Author Archives: Sarah Phillimore

In the Court of Appeal – Reporting Restrictions Order in Care Proceedings

This is a post by Sarah Phillimore.

I was junior counsel in this appeal lead by Paul Bowen QC, which was born – as is so much – from an exchange with the journalist Louise Tickle on Twitter.  It was clear from the outset that she raised an important point of legal principle and a clear failing of the lower court to abide by the law and correct procedure.

The appeal was granted today. I took a note of the judgment which isn’t perfect but which hopefully gives you the gist.  While I am happy that sense prevailed and guidance will be forthcoming, it is extremely sobering to realise this matter was highly unlikely ever to come to court without the bravery of a journalist, the willingness of a variety of barristers and solicitors to provide their time for free AND the generosity of those online who contributed to Louise Tickle’s crowdfunder – the application fee alone was a staggering £2K and for a long time the spectre of costs was apparent.

Also a very sad omission from the legal line up was anyone from CAFCASS to be the voice of the child. They had no funding. 

Equally while the court said some very nice things about the barristers acting for free in the best traditions of the Bar, it would have been good to hear some similar praise for the solicitors who did an immense amount of necessary work that so often goes unsung. The Bundle is probably THE most important aspect of any hearing; a botched or mispaginated one causes significant chaos and irritation. Insufficient attention or praise is given to those who do the very necessary behind the scenes work. 

I understand and sympathise with those who critise pro bono lawyers as those who are in effect propping up successive Government’s determination to run legal aid into the ground. But what else are we supposed to do? This appeal dealt with an important matter and it was important that it be heard. It is very necessary and frankly long overdue that the President issues general guidance. 

The most crucial comment – for me – was that of Lady Justice King. Fears about ‘jig saw’ identification appear to have become simply a button that is pressed and obviates need for any thought or analysis. Judges should not restrict press freedom to report on family cases on anything other than evidence of harm to a child. 

 

The judgment of the President of the Family Division

The court has before it an appeal against a RRO made by HHJ Levey 19 Oct 2018. Care proceedings with history of substantial litigation in family court. Originally HHJ Hess had made placement order. That Order was subject to appeal witch was granted by full court,  heard on Feb 2018. Judgment in public and reported on BAILII and in official law reports. As a result of CoA judgment the case had to be redetermiend by a different judge and that process came before HHJ Levey in the autumn. By that time case had attracted attentnion in media and 3 respected journalists appeated in court as they were entitled to do. Prior to hearing certain journalists had communicated directly to the court of their intention to attend and apply for relaxation of RRO.

Journalists attended and were not represented. As transcript makes plian the issue was dealt with relatively swiftly and Judge made order to restrict reporting of information already in public domain by way of CoA judgment.

One of the three journalists Ms Tickle lodged an application for permission to appeal which was granted. Set down in March for full day.

However, it has however come to pass that all of the parties involved are now agreed as to replacement of reporting restrictions stand in place imposed by HHJ Levey. No longer dispute with respect to appeal decisions. Appeal would proceed by consent.

Because a RRO against all the world not a matter to be dealt with simply on paper and requires this court to consider if it should replace the order.

The court therefore established a short hearing this morning to take stock of process and see if full appeal hearing required. Because the appellant Ms Tickle and those representing BBC wishes to canvass wider issues of principle and practice generated by facts of this case that go beyond terms of order.

Court extremely grateful to Paul Bowen who leads Miss S Phillimore for the very full skeleton that has been prepared that sets out legal landscape in this complicated but very important legal area that relates to transparency in the family court and elements identified by PB that should be encapsulated as guidance. BBC applies to be parties, not contested. Written submissions from AW.

Unfortunately legal funding not available from child but letter submitted. Heard counsel for LA and for child’s mother.

Issues we have to determine are narrow. Should appeal hearing be retained in courts diary in order to determine what priority the welfare of the child should have when court considering relaxation or imposition of RRO? Neither PB nor AW press for hearing in this case on that topic with any force. They are right to do so. It is a matter that undoubtedly requires full consideration but this case is now constituted that no party wishes to argue against propositions media want to make. AW submits this may not be right vehicle for this process and we agree and decline to hold hearing in March for that purpose. That hearing will be vacated and hearing determined today.

Process by which appeal is allowed. In short terms ground of appeal assert Judge gave no reasons for failing to refer to CoA judgment and fails to consider existing case law re transparency in family court. Finally and crucially he failed to undertaken necessary balancing exercise between Article 8 and 10 of EHCR.

This court has sympathy with any judge in current time faced with application such as this. Sympathy for journalists involved often appearing without any legal representation. At present there is no detailed guidance or route map as to how such applications determined. It is my resolve as President to issue such guidance at the earliest opportunity. I therefore propose to develop a draft set of guidance and to consult with various interested parties with a view to issuing.

Reading transcript indicates basic grounds of appeal would be made out. Appeal not contested. Appeal should be allowed on basis that order made by HHJ Levey re RRO was wrong, arising from procedural irregularities that I have done no more than highlight.

The order in relation to the appeal and recording BBC as appellant, appeal allowed and RRO set aside, fresh reporting restriction to be made. Draft order will be further amended and attached.
The element of controversy that remains re the draft takes me to submissions by LM. It is the case that country of origin is stated plainly in CoA judgment Feb 2018. Common ground that if possible there should be no reference to the mother’s country of origin. The question is whether the new reporting restriction order should encapsulate that by restricting repetition of country of origin and in particular by in some way of distancing any report to direct reference of case name and neutral citation of CoA and BAILII link.

My Lady and I heard LM’s clear submissions and understand the important the mother places on this information. The court however does not have any detailed information about detrimental impact on mother if journalists otherwise freely able to connect it with other information in the public domain. Court must balance Article 8 rights against freedom of publication in Article 10. In my view, given the information under consideration is already out in public domain in CoA judgment it would be wrong for this court now to prevent any step that prevents ordinary linking to CoA judgment.

I am not persuaded that the mother’s and child’s Article 8 rights are compromised to a degree that would justify any other course and I therefore refuse LM application.
I think that deals with all matters currently before the court. The appeal is allowed with orders I have described being made in due course after any drafting amendments

LADY JUSTICE KING I agree.

 

 

 

Further reading

Transparency is in the public interest Guardian Editorial 15th February 2019

Tickle’s Triumph – an independent journalist succeeds in her appeal to secure the right to report on a family case – and prompts new guidance The Transparency Project 15th February 2019

The mother who lost her daughter over an EpiPen Sanchia Berg BBC 14th February 2019

Transparency in the Family Courts: Publicity and Privacy in Practice April 2018 Doughty, Reed, Magrath

Children’s wishes and feelings about their habitual residence.

This is a post by Sarah Phillimore

What happens if a local authority wants to make an application for a care order regarding a child who comes from another country?  The Courts of England and Wales only have jurisdiction to make care orders if children are ‘habitually resident’ in the UK – mere physical presence is not enough. Although the Supreme Court have repeatedly said this is a ‘simple matter of fact’ it is clear that in practice it is not always easy to establish a child’s habitual residence.

i have no idea what the impact of Brexit will be on any of this; watch this space. 

What power does the court have to make orders about children who come from another country?

Jurisdiction derives from habitual residence.

The following basic principles can be derived from these authorities Re F (A Child) [2014] EWCA Civ 789; Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] EWHC 6 (Fam), [2014] FLR:

  • the jurisdictional reach of the courts of England and Wales in relation to care proceedings is not spelt out in any statutory provision.
  • Jurisdiction was normally determined by the habitual residence or physical presence of the child.
  • However, this was fundamentally modified by the Regulation Brussels II revised (BIIR) which applies to determine the jurisdiction of the English court in care proceedings, irrespective of whether the other country is a Member State of the European Union: see A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1, para 30, and In re L (A Child: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 75, [2013] 3 WLR 1597, para 18..
  • The basic principle, set out in Article 8(1) of BIIR is that jurisdiction is founded on habitual residence. It follows that the courts do not have jurisdiction to make a care order simply because a child is physically present.
  • The court must deal with this matter at the outset. The court should set out explicitly the basis upon which it has accepted or rejected jurisdiction. A declaration with regard to habitual residence cannot be made by default, concession or agreement but only if the court is satisfied by evidence.
  • If it is necessary to address the issue before there is time for proper investigation and determination, the following suggested recital should be used: “Upon it provisionally appearing that the child is habitually resident…”.

 

Habitual residence is a ‘matter of fact’.

The Supreme Court have repeatedly declared that ‘habitual residence’ is no more than a ‘simple fact’ which should be determined without any gloss. That arguably optimistic declaration has to be set against the number of times in fairly recent history that cases involving habitual residence have come before the Supreme Court – suggesting that determination of this ‘simple fact’ is a far from simple exercise and reflects the greater mobility of people in recent times and the wide variety of circumstances which impact on families, their composition and their location.

The basic proposition is that habitual residence is established by the degree of integration by the child is a ‘social and family environment’. See A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] ‘

  • habitual residence can in principle be lost and another habitual residence acquired on the same day.
  • habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.
  • the test adopted by the European Court is ‘the place which reflects some degree of integration by the child in a social and family environment’ in the country concerned. This depends upon numerous factors, including the reasons for the family’s stay in the country in question. This is the preferred test.
  • Factors to take into account when assessing integration are
    i. The duration, regularity, conditions and reasons for being in the country
    ii. The child’s nationality
    iii. The place and conditions of attendance at school
    iv. Linguistic knowledge
    v. Family and social relationships in the country
  • The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.
  • The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.
  • it is possible that a child may have no country of habitual residence at a particular point in time.
  • For those children who have no habitual residence, Article 13 of Brussels II provides that where a child’s habitual residence cannot be established and jurisdiction cannot be determined under Article 12, the courts of the Member State where the child is present have jurisdiction.

Habitual residence requires physical presence.

Physical presence is a clear necessary precursor to a finding of habitual residence. In In the Matter of A (Children) (AP) [2013] UKSC 60 the Supreme Court by a majority agreed that a new born baby could not claim habitual residence in the UK even though it was his mother’s place of habitual residence and she had been coerced into leaving the country to give birth. However the Supreme Court agreed it was possible in such extreme circumstances to order the child’s return to the UK using the inherent jurisdiction.

The Court of Justice of the European Union (CJEU) ruled in 2017 that Article 11(1) of the Brussels II bis Regulation:

must be interpreted as meaning that, in a situation in which a child was born and has been continuously residing with his or her mother for several months in accordance with the joint agreement of the parents in a Greece, while in Italy they had their habitual residence before birth, the initial intention of the parents as to the return of the mother accompanied by the child in Italy cannot allow the child to be regarded as having his or her habitual residence in Italy. The CJEU concludes that in such a situation the refusal of the mother to return to Italy accompanied by the child cannot be regarded as an ‘unlawful displacement or non-return’ within the meaning of Article 11(1).

This case seems to resolve the dilemma, dividing national courts, as to whether the physical presence of the child in the territory of a state is a necessary precondition for establishing the child’s habitual residence

Children only recently present or intermittently present in the jurisdiction

These situations require closer examination in light of the requirement of integration into a social or family environment as necessary to establish the ‘fact’ of habitual residence. It is clear that the position of young and dependent children cannot easily be seen in isolation from the position of their primary carer. See A v A (Children: Habitual Residence) [2013] UKSC 60: “The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent.”

However this does not mean that the perceptions of older children about where they habitually reside are irrelevant. See Re: LC (Reunite: International Child Abduction Centre intervening) [2014] UKSC 1.[43] Lord Wilson: It will be clear from my formulation of the question in para 1 above that in my view it is, in principle, the state of mind of adolescent children during their residence in a place that may affect whether it was habitual.

However,  judicial dicta from other authorities does not support  ‘state of mind’ as determinative.

See Re R (A Child) [2015] EWCA Civ 674 where the Court of Appeal considered the circumstances of a 4 year old girl S. She was born in 2010 in Morocco to an American mother, who had lived in England since the age of 13, and a Moroccan father. Shortly, after her birth, the mother travelled to England and fraudulently registered the birth in Kent. Thereafter, she travelled to and from various locations before returning to the UK in March 2013. In October 2013 S suffered serious injuries and was placed in foster care. The local authority did not commence care proceedings until April 2014.

Given by the time protective measures had been taken S and her mother had been living in the UK for over a year, there seems little doubt as a matter of fact that S was habitually resident ‘at the relevant time’ i.e. the making of the care order application but it was argued on behalf of the father that S’s life had been so unhappy with a neglectful mother, that it could not be said she was ‘integrated’ into a social environment and therefore her habitual residence was in fact Morocco.

Mr Justice Hayden decided that the court had jurisdiction to make a care order with respect to S on the basis that S’s habitual residence was, and had been throughout her life, the United Kingdom. The father’s appeal was dismissed. The CoA were critical of the judge’s finding that S had been ‘habitually resident in the UK all her life’ as all that was needed was a finding that S had habitual residence at the relevant time. However, his decision was not ‘perverse’ given the complexities of this case, including the dishonesty of the parents and the mother’s ‘frequent and erratic’ changes of location.

Mr Justice Hayden at first instance said this about integration

‘Integration’ as a concept involves a fusion of both the factual and the emotional, it is where a child feels settled, secure, happy and where the focus of his interests and attachments lie. It is not merely geographical, identifying habitual residence requires much greater nuance than that, drawing inferences from facts, the parents’ conduct, the feelings a child communicates and what the child may say. Lord Wilson encapsulated the point in Re LC (supra) at para 37 emphasising that integration encompasses more than the ‘surface features’ of a child’s life.”

This did not entirely meet with the approval of the Court of Appeal: McFarlane LJ commented:

“When determining habitual residence there is no requirement that, to be sufficient to support a finding, the individual needs to be happy, well cared for or free from abuse. The ‘social and family environment’ into which a child might be integrated may include both positive and negative factors. These will not be irrelevant.”

Thus it is conceded that it is not possible to claim that any period of time spent in another country during which a child was unhappy must then automatically preclude a finding of habitual residence in that country.

Conclusions

All of these discussions, while interesting, serve most usefully in my submissions to reflect the profound difficulties of applying general principles to the probably infinite variety of circumstances in which families find themselves.

I suggest that a pragmatic approach must be taken. The importance of habitual residence is clearly underpinned by asking ‘what jurisdiction is best able to make decisions about a child’s welfare’. And that jurisdiction is usually the one where the child actually lives or has spent the most time. However, the court will need to look beyond this starting point and the wishes and feelings, particularly of older children, may well be relevant.

Why does everyone hate the Family Court ? Part Two

I am grateful for Emma Sutcliffe for this guest post. Its been an interesting month for thinking and talking about why the family court seems to inspire such strong and invariably negative feelings. I first wrote about this on January 8th where I shared two narratives from two parents – a mother and a father, both with a very different perspective but united in their fear and distrust of the process they had experienced. 

Then I heard Professor Jo Delanhunty QC’s Gresham College talk, wishing the Children Act 1989 its happy 30th Birthday, and her clear and urgent reminder that the ethos of the Act was in serious danger of being undermined by the lack of resources now provided to support what it wanted to do – to recognise the child as the heart of every decision and to enable parents to care safety for their children. 

Short on the heels of this, I had to then consider the astonishing allegations of Victoria Haigh; who appears to be developing a presence as a ‘campaigner’ against the family court system without apparent concern or criticism from others in this field and despite the very serious findings made against her about the harm she inflicted on her own child. I can only assume the lack of challenge to her more fantastical assertions stems from the fact that they ‘feel right’ to a lot of people. This is depressing indeed. 

So what do we do? I have very little power or influence. But that’s the same for  most of us. Acting alone we can achieve little. But if we come together and were prepared to talk – openly and honestly – I want to believe that we could achieve something positive. 

So I am very grateful for Emma for sticking with our conversations on line, not always easy for either of us at times, and producing a powerful articulation of how and why her reaction to the family justice system was so negative. 

 

Why do people hate family court?

Emma Sutcliffe

People hate family court for the same reasons they hate hospitals; something pathological has happened to you that you cannot resolve alone and you have to put your life in the hands of people who are deemed to be more expert about your condition than you are. If you’re in family court you’ve likely been through something painful, there’s no guarantee it will stop hurting and the interventions themselves cause bruises. There’s also a hefty bill at the end and the surrounding quality of life direct and indirect costs of loss of earnings and utter exhaustion. Plus … like lots of diseases, it might not go away, it might come back; next time it could be fatal.

Why the determined correlation with medicine? I’m trying to align what I know with what I’ve experienced – knowledge of facts and wisdom of interpretation. I’ve been a medical writer for 25 years following a degree in medical biochemistry and application of that in the research and development of medicines. My entire nature is that of enquiry and fact-based decision making and behaviours. I believe in logic, cause and effect, sensibly following ‘doctor’s orders’.

I’ve also spent too much time in family court as a petitioner which saw 18 hearings in 22 months. My faith in facts, practitioners and the sensibility of court orders was put to the test before, during and after every one of those hearings. It was like preparing for surgery.

Let’s cut to the end result to be able to get back to the original question of ‘hatred’: although technically ‘I won’ — as in the contact order I applied for (on police recommendation) was granted — the experience was like surgery without anaesthetic where you leave feeling as though the presenting diseases may have been excised but fragments of infection are lingering away in septic reservoirs leaving with you a body and mind too reversibly damaged to recover and parent well. ‘Our case’ was just a lose:lose for the entire family. Both families; the old and the new and the penumbrae of families around us.

Our case had its ‘final hearing’ (an oxymoron if you consider that toxic parenting is a chronic condition) more than a year ago. I’m still haunted by the ghosts of hearings past and have my very own reservoir of Post Traumatic Stress Disorder leaving a lasting impression. The reality of the court orders is that unlike doctor’s orders, I’m already forced into breaking them and live every day with the fresh fear that CAFCASS will find me to be in breach and my ex husband will take me back to court. Because family court transacts on what has happened and assumes that children’s needs are fixed. Funnily enough, children grow and change whereas court orders don’t (without another set of injurious hearings reopening wounds) and as I now have a sentient, articulate adolescent determinedly refusing to stay at Dad’s house that essentially turns me into a criminal and opens me up again to allegations of the never-proved, academically derided ‘junk theory’ of parental alienation.

Like Andrew Wakefield’s infamous MMR causal link to autism saw him struck off yet the myths still perpetuate; parental alienation accusations conveniently drown out what ironically is ‘the voice of the child’ – child says ‘this is happening to me; I don’t like it’, CAFCASS officers respond with ‘they’re too young to know what they’re saying, they are the mouthpiece of the parent’. Pick a lane please. By all accounts, therefore, if recent judges’ blunt condemnations that ‘alienating mothers should be subjected to a three-strikes and you’re out’ – or imprisoned – then who knows if my next blog will be about life behind bars?

Therein lies the promulgation to distrust, fear, anger — hatred.

Despite living in purgatory, I have been able to step back and consider what in the hell happened there. My observations are that, like medicine, where a diagnosis, prognosis and treatment is sought through sedulous investigation of symptoms to reach a purely factual outcome – so too does the law of family court (specifically the implementation of ‘The Children’s Act’) rely on facts to achieve a sensible outcome that secures the best outcome for the child. As such, both the practices of medicine and law are ones which rely on its participants and processes being underpinned by integrity and accuracy. Trust should therefore be implicit.

However, neither medicine nor law accommodates human nature and emotions – which when put under pressure will contort and eclipse rational and logical decision-making. When afraid, hurt, confused or distressed the easiest of the emotion to employ is anger. Family court is that A&E part of the hospital where anger dominates; complex decisions are being made amidst a melee of jargon, allegations, process and manipulation. It becomes too easy to archetype ‘all mums are histrionic and cry wolf on domestic abuse’ or ‘all dads are intimidating and claim parental alienation’. However, this isn’t about gender – it is about which parent is the angriest parent in family court because they are more likely to be the one also prepared to be the most ruthless; to take the greatest risks. When parties enter the court they will each know how to attack and defend and how far the other is prepared to go.

The hate of family court is the knowledge that parties will default to their character type and court processes and practitioners by their very need to be thorough and percipient to protect a child have to also be open to the angriest party’s determination to exploit those people and processes in continued pursuit of punishment.

People hate family court because it prolongs the pain of punitive pursuit.

I could further my anecdotes and detail the utterly ludicrous allegations postured at me that I had to defend. But that would be pointless precisely because I was able to defend them thanks to a brilliant barrister and very caring solicitor who, importantly, were able to get me to listen all the while that my anger and fears were raging towards a maelstrom that possibly would have seen me lose custody of my own children and only be permitted supervised visits. If my ex had got his way and the full force of his anger and risk-taking of out and out lies had succeeded in influencing the judge as they biased the CAFCASS officer throughout proceedings then this story might have been very different indeed and even have seen our children placed in the care system. I won’t comment on the allegations because that’s the subject of a different blog (how narcissistic parents behave in court).

But that is why only relying on ‘facts’, denying how emotions can influence behaviours and seeing things in the fixed black/white process of the law is merely sticking a plaster over a seeping wound. People hate family court because it is sterile and doesn’t accurately reflect life outside the chambers. The law is fixed, but life is fluid. And people’s emotions over their children will always spill over … the angrier, the louder, the more heinous the allegations, the blunt threats and brinksmanship of disingenuous practitioners … when faced with the prospect of fight or flight, most mothers without strong legal support will run.

There needs to be allowance for the emotions of all parties and just as a good doctor seeks to help the physical and holistic needs of a patient; so too must family court consider the importance of helping and communicating that it should be a place for resolution rather than fuelling hatred. That can only begin when we seek to align knowledge of facts and wisdom of interpretation.

Victoria Haigh: When Child Abusers are given moral authority

I first became aware of the case of Victoria Haigh in about 2013, when my concern about the activities of the then MP John Hemming began to mount up.

In 2018 I noticed Victoria Haigh on Twitter. She was supported by a number of self styled campaigners who were linked by their shared belief that the family justice system was fundamentally a tool of misogynistic oppression against women, favouring the rights of violent men over the women they abused.

I have written about this before. I don’t think its true. My position simply is this: the Children Act is the statutory expression of the need to put the welfare of the child first and foremost in any decision making process. Neither sex has the monopoly on bad behaviour and my experience in practice shows a pretty equal split between emotionally abusive behaviour by both mothers and fathers. However, as is unsurprising given mens greater physical strength, they are more likely to be physically aggressive to their partners than women.

The fact that I am insulted, threatened and blocked online pretty equally by Mens Rights Activitists and Female DV campaigners suggests to me that I must be doing something right.

When I questioned the validity of Victoria Haigh as any kind of campaigner against the family courts, given the very clear findings made against her that she had subjected her own child to serious emotional harm, I was met with instant vilification and told to ‘fuck off’ as I was a ‘narc’.

So far, so internet.

I was however extremely alarmed to see this a few weeks later.

 

A lot of people saw this tweet – at least by my standards. My tweets usually get about 300 ‘impressions’ with an ‘engagement rate’ of about 2%. This one (at time of writing February 4th 2019) 2,449 people have seen it and 279 engaged. A rate of 11.3 %. So clearly a topic that attracted more attention than I usually get on line. But no comments. No one replied to say ‘well, that looks a bit worrying.’ Silence.

So I asked again. Why the silence? did no one in the DV sector see the obvious problems with affording moral authority to a woman found to be a child abuser? Who had been fairly tried and rightly punished by the legal system? Did anyone think that this was the way to work to achieve necessary change in this area?

Zoe Dronfield replied by simply posting a link to something called The Red Mother: An interview with Victoria Haigh. 

The thrust of this article is immediately apparent from the first paragraph

During the proceedings Victoria reported that her daughter had told her that her father is sexually abusing her. The response of the system was swift and cruel – the girl was taken away from Victoria and her father got sole custody of her. Victoria was accused of coaching the girl and being an emotionally abusive mother (see also this article in the UK Telegraph). Never one to buckle under, she then went public with her case and stressed further investigations. For an alledged breach of a no-contact order (no contact with her daughter that is) Victoria was eventually put on trial and sentenced to 3 years in prison. After her release she moved to France with her youngest daughter (not related to the alledged molester of her older daughter) to re-start her career as horse-trainer.

This sounds shocking. But it is not true. The truth is this. Victoria Haigh was found to have told lies about her ex sexually abusing their daughter. She was found to have tried to abduct her from a garage forecourt and she was sent to prison. She was found, on evidence, to be a child abuser.

See for example

Doncaster MBC v Haigh, Tune and X [2011] EWHC B16 (Fam) where – very unusually – the LA asked the court to make its judgment public and to name Ms Haigh because of the amount of misleading information that she was putting out into the public domain

Family Law week summarised these proceedings in this way

This case had begun as a private law contact dispute between Victoria Haigh, who was the mother of X and the child’s father, David Tune.  Following a court hearing of this dispute in respect of which Ms Haigh was clearly unhappy, she made allegations that David Tune had sexually assaulted X.  These allegations were duly investigated and at a fact-finding hearing, HHJ Robertshaw had concluded that X had not been abused and that she had been coached by Ms Haigh.  At that hearing, the mother’s stance was not that X had been sexually abused, but rather that X had made these allegations as a reaction to the stressful relationships around her.  The judge disagreed, however, and found that the allegations were false and had originated in the mind of the mother.

The mother refused to accept the findings, despite her stance at the fact-finding hearing.  Her views about the alleged abuse hardened to become a certainty which she expressed dogmatically.  At a subsequent hearing, HHJ Jones concluded that the mother had continued to influence X and to manipulate her feelings whilst in fact ‘placing her own as the priority’.  HHJ Jones concluded that it would be contrary to X’s best interest to live with her mother.  A decision was made that X should reside with her father.  The local authority offered supervised contact between the mother and X but Ms Haigh felt unable to attend and decided she would not see X at all.

The mother’s attention then turned towards a media and internet-based campaign designed to remedy what she claimed was a miscarriage of justice.  Assisted by an Elizabeth Watson, who described herself as a private case investigator, she put a large number of highly critical comments and information about the case and all of the professionals involved into the public domain.  She also contacted the father’s employers and colleagues and parents of children who attended X’s school and falsely alleged to them that Mr Tune was a paedophile.  This was in breach of orders made by the High Court prohibiting the publication of any information that would lead to the identity of the child or any other family members.  On 25 February 2011 Baker J made an order prohibiting the mother and Ms Watson from communicating via the internet, media or otherwise “any information relating to the proceedings under the Children Act concerning X”.

The author of the interview asks

Why are a mother and child punished so severly for simply talking about sexual abuse and saying that it has occured? Why is a woman sentenced to 3 years in prison for saying hello to her own child? And to what extent was this mother surveillanced, by whom and why?

The answers to these questions would have been found easily in the judgment cited above. But she clearly doesn’t think it worth checking any other source than the narrative offered to her by Victoria Haigh.

Victoria Haigh goes on to expressly assert that the findings against her were the result of deliberate corruption, a campaign ‘to cover up the truth’.

They do what they do. The police do not investigate the crimes. If one complains, the complaints are investigated by those one lays the complaint against and one is sent in a spin cycle of chaos. Then it is the complainant or victim or associate of the victim who begins to have court orders put on them! An innocent person can soon become a criminal, just like me! It was all a complete smoke screen to avoid achieving any kind of justice…

My retrial was an overall tactic by the judiciary, police, ministry of justice at the highest level, to shut me down once and for all with their utmost effort of propaganda, blackmail and whatever else they threw at me. I was not going to stay silent therefore they used their well trodden tactic of pulling my reputation to pieces. To discredit a witness is how the criminals defendthemselves. I was the mouthpiece for my child so by shutting me down, my child was shut down too.

I am quite prepared to accept that miscarriages of justice occur. That wrong decisions are made. It is certainly not impossible that Victoria Haigh has been a victim of such a miscarriage of justice, although I note she has not chose to appeal against any of the court judgments made against her. However, when asked WHY she thinks the family court system acted against her in the way it did, she gives this answer. I find this shocking. There is absolutely no evidence from any credible source that this is happening. This is delusional conspiracy theorising of the worst kind.

There is evidence through MOSAC (Mothers of Sexually Abused Children, a Charity) that women are being groomed to have babies and the babies are being ‘won’ in a ‘custody battle’ by the peodophile father. If a paodophile father uses this as a template which according to the patterns we have seen, these men are using, very successfully, the length and breadth of the UK the same tactic applying for contact through these secret courts accusing the mother of alienating them from their child, in most cases they win custody, never get prosecuted and have freedom and the law on their side to rape their own children under complete protection of the State through the court orders they achieve. The mothers in all of these cases are gagged and prevented from having any contact with their children, knowing at the same time their children are not safe from child sexual abuse. It is torture for the child and the mother.

She goes on to describe family lawyers as ‘cowards or paedophiles’.

This is deeply worrying and depressing. I do not doubt that some men sexually abuse children and women. I do not doubt some men are violent. I do not doubt the family court system could do a better job of dealing with such cases quickly and fairly. I do not doubt that many women find it hard to provide the evidence a court will insist on to prove that they are the victims of coercive or controlling behaviour. I do not doubt that many women fear the family court system I do not doubt that many do not understand what is going on. I do not doubt that many criticisms are well made, and I have made many myself.

Not everything Haigh says in this interview sounds insane. What she says, for example about the women she met in prison strikes a chord. 

The women in prison ALL had crimes committed against them that were much worse than the crimes they had committed to be imprisoned including myself. This again sums up the terrible treatment of women in the UK. “It truly is a terrible country to live in. I looked around at these women and realised instantly that these women needed help and certainly not locking up. Many were products of the UK care system and it goes without saying were sexually abused in care. I was very saddened by what I saw in that place.

But I reject any allegation that the family court system is deliberately set up to oppress women or is part of some ‘baby farm’ for paedophile fathers.

Either lawyers don’t do a good enough job of explaining or the removal  of legal aid has left more and more floundering as litigants in person. When I engage with those who criticise the family justice system and ask them what processes they would have in place other than the testing of allegations by a Judge, I get no answer.

Victoria Haigh is a mother who was found by a variety of judges over the years to have lied and manipulated her daughter into reporting abuse about her father that never happened. She did not appeal against those judgments. They stand as the truth. This is the operation of the rule of law.

So I put the question again to those in the ‘DV Sector’ who stand behind those such as Haigh and promote such narratives that women are being groomed to have babies who will be ‘won’ by a paedophile, that family lawyers are ‘cowards or paedophiles’

  • do you think this is true?
  • If so, where is your evidence that this is true?
  • If you accept you have no evidence, what real or lasting change do you think you will secure by campaigning in this way?
  • To what degree does financial self interest motivate your promotion of such lurid fantasies about the family justice system?

I am sorry to be so cynical as I offer the last question. But when I dare to raise polite inquiry a to the wisdom of promoting Victoria Haigh as a campaigner against the family justice system and I am told to ‘fuck off narc’ by prominent campaigners who have a link to their book or their agent in their Twitter bio, I do wonder. I wonder quite a lot.

 

EDIT February 5th 2019

I had a conversation with Zoe Dronfield on Twitter. I asked her a number of times if she agreed with Haigh’s narrative that the family courts facilitate the rape of children by handing them over to obvious abusers. She wouldn’t answer. This is a great shame. There is clearly something worthy of discussion here. What has gone so wrong with the system that such delusional beliefs can take such deep roots? Haigh isn’t the only person who thinks and says this, not by a long shot. I have to accept that something ‘feels right’ about this narrative to a significant minority of people and that is very troubling. What can we do about this – if anything?

Maybe nothing. But the answer cannot be to ignore it. Its an inexorable rule of of life that ignoring a problem very rarely makes it go away but it will make others seriously question your motives and your good faith.

 

Further reading

Judgment of Sir Nicholas Wall August 2011

A note on the Vicky Haigh Case Stowe Family Law August 2011

A cautionary lesson: The Vicky Haigh and Liz Watson judgments Carl Gardener Head of Legal September 2011

When children are pawns: Vicky Haigh and Hampstead 2015 Hoaxstead Research

 

 

Happy Birthday Children Act 1989!

But have you stood the test of time?

Is the Act fit for purpose? Overwhelmingly yes. Able to use its basic structure to allow us to embrace changing concepts in society. Where it is failing is not where its ethos is flawed but because its ethos required it to be funded – to deliver services to families and communities. “

The Children Act is now 30 years old. For many family lawyers, its the only law we have ever known. Both the Act and I were young back in the distant days of 1993 when I graduated from University and went on to Bar School; becoming a fully fledged family lawyer in about 1998.  We are both very much older now and the world is very different in very many ways – perhaps most notably in how notions of family and sexuality have shifted.

Over the years I have heard a variety of criticisms of the Act. The French documentary ‘England’s Stolen Children’ had an unusual take in 2016, that it was the creation of Margaret Thatcher to ‘liberate’ the working classes and it gives children’s services the power to remove children on a mere suspicion of maltreatment, present or future. This is of course not true. For further discussion about the risk of future harm, see this post from the Child Protection Resource from a retired social worker.

However, rather more compelling criticisms have been raised over the years. Professor Devine comments that the clear lines drawn in the Act have become dangerously blurred between offering help and support with the consent of the parent/imposing coercive measures to ‘rescue’ children.  Professor Featherstone remarks upon the ‘risk monster’ that the Children Act now appears to have facilitated. More and more children are being investigated, care proceedings are rising and yet levels of child abuse are not falling.  There is also evidence of a worrying geographical disparity between levels of intervention.

Patrick Philps, a retired social worker, wrote a guest post for this blog calling the Children Act a ‘deeply flawed piece of legislation’ – his primary concern being that the Act contained a nebulous definition of what was meant by significant harm and children were being removed from their families when they should not have been. He commented:

I am not suggesting that children should never be removed, and I see the ever swinging pendulum in the process of swinging away from child removal again. However, in my view the 1989 Children Act is pie in the sky and needs to be replaced with legal standards which more nearly reflect those expressed in re B-S, that is to set realistically measurable standards to govern the protection of children, rather than to push the law into ever less measurable levels of ‘abuse’ as Robert Buckland, QC, MP, Solicitor General curiously seems to advocate (The Times, 15 January 2015). Any reliable system also needs to recognise the impossibility of predicting abuse, a lesson one may draw from Eileen Munro’s early works in which she draws attention to the mathematics of risk assessment, false positives and negatives etc, but which she proceeds to ignore in her own advocacy of its use in social work (reference needed). The mathematics of ‘false positive’ identification would indicate even higher levels of mistaken removal than some of the conspiracy theorists in the field would have us believe, but not in the least due to ‘conspiracy’.

So I was interested to know what would be Professor Jo Delahunty QC’s take on the Children Act  in her Gresham College lecture on 31st January 2019. Sadly, dire warnings of Snowmaggedon prevented my actual attendance but I was poised and ready by the YouTube Live link. 

If I make any comments of my own on the analysis offered by Professor Delahunty, they will be in italics

The 30th Anniversary of the Children Act 1989 – is it still fit for purpose?

The Children Act 1989 embodied a change in philosophy by making the child’s welfare the courts ‘paramount’ concern, moving away from the concept of parental rights towards the right of the child. It embraced the idea of shared parental rights and responsibilities and that children are best cared for within their families but not at the expense of suffering avoidable significant harm. Has the Act done right by children since 1989? Has it adapted to the challenges of childhood and society?

The Children Act has seen 6 Prime Ministers and 6 Presidents of the Family Division come and go.  Before it was born practitioners had to deal with five different Acts spanning 1933 – 1969 in a system geared very much to ‘juvenile delinquents’ so hearings were conducted in atmosphere of ‘crime and guilt’ rather than help and support. The pressure for reform mounted in the late 1980s with a number of high profile and shocking child deaths.  The core concept of the Children Act was supposed to be working in partnership; offering families support.

But society has changed dramatically in the last 30 years; it has become ‘freer and more diverse’. Has the Children Act stood the test of time?

Professor Delahunty admired the drafting of section 31 setting out the threshold criteria. When she is sitting as a Judge, the various components of section 31 has shown it can adapt to society’s changing needs; it is ‘fluid’ and ‘positively directs your attention to the child’s needs’. This is the counter to the criticism of Patrick Philips above – that fluidity is needed in order for the Act to encompass and deal with the almost infinite array of sadness and difficulties that families can face. But questions about lack of clarity of definition remain troubling and probably have been exacerbated by lack of training and funding – which Professor Delanhunty discusses further on.

Of all the components to the Act, what is most important to her is that the child is at the centre. Pre 1989 you had custody and access orders; historically the father had all rights over the child and the mother none, unless born out of marriage. The hangover of those ideas carried through to 1989 and they were pernicious. ‘Custody’ gives a strong connotation of possession and control. It is a process or arrangement that happens to people.  Also ‘access’ has strong physical connotations. It says ‘possession’ and that is exactly what a child should NOT be. Thus the Children Act 1989 made them words of the past and introduced important concept of ‘parental responsibility’.

However and sadly she notes that the new words of ‘residence’ and ‘contact’ introduced by the Children Act quickly hardened into words that parents used to denote who was the ‘winner’ and who the ‘loser’ in any dispute about seeing children – so we now have the opaque and cumbersome ‘child arrangements orders’. However, I strongly suspect the problem here will never be cured by tinkering with the names attached to various forms of orders; it goes much deeper and reveals the emotional difficulties many parents feel in navigating disputes about their children. 

An example of how the Act could adapt and apply was shown in the decision of re M involving a transgender mother who was initially denied contact with her children because of the adverse reactions of the religious community in which her children still lived. The Court of Appeal held that the court had to consider the ‘reasonable parent’ as someone receptive to change, broadminded and tolerant. A symbol of parenthood we should all aspire to. The judge had failed to address head on the human rights issues – even secluded religious communities are not exempt from the laws of the land.  This was not a set of circumstances that those drafting the Act in 1989 could have reasonably contemplated, but the court was able to respond fairly using the existing framework of the Act.

Radicalisation cases however did NOT easily fit the framework of the Children Act. Children were often making choices and keeping them secret from their parents who therefore could not easily be held to be culpable for the risk of harm a child faced. Therefore the courts revived the use of wardship for these children.  The CA was designed to make wardship redundant but we now see its resurgence. This doesn’t mean the CA has failed; once crisis passed the cases often reverted to the CA jurisdiction. This shows the need for different areas of the law to act in partnership to meet children’s needs.

Have we now got the balance right? No. Children are still dying. Herefordshire v AB 2018 ‘rocked our understanding of section 20’.  But what these examples of failures have in common is that they were matters that should have received the oversight of the court and did not. Professor Delahunty identifies not a failure of the legislation but a failure of implementation – and  this stems from lack of resources. There is lack of training for social workers, lack of resources for the child, lack of legally aided lawyers, lack of judges to hear cases. She discussed a number of high profile cases when it was only significant press interest that appeared to prompt identification of support for a child.

Professor Delanhunty concluded with the question: Is the Act fit for purpose? Her answer was:

Overwhelmingly yes. Able to use its basic structure to allow us to embrace changing concepts in society. Where it is failing is not where its ethos is flawed but because its ethos required it to be funded – to deliver services to families and communities.

She ended with a warning – we cannot continue as we are for much longer. The system is under incredible strain, there are simply not enough judges to go round and we are in danger of paying lip service to the need to listen to the voice of the child. I can only hope as we slide further into Brexit madness that there will be some time and space for our politicians in the very near future to hear and act upon this warning.

I won’t hold my breath. I agree that the Children Act is still fit for purpose – but that our political system increasingly is not.

 

EDIT February 4th 2019

Professor Delanunty kindly sent me the notes of her talk and an additional quote from our now President which she wanted to include but ran out of space.

Per Sir Andrew McFarlane in a speech to the ALC in November 2018

“”Crisis” may be an overused word and some, outside the court system, may have questioned its deployment by Sir James Munby two years ago in relation to the rise of the number of care applications being received by the courts. For my part, I consider that Sir James was fully justified in calling this a crisis and, as the continuing figures have borne out since, Sir James was plainly right to blow the whistle when he did.”

“It was integral to the ethos of the Children Act 1989 that family life should be independent and free from unjustified interference by the state. That ethos was encapsulated in the central concept of “parental responsibility”, which was reinforced by the presumption that a court order modifying or restricting the exercise of parental responsibility would not be made unless to do so would promote the child’s welfare. That statutory foundation was further underpinned by the Human Rights Act 1998. Part Three of the CA 1989 set out general and specific duties imposed upon local authorities in respect to the services that they must, or may, provide to children and families. In the context of Part Three working in partnership with those holding parental responsibility and members of the wider family was a guiding principle in the effective discharge of a local authority’s duties. The principle of work in partnership was introduced and supported by the body of government guidance issued when the Act came into force […]

To my mind the category of cases that are now coming before the court in greater numbers than was seen hitherto must, almost by definition, come from the opposite end of the spectrum of harm. They are likely to be cases of poor parenting and neglect and in such cases there is a need for the courts to be astute as to the requirements of the threshold criteria. There may be a danger of the system slipping into the exercise of a broad benevolent discretion with courts accepting the need to help children who are generally in need, rather than strictly questioning whether the state of affairs for the particular child has indeed reached the level, which the architects of the Children Act clearly considered was required, sufficient to justify statutory orders.”

“It may properly be said that we have reached a stage where the threshold for obtaining a public law order is noticeably low, whereas, no doubt as a result of the current financial climate, the threshold for a family being able to access specialist support services in the community is conversely, very high.”

Professor Delahunty comments:

The lack of financial support for community resources < the rise in s 31’s > they are linked. Hence the value in reminding the audience of how the act was meant to cover community as well as court procedures with access to services, advice and support being embraced within its composite parts . However with limited legal aid for pre proceedings advice for parents , S 20 abuses , legal aid deserts for early ( any!) advice in private law , court staff / judges acting as advisors and counsellors< lack of court time as we have judges working to break point : all these deficits are crippling. Community lack of access to services and legal advice compounds an overwhelmed and overwhelming social care environment staffed by disrespected social workers , often unsupported , and inadequate managerial oversight with little joined up thinking with legal departments. I think every strand is intertwined.

Hence why I thought a reminder of what we should strive at might be timely.

 

What’s in a name? Why so many complicated Forms to fill?

This is a post by Sarah Phillimore

On January 24th 2019 I got a text message from a parent I know. She was applying to discharge the care order regarding one of her children. She needed to know what form to use.

The internet (and my site) told her Form C110A. The court staff on the family team of her local court told her it was C100 but when she went to file her application she was told it was a C1. My response was that I thought it was C110A but I would make a plea for confirmation via Twitter.

The responses came quite quickly and were unanimous. It’s Form C110A!  However, two of the Big Beasts of the family law scene – Andrew Pack and Lucy Reed – then offered another view. Pack was clear – its a C1. The C110A is only for those wishing to apply for an EPO.

Reed’s  suggestion of  a C2  was a new runner in an already crowded field. She noted that no form was in fact specified for a discharge of a care order and therefore C2 was the way to go by operation of Part 18 of the rules

Another MKF agreed with Reed. Then another lawyer weighed in for C110A.

My brain was, at this point, leaking slowly from my ears. And I am not a parent trying to apply to discharge a care order against my child.

The frustration of the parent was evident. She was very worried about what form to use to make her application and texted:

They won’t accept it unless the form their demanding is used so do I do it n risk getting chucked out on a fuck up that know is a fuck up of not my choosing?

Another parent on Twitter offered their experiences about when the ‘wrong’ form was used

This really matters. Filling in the wrong form can lead to your application not being issued or being delayed.  Why on earth does it have to be so difficult? What message are we giving to litigants in person? The Government purports to offer some help with its ‘Form Finder’ – but unless you know exactly what you are looking for it seems impossible to find anything. There is no automatic legal aid for applying to discharge a care order. It is available on a means and merits basis; the vast majority of applicants will be going it alone.

Harsh but fair; the parent’s view

I asked the parent if she would describe the impact of this on her. This is what she said:

So you get all your proverbial ducks in a row make the leap to fighting to get your child back and ironically can’t get past the first hurdle… I seem to have really divided the entire family court scene by one question ‘what form do I use to discharge a care order?’ The options are C1, C2, C110A and C100 yeah confused yet?

Its well known us parents get a raw deal, us LiP parents the more brutal end of that raw deal desperate, bewildered, emotional, confused and to be fair is it any wonder when not even the ‘experts’ know what is going on?!

Team A siding with C1 applications are big players like Andrew Pack and the court clerk for filing. Team B siding with C110A are big players like Sarah Phillimore and the Red Book. Team C siding with C2 are the MKF and big players like Lucy Reed. Team D siding with C100 are the actual family court staff who have to accept the form you hand in!

Soooooo now here I sit and I’m not green behind the ears by a  long shot, I’m what you can call hardened to the system, I’ve worked as a MKF for 8 years and been a LiP for a lot longer than that – I’ve even set a precedent or two along my journey and I’m confused.  Not just a little confused but a lot confused so how does Joe Bloggs your average parent stand a chance, no legal aid no help and apparently none of the professionals knowing either.

How is that fair and respectful of ECHR 6 and 8 and equality and all that shizzle that’s often shouted about but never actually seen to happen in the family court?

I’ve got my younger children with me, I’m not your average emotional train wreck parent that’s often left in the aftermath of court proceedings I’m happy, healthy and enjoying my life , its been years now and the opportunity has arose to get my older child home,  its a far stretch from the usual 6 months desperate claw back to regain your child before adoption and placement orders etc you see for these applications  – and even I’m sat here thinking what is the point, the systems set for me to fail.

One can’t blame parents that have just faced in their opinion that social workers colluded to lie and steal their child for thinking its done on purpose and it’s all the LA’s fault….obviously it’s not, it is quite transparently truly from no one actually knowing  than purposeful prohibition and certainly not anything to do with the LA for once they aren’t to blame!

So who is actually right?? Perhaps given its such an important issue for parents who are nearly 100% without legal aid and LiPs undertaking such applications that it is clarified once and for all so that everyone actually  knows what the hell is going on and what is meant to happen step by step!

TBF it really is laughable that it’s split everyone down the lines and this is meant to be a go to app for parents to get kids back – it sums the entire family court circuit up, one big joke from start to finish with no one knowing their ass from their elbow.

Conclusion

(un)amusing postscript

The parent has just texted. The court has decided to accept the C110A after all.

We urgently need to do better than this.

Why does everyone hate the family courts? And what – if anything – can we do about it?

The is a post by Sarah Phillimore, with a significant contribution by two parents; a mother who nearly ran and a father who has now lost a relationship with his child. I am very grateful to both commentators. In our various exchanges we have at times doubted each other’s good faith but have persevered  to try and have a conversation about something important. 

In November 2018 I attended a conference in London where it was asserted very clearly by a speaker, with the enthusiastic assent of almost all the (female) audience, that family courts were tools of misogynistic oppression and decisions were routinely made in favour of violent and abusive men who used accusations of  ‘parental alienation’ against the mother as a cloak for their own abuse.

In January 2019 I became aware of Ellie Yarrow Sanders who had ‘gone on the run’ with her 3 year old son just before a ‘significant’ court hearing involving his father’s application for contact. The Transparency Project have written about the background to and media attention around this case.

A petition has been organised to allow the mother to ‘tell her story’; already circulating on the internet is a letter purportedly written by the mother about how she felt she had no choice but to flee the father’s abuse. The Women’s Coalition who support the mother, have referred to the Judge in the case lying and ‘distorting evidence’; it is asserted that the appointment of a guardian for the child necessarily means he is going into State care – which is of course, not true.

They comment further

The Women’s Coalition is launching a counterattack to this public lynching of a wonderful mother, just like in the Samantha Baldwin and Rebecca Minnock cases [see link below]. Both cases engendered much public outrage about judges taking children away from loving mothers and giving them to controlling and abusive fathers. Help make this post go viral too!

The difficulty with this analysis of course is that Rebecca Minnock was found to be ‘manipulative, truculent and attention seeking’ and to have caused emotional harm to her son; he no longer lives with her. Samantha Baldwin gave her children drugs and made false allegations against their father. 

So what the Woman’s Coallition says no doubt feels very true to them. But has found not be to true on a number of occasions. Of course, no doubt they will say this is due to the (male) Judges who actively hate women or can’t be bothered to educate themselves about the extent and nature of male violence.

On the other side of the debate of course are the groups such as Fathers 4 Justice who will assert that women are no more than hysterical alienators of children and that the family court system bends over backwards to meet their every spiteful demand.

So what is going on? why are the two sides of the discussion so polarised? Why is our public discourse about this so often hysterical and toxic. so unwilling to admit any shades of grey to a narrative of ‘abusive men’ or ‘lying women’.

I had an exchange recently with one visitor to my site ‘John’ who was commenting on my post “Are the Family Courts biased against men?” Our initial exchange was quite dispiriting. We were both rude to each other. However in some post Christmas miracle, we were both able to reflect on our mutual NY resolution to be more mindful of our language on line and John made the following comment which I set out below in full.

I think it is an articulate distillation of the fundamental issues – which I think boil down essentially to pain, fear and distrust. There is little wonder that father and mothers can end up seeing the same situation in radically different ways; their perception and understanding clouded by pain. But equally there is little doubt the the system itself often operates to make things worse. I have commented before and at length as to why I don’t think the court system is ever the best place to attempt to unpick toxic and failing relationships  – but it is our only place and it is surely better than deciding a case on the basis of who can gather more ‘likes’ and clicks on social media.

Like John, I now consider the only way to attempt to counter the persistent and dangerous flow of false information, fear and misunderstanding is to open up the family courts to greater public scrutiny.

EDIT Jan 9th – I have now included an account from a mother who gives the other side of the coin. She nearly ran but didn’t as she was lucky enough to find a lawyer who had the time, patience and ability to explain what was going on and help her anxiety.  I agree that this is a very important part of the problem – too often I think lawyers make assumptions about what parents understand or worse, don’t even care that  much. A necessary survival ability to ‘switch off’ when dealing with human distress and misery on a daily basis, can if left unchecked develop into a callous lack of concern. If parents are finding it so hard to understand what is going on, those of us who are lawyers have to consider more carefully what part we are playing in this.

John’s story

“Grief fills the room up of my absent child,
Lies in his bed, walks up and down with me,
Puts on his pretty look, repeats his words,
Remembers me of his gracious parts,
Stuffs out his vacant garments with his form”
Shakespeare – King John

The above sonnet will resonate with many readers since this is what it feels like when you are cut off from your child. I would like to start by remembering that Fathers and Children have feelings, as well as mothers.

I can appreciate, that working daily in the Family court system you must encounter many occasions where people have helped to create or compound the problems they now grapple with. I am sure that the courts also have to deal with lots of cases of genuinely vulnerable, at-risk children. However I feel that it is rather too glib and superficial to maintain that the system is not at fault – it’s the people using it! If I may draw an analogue – if I were to design a car that required an expert driver otherwise you would crash, it would not be an adequate defence to maintain that it was the driver’s own fault that they crashed.

In a similar way, surely it is reasonable to expect a court system to provide maximally just and equitable outcomes. Maximum happiness with flawed material, if you like.

Of course I, and many others, tend to view the Family court system through the prism of their own experiences. It makes objectivity tough. I would also expect that the people who tend to contribute to blogs like this, are those that aren’t happy.

I do feel that an important factor is the secrecy surrounding the family court system and the consequential lack of reporting on, and analysis of decisions. It makes gathering accurate metrics and statistics hard. There seems to be a lot of anecdotal evidence, particularly with the rise of the internet and social media. Social media is not the best platform for a sensible debate.

I mentioned earlier that I read somewhere that the great majority of the time in the UK, the child resides with the mother. I honestly can’t cite the source. But unless we also know how many times that decision was contested, or was it by mutual agreement, and the circumstances, then we don’t have all the facts to formally establish bias (or lack of).

Without facts from careful analysis of hundreds of thousands of cases, we are tempted to fall back on ‘belief’ which is often founded on personal experience or on hearsay that confirms our prejudices.

I recognize that the court has a responsibility to protect the interest of the child. I also feel that the court has a responsibility to ensure that both parents are treated equally justly & fairly.
If we take it true though that the child ends up with the mother most of the time, then I feel that it follows that if the court must protect the child, it must also may, to some extent give greater protection to the parent the child now lives with, which could lead to an unequal treatment of resident v non-resident parent.

Another problem is the adversarial system that promotes conflict. It also provides employment and income to a great many people and there is an awful lot of vested interest in continuing that – and there has been for hundreds of years.

Anecdotally, many ‘resident parents’ knowingly engage in false accusations of abuse or in behaviour directed towards parental alienation as a means of exacting revenge against their ex-partner. They are assisted by lawyers who have a vested interest in promoting conflict.

There do not seem to be many instances where that behaviour is punished and reported on. The one I recall reported was a case from 2004. Interference with visitation and blocking of access has certainly been my personal experience. Am I the exception or the rule? Hard to say without statistics.

In my own case, I was disgusted to discover that the court seemed far more willing to accept my ex-wife’s word that I was ‘abusive’, despite their being no evidence, than they were to accept my word that she was interfering with visitation or engaging in alienating behaviour. I can understand why – it’s a lot safer and easier to prevent a dad seeing his kid ‘because he might be abusive’. But for those dads who have honestly done nothing wrong, it can feel like an uphill struggle.

As I alluded to before, the fact that these important decisions are not made by jury, but by a single human being, also is not helpful. I would imagine that the cases are often influenced by reports from social workers, agencies and so forth who are not subject to independent scrutiny.

In an ideal world there would be no divorce. Perhaps co-parenting after divorce just simply does not work.

Sigh. I don’t know. I didn’t file for my divorce, I didn’t ask to lose my child and I didn’t ever abuse my ex-wife in any way. It makes me very sad and occasionally bitter and angry that I have been an unwilling part of a process which I was powerless to stop.

In the end, it is the child that suffers most. I have been forced to move on. There is no point in spending my entire life fighting a battle I cannot win.

I have another child and I can cope with the loss of the first at great personal sorrow.
However my son can never have another father.

The mother’s story – she wanted to run but didn’t

It’s been some years since my decision not to run. I have met and instructed several lawyers since then but not all made me feel like a person and less like a process. This is an important factor in understanding why someone might not be able to trust their lawyer and feel they have no option but to run and we need to talk about this, as it goes hand in hand with misinformation about the family courts.

The law is there to protect but, all too often, a lawyer is seen as working a system instead of working for their client. This is a myth the law needs to work much harder to put right or more people, like Ellie, will feel they have no option but to run.

Although I rarely liked what my lawyer said, I learned to trust that she was working for the best outcome. It wasn’t an automatic trust. She translated the convoluted legalese into language that my permanently fearful self was better able to digest. She deconstructed the law and made it less intimidating, which was key. She understood my irrational fear of social workers yet she did not dismiss it but helped me to see what their role really was instead of the role I had assigned to them in my head of the Childcatcher from Chitty Chitty Bang Bang.

My lawyer remained patient and continually kept me informed every single step of the way, allowing me to process what I didn’t understand, often explaining on a loop. She understood that my exhausted body was permanently flooded with adrenaline, geared for threat and very, very bad at assimilating complex information so she would frequently offer a HUGE dose of calming perspective whenever something had upset me. Before each hearing, she would meet me in a café, so I would not have to go into court on my own. I believed my lawyer would fight my corner.

But what made me want to run? Things changed with pregnancy. It had started subtly enough. I found it difficult to breastfeed. He stood behind me and watched like a hawk- criticising at any given moment. It started when he told me my breast milk was inferior. That I was starving the baby. That the baby was better off having formula because you could see the ingredients on the packet. He was attentive and charming around the Health Visitors but once they had gone, he monitored everything I did, telling me I was useless because I couldn’t get the baby to sleep through the night, I couldn’t keep the house clean, I couldn’t do the most basic things that most new mothers found second nature. My struggles with parenting a newborn, the difficulties with breast feeding, baby blues and exhaustion were all cited as reasons for just how crap I was. I wasn’t a proper mother. Constant digs that I wasn’t coping with what should come naturally for a mother, led to him suggesting that if he didn’t support me, my baby would be taken from me . He told me he would prevent that from happening because he wanted my baby to have a relationship with me – even if I wasn’t a very good mother. I was at rock bottom and believed him, spiralling into an ever increasing mass of inadequacy.

He told me that I was disgusting, that I was no longer attractive and he was doing me a favour by staying with me because on my own, I would end up begging on Oxford Street. It never stopped and I started to believe that the only thing I could do, to keep my child with me, was to get away from a system that seemed hell bent on separating us.

I was too scared to speak to my GP, fearful it might set the child removal wheels in motion. In fact, I was terrified of anyone whose job it was to support and I have heard many women share the exact same fears.
I remember how grateful I was, that he would allow me the chance to be a mother!

I say all this because it worries me that people aren’t getting the help they need. I worry about Ellie and hope she has a lawyer who will take the trouble to understand her reasons for doing what she did and not demonise her.
I hope she has a judge who will understand why a mother might run and who can acknowledge that decisions like this won’t have come easily. I hope the judge asks what made her take the risk? What was going through her mind? What had she been told? What kind of support did she have around her? Which professionals could she trust? What was her relationship like with her lawyer? What was her greatest fear?
All of this even before considering whether her ex was abusive or not.

I don’t believe that many lawyers and judges are fully cognisant of just how imposing and intimidating court can be and how, when faced with the prospect of genuinely believing your child will be removed, how someone might see that their only option was to run.

For a person to have faith in the legal process and the court, the court needs to work harder to show that that faith has been earned and I cannot, hand on heart, say that it has.

Want to Adopt? Review of new book by Helen Oakwater

This is a post by Sarah Phillimore. Helen Oakwater is an international trainer, coach and author. Her ‘world axis tilted’ in the early 1990s when she adopted a sibling group of children, then aged 5,4, and 2 from the UK care system. I am grateful for a chance to read and review her latest book prior to its publication. My own views about ‘forced adoption’ can be found in this post. 

In March 2012 I reviewed Helen’s first book: ‘Bubble Wrapped Children – how social networking is changing the face of 21st century adoption’ . I commented then that I thought it did the book a disservice by apparently focusing on only one element of what was making closed adoption a trickier concept as electronic communications networks grow at exponential rate.  In 2012 I said this:

The book inevitably has to cover a very wide range of topics in order to allow the reader to fully understand the full potential for harm from such unexpected contact  to children already traumatised by earlier life experiences. The author sets out to  explain the likely nature and extent of trauma suffered by the adopted child and the ways in which the child can be helped to make sense of his or her world. She also puts herself in the shoes of the birth parents and considers how they might be thinking and feeling and how this can influence their actions.

The book is thus an excellent resource for those coming new to the system and who require an introduction to the psychological theories around attachment and trauma. The author is able to present a number of quite complicated concepts in direct and vivid language, making good use of metaphor and diagrams to aid understanding; I found illuminating the example of child development as a river. Some rivers flow smoothly to the sea, others are turbulent with additional murky tributaries. Which river would you rather navigate?

For me, the key issue then (and now) was Helen’s clear analysis of the difficulties ahead for children and their families given the almost inevitability that any adopted child will have suffered some kind of trauma and loss before joining their ‘forever’ family.  Her second book takes this head on. It is called ‘Want to Adopt? How to prepare yourself to parent a child from the care system’. It will be published this spring.

The book is divided into three parts. Part 1 ‘I want my own healthy baby’ – immediately, in my view a sensible recognition of what often provides the dangerous tension in debates about adoption; providing children for those who cannot have their own biological children is a very different system from that which seeks out quasi professional parents to provide reparative care for some very traumatised children. The public face of the debate often seems to slide over this very necessary distinction and offers instead just platitudinous mantras about a ‘loving warm home’ being all you need.

Part two deals with ‘Stepping Stones’ – how to approach and deal with the necessarily intrusive assessment process that will follow into your capabilities and your motivations behind adopting. Because of the impoverished public discussion we generally have about adoption I would be very interested to know what the rates are of parents who apply to adopt and then drop out mid way or after the assessment process.  Helen identifies the very pertinent and I think over over looked point that it isn’t just enough to prepare yourself for adoption – you must also prepare those around you who may make up your support team. They will also need to make efforts to understand the challenges and complexities of parenting a child with trauma.

Part three is ‘to cross the river or not’, looking at when hope and reality collide. Chapter 13 has some useful direct quotations from various adoptive parents.  Helen focuses the discussion on the inevitability of disappointment and challenge in life and the need for an honest appraisal of how we propose to deal with this.

This is a useful and ambitious work which again presents some complicated concepts in clear and vivid language. I do find the use of quotes and diagrams useful, this is an engaging and interesting subject and it deserves a similarly engaging and interesting analysis.

As Helen says in her introduction:

‘This is one of the books I wish I had read before starting my own adoption process back in the early 1990s. I wish I had had this information throughout my journey. I wish I understood the impact of trauma in my own life and its devastating effect on the three children I adopted’.

She does not regret her decision or her children. But it is obvious that any such challenging life event is made easier to navigate with the right information, the right tools, the right people to help and guide you. My very real fear is that for far too long the debate about adoption has simply fallen between the ever widening abyss between the two polarised extremes: that children must be ‘rescued’ urgently from feckless parents where a warm and loving home awaits that will ‘fix’ them OR that any attempt to intervene to provide children with a safe and secure home is part of some murky conspiracy to line the pockets of individuals or agencies.

We need voices like Helen’s who are prepared to tell it like it is and break down this rigid and arid binary. The sentence that really jumped out at me was ‘when hope and reality collide’. So much of human misery that I see appears to stem from the often sadly vast gulf between what we know to be true and what we would like to be true. It takes a lot of energy to keep such dissonance alive. And its wasted energy. As Maslow says, the facts ARE always friendly. There is nothing dangerous or unsatisfying about being closer to the truth. The ‘truth’ about adoption may in reality be very far removed from the sanitised fairy tale of a ‘forever family’ but it is no less an extra-ordinary journey and for some children it is absolutely what they need.

I therefore hope Helen and others like her continue to speak and write and push for wider understanding of some of these fundamental issues. The better prepared adopted parents are, the more cognisant they are of the likely reality, the more able they will be to survive their journey which will be of immense benefit to them – and their children.

Of course, knowledge and preparation alone cannot magically solve all the problems – some of which are very serious and lead to the de facto breakdown of families. See the website of Parents of Adopted and Traumatised Teens for further discussion. Some adopted children will need considerable support beyond their immediate family and I have serious doubts about the availability and coherence of such support – but that’s a topic for another post!

 

 

In whose best interests? Transgender Children: Choices and Consequences

This is a post by Sarah Phillimore. I am concerned that the decisions by Mr Justice Hayden in Re J [2016] are being overlooked in the ongoing debate about children who want to ‘change genders’, and in particular the role played by the Mermaids organisation. 

First disclaimer. I am not a bigot.

It has, and has always been my view from when I was very young, that if consenting adults wished to dress in a particular way, have sex in a particular way or get married to someone they loved who loved them back, that was absolutely their business and no concern of mine, other than to be happy for them that they had the chance to live their best life. As a disabled person I am well aware of those times in my life when I have been denied opportunities, been insulted or attacked for a physical characteristic that I did not ask for and was completely out of my control. I would never knowingly inflict that kind of harm upon another.

But I am also a lawyer. So by training and by temperament I am not interested in what people ‘feel’ about any particular issue. I am interested about what they can prove. What evidence do they bring to the table to support their fears or worries?

Some advice; if you find what I say ‘hateful’ and wish to have me removed from social media or my employment then of course you must take what ever steps you think are appropriate. But please remember I don’t have an employer; I am a self employed sole trader. If you think my words mean I am not fit to be a lawyer, please refer the matter to the Bar Standards Board. 

Please also note that I will not agree with you and will use my best efforts to challenge and reject any complaints made.

Second comment. We cannot sacrifice facts for feelings.

In the on-going and harmful ‘debate’ about trans women with intact male bodies in female spaces (such as sports or prisons) we find very clear and horrible illustrations of what happens when people bring feelings to a fact fight; when both sides of the ‘debate’ appear to believe that they are supported by facts and reasons and the other by unreasoning hysteria and bigotry. 

While adults may insult others as they wish, provided they don’t step over the line dividing freedom of speech from criminal harassment, I am concerned here about what is being argued on behalf of children. The need for clear and honest debate is particularly important when talking about the ‘rights’ of children to transition and to be supported/encouraged in accessing surgery or medication to do so.

i have no interest in controlling what consenting adults do to other consenting adults and think such attempts to control is a moral wrong, unless and until of course their activities impinge on my ability to live my life. However, as a lawyer who has worked in many years in child protection law, I do have a very keen interest in what adults do to children, often purporting to act in ‘their best interests’ when, to the objective outsider, it seems anything but.

Much of the increasingly anguished ‘debate’ about transitioning is now very clearly focused on children and at what age they could or should be supported to make the ‘decision’ to transition from ‘male’ to ‘female’ or vice versa. This ‘transition’ is often required to be supported by medication or pretty serious surgical intervention. The impact on the child’s body as he/she grows will be serious, often leading to infertility or loss of sexual function.

I have become increasingly concerned about the role played in all of this by the Mermaids organisation. 

They describe themselves in this way:

Mermaids is passionate about supporting children, young people, and their families to achieve a happier life in the face of great adversity. We work to raise awareness about gender nonconformity in children and young people amongst professionals and the general public. We campaign for the recognition of gender dysphoria in young people and lobby for improvements in professional services.

The decisions in Re J [2016]

I am worried that the continuing debate and discussion over the role of the Mermaids organisation has overlooked a very important judgment from Mr Justice Hayden in July 2016 – J (A Minor), Re [2016] EWHC 2430 (Fam) (21 October 2016).

The Transparency Project wrote about the case and the media response here and summarised the court’s approach in this way:

Mr Justice Hayden heard the case over a number of days in the summer and, based upon the experts and professionals whose evidence he heard (along with that of the mother herself), the judge concluded that J was a little boy whose mother’s perception of his gender difference was suffocating his ability to develop independently – and was causing him significant emotional harm. He was placed with his father, where he quickly began to explore toys and interests that were stereotypically “boys”. The judgement is very clear that the father had brought “no pressure on J to pursue masculine interests” and that his interests and energy were “entirely self motivated” (pa 47). So, not forced to live “like a boy” (whatever that means) – but choosing (there is more detail in the judgment).

Importantly, Hayden J acknowledged that there are genuinely children who are transgender or gender dysphoric, and who present in this way from an early stage, but – and here is the crux of it – this child was not one of them. This was all about the mother’s position.

At para 63 of the July judgment, the judge commented on the expert opinion of the mother and how she presented:

When stressed and distressed, [M] becomes controlling, forceful and antagonistic. This reflects her underlying anxiety. She is actually very frightened and upset. She tries to sooth herself by taking control of situations but her interpersonal style is counter-productive. She does not negotiate well. She finds it difficult to compromise and situations become inflamed rather than de-escalated. In situations of interpersonal conflict, she protects herself from loss of confidence or face by unambiguously perceiving herself as correct which means that from her perspective, the other party is wrong. To acknowledge her flaws, even to herself, feels crushing and devastates her self-esteem so she avoids this possibility by locating responsibility and blame elsewhere. When she is unable to achieve the outcome that she wants, she resorts to formal processes and/or higher authorities: complaint procedures, The Protection of Human Rights in Public Law, the European Court of Human Rights, Stonewall and so on.”

It is clear that the mother was insistent with all agencies that J ‘disdained his penis’ and was being subjected to bullying at school etc. She could not provide any proof of this and the school denied it was happening. She was supported throughout by Mermaids who played a significant role in the development of a ‘prevailing orthodoxy’ that J – at 4 years old – wished to be a ‘girl’. That view was found by the court to have no bearing in reality and was a product of both ‘naivety and professional arrogance’ 

Mr Justice Hayden was highly critical of the local authority for getting swept up in this prevailing and false orthodoxy, commenting at paragraph 20 of the July judgment

This local authority has consistently failed to take appropriate intervention where there were strong grounds for believing that a child was at risk of serious emotional harm. I propose to invite the Director of Children’s Services to undertake a thorough review of the social work response to this case. Professional deficiencies to this extent cannot go unchecked, if confidence in this Local Authority’s safeguarding structures is to be maintained.

A later judgment in October 2016 dealt with the aftermath of the boy’s removal and how he had settled with his father and to what extent these matters should be in the public domain. That judgment is here: J (A Minor), Re [2016] EWHC 2595 (Fam) (21 October 2016)

 

What happened after 2016?

Mermaids at the time were highly critical of these judgments and said they would be supporting the mother in a appeal. No application was made to appeal. They showed no humility or understanding in their press release of October 2016, insisting that the courts simply had not understood issues of gender identity. I assert that no one can in good faith make such argument if they had bothered to read the lengthy and careful judgments of Mr Justice Hayden.

Since 2016 Mermaids have continued – in my view – to show no understanding or humility. The current controversy is around a grant to their organisation of £500K by the Lottery Fund which is currently under review and has been the subject of some critical press attention. 

Children are – quite rightly in my view – protected as a vulnerable class of people in our legal system. Children below the age of 12 are highly unlikely to be considered to have the requisite maturity and understanding to make significant decisions about their lives that will impact well into adulthood. Even those older children who are ‘Gillick competent‘ may find that their wishes and feelings are not allowed to determine issues of significance; such as the right to refuse surgery.

The accepted wisdom of the majority of child psychologists is that a child under the age of 6 years is probably unable to express any view that does not align with his or her primary care giver. This is a relatively simple matter of stages of cognitive development and pure survival. The older a child gets the more their wishes and feelings carry weight, but they remain unlikely to be ‘determinative’ unless and until they age out of the protected class of ‘child’.

So why are we even entertaining any discussion that a 4 year old is in possession of all the facts and their consequences needed to make a serious decision about whether or not to keep or ‘disdain’ his penis? Particularly when organisations such as Mermaids and their supporters appear to wish to push for wholly regressive and offensive gender stereotyping such as little girls like pink and sparkly things and little boys want to play rough and get dirty. If a little boy wants to play with dolls and wear a dress, why does he have to ‘disdain his penis’ to do that?

What do we know about the implications of medical and surgical intervention for children?

Not only is a young child likely to be unable to grasp the necessary information to make an informed decision about transition, it seems that the adults around him or her do not yet even possess sufficient information to make a safe, informed decision on the child’s behalf. We appear to know more about the impact of puberty blockers on sheep than we do on children. Note comments from the Science Symposium on 18-19 October 2018 at The Tavistock and Portman NHS Foundation Trust, cited below in Further Reading. Grateful thanks to @bettytastic to alerting me to this.

We do know something of the effect of puberty blockers on the brain development of adolescent sheep however. Professor Neil Evans of the Institute of biodiversity in Glasgow reported impairments to several functions, including a sheep’s capacity to find its way through a maze, which persist after stopping puberty blockers. This raises questions about the possible neurological effects of puberty blockers on children’s psychological, social, sexual and cognitive development. Some of Professor Evans’s references are listed below (Robinson et al 2014, Hough et al 2017 a & b).

The consequences of a pathway of surgical and medical intervention are not merely physical of course. Stephen B Levine wrote in 2018  in the journal of Sex and Marital Therapy ‘Informed consent for transgender patients’ reminds us that risk needs to be identified across three categories – the biological, social and psychological. Four specific risks arise in each category.

Biological risks include loss of reproductive capacity, impaired sexual response, shortened life expectancy, Insistence that biological sex can be changed cannot alter the possibility of sex based illness – such as prostate cancer arising.  Social risks include emotional distancing from family members, and ‘a greatly diminished pool of people who are willing to sustain an intimate and loving relationship’. Significant psychological risks involve deflection of necessary personal development challenges, inauthenticity and demoralisation – when changing your body does not bring about the desired changes to the way you ‘feel’.

Of course, the existence of risk does not mean that one should never embark upon a risky endeavour. It may well be that the benefits outweigh the possible disbenefits to a significant degree and the risk is well worth taking. But that conclusion cannot be reached without clear eyed and dispassionate unpicking of the risks AND benefits.

How can the ‘no debate’ platform and unquestioning acceptance of any child’s expressed wish to ‘transition’  ever reflect the serious ethical duty of medical professionals to be sure their child patient has offered informed consent?

To what extent are adult influences driving children?

Julian Vigo independent scholar, filmmaker and activist who specializes in anthropology, technology, and political philosophy, wrote for Forbes in December 2018 about discussions with Mermaids in 2013 and the concern noted then about what might lie behind adult desires for their chid to ‘transition’ – to help the adult ‘fit in’.

I spoke to Linda at Mermaids, a support group in London formed in 1995 by parents of transgendered children.  She told me that this group supports parents who have children who do not ‘fit in’ with ‘gender roles.’  I ask what she meant exactly by ‘fitting in’ and Linda explains, ‘If you are a little girl who behaves like a boy, you will want to have your hair short, to play with the boys.  Even at play group they will be different…they will be picked on and those are the problems.’  I tell Linda that many little girls will have short hair and play with boys—I was one of those little girls.  She says, ‘I have known a lot of girls in my time and they don’t like rough and tumble..they don’t like playing with boys.  They like to play with dolls, dressing up, playing in the Wendy House, to grow their hair…’  Linda emphasises that it is important that these children ‘fit in,’ a phrase she often repeats in our discussion.  Is this what transitioning for some trans adults is about?  Is this the ‘support’ that parents are receiving in order to understand ‘gender roles’?

Professor Michele Moore makes some similar points and her talk is linked to below.

 

Conclusions

I will never make any apology for raising and discussing these issues. As a disabled child who could not be ‘fixed’ it became clear to me in my teens that I had a choice; to kill myself or to try and live the best life I could in the body I had. I had virtually no support from the adults around me in this process; the 1970s and 1980s, when I grew up, were much less enlightened times than now and I am glad these issues can be more freely raised.

I wish for all the chance to the live their best life and to live it freely, with love and respect from their fellow humans. We should all do what we can to allow this to happen. If we can’t support it, we should step back and keep quiet.

However, we need to tread very carefully when it comes to little children, who are wholly at the mercy of the decisions made on their behalf by the adults caring for them. Any decision which has the consequence of setting their bodies and hence their lives on a particular path is one that must be taken carefully, honestly and in possession of all the facts. It should never be about a way of assuaging the pain or mental distress of any adult.

None of this means it is impossible for a four year old to have clear and decided views about what he or she wants to do with his or her body, or that it would be automatically wrong to act on those views. But it is – by simple matter of that child’s very young age and compromised cognition – highly unlikely that the vast majority of four year olds can make informed decisions about something serious – such as surgery. We need to be very, very careful about the extent to which adult hopes and dreams are pinned on children.

If anyone in the Mermaids organisation cannot read the judgments of Hayden J and feel appropriate remorse for their role in contributing to the significant harm caused to a 4 year old child, they are not fit to receive even 50 pence of public money, let alone £500K.

 

Edit 26th December 3.40pm

I am really grateful for the mostly courteous expressions of interest in this post. In particular, the comments from the parent of a trans child. I agree with her that this was not a case where anyone (so far as I know) was advocating for immediate surgery on a 4 year old. I remain very concerned about what the logical outcome for the child would have been if no one had intervened to disrupt the ‘disdain the penis’ narrative. But I accept that surgery and/or  medication are not usually on the horizon until the child approaches puberty.  I also accept – as did Hayden J – that there are children who will need the kind of support and intervention advocated by Mermaids. But to force ‘transition’ on a child who didn’t want it is as every much a horrible tragedy as it is to deny a child help and support they desperately need. The only way – I think – out and through these difficult and emotional questions is by adherence to facts and rational debate about them.

Second Edit 26th December 5.55pm

A reader comments that it is ‘absurd’ to say that re J highlights anything about Mermaids. I refer to this article in the Guardian which confirms that Mermaids supported the mother in court. I stand by my assertion that the judgment in Re J reveals very worrying things about Mermaids’ operation and assumptions. ‘To the man with a hammer – everything is a nail’.

 

Third Edit 1st January 2019

I have further edited this article to include references to some interesting papers and online talks which I have discovered in conversation with others on line. i remain profoundly grateful for the opportunity to take part in these kind of discussions.

 

Further reading

Articles

Mum of ‘gender non conforming child’ sells fake ‘extra small’ penises for transgender children under five – The Mirror December 2017

Emperor’s new clothes. Gender ideology and rebranding the privileged as the marginalised –  Liberals for Sanity June 2018

No, you don’t have a disorder. You have feelings – Lisa Marchiano July 2018

Those of us in the mental health profession ought to be in the business of helping people to see themselves as having the potential to be well and whole. We should help them understand themselves as resilient, rather than infirm and frail. We ought to help people imagine larger, richer, more complex stories for themselves, rather than simplistic narratives of illness and victimhood.

The Science of Gender: what influences gender development and gender dysphoria – summary of the 2018 European Society for Paediatric Endocrinology (ESPE) Science Symposium on 18-19 October 2018 at The Tavistock and Portman NHS Foundation Trust. By Bob Withers and posted by Miranda Yardley in November 2018

Trans groups under fire for huge rise in child referrals – Andrew Gilligan November 2018

 

Talks

Rene Jax, a male to female transsexual, calls for caution and further research over use of medication for children who express gender dysphoria  – Calfornia Family Council July 2018

Professor Michele Moore speaks in October 2018, discusses her concerns about the lack of debate about the impact on children of a medical and surgical pathway; that gender dysphoria does not reside in the body. Encouraging self identification in children is a tool of adult self interests. She is expert in Inclusive Education and Disability Studies

 

Case law

Gillick v West Norfolk and Wisbech Area Health Authority and another [1986]

Jay v Secretary of State for Justice [2018] EWHC 2620 (Fam) (08 October 2018) and note the evidence of Dr Barrett quoted at para 29 of the judgment:

“Separately, and recently, she reports gender identity problems. Her history, if taken at face value, is reasonably consistent with this diagnosis but the difficulty is that other aspects of that history are rather directly at odds with the documentary records leading me to have doubts about the veracity of her whole history – which would include a reasonably consistent history of gender identity problems. This aspect might be made clearer if a source other than [Ms Jay] could be interviewed …. If collateral collaboration is elicited I would reach an additional diagnosis of some sort of gender identity disorder. Whether the intensity of gender dysphoria caused by that disorder is great enough to merit or require a change of gender role might be explored in the setting of a gender identity clinic; it might be sufficiently intense in a prison but not so outside one and in civilian life, for example. 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.”

Transparency: Be careful what you wish for

This post originally appeared on The Transparency Project but objections were raised to my use of the feature image. So I repost it here.

 

This post is to comment on the latest ramifications of the long journey of two parents who faced the same accusation in both criminal and family courts but with very different outcomes.

The Transparency Project commented on this case in 2016; first looking at the legal position with regard to over turning adoption orders. Julie Doughty described the factual background in June 2016, asking the question ‘can an adoption order be undone?’ (answer – yes but it’s very rare):

In …  Re X [2016] EWHC 1342 (Fam), the President of the Family Division, Sir James Munby, gave permission for a full re-hearing of the original allegations made in care proceedings in 2012 involving an injury to child, now aged four, who was adopted in 2015. The problem that has since arisen is that the criminal proceedings brought against the parents, later in 2015, were dropped part-way through the trial. The trial judge directed that the parents be acquitted, as there was no case to answer. The standard of proof in a criminal case is of course higher than in a family case, but the parents now want that family case overturned. This is understandable, because if they want to have more children, or to work with children in the future, the family court finding will still say they pose a risk. However, their barrister told the President that if they were successful at the re-hearing, they would go on to challenge the adoption itself.

I also commented on this decision to hold a re-hearing in November 2016: ‘You can’t handle (51%) of the Truth’ . By October 2016 the parents were clear they did not wish to participate in any rehearing  and did not wish to challenge the adoption order. They provided written statements setting out that they could not contemplate removing X from a settled home after so much time had gone by. However, the LA, Guardian and adoptive parents all wanted a hearing.

The LA accused the parents of cynically withdrawing from a case they knew they could not win. The criminal prosecution had failed not because the parents were a victim of a miscarriage of justice and had been ‘exonerated’ but because prosecution witnesses could not agree about the existence or otherwise of metaphyseal fractures; accepted by all as a difficult area of diagnosis. Metaphyseal fractures are also called ‘corner fractures’ or ‘bucket handle fractures’ as they refer to an injury to the metaphysis, which is the growing plate at each end of a long bone, like a thigh bone. Most experts agree it is a indicator of abuse as the force applied to cause these fractures is shaking. Metaphyseal fractures occur almost exclusively in children under 2 because they are small enough to be shaken and they cannot protect their limbs.

The prosecution decided, very properly, that they could offer no further evidence against the parents in light of their own experts’ lack of certainty when set against the high criminal standard of proof.

This emphasis on declaring ‘the truth’ on the balance of probabilities, troubled me then, and troubles me now. In 2016 I commented:

What I had hoped we would see would be some open, transparent and honest discussion about the often enormous and sometimes irreconcilable tensions between doing right by parents and doing right by their children. Some recognition of the unnecessarily cruel bluntness of the lack of options for children to keep in contact with birth families, when decisions are made for adopted children, and which the Court of Appeal recognised in Re W [2016] needed further thought.

However, what it looks like we may get is some dreadful pantomime, further spending of many thousands of pounds of public money in some charade that by holding a re hearing of a finding of fact on the civil standard of proof (the balance of probabilities) we will somehow get to The Truth and we must do this because it will benefit the child.

What happened after October 2016?

For reasons which are not explained, the decisions of the court made in 2016 around this re-hearing have only just been published on the BAILII website in December 2018 so we are finally able to understand how this unusual situation has resolved.

Can a hearing take place if the parents won’t participate? And what are the implications for ‘The Truth’ ?

The first issue to be determined was whether or not the parents’ refusal to participate in the new finding of fact meant it should not go ahead. The court decided it should, commenting at para 30 and my emphasis added:

The fact is that, because of everything which has happened in this most unusual litigation, we are in a very good position to know what the birth parents’ case is and how it would, in all probability, be deployed before me were they to remain participating fully in the re-hearing. So I am reasonably confident that the essential fairness and validity of the process will not be compromised by their absence, just as I am reasonably confident that, even if they play no part in it at all, the process will be able to find out the truth for X and for the public.

I have highlighted that part of the judgment as it does not reassure me that any of the points I raised in 2016 have been answered; rather my concerns have increased. This creates a situation where the child and the wider public are asked to accept that ‘The Truth’ has been discovered on a balance of probabilities, with no participation from the parents and a Judge who is then only ‘reasonably confident’ that the process will work. By the time of the conclusion of the renewed fact finding the President was on firmer footing (see para 47), and was now ‘confident’ the truth had prevailed – but this remains ‘the Truth’ only on a balance of probabilities.

The court then continued with the finding of fact over a 12 day hearing in October and November 2016. See X (A Child) (No 4) [2018] EWHC 1815 (Fam)(decided in 2016 but not handed down in open court until 14 December 2018)

The court found that the parents had hurt X and they had decided at a late stage to try to avoid a finding of fact because they knew ‘the game was up’. The (then) President commented at para 125:

…I ought to say something about the timing and asserted basis for their attempted withdrawal from the proceedings. I cannot accept their protestation that the motivation for this was concern for X’s welfare and a recognition that there was little realistic prospect, whatever my findings, of ever being able to challenge the adoption order. If that had indeed been the case, they could have sought to withdraw much earlier. The truth, as it seems to me, is that, faced with the overwhelming weight of all the expert evidence which by then had been marshalled, they realised that ‘the game was up’ and cynically sought to withdraw, hoping that this would stymie any attempt to re-visit Judge Nathan’s original findings and thus prevent those findings being vindicated…

Matters of interest: Controversial expert evidence

These proceedings touch on a number of key issues that frequently become the subject of discussion and concern about how we deal with allegations that parents have hurt children. I have already commented on the issue of the standard of proof in family proceedings above. Annie will give below her perspective as a parent on how she reacts to the potential for different outcomes on the same facts in criminal and family courts.

It also highlights the difficulties around ‘controversial’ expert evidence which we touch upon in our guidance note relating to experts in the family courts – see Part 6relating to issues of medical controversy. In the criminal court the parents instructed Dr David Ayoub, a board certified radiologist licensed to practise medicine in the United States of America in the states of Illinois, Missouri and Iowa.

He could not be persuaded to attend the renewed fact finding in 2016 so the court considered his 2015 report and the evidence given in the criminal proceedings. Dr Ayoub had taken the controversial view that metaphyseal fractures happen extremely rarely and ‘for a great deal of the time, the medical community fail to take account of rickets’. His evidence was dismissed by the court as ‘worthless’, noting the reactions of the other doctors who described Dr Ayoub’s evidence as ‘nonsense’ (see para 43)

Asked by me to amplify what he meant by “nonsense”, whether he was using it with the colloquial meaning of “bonkers” or with the meaning “lacking any sense”, Dr Somers unhesitatingly replied “both.” Dr Somers said that Dr Ayoub’s interpretation of the images was “so far removed from any competent radiological interpretation that I have encountered that I would question either motive or competence.” He said of Dr Ayoub’s report that it “obfuscates important issues with a selective interpretation of the evidence in order to support an unproven theory.”

It is worth commenting that this is quite an incredible exchange for one expert to have with a Judge about the quality of another purported expert. There are other reported examples of parents attempting to rely on ‘foreign’ experts of less than stellar reputation and I wonder whether this is the inevitable consequence of the growing distrust of ‘the system’ and belief that all experts are in the pockets of the local authority – for an interesting example of the problems this can cause note also A (A Child), Re [2013]EWCA Civ 43. For further comments and concern about Dr Ayoub, see this article from The Times on 10th December 2018,which noted that Dr Ayoub had given evidence in other cases in the UK, further claiming calls were mounting to curb ‘incompetent experts’ and growing fears about their lack of regulation or control.

Matters of interest: Should a Reporting Restrictions Order continue to conceal the parents’ identities?

it is this issue which I think is probably the most pertinent for those of us who are interested in greater openness and transparency in the family courts. We have to grapple with the possible consequences of increased transparency, particularly in light of what seems to be a prevailing journalistic culture that rests very heavily on salacious and personal details as necessary to drive a story. When other members of the Transparency Project commented on a first draft of this post they asked why had chosen not to name the parents. My response was that I had not consciously chosen not to name them – but I felt very sorry for both of them. I have no doubt that they were encouraged to act as they did by those self styled campaigners against the family court system who persistently offer parents very bad advice on the basis that the whole system is corrupt and designed to steal children. Anyone who wants to know their names will find them by following the links in this post. I still feel uneasy about naming them here, even though I know this is futile.

The parents had welcomed considerable publicity after the collapse of the criminal trial in 2015 and their names were well known. The mother gave an interview to the Daily Mirrorsaying:

People need to know this goes on and be told the truth – you can take your baby into hospital scared they might be ill and the hospital can steal your baby away from you.

Their criminal barrister was quoted in the same article as saying:

Every step of the way when people had the opportunity to stand back, look at things again and say ‘we have made a mistake’, they ploughed on instead. These innocent parents have been spared a criminal conviction and a prison sentence for a crime they never committed. But they have had their child stolen from them. Their life sentence is that they are likely never to see their baby again.”

Sadly, this comment could not be excused as excitement in the heat of the moment arising from media attention, as the barrister’s Chambers published a blog which is still on linemaking the same points and quoting the parents’ junior criminal counsel as saying

“This tragic case highlights the real dangers of the Government’s drive to increase adoption and speed up family proceedings at all costs.”

Alarmingly, the blog post claims the parents were ‘exonerated’. They were not. The prosecution offered no further evidence. This is not a positive finding that the parents were innocent of any accusations made against them. This has echoes of the unfortunate ‘exoneration’ of Ben Butler by a family court when his text messages later revealed a very different picture; sadly after he had killed his daughter.

Such claims of exoneration are awkward when read against the 2016 fact finding. X did not have rickets. There was no miscarriage of justice. X had suffered ‘really serious abuse, child cruelty’.

At para 121 the court noted.

Standing back from all the detail, the overall picture is deeply troubling. Over a few short weeks, during the first few weeks of life, and extending, I am satisfied, over some period of time before taken to RSCH, X suffered an extraordinary constellation of what, I am satisfied, were inflicted injuries for which there is no innocent explanation: the constellation of marks and bruises noted by Dr Maynard (excepting the handful for which there may be an innocent explanation); two torn frenulae; and a number of fractures to different limbs. This was really serious child abuse, child cruelty. Whoever was the perpetrator must have known that X required medical attention. Even if someone was neither the perpetrator nor present at the time when injuries were inflicted, that person must have realised, even if only as time went by, that something was seriously wrong and that X required medical attention. Yet, until the final episode of oral bleeding, neither of the birth parents made any real attempt to obtain medical assistance for X, let alone to protect X from what was going on. Whoever was, or were, the perpetrator or perpetrators, both of the birth parents carry a high measure of responsibility for what on any view were serious parental failures.

Despite the considerable public attention already upon the parents in 2016, the court at that time agreed to impose a Reporting Restrictions Order to prohibit further naming or photographs, noting that the absence of that kind of detail would reduce the amount of publicity that could risk identification of the child or adoptive parents during the second finding of fact. The matter would be considered again when proceedings were concluded and this was done at a hearing on 30th November 2018 X (A Child) (No 5) [2018] EWHC 3442 (Fam) (14 December 2018)

In light of the outcome of the renewed finding of fact, it is not surprising that the mother now wished for the RRO to continue. She had since separated from the father who did not participate in the hearing. Her lawyers argued on her behalf that the mother was:

a vulnerable woman, lacking in formal education and certainly lacking in sufficient sophistication to negotiate dealing with the press. In the aftermath of the criminal hearing, [she] quickly came to regret having been forthcoming to the media. She experienced a level of interest and unwelcome attention that she had not anticipated and with which she could not easily cope. She withdrew from any further such involvement. She learned her lesson after the damage was done, but this socially disadvantaged young woman could never have been expected to have understood the ramifications of ‘going public’ and should not now be held responsible for the actions of others, who could have been expected to have such understanding.

However the court was not sympathetic to this argument. After conducting the balancing exercise between Articles 8 and 10 the court was clear that the parents should not be shielded by anonymity. The arguments put forward by the adoptive parents and the Press Association found favour:

…that there are in the public domain two competing narratives: one, the false narrative, in which identified birth parents portray themselves as the victims of a miscarriage of justice; the other, the correct narrative, in which unidentified birth parents are shown to have wrongly portrayed themselves as the victims of a miscarriage of justice. If the RRO continues in relation to the birth parents, it will not be possible to ‘link up’ the two competing narratives and therefore not possible to demonstrate that the false narrative is indeed false. It will remain indefinitely on the internet without anyone being able to counter it and demonstrate its falsity. More specifically, the allegation (now, as we know, false) of the identified birth parents that they – two named individuals – were the victims of a miscarriage of justice will remain indefinitely on the internet without the possibility of challenge and refutation. Ms Cover and Ms Rensten seek to meet this argument by submitting that the dragon is sleeping and will not be revived unless the birth parents are now identified. Even assuming that their premise is correct, this does not meet Ms Fottrell’s point, which is that the false narrative is out there – readily accessible by anyone with access to the internet.

A birth parent’s perspective

Annie, one half of the Project Coordinator role at the Transparency Project and author of Surviving Safeguarding: a parent’s guide to the child protection process adds her perspective.

I remember this case as it unfolded in the glare of the media in 2016.

What I, and other parents read was that these parents had taken their child to hospital, quite rightly, for medical help, and were accused of harming him or her, meaning that the baby was removed from their care at six weeks old. These parents were then put through the ordeal of a criminal trial and were found innocent of harming their baby. In the meantime, the Family Court had found, on the balance of probabilities, that the child had been harmed and decided that the baby should never be returned to their (seemingly innocent) parents and forcibly adopted. After being cleared of any criminal charges, the parents launched an appeal to have that child returned, an appeal which they then withdrew from, saying that their child had been with the adopted parents so long it would not be fair to move them.

To add insult to injury, Sir James Munby, the President of the Family Court Division (as he was then) added in cynical comments saying that he thought the parents had withdrawn because they “knew the game was up”. He stood by the family court findings (that the child was harmed by the parents).

I, like many birth parents with experience of the child protection system, felt both confused and angry by what I was reading. I felt angry with Munby and defensive towards the parents. How could birth parents who had been found innocent of abusing their child still go on to lose that child to a non-consensual adoption? It seemed utter madness – and a terrifying concept. Since 2015, I have offered direct advocacy to birth parents embroiled in the child protection process. What was I supposed to say to a parent who came to me, frightened, and not engaging with the local authority as a result, who had read this story in publications like the Daily Mail? How was I to reassure them that if they engaged with the help being offered that they had a far better chance of their family staying together when this story was being splashed all over the news and shared in amongst Facebook groups set up to protest against forced adoption? And quite frankly, who could blame these parents for feeling scared? I was, too.

I’ve since read the judgments, and taken time to review what evidence is available in the public domain. I understand better, and my view has changed. However, in the main, most members of the general public don’t read judgments. In the main, we read the news reports and form our opinions from them.

When it comes to parents involved with Children’s Services, these news reports only serve to exacerbate our fears that social workers are the “bogeymen” who will steal our children, even when we are found innocent. This perpetuates the “them and us” narrative, and means we are far less likely to either ask for help, or engage with the help being offered to safeguard children.

Conclusions

Sir James Munby’s confidence that the ‘true’ narrative will now overpower the false one, perhaps displays too great a faith in the ability of people to readily abandon narratives that chime with their own emotional reactions when presented with ‘facts’ (particularly if these are facts established as likely only on 51%). Publishing information on the internet does not by itself remedy the harms caused by adherence to more general conspiracy theories; a matter I have discussed in more detail at the Child Protection Resource.

However, this case with its harrowing and hopefully very unusual set of circumstances, sets out some powerful lessons. I think it is a continuing reminder of the need to be honest about what findings of fact in court can achieve. They are rarely about ‘exonerating’ or ‘damning’ but rather making a finding on a particular standard of proof. That means we need good quality evidence and experts who adhere to good standards of practice. Although Sir James was at the end ‘confident’ that ‘the truth’ had prevailed, the situation as highlighted in the criminal proceedings remained; the images of the fractures were of poor quality and the experts were not unanimous about what they saw.

As Annie comments above, it is a very clear example of just how confused those are outside the system about how it operates. The different standards of proof in criminal and civil cases is rarely understood, and when it is many parents make the reasonable comment that if their child is going to be adopted, it should be on the higher standard of proof.

However, most compellingly of all in my view, this case is a reminder of that he genie cannot be put back in the bottle. If we are pushing for greater openness and transparency, we all need to be mindful of the possible consequences. Once information is ‘out there’ it is very difficult to control how it will be republished or reinterpreted, no matter how hard you insist yours is the ‘right’ version. Once you have got journalists excited about the intimate details of your case, you may well attract more attention than you bargained for and end up the centre of a story that you had not anticipated.

Possibly parents who have greater faith in a court system will be less likely to seek to use journalists to fight their cause. But the risk of people pushing a false narrative with intent to deceive will remain and we are naive to think that publishing ‘the facts’ at a later stage will undo all the damage.

Feature Pic courtesy of Michell Zappa on Flickr (Creative Commons licence) – thanks!