly if a parent is objecting to a move even when remaining in the UK would mean the other parent facing poverty, insecure accommodation and lack of support for e.g. then this will inevitably impact on the weight the court gives to the objections against relocating.

An example of a case where relocation was refused

See Re R (A Child – Relocation) [2015] EWHC 456 (Fam). The court set out a number of reasons why the mother’s application failed. The child was 2 1/2 years old and had been born in America following IVF treatment of a donor egg and the father’s sperm. The mother wished to leave the UK and go to Hong Kong. No issues were raised about the father’s ability to care for the child and the court noted a strong bond between the. On the facts of this case, the court rejected the view of CAFCASS that it was a ‘finely balanced’ one.

  • The father’s work commitments made it almost impossible for him to travel to Hong Kong even for short periods.
  • No argument was made, nor would the court have accepted such an argument on the evidence, that the mother was isolated or lonely in England.
  • The court didn’t accept the mother’s arguments that remaining in England would cause her financial hardship, for example, accepting the father’s evidence that there were a number of agencies that the mother could have approached for work but had failed to do so.
  • The court concluded that the mother had presented barriers to the father spending time with the child, some of which disappeared without any explanation and she had been disdainful of the father when making holiday arrangements. 
  • The mother’s proposals for contact between the child and father following relocation were insufficient to make up for the loss in the relationship. This harm to the child would be compounded by the likely sense of abandonment upon the child finding out, as he will in the future, that the father was his only natural parent.

 

Conducting a comparative analysis of standards of living in different countries

What if one parent argues that the living conditions in the country of relocation are significantly inferior to those in the UK?  Unless the situation is so dire the that – for example, the Foreign Office advises that a particular country is not safe, i argue that the English court can go no further than to scrutinise the information offered by the parent wishing to relocate, to be satisfied that the parent has made reasonable plans to meet the child’s basic requirements for accommodation, education and health care.

An attempt by the English court to carry out an analysis of standards of living in two very different countries is inappropriate for two main reasons:

  • this exercise risks diverting the court’s focus away from the welfare of the particular children before them, as demanded by the Children Act 1989. The court must consider what advantages/disadvantages of the move pertain particularly to them. For young children the focus will be largely upon the quality of the relationships they can sustain with their adult carers. A variety of factors go into assessing quality of life in various countries, not all of which have relevance to the experiences of the particular children before the court.
  • The overriding objective for the court under both the Family and the Civil Procedure Rules is to deal with cases justly but proportionately. To conduct a comparative analysis of life in  different countries would be a lengthy and expensive exercise, which is likely to require possibly contested expert evidence and consideration of a variety of reports from the United Nations and other organisations. By argument with analogy as to how the court have approached attempts at ‘comparative country analysis’ in immigration/asylum cases, in Re A (Care Proceedings: Asylum Seekers) [2003] 2 FLR 92 the court found that absent any established risk to the children on being returned to their country of origin, it was an abuse of process to continue care proceedings to prevent the parents and children being returned.

The Hague Convention 1996 and Mirror Orders in the foreign court.

The Hague Convention provides that all contracting states shall recognise by operation of law all measures taken by the authorities of another contracting state. Therefore, if the parent wants to relocate to a country that has ratified the HC, a ‘mirror order’ may be made in that country’s court,  permitting the respondent to take enforcement action if the applicant does not abide by its terms.

An example of a case where a mirror order was made when relocating to South Africa can be seen in the case of Re MM (A Child: Relocation) [2014] EWFC B176

What’s in a name? Complainant versus victim.

This is a post by Sarah Phillimore. 

The verdict in the Carl Beech case has only just been delivered and the recriminations have begun. If anyone was in any doubt about the dangers inherent in identifying a complainant as a ‘victim’ at the outset of any investigation or court hearing, then here you have it.

An allegation which is not accepted or not proven is not a fact. Someone may identify themselves readily as a victim when in fact they are mistaken – or worse, a fantasist or a liar. Proceedings in either a civil or criminal case hear evidence and make determinations. There is no presumption of guilt in a criminal court. Those making assertions in civil courts must prove them on the balance of probabilities.

I have had cause to be critical of the Ministry of Justice and its recently set up 3 month Inquiry into how the family courts deal with allegations of domestic abuse. My unease stems largely from the fact that the MoJ appear to be operating from the presumption that men are perpetrators of violence and women their victims, even before any evidence has been heard.

My unease has now increased when I learned today of a ‘new service’ set up and funded by the MoJ to deliver support to ‘victims of domestic abuse in family courts’. I queried use of word ‘victim’ and was told the MoJ have set the terms of the service, including its terminology.

I have had long standing concerns about the use of the word ‘victim’ to describe a complainant. In summary:

  • setting up a complainant as a ‘victim’ at the inception of the court process gives that person a wholly unrealistic view of how their evidence may be treated in an adversarial court process.
  • Treating one party as a victim prior to any findings made about the factual basis for that status, risks undermining the fairness of the proceedings and casting the respondent as a ‘villain’ at the outset.

This raises so many questions

  • Who benefits from this dangerous muddying of the forensic waters?
  • Why isn’t it possible to offer support to anyone going through the court process without first deeming them a ‘victim’ on possibly nothing other than their wish to identify as such?
  • Is this seen as an ‘easier’ response than improving the woeful physical nature of many court buildings or cheaper than providing legal representation to both sides of a private law dispute?

 

I have therefore made a FOI request on 8th August 2019 and will update on 29th August.

I would be grateful for the following information, relating to the project which the Ministry of Justice has asked the Citizens Witness Service to run ‘delivering support to victims of domestic abuse in family courts’.

I am told that this service has already launched in Worcester Family Court in July and is about to launch In Swindon. I can find no information about this service on line but was told that the MoJ ‘as funder’ has set the definition and scope of this service, including the terminology of ‘victim’ . Either applicant or respondent – or presumably both – are apparently ‘deemed’ to be victims if they declare themselves to be. The service is offered prior to any determination of any contested allegation by the family court.

I have raised concern that this practice of identifying a complainant as a ‘victim’ prior to such determination of what actually happened, is fraught with difficulty; there is a clear tension between a forensic process that may end in rejecting a complainant’s account and a service that supports someone as a ‘victim’ at the very inception of the court process.

I am told that this service is being offered after ‘wide ranging consultation with victims of domestic abuse’.

I would like to know therefore

1. The time period over which this consultation took place
2. The identities of those individuals or organisations who were consulted.
3. The cost of this consultation
4. The cost of the service to date
5. The anticipated running costs of this service over the first 12 months of its inception.
6. The number and location of those Family Courts who will be running the service

Further Reading

My response to the Inquiry Assessing risk of harm to children and parents in private law children cases

 

Feelings and Dogma cannot set the agenda in Family Justice

Judges don’t need ‘training’ about violence – they need evidence.

Information about the Family Justice System: Who can you trust?

This is a post by Sarah Phillimore

I have been asked to provide a synopsis of information about those organisations and people that I think should be treated with caution when it comes to information about the Family Justice System.  What follows is my personal opinion – but, as ever, my opinion is based upon evidence from a variety of sources, including criminal convictions and criticism from the civil courts.

The people I list range from serious criminals to those who genuinely and passionately believe what they say and may have some grounds to support it. I do not suggest that people on this list – save for the obviously criminal – have nothing of value or interest to say about the state of our family justice system.

I do however think that, given the nature of their sources and associates, whatever they say needs to be treated with caution and checked against independent sources, wherever possible.

I believe we all have a moral duty to make decisions with the best possible information and take conscious efforts to be aware when bias and prejudice might lead us astray.

 

CARVATH Richard

Self identifying ‘investigative journalist’, arrested at court in support of Samantha Baldwin. Also believes in organised satanic ritual abuse and accusing those who report accurately about family law cases of ‘defamation’.

The Freeman on the Land

Be very wary of anyone who identifies as a Freeman.  In essence, they believe that they can escape being subject to the law by refusing to recognise it. This causes immediate and obvious problems in care proceedings and is almost inevitably an entirely doomed strategy.  For further detail see this post. 

GERRISH Brian and UK Column

Part of UK Column, which describes itself as ‘an independent multi media news website’ long standing associate of Hemming et al. Was one of the first people McNeil approached with videos of the children in the Hampstead Hoax case – but looks like he had the sense to turn her down. 

See also the Richie Allen Show.

HAIGH Victoria

Supported by Hemming; unusual for being named in family court judgments after she was found to have caused serious emotional harm to her child by pushing a false narrative that the child’s father had sexually abused her. Was given a custodial sentence for her breach of a non molestation order and worked with Elizabeth Watson, who was also given a custodial sentence for contempt of court in revealing details about Haigh’s case. Believes that the family court sanctions the deliberate ‘breeding ‘of babies to be handed over to paedophiles.

For further information see this post. 

HAINES Tim and Julie

Close associates with Hemming and his organisation Justice for Families, which no longer appears to have a web presence. Following Tim Haines arrest in 2014 for leaving his daughter alone in a car, the couple developed a keen interest in the child protection system and appear to operate from a starting point that any social work intervention with a family can rarely be justified. They offer their services as paid McKenzie friends and appear to encourage people to make appeals to the Court of Appeal that they know to be hopeless, simply to send a message about how strongly people feel. I advise that you do not give either money or documents to either of the Haines, without having a clear idea about what they are proposing to do to help your case.

HEMMING John

Hemming has been a dedicated campaigner against the FJS since 2007 after some social work involvement with his then pregnant partner. He has over the years made some reasonable and sensible points. However what good he has done is significantly eclipsed by the bad.  He was patron of Sabine Mc Neil and Belinda McKenzies’ Association of McKenzie friends along with MP Austin Mitchell until early 2015. Has repeatedly urged parents to leave the jurisdiction as they won’t get a fair hearing in the UK.  Has worked closely with Ian Josephs and Christopher Booker. He was seriously criticised by Lord Justice Wall. I have no doubt he caused a lot of damage while a serving MP as his position gave him credibility. However his influence appears to have diminished since he lost his seat in 2015.

I made a formal complaint about the activities of JFF in January 2017. I am still waiting for a response.

Further information is here.

JOSEPHS Ian

A long standing critic of the FJS and author of the infamous ‘Golden Rules’ which includes advice to mothers to think very carefully before even reporting fears about sexual abuse of their children. He is a wealthy man and has given large sums of money over the years to parents who wish to leave the jursidction to escape care proceedings. He carries out no risk assessments of the parents to whom he gives money; his finest hour so far was providing money to Marie Black to travel to France – she was later convicted of over 20 serious sexual offences against children.

MCNEIL Sabine and the Hampstead Hoax

McNeil is currently serving a 9 year sentence for her harassment of families involved in the ‘Hampstead Hoax’ case. This case has proved a useful short cut to identifying the most dangerous of the FJS Conspiracy Theorists. Hoaxstead Research has done sterling work in unmasking the hoaxers and is a good point of reference. It recently reported that McNeil’s appeal against her sentence was refused.

Sabine McNeil has been associated with almost every person or organisation that causes me serious concern with regard to misinformation about the family justice system. See also Belinda McKenzie and the damage done by her and McNeil in the Melissa Laird Case, as just one example out of many.

The Ministry of Justice

It is a tribute to just how odd 2019 has been that I include a Government Department in this list. But the MoJ easily make the cut following their bizarre decision to launch an Inquiry over 3 months into how issues of violence are dealt with in the family courts; that Inquiry apparently proceeding on the basis that men are perpetrators of violence and that law and policy are best discussed in the context of a raft of subjective and unchecked submissions from the public.  It maybe that the outcome of the Inquiry is sensible and I can remove them from the list. But I am not holding my breath and will treat information disseminated by this Department with caution from now on.  Further further details see this post.

PEACHER Andy

Runs Freedom Talk Radio which he asserts ‘has become the very platform for people with an alternative view point to come onto the show and to announce their findings, ideas and suggestions and allows them to open up to the citizens by revealing their true beliefs on just exactly what is taking place in our World from their view point, which does on so many occasions, conflict and call into question with what is being broadcasted by the mainstream media, which they dare not report the truth’. Associated with and friendly to a great many of the most pernicious influencers on the FJS Conspiracy circuit. 

PHILIPS Natasha

Runs the Researching Reform Website. Has connections with Hemming and at one point made Sabine McNeil her ‘star commentator’. As the comments on her web posts shows, she continues to interact largely with those who are identified ‘players’ on the conspiracy scene.

TUTTLE Maggie

Organises ‘Children Screaming to be heard’ conferences, which were attended by Sabine McNeil etc, etc. in 2016 attempted to popularise the phrase ‘bedside babies’ (apparently originally coined by journalist Sue Reid) which it was suggested was a very common phrase used by social workers to target the babies they wanted to steal – even though no social worker or lawyer had ever heard of it

 

Further reading

Are you sitting comfortably? The art of Story Telling. 

The Particular Dangers of Conspiracy Theories for Parents 

You Had Better Make Some Noise – Abusers will exploit bad laws and poor safeguarding

This is a post by Sarah Phillimore

I was delighted to be asked to speak on July 27th 2019 by Make More Noise

As the organisers say:

There has been a surge of Feminist activism across the UK in the past year. Women are agitated and organised. We are finding our voice and our voice is saying NO.

Make More Noise are one such group, created to provide a space for women to talk freely and address uncomfortable truths.

 

Why am I interested in this?

I am a woman. I am a disabled woman. The delusion of self ID as a cure for unhappiness is shown to me, and every other disabled person in the world, every single day. We cannot identify out of ourselves. Every day the people around us and the hostile environments we have to navigate tell us what our reality is. To claim another’s identify is a choice for the privileged – a black woman cannot self Identify as white but Rachel Dolezal can claim to be a black woman and take a Nigerian name.

But I am also a lawyer. Who has worked in child protection for 20 years. I have been campaigning since 2014 for greater openness and honesty in our debate about the family justice system.

So it would seem that my experiences both personal and professional have led me to this moment. There is so much to worry about when we face the erasure of biological sex as a category of identification that I have decided to focus my concerns on the implications for children.

 

My central hypothesis this: people would rather cause pain than feel it.

We have a lack of mature discussion in our society about issues of grave importance to us all. I am quite sure that social media is partly behind this.  I see the law being increasingly used as a weapon to silence people who step out of line, the rights of a few achieving dominance over the rights of many others. I see the efforts of some groups and individuals to push back against this – such as Fair Cop and Maya Forstater – but the fact that such groups have felt compelled to take action is an indication of what a strange place our public discourse has reached. People are sacked for expressing ‘wrong think’, the police are used to enforce one person’s feelings against another person’s Article 10 rights to freedom of expression.

And who suffers most in such a scenario where a legal system is used to prioritise the rights of one minority above others? Those at the very bottom of any pyramid power structure – children.

So what supports my hypothesis?

  • High court decisions only 3 years apart about transitioning pre schoolers
  • The NSPCC debacle and the intervention of Prostasia

The shifting position of the High Court

The case of Re J in 2016 involved a 4 year old, who his mother claimed ‘disdained his penis’ and wished to be a girl. The High Court did not agree and ordered that the child lived with his father. Mermaids supported the mother and issued an angry press release after the judgment saying they would appeal – they did not.  I wrote about this case here which contains links to the judgment and press release.

However, only three years later came the case of Lancashire County Council v TP & Ors (Permission to Withdraw Care Proceedings) [2019] EWFC 30. This involved foster carers who had two unrelated children in their care who decided they wanted to transition – the youngest aged 3 years old. [EDIT apologies – youngest was transitioned at FOUR YEARS OLD. Doesn’t make any difference to my argument] The LA were applying to withdraw care proceedings, so it was a different situation from re J. But even so, its interesting to see how the Judge framed this issue of transitioning pre schoolers:

Notwithstanding even the Guardian’s caution in respect of the openness of [the foster carers] to the possibility of an alteration in the children’s attitude to their gender identity I conclude that Dr Pasterski’s evidence demonstrates that it is obvious that neither of these grounds would meet threshold. Taken together with the panoramic evidence of the child focused approach of [the foster carers] it is overwhelmingly obvious that neither H nor R have suffered or are at risk of suffering significant emotional harm arising from their complete social transition into females occurring at a very young age. The evidence demonstrates to the contrary, this was likely to minimise any harm or risk of harm. The evidence does not support the contention that it was actively encouraged rather than appropriately supported.

How on earth is it ‘overwhelmingly obvious’ that a 3 year old will experience no harm from a decision to transition from male to female? I have a difficulty here with such an uncritical acceptance of the evidence of Dr Pasterski. Not merely because I find it extremely hard to accept that any 3 year old has the understanding or the language to communicate a desire to change sex, but I note the approach of Dr Paterski in an earlier case.

Jay v Secretary of State for Justice [2018] EWHC 2620 (Fam) (08 October 2018) considered a man in his 40s who wished to become a woman. While Dr Paterski opined without any reservation that this was a genuine case of gender dysphoria, Dr Barrett struck a more cautious note, given that some of Ms Jay’s reported history was ‘directly at odds’ with documentary records.

“… If collateral corroboration is not convincingly elicited I would have grave doubts and wonder whether [Ms Jay]’s somewhat dependent personality had caused her to unwisely latch onto a change of gender role as a seemingly universal solution to both why her life had gone wrong and how it might be rectified.”

It is worth contemplating, with considerable unease, just what would happen if Re J was being heard and decided this week. Would the High Court have been able to protect a little boy from the mother who was telling everyone he ‘disdained’ his penis? Or would he have been sacrificed to what appears to be compulsive drive to be seen as ‘woke’ and ‘inclusive’ ?

The NSPCC debacle and the intervention of Prostasia

All of you I am sure are familiar with the NSPCC’s public response to people who raised concerns about one of their employees who allegedly filmed himself masturbating at work and published a video online. I am pleased that, belatedly, they had the sense to realise that telling people who raised concerns that they were bigots who should be reported was not an appropriate response and they have referred themselves to the Charity Commission. I await with interest the outcome of that.

What happened to me on Twitter after that was also interesting.

I was discussing that people should consider not making further charitable donations to the NSPCC but consider smaller local charities. An organisation called Prostasia popped up and suggested they might be a worthwhile beneficiary. Which was odd as a quick google showed them to be based in California and advocating ‘sex positive’ child protection, whatever that means.

What I suspect it means is support for men who want to have sex with children. This suspicion was confirmed when another Twitter user found a copy of a mug shot of a man who was active in the conversation and on the Prostasia website. This stated he had been arrested in 2012 for sexual conduct with a child under 13. Prostasia then blocked us all and then tried to blackmail me, which is a whole other story I don’t have time for now – but is a clear indication of the murky ethical waters in which this organisation swims.

 

What does this show me?

The inability or unwillingness of both pro-trans activists and pro-paedophile groups to distinguish teenagers from pre-schoolers.

Because what Prostasia has in common with the views of the legal adviser for Mermaids is a persistent refusal to identify what they mean by ‘a child’.

  • A child is defined as a person aged 0-18.
  • The majority of children under 12 are unlikely to be considered ‘Gillick competent’ to make important decisions about their own lives.
  • We have a difficult and grey area around 13-16 where children may well as individuals have greater capacity than the law allows them. But we have to draw a line somewhere.
  • And for children, sex and the criminal law, that line is firmly set at 13 years.  See the Sexual Offences Act 2003. A child under 13 cannot consent to sex. It is rape.

I therefore consider myself on firm ground to say that the vast majority of children under 12 neither want nor need exposure to adult sexuality. It is important that they are allowed the time and space to develop their own identities and their own sexual preferences; free of the coercion or manipulation of an adult. And once they cross that threshold into adulthood they should be free to live and love as they wish, according to the boundaries of the existing laws. Sexual activities between consenting adults is none of my business or concern.

What I have witnessed developing over the last year or so has caused me increasing concern about the extent to which some men wish to re-frame the discussion about the sexuality of children. They wish to push back the boundaries regarding age and consent. This seems clear to me because of the extent to which they are often coy about stating exactly how they define ‘a child’. The difference between – for example –  a typical 9 year old and a typical 16 year old is vast and in every domain; physical, sexual, social.

And what is the problem with this?

I was alerted to a blog post in March of this year by the Mermaids legal adviser. The author remained anonymous but was arguing that

….someone’s gender identity, at any age, must be respected. A child identifying as trans, whether it has been submitted this is as a result of harm or not, is identifying as trans and that must be respected throughout proceedings…More often than not, if a child says they are trans, they will be trans.

I commented at the time

As I hope I have made clear, any such assertion made without attempting even the barest of analysis of the vast gulf in understanding and capacity between a 6 year old and a 16 year old is an assertion of no value. Worse than that, it is an assertion which attempts to pave the way to leave young children entirely unprotected from their parents.

Most parents love their children and want to do what is in their best interests. A small minority of parents fail to do that. The courts absolutely must be ready, willing and able to step in and to protect such children.

Anyone who is unwilling or unable to see the difference between a child of 6 and a child of 16 is someone who wishes to blur the boundaries around child protection and safeguarding. Why would anyone wish to do this? I can only assume it is to make it easier to secure the eradication of the rights of children to be protected from the imposition of men’s sexual will.  And what is worse, their rights will be eradicated at the same time we are told WE are the villans, WE are the bigots.

The facts are always friendly. That was and will remain my rallying cry. Lets have proper discussion . Not all who wish to transition do so out of realistaion of their ‘essential self’ – a self that no one apparently can define. Some will do so because they are predators. Predators predate. That is what they do. For example, the recent trial of convicted paedophile Carl Beech revealed that he had volunteered at the NSPCC between 2012 and 2015 .

The wolf is no longer at the door. The wolf Is in the kitchen and claiming a legal right to be there.  And I am now too old and too fed up to do anything other than speak up. This will not be done in my name.

 

FURTHER READING

In whose best interests? Transgender Children: Choices and Consequences.

When should a child’s trans identity be permitted to be a material issue in a family case?

Video of talk now on YouTube

Transparency Made Simple!

This is a post by Sarah Phillimore

I was asked if I could re-state the law about confidentiality in family proceedings for the benefit of parents who want to talk about their proceedings publicly. What follows is an attempt to simplify the main post on this site about transparency. The usual warning applies – this cannot be used as particular legal advice for a particular case. If you are worried about the consequences of anything you do, you need to get advice from someone in real life who knows what is going on in your particular case. But I hope it can be a useful condensed guide to the general principles. 

Contempt of court is a really serious thing and can lead to you going to prison. But what the courts really don’t like are people who deliberately break the law in an attempt to show how much they dislike the court system. If you can show that you tried your best to stay on the right side of the law I think its unlikely any court would want to give you serious punishment. 

 

Golden rules

  • Don’t identify any children – by name or by providing information that would make it easy for others to work out who the child is for example, names of older siblings or school the child goes to.  This is called ‘jigsaw identification’
  • Don’t publish any evidence or talk about in detail what happened in court unless you have the permission of the Judge
  • Generally to ‘publish’ means ‘making information known to the general public’ so would include putting information on the Internet, such as a Facebook profile.

 

Why is it so complicated?

Because the law in this area has developed over a long time and in a variety of different ways. If you find it hard to understand – don’t worry. So do the Judges and the lawyers.

 

Why can’t I just talk about my case?

Because children do not get a choice about whether or not they are part of care proceedings and it is very unfair to publicise information they might find very embarrassing or shameful.

 

Important laws you need to know

Section 97 of the Children Act 1989

Section 97(2) says no person shall publish anything which is intended or likely to identify any child as being involved in any proceedings under the Children Act 1989 or the Adoption Act 2002, including the child’s address or school.

If you do this it can be a criminal offence but you have a defence if  you didn’t know or suspect that the published material was intended or likely to identify the child.

Section 12 Administration of Justice Act 1960.

It is a contempt of court under this section to publish information about ‘private proceedings’ UNLESS you are telling a professional something they need to know to protect a child.

You can publish information about ‘the nature of the dispute’ but you can’t refer to the actual evidence, not even in summary. This is quite a tricky distinction.  There is no time limit to this section so you are caught by it even when the care proceedings are over.

This doesn’t cover the identify of witnesses in care proceedings so they can be named unless the Judge makes a different order.

In Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam) [2004] 2 FLR 142 at para [82](v)-(vii); Munby J tried to shed some light on what section 12 covers:

  • section 12 protects is the privacy and confidentiality:
    • (i) of the documents on the court file; and
    • (ii) of what has gone on in front of the judge in his courtroom. …
  • section 12 does not prevent publication
    • of the fact that proceedings are happening, or
    • identification of the parties
    • or the comings and goings of the parties and witnesses,
    • or incidents taking place outside the court or indeed within the precincts of the court but outside the room in which the judge is conducting the proceedings.

I want to talk about my case at a conference or to a  journalist

So how does section 12 stop you talking about the details of the case?  This is a difficult area and causes problems for the lawyers to understand.

Sir James Munby looked at one example;

“Says a friend of [the mother]: “She has been portrayed as a bad mother who is unfit to look after her children. Nothing could be further from the truth. She is wonderful to [them] and they love her. She wants custody of [them] and we will see what happens in court”.”

The Judge dealing with the case found that WAS a breach of section 12 as it went ‘far beyond a description of the nature of the dispute and reached deeply into the substance of the matters’

However, it is clear that every case turns on its own facts, which makes it difficult to provide clear advice about what would or would not be acceptable to talk about. If you are worried, then ideally you need to ask the Judge who heard your case for permission to raise certain issues.

As a general point you are probably ok if you

  • talk about the fact that there were care proceedings
  • talk about what happened after the care proceedings and how it made you feel

How does the court approach applications for publicity?

The High Court has the power, due to section 6 of the Human Rights Act 1998 and its own ‘inherent jurisdiction’ to make orders outside of the statutory provisions about people coming into court or being able to talk about what happens in court.

If the High Court wants to make such an order, the court must examine any competing rights under Articles 8 and 10 of the European Convention and undertake the ‘balancing exercise’ as set out in Re S (A Child) (Indentification: Restrictions on publication) [2004] UKHL 47

The case of Re Webster: Norfolk County Council v Webster and Ors [2007] 1 FLR 1146 identified 4 important factors for the court when it considered whether or not to allow information about a case to be publicised:

  • The case was alleged to involve a miscarriage of justice
  • The parents wanted publicity
  • The case had already been extensively publicized
  • There was a need for the full facts to emerge in a way which would improve public confidence in the judicial system.

In Re J [2013] where the Local Authority wanted an order ‘contra mundum’ (against everyone in the world), preventing the identification of a child in care proceedings, to last until the child was 18. The court didn’t agree.

This case involved J, one of the parents’ four children (all of whom went on to be adopted). J’s father posted on the internet various pictures and film of J being removed from the parents’ care, describing what he had published in these kind of terms:

“Waiting in the corner, in the shadows lurks a vampire-ish creature, a wicked, predatory social worker who is about to steal the child from the loving parents. Caught on camera – [name] of Staffordshire social services creeps in the corner like a ghoul, like a dirty secret, like a stain on the wall … You are a wicked, wicked woman [name] – God knows exactly what you have done, you must be very afraid, now! You WILL suffer for this.

Here is an interesting article about this case, in particular the ironic consequence that in attempting to restrain the father from posting his videos on the internet, the LA ensured that he received a great deal of publicity and probably more people saw the videos than would have done if they had not applied for the order.

Sir James Munby said this about Re J

26. The first matter relates to what it has become conventional to call transparency. There is a pressing need for more transparency, indeed for much more transparency, in the family justice system. There are a number of aspects to this.

27. One is the right of the public to know, the need for the public to be confronted with, what is being done in its name. Nowhere is this more necessary than in relation to care and adoption cases. Such cases, by definition, involve interference, intrusion, by the state, by local authorities and by the court, into family life. In this context the arguments in favour of publicity – in favour of openness, public scrutiny and public accountability – are particularly compelling […]

28. 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. When a family judge makes a placement order or an adoption order in relation to a twenty-year old mother’s baby, the mother will have to live with the consequences of that decision for what may be upwards of 60 or even 70 years, and the baby for what may be upwards of 80 or even 90 years. We must be vigilant to guard against the risks.

29. This takes me on to the next point. We strive to avoid miscarriages of justice, but human justice is inevitably fallible. The Oldham and Webster cases stand as terrible warning to everyone involved in the family justice system, the latter as stark illustration of the fact that a miscarriage of justice which comes to light only after the child has been adopted will very probably be irremediable. […] We must have the humility to recognise – and to acknowledge – that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.

 Rule 12.73 of the Family Procedure Rules 2010

You won’t be in contempt of court if you discuss information about care proceedings so long as you are talking to a person named on this list.

  • a party to the proceedings;
  • the legal representative of a party;
  • a professional legal adviser;
  • Cafcass
  • the Legal Services Commission;
  • an expert whose instruction by a party has been authorised by the court for the purposes of the proceedings;
  • a professional acting in furtherance of the protection of children;
  • an independent reviewing officer appointed in respect of a child who is, or has been, subject to proceedings to which this rule applies;

 

Further reading

 

 

My response to the Inquiry Assessing risk of harm to children and parents in private law children cases

This is a post by Sarah Phillimore

Good practice’ would be to commission serious and proper research into the actual nature of the problem, rather than inviting personal anecdote to take the place of robust data. I am very concerned about the nature of this Inquiry; the manner of its inception and the choice of its Panel. Why are there no representatives of any father’s charities? Why has the Inquiry proceeded on entirely partial assumptions about Judges simply ignoring evidence? Is evidence going to be gathered about the rate of false or exaggerated allegations of violence? About the impact of LASPO on encouraging such in order to qualify for legal aid?

Take the survey here

Response ID ANON-CNG1-5F53-C
Submitted to Assessing risk of harm to children and parents in private law children cases
Submitted on 2019-07-19 20:27:16

Your experience of private law children proceedings

1 Please tell us in your own words about how the family court responded to allegations of domestic abuse or other serious offences in
your case, and/or the effects on you and/or your children.

I have represented mothers, fathers and children in contested private law cases for 20 years now. In my experience, the family courts respond as appropriately as they can, taking into account the serious difficulties caused by lack of availability of legal aid and judges. The failings in the law, in my view, has been a reluctance to hold early findings of fact and allowing intractably hostile parents to drag out proceedings over many years, by which time the children have ‘aged out’. I have not experienced any judge being ‘ignorant’ of issues around abuse and violence. I do not think Judges need ‘training’ about violence – they need space and time
to adjudicate properly upon cases. I am extremely concerned that many calling for ‘training’ appear to have a financial interest in such training becoming widespread.

2 Was your experience in the family court:
In 2018-2019, In 2014-2017, Before 2014

Raising allegations of domestic abuse or other serious offences in private law children proceedings

Are there any difficulties in raising the issue of domestic abuse or other serious offences against a parent or child, in private law children proceedings?
Yes

The difficulties in raising issues of domestic violence, in my view, clearly do NOT arise from misunderstanding or ignorance of the law. The difficulties arise from the lack of available court time and the increasing number of litigants in person. There is clearly a lack of understanding about the forensic process and the requirements of proof amongst those who are not legally trained. Better education about this might help. I suspect the ‘I believe’ policy has done enormous harm here. Women come to court expecting to be ‘believed’ and it is a shock to find out that the court process demands proof.

Children’s voices

4 How are children’s voices taken into account in private law children proceedings where there are allegations of domestic abuse or other
serious offences? Do children feel heard in these cases? What helps or obstructs children being heard?
It is my experience over 20 years of representing children that the vast majority do NOT wish to participate in court proceedings. They want a decision to be made about their future by an adult who cares about what happens to them. They generally cannot and do not wish to engage with the evidence. My experience of guardians is generally positive; they appear to be committed and produce thoughtful and helpful reports. I have also noticed an increased willingness amongst judges to see and speak to children outside the actual proceedings, which I think is very positive.

The procedure where domestic abuse is raised

5 Are fact-finding hearings held when they should be?
No
There appears to be a reluctance to hold findings of fact on the basis that ‘it won’t help’ if there is a perception that the allegations are not ‘serious’ enough to mean that direct contact would not be ordered. This seems to offer only a short term gain; my experience is that allegations which are not ‘put to bed’ continue to cause considerable difficulty for the proper resolution of contested private law cases.

6 Where domestic abuse is found to have occurred, how is future risk assessed and by whom? Is risk assessed only in relation to
children, or also in relation to the non-abusive parent?
In my experience risk is assessed by CAFCASS, a social worker or the judge. Risk is generally seen ‘in the round’. I am not aware of any Judge who would say that a person who is violent to a parent but not the child could still be a ‘good parent’.

7 How effective is Practice Direction 12J in protecting children and victims of domestic abuse from harm?
It does what it can. But it clearly cannot assist in those cases – sadly frequent – where women will continue or resume a relationship with a violent man. Nor can it mitigate against structural problems such as lack of alternative housing.

8 What are the challenges for courts in implementing PD12J? Is it implemented consistently? If not, how and why do judges vary in their
implementation of the Practice Direction.
In my experience in London and and on the South Western Circuit I have not noticed any worrying inconsistencies in implementation of the PD.

9 What has been the impact of the presumption of parental involvement in cases where domestic abuse is alleged? How is the
presumption applied or disapplied in these cases?

The presumption is a joke. It is meaningless. It has no impact.

10 Where domestic abuse is found to have occurred, to what extent do the child arrangement orders made by the court differ from orders made in cases not involving domestic abuse?

Depending on the level of severity of abuse, the distinction is in the nature and degree of contact ordered. When serious allegations are found proved, the order is
invariably for indirect contact only.

Safety and protection at court for victims of domestic abuse and other serious offences
11 What is the experience of victims of domestic abuse or other serious offences in requesting arrangements to protect their safety at
court?
Over 20 years I have found the courts become much more responsive to issues around safety at court. However, much of this depends on the physical resources of the court building itself. Some are simply not fit for purpose and it is very difficult in those buildings to ensure that the parties are kept separate.

12 Do family courts make the right decisions about whether an alleged victim of domestic abuse or other serious offences is vulnerable?
Yes
Vulnerable people clearly need appropriate help and representation at court. There appears to be good and widespread understanding amongst lawyers about what is needed.

13 What is the experience of victims of domestic abuse and other serious offences of being directly cross-examined by their alleged
abuser/alleged perpetrator? What is their experience of having to ask questions of their alleged abuser/perpetrator?
I have never known this to happen. When my client was facing XX by a former partner she alleged was abusive, the Judge asked questions. But this is clearly a dreadful situation and should not be tolerated. Both alleged victim and alleged perpetrator ought to have legal representation. It is not fair to ask that the Judge undertake this role.

14 What are the challenges for courts in implementing FPR Part 3A and PD3AA? Are they implemented consistently? If not, how and why
are they inconsistent?
Resources and time.
My experience is that they are implemented consistently.

15 How effective are these provisions in protecting victims of domestic abuse or other serious offences from harm in private law children
proceedings?
I have no idea. The proceedings themselves are very difficult for vulnerable parties, regardless of the efforts made. I do not know what is meant by ‘effective’ in this question.

Repeated applications to the family court in the context of domestic abuse

16 What evidence is there of repeated applications in relation to children being used as a form of abuse, harassment or control of the
other parent?

I do not think this happens very often. Such applications may well be interpreted by one party as an attempt at control. But people are entitled to make applications to the court to secure their legal rights. I have found Judge’s willing to make section 91(14) directions in the appropriate circumstances.

17 Under what circumstances do family courts make orders under s.91(14)?
add text in box:
They are mindful of the guidance of the Court of Appeal and consider it a serious application.

18 How do courts deal with applications for leave to apply following a s.91(14) order?
add text in box:
i have very little experience of this, which suggests to me it is not a common occurrence

19 What are the challenges for courts in applying s.91(14), including applications for leave to apply? Is there consistency in
decision-making? If not, how and why do inconsistencies arise?
I have found the majority of tribunals to consistently apply the Court of Appeal guidance. One judge did not; I appealed her decision and succeeded on that point. She wrongly stated that section 91(14) was not draconian and made an order against my male client.

20 How effective are s.91(14) orders in protecting children and non-abusive parents from harm?
add text in box: I have no idea. They appear to be an effective safeguard against unmeritorious applications.

Outcomes for children

21 What evidence is there of children and parents suffering harm as a result of orders made in private law children proceedings, where
there has been domestic abuse or other serious offences against a parent or child? (This can include harm to a parent caused by a child arrangements order which requires them to interact with the other parent in order to facilitate contact).

This is the problem. There is no ‘evidence’. There is a wealth of anecdote and complaint. But I am aware of no robust evidence. I do not consider the Women’s Aid reporting to be robust. This inquiry is going to invite a great deal of personal anecdote which may or may not have a firm factual foundation. I do not consider this is the way for a mature democracy to proceed to make decisions about any kind of justice system and I am frankly alarmed by this venture and the questions I have just attempted to answer.

22 What evidence is there about the risk of harm to children in continuing to have a relationship – or in not having a relationship – with a
domestically abusive parent (including a parent who has exercised coercive control over the family)?
I REPEAT ANSWER ABOVE

23 What evidence is there about the risk of harm to children in continuing to have a relationship – or in not having a relationship – with a
parent who has committed other serious offences against the other parent or a child such as child abuse, rape, sexual assault or murder?
I REPEAT ANSWER ABOVE

Any other comments or suggestions

24 Are there any examples of good practices in the family courts or which the family courts could adopt (perhaps from other areas of law)
in relation to the matters being considered by the panel?
‘Good practice’ would be to commission serious and proper research into the actual nature of the problem, rather than inviting personal anecdote to take the place of robust data. I am very concerned about the nature of this Inquiry; the manner of its inception and the choice of its Panel. Why are there no representatives of any father’s charities? Why has the Inquiry proceeded on entirely partial assumptions about Judges simply ignoring evidence? Is evidence going to be gathered about the rate of false or exaggerated allegations of violence? About the impact of LASPO on encouraging such in order to qualify for legal aid?

25 Do you wish to make any other comments on the matters being considered by the panel?
write text in box:
I think I have said enough. I hope my cynicism and alarm at this exercise prove unfounded

EDIT 

Have a look at this.  The aim is to protect against ‘perpetrators’. But tricky thing is this – who is deciding they are perpetrators? Is mere assertion now enough?

 

Attachment – Who Makes the Diagnosis?

Sarah Phillimore writes

My post on a general guide to attachment theory – what it means and its importance in care proceedings, remains one of the most popular posts ever on this site. There is also a useful discussion from the perspective of a social worker by guest poster Kate Wells. 

Basically ‘attachment’ is a theory developed by psychologists to explain how a child interacts with the adults looking after him or her. If a child has a healthy attachment, this means the child can be confident that the adults will respond to the child’s needs, for example if he is hungry, tired or frightened, the adult caregiver will respond to meet his needs or reassure and comfort him.

This gives the child confidence to explore his environment and develop a good sense of self-esteem. This will help the child grow up to be a happy and functioning adult.

If a child can’t rely on his carers to look after him and respond consistently, this has been noted to have potentially very serious and damaging consequences for the adult that child will become. If adults are seriously inconsistent or unresponsive in their behaviour to the child, he may become very anxious as he is not able to predict how the adults around him will act; the child may even give up trying to get his needs met.

So Its clearly an issue of interest; unsurprisingly as it often takes centre stage in discussions about children’s welfare in care proceedings.  In this post I will look at at more particular question – who are the people the court rely on to give evidence about attachment?

I am grateful to everyone who took the time out to consider my question – there is clearly a lot to think about and I am increasingly concerned that the knowledge base of the lawyers may not be sufficient to allow us to navigate this area with ease.

Assessing attachment for the court.

Mostyn J was pretty dismissive about the idea that he needed an expert (or indeed anyone!) to help him understand a child’s attachments – see his judgment in GM v Carmarthenshire County Council & Anor [2018] EWFC 36 (06 June 2018). He said at para 18

Second, the theory is only a theory. It might be regarded as a statement of the obvious, namely that primate infants develop attachments to familiar caregivers as a result of evolutionary pressures, since attachment behaviour would facilitate the infant’s survival in the face of dangers such as predation or exposure to the elements. Certainly, this was the view of John Bowlby, the psychologist, psychiatrist, and psychoanalyst and originator of the theory in the 1960s. It might be thought to be obvious that the better the quality of the care given by the primary caregiver the better the chance of the recipient of that care forming stable relationships later in life. However, it must also be recognised that some people who have received highly abusive care in childhood have developed into completely well-adjusted adults. Further, the central premise of the theory – that quality attachments depend on quality care from a primary caregiver – begins to fall down when you consider that plenty of children are brought up collectively (whether in a boarding school, a kibbutz or a village in Africa) and yet develop into perfectly normal and well-adjusted adults

For my part I would say with all due respect that I do not need a social worker to give me evidence based on this theory to help me form a judgment about L’s attachments.

I am not sure I would share Mostyn J’s confidence that he was able to assess a child’s attachment without any help. I have certainly had my fair share of cases where opinions about attachment were bandied around the court and often relied upon as very important. If what is being discussed is some serious psychological problem which is having a detrimental impact on the child’s ability to live happily in the world, then I think most would agree we need some clear and reliable evidence about the how, the why, and what can be done to remedy this – if anything.

Which raises the interesting and particular question of this post – what expertise precisely?  I asked the experts of Twitter this question.

One poster helpfully provided a link to the Family Relations institute They offer a guide to assessments and reporting to the court which look very useful. They note:

Attachment has long been considered relevant to care proceedings. Nevertheless, its usefulness, as compared for example to medical evidence, has been limited by the diverse ways in which attachment is assessed, the different training of experts, and the lack of verifiable evidence upon which to base opinions. In an effort to move from expert opinion to verifiable evidence, The International Association for the Study of Attachment (IASA) has developed a protocol for assessment and formulation of issues related to attachment. The purpose of the protocol is to act as a guide to good practice and to begin a process of improving the application of attachment to family court proceedings.

So it does seem clear that the situation about who assesses and how is currently a little opaque.    What was the general advice from the Twitter experts?

This was opening doors into worlds I hadn’t anticipated – that ‘attachment disorders’ may not actually be anything to do with ‘attachment’ in the classic Bowlby sense but more a problem with neurodevelopment – which clearly needs expertise to identify and assess.

The point was echoed by others – assessment of attachment is not linked to a specific profession.

I received an interesting message from a student on a MSc course in attachment studies

You definitely need to have undertaken specialist training in attachment to state what ‘type’ of attachment a child has in relationship with their primary carer. You’ve already been sent links to some, such as the Anna Freud centre and I’m doing my training at Roehampton University who use Pat Crittendens Dynamic Maturation Model (DMM). It’s a funny area though as we don’t really have a specific title. I’m on a course with social workers, psychologists and OT’s. We will all come away being able to use and possibly code the attachment procedures but will all still come from and work within different professions. We won’t belong to a different ‘attachment’ profession as such but will have had specific training in the area of attachment. (I suppose a bit like social workers can be trained to undertake ABE interviews and so can the police. I couldn’t however ‘diagnose’ an Attachment disorder. It’s a very different thing to diagnose a psychiatric disorder to being trained to observe and analyse a specific type of attachment strategy.

Which in turn leads to the even wider question about the point and purpose of diagnosis – as Roger Smith pointed out, an ‘attachment disorder’ could be seen as a rational choice to avoid relationships after a life time of being ‘let down’.

 

And of course I could rely on the lawyers to continue the proud tradition of Mostynesque cynicism

 

Feelings and Dogma cannot set the agenda in Family Justice

Sarah Phillimore: I am grateful to FNF for this guest post. While I do not always agree with what this group says or how they frame it, they at least make the effort to explain and evidence their assertions, for which I am grateful. I certainly prefer their approach to the polarising and unevidenced assertions that this discussion appears to encourage from many on ‘both sides’. I remain convinced that the only respectable conclusion the Inquiry can reach is the urgent need for reliable data. Otherwise it seems we will be doomed to spin this wheel for many more years to come.

The Response of Families Need Fathers to the Family Inquiry Panel

Families Need Fathers @FNF_Media www.fnf.org.uk ‘Families need Fathers – because both parents matter’ is a UK charity founded in 1974 to support the welfare interests of children when families separate, with a focus on parents struggling to secure reasonable or indeed any parenting time, in the absence of good reasons. We believe that the best interests of children would be served if there were a rebuttable presumption of shared care. We aspire to a situation where most children enjoy joint care of their separated parents the benefits of which are supported by research where such arrangements are the norm.

Examples of conflict from our front row FNF speak to tens of thousands of parents a year who come to us for help. We also receive feedback from many lawyers, McKenzie Friends and litigants of their experiences. So here is a cross-section of the kinds of scenarios that we see.

  • After separation, all was working well. When mother got a new boyfriend, all contact stopped.
  • When father got a new girlfriend, mum first insisted that he could not have the children in her presence and stopped contact. When he took her to court, she alleged inappropriate, sexualised behaviour in front of the child.
  • When dad lost his job and reduced child maintenance, mum said “no money, no kids”.
  • When dad had a job and paid child maintenance, mum said “more money, or no kids”.
  • Mum refused to put dad on the birth certificate and threatens no contact, so dad applies for Parental Responsibility.
  • Mum beat dad regularly, when be plucked up the courage to tell the police, she alleged sexual abuse.
  • She found out he’d had an affair then phoned the police alleging abuse to get him out of the house.
  • She slapped him repeatedly in an intense argument. When he pushed her away she phoned the police.
  • He said he would leave, but she threatened him with not seeing the children.
  • Both parents were aggressive to each other when drinking.
  • Both smoked cannabis, but upon separation mum claimed he was the only one who did it in front of the child.
  • He was an alcoholic. There was a violent incident where he hit mum many years ago whilst drunk. He’s been dry since then and the main carer of the child, but now she has applied for legal aid on the basis of this incident.
  • Separated father reported the mother to social services when a drug dealer moved in with her and the children. She assaulted him when he came to collect the kids, called the police and claimed he’d carried out the assault.
  • Mum suffers from a mental health conditions that cause her difficulty in seeing things with clarity. Or, mum has been the victim of a horrendous abuse herself causing her to feel fearful in situations where she would not have otherwise.

All these of incidents could have happened with parents’ roles reversed of course. All form part of the varied situations that family court judges have to deal with. In each, there will be two sides to the story with varying degrees of supporting evidence. It is the role of the judge to (a) decide whether the facts of each of the claims being made are relevant to the safety of the child and (b) weigh-up the evidence and decide which is more credible when evaluating the risks.

The ‘paramountcy principle’ means that their decision has to be based on the best interests of the child taking into account identified risks from each parent. Charlotte Proudman, in her Guest Post of 3rd July 2019 for the Transparency Project makes a range of suggestions as to what is wrong with family justice (and there is much that is). However, her assertions appear to be based, at best on her experience of being a self-proclaimed ‘feminist barrister’ (and hence unlikely to see a typical cross-section of cases) and at worst on dogma.

Claims, for example, that the majority of cases stem from safeguarding concerns relating to family abuse are precisely what it is the judge’s job to decide based on evidence. Both sides are likely to make such assertions. Similarly, claims that Cafcass documenting of allegations of father’s controlling behaviour being discarded are also problematic. If a judge ignores a report in which there are concerns, that would be a basis for appeal. A judge may well dismiss the allegation because the evidence provided by the father was stronger than that offered by the mother, perhaps compelling. It could be that there was evidence of the mother or both parents exercising inappropriate controlling behaviour over the other, the nature of which (a) was unlikely to manifest itself now they don’t live together or (b) is insufficient to warrant placing the child into care.

The current move is to ‘ban abusers from having contact with their children’.

The definition of domestic abuse has been broadened recently. It includes shouting and

aggressive behaviour so the other parent is frightened. Such behaviour is fairly common by both parents who find reason to find fault in each other prior to or in the throes of separation. If that were the ‘abuse’ that has taken place, one would hope that nobody would suggest that neither, or either parent, should be stopped from parenting the child.

However, few studies have gone so far as far as to determine how many of these allegations were found to be irrelevant to the matter before the court, how many involved mutually inappropriate behaviour and how many had findings to support the allegation or that they were unfounded/fabricated. One relatively small-scale one by Professor Tommy Mackay at Strathclyde University concluded that as many as 70% of cases were found to be false or unfounded. Founder of Women’s Aid, Erin Pizzey, reported that more than half of women in the refuge she ran were in mutually abusive relationships and sometimes behaved worse than the men. We would hope that those who claim that false allegations are rare might support our call for truly independent research on a larger-scale into the prevalence and nature of false allegations and exaggerations in the context of Children Act disputes.

For now, one thing we do know is that Professor Liz Trinder, of Exeter University, carried our research that assisted the Government in its decision to table the ‘No-Fault Divorce’ Bill that is currently going through Parliament. The report quotes a range of authoritative sources e.g. The Law Commission saying that the ‘system still allows, even encourages, the parties to lie, or at least to exaggerate, in order to get what they want’. Does anyone suppose that when emotions are raw, people are angry, feel jealous and hurt, and stakes high (access and parenting time) that the propensity to lie and exaggerate might be any less?

If we then add to this cocktail that since 2013, when LASPO was introduced, a condition of qualification for Legal Aid in private family disputes was the making of allegations of domestic abuse. Whilst the majority of such claims are likely to be genuine, a significant proportion – that we estimate in thousands per year, are obtained on the basis of false allegations and exaggerations – on issues that do not then even feature in subsequent proceedings.

The statistics imply this. The growth of complaints of this amongst our service users supports this and we are now hearing of this increasingly from the judiciary too. The former President of the Family Division, Sir James Munby, said “One of the greatest vices of our system… is the unfounded allegation which festers around and poisons the process”. He should know!

Parental Alienation

Interviewed on the Victoria Derbyshire Show on 15th May 2019, Charlotte Proudman spoke of a view that “women lie” and that Parental Alienation being a “new term” that “really turns my stomach”. In her article, she suggests there is ‘scant scientific research’ into it. Except, firstly, nobody is suggesting that only women lie. Men and women can and do and it is up to the court to determine whether and who is lying. Secondly, Parental Alienation has been recognised under those terms since the ‘80s (as well as studied earlier). Thirdly, bad-mouthing and the many other behaviours that form part of what is now known as parental alienation existed well before the term was coined and were every bit as damaging. Fourthly, there is a significant and growing body of research into it and the World Health Organisation, (WHO), who don’t take decisions lightly, has just recognised it too. Whatever the research, one hopes that it is not too contentious to say that parents who enmesh the children in their feelings and paint their other parent as a monster are not putting their children’s needs first. They are doing harm to their own children that is certainly equivalent to other forms of child abuse. That, and all forms of abuse, should be a concern for all of us to jointly develop solutions for. To deny parental alienation and alienating behaviours is a danger to children.

As we are not saying that all women lie any more than all men do, neither should it be surprising that parents who are accused of abuse might seek to use parental alienation as a form of defence. The role of the court, however, has to be to use evidence to distinguish between the different causes of a child’s rejection of a parent, including undue influence by the other. A dogmatic failure to consider this possibility would in fact leave the child at risk of ongoing abuse that will damage them for life.

The reality of some 6,000 applications being made each year for enforcement of Child Arrangement Orders that have not been complied with tells its own story. As does the fact that courts often give up in these situations and make orders for Indirect Contact only i.e. sending cards, letters and gifts (see article in Family Law).

Prevalence of Abuse and How to Make Progress

At FNF we note that there are men who are perpetrators of horrendous abuse, just as there are women who do so. Ministry of Justice data reports that around two-thirds of domestic abuse (65%) is against women and a third (35%) against men (695,000). We might also argue that there is evidence of more men under-reporting. The point is, whatever the precise figures, every victim who is being harmed deserves to be supported by the courts and other services. So does every victim of false allegations – the latter do tremendous harm too. We need to create a culture that drives out all forms of abuse against everyone. It will happen when we all seek to understand each other’s problems and reach out for balanced facts and research. That is less likely to happen if those whose voices dominate the discussions on domestic violence continue to seek to make this into a gendered debate. A divisive approach seems unlikely to succeed and real progress will happen when men support women who are victims and vice versa.

Review of Protection in Family Justice May 2019 saw the culmination of an organised, effective lobby from a number of women’s rights activists and organisations seeking a review of family justice based on a narrative suggesting that family courts are granting ‘contact at all costs’, resulting in dangerous men having unsupervised contact. This is patent rubbish. At that time 123 MPs were persuaded to sign a call for an independent inquiry into this frightful alleged occurrence. An entire one hour Victoria Derbyshire Show was dedicated to this ‘scandal’ and subsequent shows continued to address this narrative. The ‘research’ carried out by the show found four cases in the last four years where a father had killed a child whilst on contact. The problem was that it was selective and did not look at children killed by mothers – of which, sadly, there are many.

As if to highlight this point, only last week a Serious Case Review was published following the murder of a five-year-old boy, whilst on contact with his narcissistic mother on Father’s Day. She left a note to say ‘If I can’t have Leo then nobody is going to’. One of the recommendations of the report was:

‘That Kent Safeguarding Children Board and the Kent and Medway Domestic Abuse Executive Group develop an increased understanding of the needs of men as victims of domestic abuse and what this means about the nature of services that should be provided for them.’

If we are to make the world safer for children and adults alike, it will not be achieved by men and women working against each other, but in seeking to understand the underlying issues without being led by feelings, ideology and dogma. The Government rejected an independent inquiry, but did announce a more limited review. The need to create trust amongst both men and women remains. The current make-up of the review panel is 10 women and one man. It includes a representative of Women’s Aid and not one representative of men’s or fathers’ organisations or those with experience of false allegations. Consequent recommendations will affect fathers, mothers, and children including, in all probability, those where there are no domestic abuse considerations.

In summary – there is a desperate need for a review of family justice, but this narrow, gendered exercise with a very unrepresentative panel is not the right approach.