Author Archives: Sarah Phillimore

Do we make unnecessary use of care proceedings?

This is a post by Sarah Phillimore.

This is the text of a talk I gave at the Bristol Civil Justice Centre on April 15th 2019 as part of a debate entitled ‘We make unnecessary use of care proceedings’. 

The situation regarding care proceedings in England and Wales is dire. There are various reports and worries about the ever increasing number of care proceedings with no corresponding increase in identification of those children who actually suffer harm. The worry from many is that we have created a voracious and possibly unstoppable  ‘risk monster’

EDIT – that line should read ‘ever increasing number of section 47 investigations’ rather than care proceedings. 

Various senior Judges have warned that the family justice system is close to collapse and cannot sustain this continuing increase in numbers of applications for care orders.

Much of the discussion on and off line from parents and some professionals is in very bleak terms about the sustainability of the system and the harm that it does to those who come within it.  Richard Devine commented on Twitter in March 2019:

Sometimes I wonder, in 50 years time, what aspect of the current child protection system will, with retrospection, seem incomprehensible, unethical, absurd?

The answer came swiftly from one Twitter user:

Most of it. Its harms to health, mental health and human well being will be evident and regrettable.

This is a fairly typical exchange. So I can immediately see and understand that the easy and obvious answer to this question is ‘yes’. But, as ever, I think the answer is a more complicated than the question poses at face value. And that’s why I wanted to speak against this motion. Not because I have any naive hopes that my mere rhetoric will sway anyone from their decided view. But in the hopes that you might at least listen and think about some of what I say.

All care proceedings involve failure.

All care proceedings involve failure. It is a failure of at least one of the following 3 things; the very worst cases are a failure of all 3.

  • A failure by parents to reach ‘good enough’ standard in their parenting, a failure so serious that it either causes their children significant harm or puts them at serious risk of the same. The degree of blame to be attached to this can vary from ‘none at all’ for those parents with disabilities who did their best, to a very high level of culpability which finds the parent also facing criminal proceedings, for example due to sexual assault or deliberate infliction of physical harm
  • A failure by social workers or other professionals to build a relationship pf trust with a parent who is struggling. Or worse than that, professionals who operate from untested assumption and prejudice. Or worse still, professionals who actively mislead by altering documents or lying to the court. I hope that latter example is a very small minority but I accept that even one case a year is one too many
  • A failure by the State to provide any sufficient safety net for parents and professionals who are struggling. A failure to provide and maintain support for those with poor housing, mental health struggles etc. A failure to provide safe working environments for professionals, allowing case loads to rise beyond what is sustainable or safe.

Once the case then comes to court, The court system itself often fails to deliver what we know is needed. The procedure is often not quick, efficient or humane. This puts at risk the need to have the right decisions made on the right evidence, which in turn puts in peril the child’s need to have the right placement and the right support identified and provided.  Parents are left behind at the end of it, confused, miserable and alone with no further legal support to challenge a decision they may feel is profoundly wrong.

The whole system is predicated on failures. Some of those failures are a shameful indictment of the way our society operates. Other failures are simply a reflection of the inherent frailty of human beings. We could only eradicate those types of failures by going down a road of eugenics and social engineering which only a fanatical and dangerous few would ever advocate.

Because a system ‘fails’ does that make it unnecessary?

I would like to conduct a quick and unscientific poll.

Children are vulnerable. Not all parents can be good enough parents. This isn’t about moral blame. Its about asking hard questions about what we, collectively, agree we should do to protect the most vulnerable members of our society.

  • Who in this room thinks that children aren’t at risk of death or serious harm from their parents? Raise your hand.  31 children under 16 were killed by their parents in England and Wales in 2015 – three a month – compared with 23 in 2014. 
  • Of course, deliberate murder is thankfully rare. But who in this room thinks that the State should step in to protect only those children at risk of being murdered? Raise your hand.
  • Who in this room thinks that the State should step in to protect only those children at risk of having their bones broken? Raise your hand.
  • Who in this room believes that from the age, say of 0-12 years only a parent can have any authority over the education and health care received by their child? Raise your hand. 

Unless ALL or NONE of the hands go up in answer to the last 3 questions, then we have to accept that there is room for disagreement about exactly where the line should be drawn – but the one thing I think we would all agree with – there is a line, somewhere.

EDIT – NO hands were raised. On reflection, it would have been more interesting to ask a question about the more nebulous aspects of threshold, such as emotional abuse. But it was clear that all in the room agreed that children need protection from dangerous parenting. 

The journalist Louise Tickle visited Dublin recently and discussed her visit on her Open Family Court website. She made the point that the importance of the family is set out explicitly in the Irish Constitution

 

This is reflected in many other international and domestic laws and practices. But it cuts both ways doesn’t it? If you are expecting the State to step in and defend the family as a ‘necessary basis’ of social order and ‘indispensable’ to the welfare of an entire nation, then presumably the State must have something to say about those individuals who threaten the sanctity of the family by harming members of it?

Its interesting to note what else Louise Tickle observed. One of the benefits of Ireland’s Child Care Law Reporting Project was that not only did it act to permit scrutiny of state action in interfering with families, it also allowed the public to see just how bad things could get for children

McKittrick also believes that reporting has raised society’s awareness of and sensitivity to child abuse. “Our perception is that the general public have had no idea of the level of misery that these children experience, and we can’t talk about it,” she said.

Conclusions

So no, I don’t believe that we make ‘unnecessary’ use of care proceedings. I do however think that the outcome of these proceedings is moving ever further away from what was hoped for by those who framed the Children Act. We have essentially betrayed the legacy of the Children Act 1989 by removing funding for the support services so essential to its proper operation.

As Professor Jo Delahunty QC commented after her recent lecture to commemorate its 30th birthday

The lack of financial support for community resources [and the] the rise in [applications under] s 31, 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 and 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.

Further reading

Thread of live tweets from the night #FCDebate

Children Act ‘betrayed’ in climate of cuts 16th April 2019 Community Care

You never lose the fear of the knock on the door April 2019 Tortoise Media

Care Proceedings in England: The Case for Clear Blue Water March 2019 Isabelle Trowler

 

 

Mums on the run: When you have tried everything else you have nothing else to lose

This is a post by Sarah Phillimore.

On April 4th BBC’s Woman’s Hour discussed the issue of mothers who repeatedly lose their children into the care system and the decision made by some to ‘flee’ the jurisdiction, sometimes with the financial and emotional support of an organised network of people.

This prompted some further discussion online. I have already written in some considerable detail about the issues that arise from this; see the posts set out in Further Reading below.

The conversation on line was very useful for clarifying some thoughts and questions about where we go from here.

A typical reaction to hearing the story of ‘Zara’ on the Woman’s Hour podcast was of shock and sadness. Why should any mother have to go through this? Just what is the scale of the problem and what can we do about it?

A number of parents asserted to me that ‘lots’ or ‘the majority’ of parents who left the UK ‘settled well’. I pressed them to help me understand what actual numbers informed this statement – and what happened to the minority who did not settle? The parents were not able to answer and seemed to find my questions an attack on their integrity and intelligence, which I did not understand. I was asking for the raw data that informed their confident assertions. After a few hours of such to and fro it became clear that no one knows the numbers. And that has been the primary issue that causes me concern about all of this.

One person provided screen shots of a group operating in Egypt which explained to parents

…. remember summer is blisteringly hot here. Not like a summer holiday. We want only mums who will fight to the end whatever the conditions to protect their child… medication to cope with withdrawal from drugs we can get… (winking face emoji)

Even that brief description suggests the risks to parents and children, many already vulnerable, are huge. Rather chillingly, one parent commented:

Genuine neglect, abuse and incapability cases never survive long… unless you can survive for 6 months with no income, don’t bother…

Those who offer money to send people out of the jurisdiction appear to undertake no risk assessment, keep no records and don’t record the progress abroad of the fleeing parents. We urgently need to understand the scale of the problem.  The ‘fight’ rhetoric is worrying and will obviously be appealing to desperate parents. As one commented via Twitter

And they wonder why we run when you have tried everything else – you have noting to lose

What is the scale of this problem?

One parent (who had left the jurisdiction and was now parenting her two youngest children, despite losing the older ones to the care system) suggested that about 50 parents ‘on average’ left the jurisdiction.  One parent wondered if a higher number of parents who already had dual nationality would leave the jurisdiction – but that, interestingly has not been my experience.

One person commented that the following three questions need to be asked

a) Why do parents flee

b) why do other countries not consider the same parents to be a danger to children?

c) what the hell is going on?

I think these are all essential questions to be answered. The problem is, that we need proper data in order to try and answer them.  I would like to know:

a) how many parents leave the jurisdiction each year to avoid care proceedings?

b) What countries do they go to

c) how many ‘do well’ and settle

d) those who don’t do well – what happens to them and their children?

 

Way forward

One parent suggested that I make a FOI to various LA to see how many port alerts they issued for parents. That could be useful information but it won’t answer my questions above. What does seem to be key here is getting more information about how other jurisdictions operate. Clare Fenton Glynn has done some useful work on this but I am not aware of much else that could help to answer the questions.

One parent suggested that the key difference was that no other jurisdiction recognises ‘risk of future harm’ in the way we do – I accept that this is a concept that causes many unease and which we investigated at #CPConf2018.

As one person commented:

… if process wasn’t adversarial from the outset there would be no need for mums to hit [social media] and look about fleeing… ban SWs from scaring mothers by saying ‘have any more, we’ll take that too”…

I would be grateful for any other suggestions about how we can collectively move forward to have sensible discussions about this. We need some hard data and we need to keep asking some hard questions. We need to know a lot more about how other countries operate. Although I do not have firm data, It cannot be right in 2019 that parents feel they have no choice but to uproot themselves from their own country and put themselves and their children at serious risk of harm.

Further reading

Mums on the run April 7th 2019 post by ‘Annie’ member of The Transparency Project and a mum who nearly ran.

Helping parents leave the jurisdiction – what happens when you don’t know the whole story, or you don’t care? August 2015 Child Protection Resource

Keep on Running September 2016 Child Protection Resource

Keep on Running Part II April 2018 Child Protection Resource.

 

Why does Every One Hate the Family Court? Part III what narrative is gaining traction – and why should this concern us?

This is a post by Sarah Phillimore

Too long didn’t read: there is a problem what I shall call the ‘DV Sector’, for want of a better title. There are a number of individual women and organisations who garner a lot of media attention, who have books and talks to promote and apparently the ear of credible and influential law and policy makers, including serving MPs. The narrative that some of them promote I think is actively harmful to reasonable debate and the rule of law. Their reaction when challenged is alarming. More people in the sector need to have the courage to speak up about this. 

This is part 3 of what is sadly highly likely to be a continuing series. If you are interested you can read Part 1 here from January 8 2019 and Part 2 from guest blogger Emma Sutcliffe from February 6th 2019.  This is an issue which has troubled and preoccupied me for some time now. I will let my previous words speak for themselves – if you are determined to see me as a ‘shill’ for a corrupt system, or biased against men, or hateful towards women etc, etc, then no doubt you will see what you want to see and no words of mine will persuade you otherwise.

However, the fact that I have been accused of all these things simultaneously (which I suggest is unlikely to be possible) reassures me that I am succeeding in my aim to be as fair and balanced as I can. Because I make people from very different ends of the argument equally angry.

I write this post because I think it is important to share with you something that happened to me recently. I will avoid using names, unless it is central to the point I need to make, as I don’t want this to appear a ‘front’ for any kind of personal vendetta. It isn’t. What I describe here is an illustration of a much wider and general issue which has really serious implications for us all. Because I believe it strikes at the heart of the rule of law, and the trust in which we can place in our court system.

My concerns escalated over the last few days with the publication via social media of a distressing video of a child being removed. This was strongly promoted by these ‘people of prominence’ and apparently taken up immediately without question or thought by a number of influential people such as the MP Jess Phillips and Clare Waxman, the Victim’s Commissioner for London. The reasons why such knee jerk response to one video in isolation can be harmful, and the legal implications of sharing it, have been set out fairly and comprehensively by Lucy Reed on Pink Tape. 

I will go into more detail below about my concerns below.

Giving child abusers moral authority.

I wrote about this on February 4th 2019, outlining my concerns that Victoria Haigh was setting herself up to gather ‘victims’ of the family court system to investigate why so many children were ‘given’ to fathers who perpetrated abuse. Why I was worried will be immediately obvious when you read the published judgments about what she did. I called her a ‘child abuser’ because that is what she has been found to be. I wondered aloud why ‘prominent members of the DV sector’ supported her. The reaction was swift and fierce. I was immediately blocked on Twitter by a number of such members of prominence. Fair enough. You don’t have to engage with me if you don’t want.

However, I then discovered that I now had a lengthy post on a website dedicated to me and my ‘hatred’ for trans women and homosexuals, together wth a lovely photograph of me and speculation about where I got my nice big house as a legal aid lawyer. (From a massive critical illness insurance payout if you are interested, but don’t let that get in the way of insinuations about my corruption). So far, so internet. What was disappointing albeit interesting was to note that a number of Haigh’s supporters had contacted the author. I think I can reasonably assume this because the author of the website has a twitter account with only six followers last time I looked. And one of them was a women ‘prominent in the DV Sector’.

So I think it must have been a person of prominence in the DV Sector who made this comment:

She’s a bully. She was trolling a woman who’s heading a domestic violence campaign, repeating what the family court judgement said about her when the whole idea of transparency is to question these. 

And that’s a very revealing comment indeed. The ‘whole idea’ of transparency in the family court system – which I wholeheartedly agree with and campaign to achieve –  is not to question court judgments. It is rather to know that they have been made and how they have been made. If you disagree with the judgment, you must appeal against it.

There are several court judgments against Haigh. She did not appeal. These judgments stand as the truth. This is the operation of the rule of law. It is not for any person, no matter how prominent they believe themselves to be in the DV Sector, to simply declare that they will not accept or believe a court judgment and that they can rewrite history if they wish.

Then matters took an even more sinister turn.

Vivien Hobbs and The Legal UK Partnership LLP

On 8th March 2019 I received an interesting email from Ms Hobbs from ‘the Legal UK Partnership LLP’ which had an address in Hatton Garden but no web presence at all from what I could find, other than a listing at Companies House. Nor did Ms Hobbs appear registered as a practising solicitor with the Law Society when i checked their website.

Her emails were all headed ‘private and confidential’ but as I do not think you can assert confidentiality over a potentially criminal attempt to extort money, I am going to ignore that. If I am wrong to do so, no doubt Ms Hobbs will take legal action against me.

Dear Ms Phillimore

We represent Victoria Haigh, a racehorse trainer and former model. You will be familiar with our client from your online postings via Twitter and your blog.

We write in respect to certain false claims and allegations made against our client, those being widely published using your barrister profile via Twitter and your blog as the source of such.

Your false claims and allegations include, where you falsely state and insinuate that our client has been convicted of crimes of which she has never been convicted, including, the attempted abduction of a child and child abuse.

Our client is deeply concerned and distressed concerning these false claims. Please therefore in the first instance provide the source of your information to enable these matters to be promptly dealt with.

In the circumstances, it is only sensible that you immediately remove any claim which cannot legally be supported, where we should advise that the continued presence of these false and highly defamatory allegations is causing significant damage to our client’s reputation.

Should we not gain your co-operation by close of business today, we will immediately submit a formal complaint to your regulator and escalate matters otherwise. Please note that a copy of this correspondence is simultaneously being submitted to your regulator anyway to ensure there is no loss of time in dealing with the fallout from this defamation.

We await your urgent reply, however, in the meantime, you may wish to pass a copy of this notice to your insurer.

I found this quite an odd email and immediately doubted its provenance. However, I appreciated that I referred to Ms Haigh as having committed the offence of attempted child abduction when in fact she received a 3 year prison term (later reduced on appeal) for breach of a non molestation order. She approached her child who was sitting in a car on a petrol station forecourt despite knowing that she was prohibited from doing so. The serious nature of that breach was no doubt reflected in the initial prison term of 3 years.

I accept it is always important to be clear and accurate, so I edited my blog post to be clear about the precise nature of Ms Haigh’s criminality, and I made it clear I had done so.

Unfortunately Ms Hobbs was not happy.  She replied on March 14th to say

In the circumstances, we are providing a further twenty-four hours for you to remove all remaining offending material and for you to submit an offer of settlement with respect to the damages due to our client. Should matters proceed to court, our client has been advised that the court would consider the sum of £300,000 as just and reasonable compensation for what she has suffered and continues to suffer. This sum does not take into account any loss of licence which would bring to an end our client’s substantial racehorse training business. We further believe that you have brought your profession into disrepute and acted without integrity, where accordingly, you may be subject to disciplinary proceedings and be disbarred. It is therefore hoped that you act reasonably where we await your urgent reply.

I replied in the following terms. I had previously asked Ms Hobbs to confirm her professional status and give me details of her firm’s insurer, but received no reply to those queries.

I am disappointed but – given the bizarre tone and contents of your emails – not really surprised, to receive no information about your professional status by 4pm today as requested.

Let me be frank. I consider what you are doing is verging on a criminal attempt to extort money with menaces. Your claims and assertions are absurd.

Please do think very long and hard about what you are doing….[redacted]

I do not expect to hear any more from you but please do not doubt my willingness to engage if you do not immediately desist.

It is now April 3rd and I have yet to hear further from Ms Hobbs.  I find it very odd that any kind of venture that purports to be in a position to secure payouts of £300K for their client  has no web presence at all. I remain of the view that this was some kind of attempted extortion and I can imagine many people receiving this kind of correspondence would have been extremely frightened. As no doubt was the intent.

Conclusion

So in just a very short space of time I have seen some clear examples of really abusive and frightening behaviour from those who claim that they are speaking for the voiceless victims of the evil, secret family courts.  To claim that such people cannot be challenged because they are ‘prominent’ in their field is getting things back to front. You earn prominence and respect because of your words and deeds. Your prominence does not insulate you from reasonable criticism of your words and deeds.

To be blunt – as I know no other way to be – am very worried about what is happening in the ‘DV Sector’ and this relentless narrative that the family courts are designed as deliberate tools of oppression against women. As my experiences show, women can be every bit as abusive,  manipulative and dangerous as men. It is naive to claim otherwise. Not everyone who seeks to identify as a victim actually IS a victim.

Distinct binary divisions between ‘perp’ and ‘victim’ are rare. The truth is often much messier than that. Those who seek to deny this obvious truth should not be allowed to hijack a very necessary and serious debate about how to make the family justice system better.

However, sadly it looks as if there will be many more videos to come.

 

EDIT APRIL 4th 2019

I am pleased to note that Clare Waxman has deleted her original tweet sharing the video. What is less happy is that my various questions to her went and continued to go unanswered.

Edit April 4th 2019 a bit later 

I have had more emails from Ms Hobbs who seems even more displeased.

Despite formal notice and your legal and professional obligations, it has come to our attention that you have further fallen in default of those by committing to yet more defamation and breach of duty of confidentiality with respect to recent posts on your website. Unless all reference to our private and confidential communication and ourselves is removed with immediate effect, these further breaches will be added to the Notice of Claim which is now being prepared by counsel following receipt of your BSB disciplinary record.

We note that your past professional misconduct history falls directly line with your current demonstrating extreme recklessness and abandonment of duty in relation to family proceedings. Your behaviour is reprehensible, where it is absolutely clear you are unfit to practice let alone family law. This notice is being copied directly to your regulator which has been made aware of what is in transition, including, where we are seeking disciplinary action and draconian sanctions. We understand that you have also been reported to the police for similar breaches and acts of malice.

And Ms Haigh has begun tweeting.

I have replied to Ms Hobbs

Dear Ms Hobbs

I stand by everything I have said and will willingly repeat all and any of my allegations in any arena.

I have asked you repeatedly for confirmation of your professional status and your firm’s insurance details.

You have failed to provide those details. I draw from that certain conclusions.

Any further emails from you will be deleted unread.

I suggest you get on with issuing your claim, but maybe consider with your client how well her public attempts at intimidation and harassment of me via Twitter this afternoon will play before a court. I confess I find it rather an odd strategy but no doubt your counsel can advise.

 

I do not resile from anything I have written here. I will not remove it unless I am ordered to do so by a person or organisation with rather more authority than Ms Haigh or Ms Hobbs. I shall look forward to defending myself in an open court.

EDIT APRIL 9th 2019

I am grateful to be alerted to the following judgments on BAILII which provide further interesting insights into the operation of the ‘Legal Uk Partnership’.

First we see the case of Welch v Welch [2017] EWFC B32 (19 June 2017) which has this interesting paragraph – emphasis added. The applicant in this case is one Vivien Welch, who I shall assume is now calling herself Vivien Hobbs

It is perfectly clear that the wife’s obsessive behaviour in relation to these matters has continued, arguably worsened. Becoming aware of their identity from the sale documentation, the wife has bombarded the prospective purchaser (Mr Davis) and his solicitors (Hadfields, Butt & Bowyer) with barrages of misinformation and invective deliberately and maliciously designed to frighten them off from the transaction. In these communications she has wilfully misinterpreted the court process and mischievously misrepresented the facts. In a deliberate attempt to add authority to the bombardment she has misrepresented herself as a legal representative of herself practising under the title “Legal UK Partnership” (as far as I am aware she has no legal qualifications whatsoever). Perhaps not surprisingly, Mr Davis has been frightened off – no doubt it was easier to seek a property which did not have these conveyancing complications – and the wife has, once again, frustrated the husband’s legitimate desire to enforce my order of 9th September 2014. The wife is utterly unrepentant about all of this, believing her steps to be wholly justified. There is every reason to believe that, given the chance, she will do exactly the same thing again. One aspect of all this, which makes the wife’s behaviour all the more extraordinary, is that on completion of the sale, she will only receive 1% of the proceeds, and whatever she may receive is already subject to charges which outweigh its value.

Going back a few years to  Welch v Welch [2015] EWHC 2622 (Fam) (31 July 2015) we see the same Ms Welch, this time described at paragraph 3 of that judgment:

n judgments in the present proceedings District Judge Hess has, in a number of places, described the approach of the wife both to that litigation against her first husband and this litigation against her second husband as obsessive, or obsessional, and indeed irrational. By way of example only, District Judge Hess said at paragraph 87 of his judgment dated 9 September 2014 that ‘…in this litigation, and in the previous litigation, the wife has…been obstinate, unrealistic and obsessive’. I stress that those are his words after hearing evidence over several days. They are not my choice of words; I merely repeat as part of the background what that judge concluded.

On one level this is funny. I now await the writ of libel being prepared by Ms Hobbs and her mysteriously as yet unnamed counsel with anticipation boardering on the gleeful.

But on the other hand it is not funny at all. Ms Haigh is being promoted and supported by some ‘big names’ in the DV sector. And this is how she operates. Are those promoting her aware of this. I am very afraid that the answer to this question is ‘yes’. The implications for the progress of any meaningful discussion about this area of law and practice are pretty stark. If your campaign is fuelled by the obsessive and irrational – where do you think it is going to end up?

 

Child in need or ‘looked after child’. Why does it matter?

This is a post by Sarah Phillimore.

Teasing out the various issues arising under section 17 and section 20 of the Children Act when it comes to ‘providing accommodation’ and the consequences that flow from that, appears to be yet another example of complicated and confusing statutory provisions which put enormous obstacles in the way of parents being able to understand the process. We must either simplify our laws or increase provision of legal aid. 

What happens to children under 16 who need help from the State with somewhere to live?

Mrs Justice Black SA v KCC [2010] EWHC 848 (Admin)

“There are various provisions of the Children Act 1989 apart from s 17(6) which deal with the provision of accommodation by a local authority. Although this is not the first time I have had to consider this aspect of the Act, I continue to have difficulty in understanding how the various provisions fit together, how it was envisaged that the scheme would work in practice and how it was thought that it would enable local authorities and others to ascertain, relatively simply, whether a child is looked after or not…”

The distinction between ‘in need’ and ‘looked after’

A child can be a ‘child in need’ and get help and services under section 17 of the Children Act 1989. Or a child can be a ‘looked after’ child and get help and services under section 22 of the Act.

The distinction between these two is significant. A ‘looked after’ child gets more help, including a duty on the LA to consider offering support even when she is older than 18. A ‘looked after’ child will also experience more intervention from the LA, for example the statute provides that frequent reviews are required.

The Children (Leaving Care) Act 2000 creates new categories of young people entitled to support.

  • Eligible child – aged 16 or 17 and are currently looked after, either on a care order or accommodated, who has been looked after for a period or periods of 13 weeks since their 14th birthday (this total should include at least one spell of over 4 weeks, but does not include respite). This category defines those who will go on to become Relevant and Former Relevant young people when they cease to be looked after.
  • Relevant child – Aged 16 or 17 (not yet 18) and have left care, having previously been in the category of Eligible child.

There is a duty to financially support them up to the age of 18. The allowances paid to them should not fall below the level of Income Support or Income Based Job Seekers Allowance.

There is a further category of ‘Former Relevant child’ , being those aged 18 to 25 and who have
left care having previously been Eligible or Relevant, or both. The LA is under a duty to consider the need to financially support them.

A ‘looked after’ child is defined at section 22 of the Children Act 1989 as a child who is under a care order OR IF the accommodation provided is by the LA ‘in the exercise of its functions’

‘Functions’ exclude anything done under section 17, 23B and 24B of the Children Act 1989.

Accommodation is only ‘accommodation’ if it is provided for a continuous period of more than 24 hours.

So what does this mean?

Section 17 imposes a general duty on the LA to safeguard and promote welfare of children in their area. This may include providing accommodation.

Section 23B relates to 16-17 year olds and section 24B relates to those who are at least 16.

Therefore if your accommodation is provided under section 17 you are NOT a ‘looked after’ child. We must then look to sections 20 and 23 of the Children Act 1989 to understand what are the relevant ‘functions’ which decide whether or not a child is ‘looked after’.

Section 20(4) is ‘permissive’ . It does not impose a duty on a local authority to accommodate a child but says that they can do so if they think it would promote the child’s welfare and those with PR consent.

Section 20(1) however is mandatory – so a local authority MUST provide accommodation to a child if there is no one who has parental responsibility for him, or no one who can exercise it.

Section 23 is also mandatory and tells the LA that when they are looking after a child they must provided accommodation and other services. Section 23(2) sets out that accommodation can be provided by placing the child with family or any other suitable person. These people will be considered foster carers (so must be assessed and found suitable to meet regulations around standard of foster care) UNLESS that person is the child’s parent or has PR for the child or a Child Arrangements Order.

Further, section 23(6) sets out the LA ‘looking after a child shall make arrangements to enable him to live with’ a parent or person with PR, or a relative, friend or other person connected with him. The LA must also try to find accommodation near to his home and with other siblings (section 23 (7)).

The drafting of this section, as Mrs Justice Black recognises, is confusing and seems to set up different routes into ‘providing accommodation’.

It’s not the label that matters, its the facts and the legal consequences.

R (on the application of M) v London Borough of Hammersmith and Fulham [2008] UKHL 13 made it clear that if the LA claim to be acting under section 17, a child will still be a looked after child if the circumstances are such that the LA should have gone down the section 20 route.

Difficulty has arisen when a child goes to live with a relative and the LA claim that this is a ‘private’ arrangement and therefore not one that should be described as the LA ‘providing’ accommodation. The court is willing to accept that there may be some cases where a LA could ‘side step’ their duty to accommodate by helping to set up a private fostering arrangement.

Private fostering arrangements are dealt with in section 66 of the CA and cover children who are under 16 and cared for in their own home by someone other than a parent, a person with parental responsibility or a relative.  A ‘relative’ is defined under section 105 of the Children Act 1989 as a grandparent, brother, sister, uncle or aunt (whether by blood or marriage) or step-parent.

Has the LA taken a ‘major role’ in making arrangements for the child to be accommodated?

It is a question of fact in every particular case. Where a LA takes a ‘major role’ in making arrangements for a child to be fostered, it is more likely to be considered to be exercising its duties under sections 20 and 23, no matter what it claims is the label to be attached to its actions.

Helpful issues to analyse are likely to be:

  • is the LA attempting to regulate the terms of the placement? for e.g. having a view about the child’s school or who has contact with the child?
  • What is the LA saying about providing financial help for the child? A true private arrangement will be between the parents and the proposed carers who must understand that the parents will be providing financial support.

Does it then matter if the LA argues section 23(2) or 23(6)?

The court said ‘no’ in SA v KCC [2010] and set out a simple approach to the statute. If the child falls within section 20(1) – there is no one with PR or no one who can exercise it – then the LA is providing accommodation for the child regardless of whether or not it finds a home with a friend or relative and regardless of whether or not the LA chooses to accommodate a child under section 23(2) or 23(6).

The LA in that case had tried to argue that whenever a child goes to live with a relative under section 23(6) then such children are not ‘provided accommodation’ unless there is care order in place. The court rejected this ‘rigid position’ as being potentially disadvantageous to the child and ignores the ‘enormous variation that there is in the circumstances of children, and their parents and carers’.

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

This is a post by Sarah Phillimore

On March 26th I was alerted to what I was told was a blog post by a lawyer for the charity Mermaids. The lawyer does not identify him or herself or claim any affiliation to Mermaids but the title of the blog is clearly identified as about ‘Trans Law’ and the author purports to be a qualified and registered solicitor. I will assume therefore that this analysis of the law may be read with interest by charities and other campaigning groups which assert that they protect the rights of trans children.

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

I am concerned by what I read in this blog post. Not because I am a bigot who hates transpeople. But because I am a lawyer and I respect the rule of law. The law is no salve to hurt feelings. The law exists to constrain or promote behaviour that can be identified on evidence, to either the civil or criminal standard of proof depending on the nature and quality of the act.  The law is interpreted and applied by those qualified and trained so do to. It is not something that is within the power of any one individual to describe and enforce.

So what is my problem with this blog? It promises to be 1 of a 4 part series. The inherent and fundamental problem is set out in its very headline which manages with admirable economy to set out a broad and undefined term – what is a child – coupled with an a priori assumption about the existence of ‘trans identity’.

So there are two issues we need to unpick:

First – what is a child?

Second – how and when is the transgender identity of a child discovered?

What is a child?

A child is a human aged between 0-18 years. The difference between a toddler and a 16 year old is vast. That span of time encompasses the growth of a child from not much more than a blob to a thinking, reasoning, decision making human being. There can also be huge differences between even neuro typical 12 and 15 year olds. For these obvious reasons, the law operates on a ‘sliding scale’ when it comes to children and the weight that must be attached to their wishes and feelings.

As a rough rule of thumb a child under 6 is highly unlikely to be able to formulate a world view that differs significantly from the adults caring for him or her. However, most children over 16 years old will be able to make their own decisions and the courts recognise the futility of attempting to impose orders upon them at this age – note for example the provision in the Children Act 1989 that private law orders will only be made about 16 year olds in the most exceptional circumstances.

The difficult age range is likely to be between 12 – 15 years when many children will present as articulate and fluent and may have quite decided ideas about what is in their best interests but have still only lived on this earth for a brief span of time and still require the guidance, love and support of their adult carers.

Most neuro typical children in this age bracket are likely to be considered ‘Gillick competent’ and able to make decisions about their basic health and welfare which must be respected by their adult carers.  However, even a Gilick competent child may find the court willing to force them into treatment if there are sufficient concerns about their welfare, for example when refusing a heart transplant. Such matters are clearly highly fact specific and will be decided on a case by case basis.

On this very short and rough analysis hopefully it is immediately clear that to talk of ‘a child’, defined in law as any person under 18, without any attempt to reflect the ‘sliding scale’ of a child’s autonomy and capacity to make serious decisions, is simply ludicrous. The court would not treat a 6 year old in the same way as a 16 year old and no one could assert in good faith that they should.

So the author of the this document will need to revisit it and set out their understanding of the law with regard to a) very young children and b) children who are Gillick competent but not yet 16 .

 

How and when is transgender identify discovered?

This question is of course inextricably linked to the issues raised above about Gillick competence. If the mother of a 4 year old asserts the her son ‘disdains his penis’ and wishes to live as a girl, the court is going to subject this to rather more anxious inquiry than if the same child was a teenager.  This is exactly what happened in the case of Re J which I discuss at length in this post in December 2018: ‘In whose best interests? Transgender Children: Choices and Consequences’

And who was the charity which supported this mother in court, which condemned the Judge’s decision to remove the child from the care of his mother into his father’s care (where he lived happily as a little boy), and promised an appeal of the decision that never came? Mermaids of course.

I commented in December that it would have been good to have seen a little humility from Mermaids that they had backed the wrong horse in this case and supported a mother to do significant harm to her child by way of emotional abuse. If this blog post is indeed from a self identified lawyer for the Mermaids charity, this shows me that any such hope was naive indeed.

The author comments:

As a matter of legal principle and good practice (and to avoid frustration from the Bench), a child being trans should not come in to a case’s dialogue unless

it is materially relevant to an issue in question; or

it can be legally justified as a materially relevant issue in and of itself, i.e. the child’s trans identity is a contested ‘fact’.

I don’t take issue with that. I accept that there are a small minority of children who experience ‘gender dsyphoria’ and who seek and are entitled to help and support about that. I would however be astonished if any child under 6 – and the child in Re J was four years old – could ever fit into that category. For younger children, any self declaration about ‘disdaining’ their body is going to come from one of the parents and it cannot simply be accepted at face value, as Re J clearly shows.

The author rather skates over Re J and its implications (and certainly makes no mention of the role Mermaids played in encouraging a mother to cause harm to her child) and says

Further case law is needed to clarify the nuance between the scenarios of ‘forcing a child to be trans’ as emotional abuse in itself,

I don’t agree with this comment. It does not seem to me a matter of any uncertainty that ‘forcing’ a child of any age into ANY identity which they do not in reality choose, can be anything other than emotional abuse of a really serious kind. However, the author seems to go even further and seems keen to discourage the very analysis that he/she says is necessary. There is a clear wish to turn the spotlight away from any anxious inquiry into the truth of a child’s circumstances:

It would and will always be deeply problematic and symptomatic of the historic ‘gender policing’ (to which the trans population, both in the UK and across Europe, have been subject to) should the court be used to decide on whether someone, in this case a child, is ‘actually transgender’ or not. This is not the courts (nor anyone’s) – save for the individual themselves – right.

And this of course is a nonsensical assertion. It is entirely the job of the family court’s to concern themselves with a child’s welfare and make decisions for them when their parents cannot or will not. To afford a very young child ‘a right’ to determine something so significant is not protecting children’s welfare – it is rather risking them as proxies for the psychological dysfunction of their parents.

The author then appears to argue that such anxious inquiry must also be avoided in case it ‘triggers’ the child.

…the Issue must be dealt with incredibly delicately. Not doing so would be extremely dangerous as it would have an intrinsic risk of violating the subject child’s Article 8 and Article 14 rights, but it is also exposing a child to a triggering scenario that may subject them to psychological harm.

Again, this is – in my view at least – an assertion that is both dangerous and foolish. To assume that investigating a child’s situation will in and of itself harm the child is to assume a great deal about what is actually being investigated. I understand that it may well be embarrassing and painful for a 15 year old to have to justify the decisions they want to make about their own body and I do not think that the court should inflict this upon any Gillick competent teenager.

However, to suggest that we shy away from what emotional abuse a parent might be inflicting on a 4 year old, in case we risk ‘triggering’ that child is utter, unmitigated hogwash. This line of thinking puts children at risk of very significant harm indeed.

But the real beating heard of the argument is here.

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

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

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

What’s in a name? The right of parents to name their child – when can the state interfere?

I was reminded of the case of C (Children) [2016] EWCA Civ 374 at a recent court hearing where the issue arose about the local authority’s duty to register the birth of a child who is subject to a care order. Hopefully that matter will be subject of some further guidance – my argument being that a failure by a parent to register a birth is an abnegation of parental responsibility, not an exercise of it and therefore the local authority ought to be allowed to register after the required 42 days without needing the court’s permission. 

However the issue of what name a child should be registered with is of much greater significance and It is clear that any argument between parent and local authority must be subject to over sight by the court. But what gives the local authority the right to have an opinion in the first place? To answer this question requires an examination of what happened in C Children.  

How far can the state interfere with a parents wish to register (or not) the birth and name of their baby?

The issue of registering a birth is interesting in the context of care proceedings as there appears to be a view in some quarters that registering a birth makes your baby the ‘property of the state’ and refusing to register means the local authority cannot issue care proceedings. This view has no substance, but of course that doesn’t prevent people from spreading it and believing it.

Registering the birth: the operation of the Birth and Deaths Registration Act 1953

The purpose of the BDRA 1953 is to create a document of public record evidencing all births and deaths in England and Wales. It determines what information is needed to register a child’s brith, who may provide that information and when they must do it.  There is no absolute requirement to register a ‘name’ at the same time as the birth, but provision is made in section 13 BDRA 1953 for the registration of a forename following a delay of up to twelve months or for the alteration of a name during the same period of time:

Section 1(2) BDRA 1953 sets out who is qualified to provide the necessary information to the Registrar; these people are known as “qualified informants”: They are the father and mother, the occupier of the house where the child was born, any person present at the birth or any person having charge of the child.  These ‘qualified informants’ have 42 days from the date of birth to register it

Section 4 BDRA 1953 provides that where, after the expiration of forty-two days, ‘the birth of the child has, owing to the default of the persons required to give information concerning it, not been registered…’, the Registrar can require any qualified informant to attend at a place appointed by the Registrar to give the required information and to sign the register in the presence of the registrar.

So it seems pretty clear from this that the act of registering a birth is an exercise of parental responsibility but is not restricted to actual parents; the focus here is on the proper registration of the birth so that the child can be recognised and identified in the society into which he is born. It is an administrative requirement, not an illustration of something special and particular for parents.

Naming your child – an issue of fundamental significance

if registering a child’s birth is rightly described as a mere administrative act, it is clear that the choice of name for a child is an act of a very different nature and quality and is likely to be of far more emotional importance to most parents.  This exercise of parental responsibility should only be interfered with in exceptional circumstances. As was recognised in C Children at para 40:

One of the first questions asked by friends and relatives following the birth of a child is ‘what is the baby’s name?’ It may be thought that any individual who has had the happy experience of debating with his or her partner possible forenames for their unborn child would be astonished at the proposition that the choice of the name of their child could be regarded as other than their right as the child’s parents, and their first act of parental responsibility. The name given to a child ordinarily evolves over the months of the pregnancy through a bundle of cultural, familial and taste influences. The forename finally chosen forms a critical part of his or her evolving identity….If a baby cannot be brought up by his or her parents, often the forename given to him or her by their mother is the only lasting gift they have from her. It may be the first, and only, act of parental responsibility by his or her mother. It is likely, therefore, to be of infinite value to that child as part of his or her identity….The naming of a child is not however merely a right or privilege, but also a responsibility; people, and particularly children, are capable of great unkindness and often are not accepting of the unusual or bizarre. It does not need expert evidence or academic research to appreciate that a name which attracts ridicule, teasing, bullying or embarrassment will have a deleterious effect on a child’s self-esteem and self-confidence with potentially long term consequences for him or her. The burden of such a name can also cause that child to feel considerable resentment towards the parent who inflicted it upon him or her….

 

Facts of C Children [2016]

So what happened in this case to justify the court refusing to allow a mother to name her children?  This case involved a mother with serious mental health issues. She had a long standing diagnosis of a psychotic disorder and of schizophrenia of an “undifferentiated type with an underlying personality disorder”. She did not accept the diagnosis and thus would not accept any treatment but she was found to have capacity to give instructions in the care proceedings.

Her three elder children had been removed from her care. She then had twin children who were subject to ICOs shortly after birth. Their father was not known; the children were conceived after the mother was raped. She told the midwife she wanted to call the twins ‘Preacher’ and ‘Cyanide’. The local authority tried to persuade her against this but failed – the mother argued that it was a ‘lovely, pretty name’ and that because Hitler killed himself with cyanide, this was a positive connotation.

After some weeks of attempts to change the mother’s mind, the local authority first asked the court to exercise its inherent jurisdiction under s.100 Children Act 1989 to prevent the children being so named but the court did not agree that this was the right route. However, as registering a birth and naming a child were ‘aspects of parental responsibility’, they were actions of a parent which could be limited by the local authority under s.33(3)(b) Children Act 1989. The court then declared that the local authority were allowed to prevent the mother from registering the children with those names.

The mother appealed on the basis that that the judge was wrong in concluding that the naming of the child and the registration of the child’s birth were each an exercise of parental responsibility and that the judge erred in concluding that a local authority has power under section 33(3)(b) CA 1989 to determine that the mother should not register her children’s births with her chosen names. Therefore, it was her human right to choose their names and register them without the interference of the local authority.

The Court of Appeal rejected the mother’s grounds and agreed that the registration of the births and naming of children were acts of parental responsibility, but also that a court could, under its inherent jurisdiction intervene in these circumstances and that the appropriate statutory route was therefore s.100 Children Act 1989.

The first court had not been happy to consider use of the inherent jurisdiction because it did not consider that the test of significant harm was met but King LJ in the Court of Appeal held that some names – such as Cyanide – were so awful that they gave rise to reasonable cause to believe that any child given that name was likely to suffer significant emotional harm. The Court did not have the same objections to ‘Preacher’ but did not think it right for one child to be named by the mother and the other not, so agreed that this name should not be registered either.

Happily in October 2015 the twins moved permanently to live with the foster family caring for their two eldest half siblings live, who chose names that they would like their brother and sister to be called

The limits to what a parent may do to a child under heading of “parental responsibility”.

This case is a useful illustration of the fact that PR while very important and worthy of protection, is not a green light for a parent to do whatever they want.  The Children Act defines “parental responsibility” as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

In Re H-B (Contact) [2015] EWCA Civ 389, the then President of the Family Division, Sir James Munby P, quoted with approval the judgment of McFarlane LJ in Re W (Direct Contact) [2012] EWCA Civ 999 at para 72: i:

I wish to emphasise this, parental responsibility is more, much more than a mere lawyer’s concept or a principle of law. It is a fundamentally important reflection of the realities of the human condition, of the very essence of the relationship of parent and child. Parental responsibility exists outside and anterior to the law. Parental responsibility involves duties owed by the parent not just to the court. First and foremost, and even more importantly, parental responsibility involves duties owed by each parent to the child.

The foundation of the exercise of PR is therefore those acts which contribute to or secure the welfare of the child. Refusing to register your child’s birth or giving a child a name that many others are likely to find offensive or ludicrous is an abnegation of PR, not an exercise of it and parents have no ‘right’ to do harm to their child.

 

 

What weight do we attach to the welfare of a child when considering publishing information about care proceedings?

This is a post by Sarah Phillimore

This post is the text of my advice to the journalist Louise Tickle with regard to the extent to which the welfare of the child would be considered ‘paramount’ in any application to publish information about care proceedings.  This matter was raised before the Court of Appeal by Paul Bowen QC on February 15th 2019 as potentially an issue with which the Court should grapple when considering Ms Tickle’s application, but all agreed that this was not the appropriate case to investigate such arguments – though no doubt it will require resolution in some future case. 

I conclude very firmly that the child’s welfare simply cannot be paramount in any attempt to balance the competing rights protected by Articles 8 and 10 of the ECHR. Paramount means ‘more important than anything else; supreme’. It therefore cannot be part of any ‘balancing exercise’. If a right is ‘supreme’ then it will always tip the scales in its favour, no matter what counterbalancing weight is added to other side of the scales. To afford the child’s welfare ‘paramountcy’ would be to render the balancing exercise obsolete. 

I stress that what follows is my own view – the potential for further interesting argument is underscored by the fact that at least one QC who has read it expresses scepticism about my conclusions. Watch this space!

Advice concerning any possible ‘tension’ in the applicability of the paramountcy principle to those cases where requests are made for publicity

I have been asked to consider the following remarks made by the President of the Family Division in the case of In re W (Children) (Care Proceedings: Publicity) [2016] EWCA Civ 113 2015 Nov 23; 2016 Feb 25 (para 41 – 43):

During the hearing of the appeal we accepted the jointly argued approach of counsel and that, in turn, was the basis upon which we came to the decision on the appeal which we announced at the conclusion of the oral hearing. In the process of preparing this written judgment, however, I have come to the preliminary view that there may be a conflict, or at least a tension, between the apparently accepted view that welfare is not the paramount consideration on an issue such as this, on the one hand, and Court of Appeal authority to the contrary on the other hand. As this present judgment is a record of the reasons for our decision announced on 23 November 2015 and that decision was based upon the children’s welfare not being the paramount consideration, I do no more than flag up this potential point which, if it is arguable ,must fall for determination by this court on another occasion.
The key authorities to which I am referring are a criminal case in the House of Lords, In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593; [2004] 3 WLR 1129, a private law family case in the Court of Appeal, Clayton v Clayton [2006] Fam 83,and a public law child case in the High Court, In re Webster [2007] 1 FLR 1146.
Although, in my view, a reading of those cases may give rise to a potential point relating to the paramountcy of the child’s welfare, which, as I have stated, must fall for determination on another occasion, it is not necessary to go further in this judgment and consider the matter in any detail.

Summary

It is my very clear view that there is neither ‘conflict’ nor ‘tension’ as to when we must apply the paramountcy principle in cases involving requests to allow or restrict publicity about a case that involves a child. What there is however is potential for confusion, which in my mind is most likely to flow from a lack of engagement with what ‘welfare’ requires in any given case; a view having appeared to have taken hold of late that any publicity is of necessity a ‘bad thing’ for a child. I note for example and with some concern the President’s recent championing of the ALC/Brophy research about the views of ‘young people’. Given the small and self selecting nature of their research group, I and many others do not consider that research can properly bear the weight that some apply to it.

Having reviewed the authorities cited by the President it does not appear to me that there exists any such declaration, obiter or otherwise, against settled understanding. What would probably assist both practitioners and the judiciary would be some clear pronouncement in these current proceedings as to the necessary distinction between two different classes of case: Is the court faced with:
a. a matter directly pertaining to the child’s upbringing – when welfare IS paramount and IS the trump card –BUT still needs to be identified;
b. Or a matter of much wider significance that engages the rights and freedoms protected by Article 10 of the ECHR – when the welfare of any individual child, while relevant and important cannot be the ‘trump card against the Convention rights of others and a balancing act then commences.

In the latter scenario it is clear that it would be unlawful to then ‘put the child’s welfare on a pedestal which is incompatible with a Convention right’ (see Mr Justice Munby as he then was, at para 59 of his judgment in Norfolk County Council v Webster & Ors [2006] EWHC 2733 (Fam)

I assert that the correct distillation of the current law that is that there is no special privilege accorded to children who are the subject matter of proceedings save as is strictly necessary for their protection in the context of the proceedings themselves – see R v Central Independent Television PLC 1994 Fam 192 at 207 per Waite LJ.

In cases where ‘welfare’ is the paramount consideration, the analysis cannot simply stop there and on an assertion that greater publicity will inevitably harm the child. There must be a clear analysis of what exactly is proposed by way of greater publicity and what exactly it is anticipated will be the impact on the child – note the analysis carried out in Clayton v Clayton [2006] EWCA Civ 878.

 

I shall explain my reasoning in more detail below.

The statutory basis for the paramountcy principle.

In proceedings under the Children Act 1989 section 1 (1) reads:

When a court determines any question with respect to—
(a) the upbringing of a child; or
(b) the administration of a child’s property or the application of any income arising from it,
the child’s welfare shall be the court’s paramount consideration.

We are given little assistance in fleshing this out in the definitions section which reads simply:
“upbringing”, in relation to any child, includes the care of the child but not his maintenance;

The dictionary definition of ‘upbringing’ is
the treatment and instruction received by a child from its parents throughout its childhood.

If the court is deciding a matter that goes to ‘upbringing’ then children do rightly have this special privilege of a ‘trump card’. The matter before the court is relating to their private family life and the decision made by the court will matter hugely to them, but probably not very much to anyone else outside their family circle.

 

The authorities considered by the President

A possible explanation for how confusion has arisen with regard to the applicability of the paramountcy principle may be seen from the comments of Lady Justice Hale (as she then was) in the Court of Appeal when considering Re S [2004] (op cit).

This case involved a decision by Hedley J to dismiss an application for an injunction restraining the publication by newspapers of the identify of a mother who was on trial for the murder of her elder child. This had been sought to protect the privacy of the younger surviving sibling who was not involved in the criminal proceedings. A child psychiatrist had opined that if there were a ‘long period of adverse publicity’ this would significantly increase the surviving child’s propensity to develop a ‘psychiatric disorder’. However the Court of Appeal dismissed the appeal by a majority and the House of Lords came to the same conclusion.

Hedley J commented that he would have come to the same conclusion even if he had been persuaded that the surviving child’s welfare was paramount. Hale LJ rightly commented that this was an odd thing to say; had the child’s welfare been paramount then it was the ‘trump card’. However, it was not felt necessary to resolve this ‘dilemma’, presumably because all agreed that the child’s welfare was NOT paramount in these circumstances. The House of Lords eventually decided that Hedley J had made the right decision but had not properly carried out the required balancing exercise between the child’s right to privacy and the established importance of criminal proceedings being open and transparent.

Therefore, it does not appear to me that Re S raises any difficulty about the general proposition that the child’s welfare is NOT paramount in such cases. This was about a criminal trial and the identification of the defendant. It did not concern the child’s upbringing – but no doubt might have some impact on it. However, and sadly as Hedley J identified, it was ‘inevitable’ that those who know the child would realise who he was and the nature of his mother’s alleged crime, whether she was named or not.

The cases of Clayton and Webster engaged in more detail this distinction between cases involving ‘upbringing’ and those that engage much wider concerns about rights of freedom of expression .

For example, in Clayton, the father had been restrained from publishing any information about matters concerning his daughter until her 18th birthday. The father argued that this impeded his ability to effectively lobby, comment upon or campaign about the family court because this involves discussion of the human aspects of individual cases and specifically his own. Although he had behaved badly and abducted his daughter to Portugal, the parents had in the end been able to agree shared care arrangements and he wanted to be able to talk about that.

The court agreed that the father should not be restrained from his campaigning work as this was a legitimate wish and those activities did not relate to the upbringing of C or substantially engage her welfare interests. His one proposal that did engage her upbringing was his wish to return with C to Portugal and film her there, possibly for a documentary. The court refused to allow this, describing it as a ‘self exculpatory publicity exercise’.

So again, there is no identifiable tension here. Where the matters did not pertain directly to C’s welfare, the balancing exercise between Articles 8 and 10 had to be conducted. Where the matter did pertain directly to her welfare then this was the paramount consideration and overrode the father’s wish for greater publicity.

An interesting tension however does arise in paragraph 59 where Sir Mark Potter comments that even when welfare is paramount ‘it does not exclude the necessity for the court to consider Article 8 and 10’, citing Re Z A Minor 1997 Fam 1.

This would appear to contradict Hale LJ’s observation that the welfare principle, if applied, was indeed the trump card and renders the distinction between ‘upbringing’ and ‘non- upbringing’ cases as obsolete. It is then even more intriguing that the President appears to have identified a rather different tension in the opposite direction!

However, it is my assertion that this is arid territory and matters are drifting into unnecessarily complication. The ‘tension’ – such as it is – is clearly sensibly resolved by the focus being on whether or not the court are engaged with matters of ‘upbringing’ .It may not always be possible to draw a clear line but I suggest that there will be certain classes of case that fall more clearly on one side of the line than others.

For example, the present case under appeal cannot, in my view, be sensibly characterised in any way as relating to any child’s upbringing. The Article 10 rights in play relate clearly to the public interest in being able to discuss what happened to a mother who needed to find £20K to fund an appeal against a decision that was found to be inadequate by the Court of Appeal – a decision that could have lead to the adoption of her child by strangers.

There is further useful discussion in the case of Webster. This had involved a considerable amount of publicity around the birth of the Webster’s fourth child – their elder three children having been removed and adopted in what the Webster’s and many others asserted was a gross miscarriage of justice. Munby J (as he then was) opened the proceedings to selected media representatives. Again, this was not a case about ‘upbringing’ of an individual child but broader comments on the operation of the family justice system.

As Munby J stated at para 59 of his judgment, he agreed with the submissions of those who argued that section 97(4) of the Children Act had to be read as permitting the court to dispense with the prohibition on publication in section 97(2) where the right of free expression under Article 10 or other Convention rights require it:

‘To do otherwise would, as Mr Warby put it, place the child’s interests on a pedestal in a way which is incompatible with the Convention. I agree’.

Any attempt to argue that ‘upbringing’ should be extended to include influence on those rights and freedoms protected under Article 10 of the ECHR would, in my view, fall foul of section 3(1) of the Human Rights Act 1998 which requires legislation to be read and given effect in a way that is compatible with Convention Rights.

The rather intriguing comment that the balancing exercise should still follow even after identification of welfare as paramount, is in my view best explained by reframing that concern as the need for a proper analysis of what the child’s welfare actually requires in any given case. Clayton shows the court clearly engaging with this and considering in some detail exactly what the father proposed by way of additional publicity and what the impact on the child should be.

Conclusion

I therefore propose that the Court of Appeal should be invited to state the law in the following way:
a. The principle that the child’s welfare is paramount applies only to those cases directly engaging issues around the child’s upbringing.
b. Cases which involve significant media interest around issues pertaining to matters of wider importance – such as proper conduct of criminal proceedings or a wish to shine a light on a possible miscarriage of justice – are unlikely to be categorised as relating solely or even primarily to a child’s upbringing and the balancing exercise between Articles 8 and 10 must then be undertaken
c. Even if the court decides the child’s welfare is paramount, that still requires some analysis of what ‘welfare’ actually demands; it cannot be assumed that the mere fact of publicity will cause a child harm.

EDIT MARCH 9th 2019 – Consideration of further case law.

Paul Bowen QC asked me to consider further 2 authorities; one from the Constitutional Court of South Africa Case CCT 53/06 [2007] ZACC 18 and R v Petherwick [2012] EWCA Crim 2214.

On considering these two cases, I remain firm in my view that ‘paramountcy’ alone using its dictionary definition as ‘supreme’ is an empty vessel. One cannot determine ‘paramountcy’ without a clear sighted analysis of what impact each decision will have on each child.  The South African Courts appeared stuck with the very broad reference of their Constitution but managed to wiggle out by reframing ‘paramountcy’ as requiring a detailed analysis of the impact of the decision upon the child, whilst weighing in the balance competing rights that impacted on society more widely.

I do not accept that section 1 of the Children Act bears comparison to section 28 of the SA Constitution as it is explicitly restricted to matters of ‘upbringing’. If I am wrong about that, it seems to matter not as presumably the English court could simply follow the South African example and accept that ‘paramount’ when applied to questions of children’s welfare in the context of wider societal demands – such as imprisoning criminals or letting journalists do their job – cannot possibly mean ‘supreme’ but rather a reminder that we must focus on the impact of each decision on the child and strive for the most proportionate balance between competing rights and interests.

The first case in the South African court asked the question:

When considering whether to impose imprisonment on the primary caregiver of young children, did the courts below pay sufficient attention to the constitutional provision that in all matters concerning children, the children’s interests shall be paramount?

This case involved a single mother of three children, two teenagers and an 8 year old. She was a habitual fraudster and was eventually sentenced to four years in prison, despite a report saying the mother was a strong candidate for a non-custodial sentence.The Centre for Child Law of the University of Pretoria was admitted as amicus curiae and made wide-ranging written and oral submissions on the constitutional, statutory and social context around this question.

The court agreed that the nature of the crime, the personal circumstances of the criminal and the interests of the community are all relevant considerations when determining the appropriate sentence for a criminal offence.  It cited with approval the words of Friedman J in the case of Banda who advanced a clear balancing exercise between these tensions:

A court should, when determining sentence, strive to accomplish and arrive at a judicious
counterbalance between these elements in order to ensure that one element is not
unduly accentuated at the expense of and to the exclusion of the others.

The issue now before the court was the extent to which the Constitution had impacted upon this balancing exercise. Section 28(2) of the Constitution provides that “[a] child’s best interests are of paramount importance in every matter concerning the child.

There were already serious questions about the efficacy of such a wide-ranging provision. The court cited Van Dijkhorst J in the case of Jooste:

The] wide formulation [of section 28(2)] is ostensibly so all-embracing that the
interests of the child would override all other legitimate interests of parents, siblings
and third parties. It would prevent conscription or imprisonment or transfer or
dismissal by the employer of the parent where that is not in the child’s interest. That
can clearly not have been intended. In my view, this provision is intended as a
general guideline and not as a rule of law of horizontal application. That is left to the
positive law and any amendments it may undergo.”

However, the court then went on to comment about the necessary change in ‘mind-set’ brought about by the UN Convention of the Rights of the Child, reflected in the constitution:

The unusually comprehensive and emancipatory character of section 28 presupposes that in our new dispensation the sins and traumas of fathers and mothers should not be visited on their children.

The court referred to a variety of commentary about the inherent weakness in any argument about ‘welfare being paramount’ or that matters must be decided ‘in the child’s best interests’ – because everyone had such different ideas about what exactly this would encompass. However, the court ingeniously declared that far from this being a weakness it was as strength – as it pushed people to clearly focus on the individual child before them.

Yet this Court has recognised that it is precisely the contextual nature and inherent flexibility of section 28 that constitutes the source of its strength. Thus, in Fitzpatrick this Court held that the best interests principle has “never been given exhaustive content”, but that “[i]t is necessary that the standard should be flexible as individual circumstances will determine which factors secure the best interests of a particular child.”29  Furthermore “‘(t)he list of factors competing for the core of best interests [of the child] is almost endless and will
depend on each particular factual situation’.”30 Viewed in this light, indeterminacy of
outcome is not a weakness. A truly principled child-centred approach requires a close
and individualised examination of the precise real-life situation of the particular child
involved. To apply a pre-determined formula for the sake of certainty, irrespective of
the circumstances, would in fact be contrary to the best interests of the child concerned.

Equally if the ‘paramoutcy phrase’ was spread ‘too thin’ then it risked becoming empty rhetoric. Its application cannot mean that the direct or indirect impact on children of any action is enough to oust proper considerations of that action. The court stated that section 28 was not mean as ‘an overbearing and unrealistic trump of other rights’ and is capable of limitation, discussing for example the obligation to return a child to the country of habitual residence in cases of child abduction.

Interestingly the court then stated

Accordingly, the fact that the best interests of the child are paramount does not mean that they are absolute.Like all rights in the Bill of Rights their operation has to take account of their relationship to other rights, which might require that their ambit be limited.

This appears to be linguistic trickery if we take the standard dictionary meaning of ‘paramount’ as ‘supreme’ or ‘more important than anything else’.

The court decided that it was not imprisoning a primary care giver that violated section 28 of the Constitution but rather any such imprisonment that did not give proper consideration to the rights of the children involved. The court suggested the following areas should be considered when dealing with sentencing a primary care giver.

  • To establish whether there will be an impact on a child.
  • To consider independently the child’s best interests.
  • To attach appropriate weight to the child’s best interests.
  • To ensure that the child will be taken care of if the primary caregiver is
    sent to prison.

What is this if not another clear example of a balancing exercise?  The court recognised that of course children have a right and a need to be cared for by their primary care giver – but they also have a right to grow up in a society where criminality is dealt with. To say simply that ‘the child’s welfare is paramount’ without further examination is to risk sacrifice of other hugely important rights that impact on society at large. The parallels with arguments for reporting resections are obvious.

The court eventually decided in this case that  M, her children, the community and the victims who will be repaid from her earnings, benefitted more from her being placed under correctional supervision, rather than imprisonment. 

In the second case the mother was sentenced to four years and nine months imprisonment for causing death by dangerous driving and appealed on the basis that this sentence did not take sufficient account of the Article 8 rights of her young son. This was a serious case of its type and the starting point for sentencing was 8 years. Happily her son had not gone into state care but was being cared for by family members. The Court of Appeal were content that the trial judge had carefully weighed all relevant matters in the scale and his approach was ‘immaculate’ – however they would reduce the sentence from four years 9 months to 3 years 10 months in light of the representations made on the mother’s behalf.

This case therefore does not appear to engage discussion of the paramoutcy principle, other than to cite with approval the South African case discussed above –

Seventh, the likelihood, however, of the interference with family life which is inherent in a sentence of imprisonment being disproportionate is inevitably progressively reduced as the offence is the graver and M v The State SA 2008 232 is again a good example.

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

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

Top family judge vows to clarify reporting restriction rules February 16th 2019 The Times.

Transparency in the family courts and a trip to the Court of Appeal February 19th 2019 Emily Boardman BH&O Legal

Why I fought for the right to open up family courts to greater scrutiny February 19th 2019 Louise Tickle The Guardian.

A big day in court March 4th 2019 Louise Tickle The Open Family Court

President’s precedent favours transparency March 4th 2019 Joshua Rozenberg

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.