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CAFCASS Guidance on working with Children and Gender Identity

The CAFCASS Guidance Working with Children and Gender Identity January 2023 is guidance for children who are not in care. It links to guidance for children who are in care – Trans Youth in Care; a Toolkit for Caring Professionals – but this is dated 2017 and refers to Mermaids and the often ridiculed ‘Genderbread Person’. It’s clearly out of date and requires urgent revision.

A document written in 2017 of course cannot comment on the NHS guidelines, the Cass Review, Bell v Tavistock, revised guidance for schools or the recent decisions of various jurisdictions to move away from the ‘affirmative path’ of transgender care for children advocated by WPATH.

But a document with its final draft in January 2023 has no excuse to skate over or simply ignore all that we have learned in the last five years. This is very poor guidance. In essence, it adopts contested political narratives as if they were truth and is going to risk not only the welfare of children but also the professional reputations of those who rely on it.

I was sent a copy of this guidance by a very concerned practitioner. I cannot link to it as apparently CAFCASS will not be publishing it on their website in case it is ‘taken out of context’. This is not acceptable. Parents, lawyers and judges need to know the content of guidance that CAFCASS is requiring its practitioners to follow, particularly in an area so complex and so contested as this.

I will discuss it here, and raise my concerns with the President of the Family Division.

EDIT – thanks to Gender Parity UK for publishing a link to the guidance

Assumption of contested narrative as truth

The introduction makes the following comment

Transgender/gender expansive people (as well as LGB people) have existed since time immemorial. Therefore, any perception that being transgender/ gender expansive is a social construct or a new phenomenon is factually incorrect. Gender expansive children have existed in all times and all cultures of which records remain.

The Guidance relies on the following resources to make this claim – Trans Historical: Gender Plurality before the Modern – Greta LaFleur, Masha Raskolnikov, Anna Kłosowska and – Histories of the Transgender Child Paperback –2018 by Julian Gill-Peterson  

This is highly controversial and immediately calls into question the asserted aim of the Guidance being to ‘support’ children rather than “specifically not to direct the child down any particular path”. It is not a claim that should responsibly by made in professional guidance, without at least some attempt to comment upon the recent and rapid surge in children seeking referrals to the Tavistock. This points to social contagion, rather than a diagnosis of gender dysphoria. Referrals to the Gender Identity Development Service (GIDS) at the Tavistock have shown a staggering increase in recent years; from just 97 in 2009/10 to 2,519 in 2017/18.

From 2014/15 to 2015/16, referrals increased by over 100% and from 2015/16 to 2016/17 they increased by 41%. Ages at referral seen by the service ranged from 3 to 17 years old. As Transgender Trend commented, the majority of the children were registered female at birth. This is an unexplained ‘flip’ from earlier years, where the majority of children registered were male.

The stark figures about the increase in female referrals have been explained by two experienced clinicians in this way:

We posit that there are multiple, interweaving factors bearing down on girls and young women that have collided at this particular time causing a distress seemingly related to gender and their sex. These factors comprise both the external world (i.e. the social, political and cultural sphere) and the internal (i.e. the emotional, psychological and subjective). The external and internal interact and feed each other.

Ignoring current evidence

You will search in vain for any discussion about ‘detransitioners’ (those who regret having undergone medical or surgical transition and revert to a gender identity which is in line with their sex observed and recorded at birth) or the phenomenon of ‘rapid onset gender dysphoria’ which points to the likelihood that social contagion is driving much of the ‘gender expansiveness’ of in particular teenage girls.

Of the many shocking aspects of Hannah Barnes’ forensic dissection of what went wrong at the Tavistock in her book ‘Time to Think’, the most concerning for me were the bleak statistics about the children treated there – 70% of the children had more than 5 associated co-morbidities such as abuse, depression, self-harm, suicide attempts, anxiety, eating disorders, ADHD or bullying. 35% of referrals involved children with Austic Spectrum Disorders – experienced by less than 2% of children in the general population. 25% of referrals involved children who had spent time in state care – compared to 0.67% of the general population. Children referred were 10 times more likely to have a parent registered as a sex offender than the general population.

You will search the guidance in vain for any discussion about this. There is simply a short comment that practitioners need to ‘acknowledge and assess the additional complexity and vulnerability a transgender child may present.’ 

Poor analysis of safeguarding

The Guidance identifies the main issues around ‘safeguarding’ as

  1. Parental responses 
  2. Parental disputes and differing views 
  3. Homelessness
  4. Discrimination  
  5. Lack of health and social care support and progression through the care pathway 
  6. Lack of CAMHS provision  
  7. Suicidality and self – harming behaviors  
  8. Hate crime 
  9. Bullying/ difficulty with peers 
  10. Disruption or cessation of formal education 
  11. Conversion therapy- direct or indirect 
  12. Online safety 

This again underscores that this guidance operates from a presumption that transition for children should be affirmed. It makes no reference to the risks that flow from working with a cohort of children who are likely to have a significant number of co-morbidities or may be victims of homophobia. We already have a clear example of the dangers of such a blinkered approach in the case of Sonia Appleby, the Named Professional for Safeguarding Children and the Safeguarding Children Lead at the Tavistock. She raised a complaint at an employment tribunal, that Tavistock management directed that safeguarding concerns should not be brought to her attention and clinicians were discouraged from reporting safeguarding concerns to her, over allegations around Ms Appleby’s ‘transphobia’. In September 2021 Ms Appleby was awarded £20K as damages for “significant” injury to her feelings. The tribunal concluded that the trust’s handling of the matter “prevented her from proper work on safeguarding”.

In line with the Guidance’s presumption of affirmation, it is noted that

The majority of parents and families will want to do all that they can to support and act in the best interests of their child when they discover their child is transgender or needs to explore their gender identity

Which raises an interesting question about how CAFCASS intends to treat those parents who are less than delighted that their child is being put on a pathway to medical and surgical transition. The Guidance makes the claim that ‘Evidence shows that young people who have parents/wider family who are supportive of their transgender identity are more likely to have good mental health, including improved outcomes’ but provides no citation for this assertion.  

The Guidance notes, ominously

It may be necessary to use public law to safeguard and protect the child and transgender children are no less at risk of abuse than any other child. In fact, their transgender status often makes them at a higher risk where a parent/carer is not a protective factor. 

There is reference to ‘conversion therapy’ as ‘morally wrong’ but with no countervailing discussion of the recognition by the Cass Review that there was a need for ‘talking therapies’ as a first resort, rather than affirmation of a medical pathway. This makes me concerned that parents who do not immediately ‘affirm’ their child as ‘truly transgender’ risk finding themselves viewed by CAFCASS as abusive parents

Signposting to outdated, unreliable and dubious sources

The introduction at page 3 signposts the practitioner to Professor Spack’s Ted Talk. Professor Spack is a Consultant Paediatric Endocrinologist explaining his work helping transgender children and described as ‘one of the world leaders in this field… ran the multi-disciplinary Gender Identity Service at Boston’s Paediatric Hospital in the USA.’ The first thing that jumps out is that this Ted Talk dates from November 2013, nearly ten years ago. The notion promoted by Professor Spack that puberty blockers are wholly reversible and simply give a child to think is not supported by the Cass Review interim report. Various judges have commented on the concern that rather than give children ‘time to think’, puberty blockers almost inevitably sets them on a path to cross sex hormones, with the consequent risks to fertility and adult sexual function.

The majority of children who are permitted to go through a natural puberty, will desist from any desire to ‘change sex’. Anyone who is making recommendations about the welfare of ‘gender expansive’ children needs to know and understand this. They also might benefit from understanding a little more about the Boston Children’s Hospital and the recent unease about it’s practices, not least double mastectomies carried out on girls as young as 12.

As Professor Levine noted in 2020:

A 2017 study from the Boston Children’s Hospital Gender Management Service program – 23 – reported that: “Consistent with the data reported from other sites, this investigation documented that 43.3% of patients presenting for services had significant psychiatric history, with 37.1% having been prescribed psychotropic medications, 20.6% with a history of self-injurious behavior, 9.3% with a prior psychiatric hospitalization, and 9.3% with a history of suicide attempts.

Mermaids and Stonewall are listed as useful resources. It is difficult to see how this guidance can in good faith signpost its practitioners in this way. The concerns about Stonewall are now exhaustively documented and very well known and yet CAFCASS remains a Stonewall ‘Diversity Champion’. Mermaids is currently under investigation by the Charity Commission. The inquiry opened in November 2022 and will seek to determine ‘whether the charity’s governance is appropriate in relation to the activities the charity carries out, which involve vulnerable children and young people, as well as their families.’

It is astonishing that CAFCASS would direct its practitioners to an organisation under investigation in this way. But regardless, It is clear that Mermaids heavily promotes ‘affirmation’ and the medical transition of children at ever younger ages. Its views about capacity and consent was expressed in this way in 2019, attempting to erase any distinction between those children who are Gillick competent and those who are not:

….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.

.

The guidance offers some discussion on the thorny issues of of capacity and consent but any benefit in this discussion is significantly compromised when signposting practitioners to those organisations who do not accept there is any question mark over the transitioning of children – or worse, that any attempt to discuss concerns is unacceptable bigotry

Conclusion

I am not demanding that CAFCASS adopt a particular political view/narrative. I am not denying that there are now and always have been, a small percentage of people who are very unhappy with their bodies and seek relief by being seen as the opposite sex. These people should not face abuse or discrimination. I agree that rigid conformity to sex based stereotypes is often harmful and that children who reject those stereotypes should be protected.

But I also know that we all have only one body and there are clear limits to what can be achieved to change it via medication and surgery. It is simply not possible to ‘change sex’. I hope very much that I am wrong regarding my fears about the welfare of children who undergo irreversible and unevidenced medical treatment. I hope that the research set in motion by the Cass Review will show that these children were not simply part of an unregulated medical experiment in pursuit of an adult agenda. I hope that the coming years do not usher in litigation from those children who were not protected by adults who should have known better. I hope that the lives of a generation of children have not been blighted.

But we are still some time away from any reliable evidence regarding childhood transition. While we wait, we are all entitled to ask that agencies such as CAFCASS, whose reports are highly influential in both private and public law children cases, provides guidance which is based on evidence and which acknowledges where the evidence is shaky – and which accepts that issues of ‘gender incongruence’ or ‘gender expansivity’ in children may involve safeguarding issues, such as promoting homophobia or putting a child on a medical pathway which is potentially irreversible and lacking any compelling evidence base.

This Guidance is not fit for purpose and puts both children and practitioners at risk of harm and reputational damage. I hope it will be withdrawn and significantly revised. Unless and until it is, then I will treat all recommendations by CAFCASS in this area in any case where I am instructed, with significant scepticism.

Further reading

For practitioners who centre the welfare of the child at the heart of their work, rather than allegiance to any adult narrative or ideology, I recommend the guidance co-authored by by Transgender Trend and the Evidence Based Social Work Alliance in 2021 – When can a child consent to medical transition?

An Examination of Gender and Safeguarding in schools – Policy Exchange report 2023

CAFCASS – what went wrong – blog from New Approaches to Contact

Systemic Failings in the Family Justice System

Everyone knows it isn’t working – what can we do about it? And what should we STOP doing?

This is the presentation I gave to Families Need Fathers on 18th March 2023

The focus of my talk will be on the private law children system – care proceedings also face significant barriers to effective and efficient resolution but the pressures there are different and much more closely tied to the vulnerabilities of many of the parents and children and the lack of easily identifiable and obtainable resources for those with significant mental health and substance abuse issues. 

I have been to some interesting conferences and heard some interesting talks over the years, and I will try now to briefly distil what everyone seems to agree is the problem.  Because if we are clear about why family law is difficult, we are better directed to how we can attempt to fix it. 

It seems that we have all been talking for a long time about the problems inherent in the family justice system. It’s costing the Government an enormous amount of money, even after removing legal aid from private children work. In 2007/08, there were around 35,000 applications. This rose to around 48,000 in 2012/13 and 2013/14. Numbers then fell significantly after legal aid changes were introduced in 2013. However, the number of applications has now almost recovered to previous levels, with 46,500 applications made in 2019/20. Since 1 April 2022 to February this year Cafcass has received 36,487 new private law children’s cases. These cases involved 55,627 children.

Unsurprisingly, there is clearly significant political will to reduce the number and costs of cases coming into the family justice system. What we haven’t yet agreed is how we do this and how we can best distinguish between cases where there are significant safeguarding issues and cases where there are not. And this would appear to be the crucial distinction. 

What makes family law so difficult? Other forms of law are generally designed to correct past wrongs. Family law however is directed to identify the best outcome for children when relationships break down, or the fairest re-allocation of matrimonial assets after divorce. Relationship breakdown is not exclusively or primarily a legal issue – it involves often deeply unsettling emotional distress.

Emma Sutcliffe, a contributor to The Child Protection Resource put it this way in 2019.

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.

Under conditions of extreme stress even usually robust people can experience intense emotions and project negative feelings onto former partners. Family separation is always stressful for children but there is no doubt that children who are exposed to acrimonious conflict, suffer long term negative impacts. Research from the Nuffield Family Justice Observatory has shown that even before starting court proceedings, parents were vulnerable. Parents in private law proceedings had higher rates of mental health distress, including anxiety and depression when compared to the general population. There were higher rates of self-harm and exposure to domestic abuse as either victim or perpetrator. 

The Family Justice Council organised a conference in April 2022.  The keynote address was given by Helen Adam who is the Chair of the Family Solutions Working Group. This was set up by High Court Judge Sir Stephen Cobb in 2020 as a multi -disciplinary group of professionals who work with parents and children from separated families to consider what can be done to improve the experience of children and families before any application is made to the family court.  

The over-arching theme of Helen’s address was that the adversarial system is harmful, and we need to think about how to get cases outside the court arena.  The aim is to reduce parental conflict. 

This echoes findings of the Family Court Reform Coalition Report in July 2022, which identified three reasons why the problems have developed.

  1. a vicious cycle of ‘perverse incentives’ which drives the process in the opposite direction to the one intended.
  2. a lack of standardised practice, combined with an approach which is unnecessarily adversarial, creates delay, drives up costs and damages children. 
  3. a lack of systemic research into the effectiveness of outcomes so the system cannot learn and improve. 

The adversarial system is identified repeatedly as a big part of the problem. It is clearly the last place any stressed and anxious parents need to be. What we have currently is a just a hotch potch of efforts at intervention and support. Cases that drag on for years – as many do – are clearly going to cause children lifelong emotional damage. We can all see how easily and quickly situations become polarised and how the children suffer the most when caught in the middle.

Helen rightly queried calling this the ‘Family Justice System’ – If that is what is said on the tin, that is what people expect – they want to ‘win’ or to exact retribution. David Norgrove said our system is about ‘least worst outcomes’. If we renamed the FJS as ‘least worst outcome system’ would so many people want to go through it?

 If we don’t want families to go to war, we need to offer them something else. 

But what exactly is this something else? 

Throw psychological distress, worry about financial security or the safety of your children into the mix, the lack of judicial continuity, lack of access to help with legal costs and serious delay, there is little wonder that the ‘Family Justice System’ is dysfunctional and overwhelmed. As Helen noted, the problem seems too huge and difficult to overcome and we end up in state of depressed helplessness. Hopefully discussions like we are having today can help cut through that fog. 

She identified some possible solutions. 

  • political support that crosses party lines.
  • public education programme to correct wrong language and wrong attitudes which are outdated. 
  • authoritative website – a go to place with clear information for parents and children.
  • Resourcing ‘touchpoints’ – GPs, schools – to provide information and signposting about separation. 
  • direct support for children – voice of child is key component but giving a child a ‘right’ to be heard doesn’t help if it can’t be exercised. 
  • Mediation – but this needs triaging as some cases involving abuse just aren’t suitable.

I certainly wouldn’t say ‘no’ to any of this if by some miracle the money could be found to pay for it, but I do not think the focus on ‘more information’ is what will do the most help, given what we know about the emotional states of many parents in proceedings. Mediation is often touted as the ‘cure all’ but it doesn’t seem that the introduction of compulsory Mediation Information and Assessment Meetings (MIAM) since 2014 has had any impact. Those who don’t want to mediate, won’t. Where there are serious issues of violence or alienation, these will not be resolved by ‘mediation’ or a leaflet. 

I estimate that about 10% of cases involving separated parents will be impervious to mediation, support, or ‘re-framing’ – these are cases which involve men and women who are truly damaged and dangerous and who require a robust court structure to minimise the harm they do. 

I think it is vital that we recognise this so that all of us ‘in the system’ can best direct our efforts. 

The pilot scheme. 

So, what about the new pilot scheme? This is now running until February 2024 in some courts in Dorset and Wales. See Practice Direction 36Z para 2.1

The revised process has been designed for all court users, but with a particular focus on improving the experience of the family court and outcomes for survivors of domestic abuse, including children and litigants in person. The pilot seeks to test a more investigative approach, featuring earlier gatekeeping and information gathering to enable earlier triaging decisions and to front-load engagement with parties rather than engaging through multiple hearings. The court will also seek to hear the voice of the child more clearly through each case in this pilot, with the aim that appropriate engagement and communication are considered throughout proceedings. A more holistic, multi-agency approach is planned, with the court engaging and developing positive working relationships with key local partners such as mediators and local authorities. A review stage during the pilot process will aim to ensure that court orders meet the welfare needs of the child and reduce the number of cases which come back to court.

Those involved at the outset hoped to see the development of ‘three tracks’ – safeguarding for cases where domestic abuse is an issue, a co-parenting approach in cases where safeguarding is not an issue and returning cases. This means triaging cases with good early social work intervention and managing the case flexibly in the way best suited to the individual case. Cases where contact has broken down completely should be prioritised as urgent. 

The non-urgent cases could have a built in ‘pause’ to consider SPIPS, mediation, parenting programmes. No one should make assumptions about what families need but there should be more listening to and understanding issues, anxieties, stresses, and emotional resilience, what is working and what is not and how they think they could be supported. 

And discussion of costs consequences for parties who fail to engage without good reason – now, costs orders in family cases are seen as the exception and not the rule. 

Sadly, I do not usually go to the Devon or Welsh courts, so I have no direct experience of how this pilot is working. I did however speak to a barrister who does a lot of work in Bournemouth only a few days ago and she was pessimistic, saying what was needed was more focus on allocating private law cases to judges with experience and allowing judges greater control over the timetabling of cases. 

I will be very interested to know how the pilot has been working and whether there is any political will to roll it out nationally and commit to the additional resources that will no doubt be required. 

What can we do right now?

But what do we do while we wait? we all know it isn’t working – is there anything we can do to make things better right now?

Speed it up

A quick and obvious fix would be to insist on strict time limits as we have with public law proceedings. Although there is concern that the time limits are often exceeded, I think the statutory requirement for 6 months from start to finish has had a positive impact on cases which otherwise limped on for a year or more when I first started out in 1998. 

Triage

I think a key intervention and reform is more effective triage of cases – to better and more quickly distinguish between the ‘vulnerable’ and the ‘vexed’. Time is of the essence! A year in the life of a young child is a very long time. The majority of my ‘intractable cases’ ended only when the child had aged out of the system – we are talking about cases running for five years or more. 

Effective triage is something that we don’t necessarily need huge amounts of additional resources to do, but it means we do need time and space to be able to think about the cases before us and what they need. We need to firmly discourage interventions that are based on political campaigning or assumptions. This has done considerable harm and wastes our time.

Examine other jurisdictions

We can investigate what is being done well in other jurisdictions which show that the family court can be at forefront of initial non adversarial triage system which can have encouraging outcomes including less delay. The Family Law Reform Coalition note that the family Courts in Israel appear to be doing well, with a ‘one family one Judge’ policy and mandatory pre-filing information and alternative dispute resolution sessions for litigants, alongside immediate and swift procedures when abuse and maltreatment are alleged.  Many jurisdictions have introduced a presumption of shared care and that seems to have positive outcomes. 

What do we need to stop?

However, I know that our chances of success at reforming the family justice system are even slimmer while it is left as a plaything for various lobby groups or we are diverted by a disproportionate focus on ‘increased transparency’ as the solution.

The Ministry of Justice Harm Report in 2020 came into being after critical reporting about family cases on the Victoria Derbyshire show. It initially promised a 3-month turn around, appeared to rely uncritically on the approximately 1, 200 reports of  ‘lived experiences’ without any assessment of the truth or otherwise of their assertions. 

I wrote about my concerns in 2019.

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. 

I commented that this observation from the Harm Report was ‘powerfully naïve’.

Nor can we tell how representative the submissions are of all court users and professionals. As with all inquiries, the individual and organisational submissions and engagement in the data gathering process were voluntary. There is therefore likely to be some selection bias. Individuals who are largely satisfied with the process and outcomes in the family courts may have less incentive to provide evidence. Similarly, professionals who work in the system may have more incentive to defend how the system operates.
Nor can we test the accuracy and completeness of the accounts given. It is not possible to have an ‘objective’ account of what occurred in each case. Qualitative evidence presents the perceptions and views of individuals and organisations that respond. These views will be influenced by the attitudes, cultural context, organisational culture, specific role in the proceedings and individual biases of those providing evidence. They can also be subject to recall bias. The panel was well aware that submissions can be based on misunderstandings, misapprehensions or deliberate distortion as well as wishful thinking.
Despite these inherent limitations, we are persuaded that the evidence gathered does identify systemic problems with how family courts deal with domestic abuse cases and cases raising other risks of harm in private law children cases. It is unlikely that the panel has managed to uncover only isolated mistakes or rare events. The evidence does point to issues affecting multiple cases across the system and with potentially serious effects, although we were also able to identify instances of good practice.

Hopefully my arithmetic is accurate. The report claimed ‘over 1,200’ responses. If I generously assume 1,300 negative reports and take the 46,500 applications in 2019/20 as representative of the likely numbers of applications in the year preceeding the Harm Report, then the negative and unverifiable accounts represent about 3% of all applications in one year. It is ludicrous to base policies on such poor data and it is alarming how many in positions of power and influence seem to embrace this. 

It seemed to me clear where all this was supposed to be leading – to a landmark Court of Appeal case that would finally declare the Family Justice System as unable to even identify, let alone tackle, issues of abuse and violence. 

That decision of re HN and others in 2021 https://childprotectionresource.online/guidance-from-the-court-of-appeal-about-domestic-abuse-cases/ appears ironically to have had rather the opposite impact to that hoped for by those who predicted it would be the final expose of the failures of the FJS to deal with domestic violence. My experience on the ground is that it has has re-iterated the need for courts to look very closely at PD12J. The courts have risen to that challenge and in many cases following Re HN rejected the need for any finding of fact about alleged violence (a very useful case for further consideration of all the relevant principles is A & Anor v B & Ors [2022] EWHC 3089 (Fam) (02 December 2022). 

The consequences of being led by campaigners who assert that the biggest problem in the FJS is violent men and a court system that props them up, is shown by the prohibition of direct cross examination of an allegedvictim of abuse by an alleged perpetrator, introduced by section 65 of the Domestic Abuse Act 2021. 

Rather than have a judge attempt cross examination on behalf of a litigant in person, which would clearly be inappropriate, the gap is supposed to be plugged by the ‘Qualified Legal Representative’ scheme. However, recent feedback has been concerning – It seems as if only a few 100 barristers have signed up for the scheme which isn’t anything like enough, and this is going to lead to more cases being adjourned and delayed. Lucy Reed crunched some numbers in her recent blog – very few lawyers are likely to be willing to work at a loss. 

We have all noted the constant back and forth regarding parental alienation and domestic violence. The family justice system is denigrated by various campaigners and lobbyists as either a tool of misogynistic oppression or deliberately designed to freeze out fathers. Of course, both cannot be true at the same time. There are certainly violent men in the family courts, alongside emotionally abusive women. Adherence to one or the other of these extremes and calling for the FJS to ‘respond’ guarantees that cases cannot be properly assessed and triaged. All the energy wasted on arguing about whether parents do actively attempt to alienate their children from the other parent – they do – and what label we should put on this behaviour, is energy diverted from finding solutions.

Will increased transparency about what goes on in the courts help any of this? Sadly, I don’t think so. There are some notable exceptions, but many journalists do not wish to report about the family courts, but act rather to promote lobbyists. Investigative journalism is expensive and we can no longer rely on journalists as a profession to be willing and able to report – rather they offer us opinion pieces, reflecting their own bias about what is driving the family court system. Despite the fanfare of the recent transparency pilot, I will eat my wig and gown without condiments if I ever see a journalist at any of my cases. The work I do is simply not ‘sexy’ enough to warrant their attention – but it is of vital importance of course to the individuals involved. 

Conclusions

I gave up my work as activist in the FJS as it was based on the dangerous naïve premise that all we must do is talk honestly and openly and we can sort everything out. This ignores the reality that many are simply unable to see beyond their own fixed narratives; research has apparently shown that the more ‘facts’ you give a conspiracy theorist, the harder in fact they dig down. 

The barriers to a more humane and effective system remain high. There is often very little on offer by way of intervention or support or it requires significant financial resources to obtain. The money wasted on an adversarial court system could be redirected to provide more focused and effective interventions – but it’s going to require a political will and co-ordination that I frankly do not think I will see in my lifetime. The Children Act 1989 was the last great piece of legislation to reform a fragmented system that crossed political lines and united everyone. 

One thing that really stuck in my mind following the FJC conference last year was the mother who said that the FJS had saved her and her children. Child protection is all our business. I think there is a continuing role and a societal need for a family justice system – but it must be committed to identifying which families need state intervention, and which families are harmed, and it must resist the interference and unevidenced demands of single-issue lobbyists. 

Our current system does not triage effectively – or at all – and this causes great misery and wastes huge amounts of money. I hope we are going to see some changes in my lifetime, and I hope I have been able to plant some further seeds of thought and discussion here today. 

Further reading

Why does everyone hate the Family Court? And what if anything can we do about it? Child Protection Resource January 2019 https://childprotectionresource.online/why-does-everyone-hate-the-family-courts-and-what-if-anything-can-we-do-about-it/

Why does everyone hate the Family Court Part 2 Child Protection Resource February 2019 https://childprotectionresource.online/why-does-everyone-hate-the-family-court-part-ii/

Why does everyone hate the Family Court Part 3 – what narrative is gaining ground and why should this concern us? Child Protection Resource April 2019 https://childprotectionresource.online/why-does-every-one-hate-the-family-court-part-iii-what-narrative-is-gaining-traction-and-why-should-this-concern-us/

Why does everyone hate the Family Court Part 4 May 2019 https://childprotectionresource.online/why-does-everyone-hate-the-family-court-part-four/

Ministry of Justice Harm Report 2020 https://consult.justice.gov.uk/digital-communications/assessing-harm-private-family-law-proceedings/results/assessing-risk-harm-children-parents-pl-childrens-cases-report.pdf

Assessing risk of harm in private law cases Child Protection Resource June 2020 https://childprotectionresource.online/assessing-risk-of-harm-to-children-and-parents-in-private-law-cases/

Private Law Working Group Second Report March 2020 https://www.judiciary.uk/wp-content/uploads/2020/04/PRIVATE-LAW-WORKING-GROUP-REPORT-1.pdf

Uncovering children private law – who is coming to court in England? Report by the Nuffield Family Justice Observatory https://www.nuffieldfjo.org.uk/wp-content/uploads/2021/05/nfjo_whos_coming_to_court_England_full_report_FINAL-1-.pdf

Time for Climate Change in the Family Justice System Child Protection Resource April 2022 https://childprotectionresource.online/time-for-climate-change-in-the-family-justice-system/

Family Court Reform Coalition Report July 2022 https://fcrc.uk/final-report/

Governement Guidance re Qualified Legal Representatives July 2022 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1101848/final-statutory-guidance-role-of-the-qualified-legal-representative.pdf

NHS public consultation on treatment of gender dysphoric children

The consultation ends on December 4th. I broadly welcome these proposals as a long over due return to holistic treatment of the child; rather than blanket ‘affirmation’ of a child’s expressed wish to ‘transition’. Whether you agree or not, please have your say. It is important that the consultation has a wide range of responses.

On 20th October 2022, NHS England opened a consultation to seek views on a proposed interim service specification for services for children and young people with gender dysphoria. Once agreed, this interim service specification will be operational only until a new service specification is formed in 2023/24 that will be used by a new configuration of regional providers.   The consultation closes on December 4th 2022 and NHS England recognises the importance of involving the public

…to check whether proposals are right and supported, whether the public understand their impact, and to identify any alternatives before decisions are made. 

This consultation follows the the Cass Review’s interim report, which was commissioned to investigate concerns over the significant surge in in the last few years in the number of children referred for medical treatment for ‘gender dysphoria’ – (the number of referrals is currently at 8.7 per 100,000 population per year in 2021/22 compared to 4 per 100,000 in 2020/21 and 4.5 per 100,000 in 2019/20) alongside the scanty evidence base to support claims about the efficacy of such interventions. The ‘single gender clinic model’ of the Tavistock GIDs had also proved an operational failure, with long waiting lists.

There is much to be very pleased about in terms of protecting children from significant medical interventions that currently lack any compelling evidence base. The key points set out below represent a very welcome and timely return to psychotherapy as the first and usually only treatment for gender dysphoric children; thus England joins Finland and Sweden in explicit rejection of the WPATH guidelines 

The consultation explicitly recognises that ‘gender incongruence’ may be a transient phase, particularly for prepubertal children, and that there will be a range of pathways to support these children and a range of outcomes.

The consultation examines 

  • How care is currently provided.
  • How the interim service specification could change care and the way that services are delivered, and the reasons for these changes.
  • How the proposed changes will be implemented.

The Good – Key Points 

  • Biological sex must be recorded and tracked
  • The importance of a DSM-5 diagnosis of ‘gender dysphoria’ as a gateway to treatment – which is characterized by significant distress and/or functional impairments related to “gender incongruence”. This is in contrast to the reliance by WPATH SOC8 on the ICD-11 diagnosis of “gender incongruence,” which is not necessarily associated with distress and relies primarily on the individual’s own subjective desires for certain treatments.
  • Thus the ‘gender affirming approach’ which originated in the USA has been abandoned and the focus returned to psychoeducation and psychotherapy, rather than an assumption that such children should automatically receive speciality ‘transgender health care’. 
  • Treatment pathway will thus be devised by examining the “clarity, persistence and consistency of gender incongruence, the presence and impact of other clinical needs, and family and social context.”
  • Decisions about a child’s eligibility for medical treatment will be made by a centralised service and puberty blockers will be prescribed only in ‘research protocol settings’ . Cross sex hormones are not mentioned, but it is assumed that a similar approach will be taken here. Those who attempt to access medical intervention outside the NHS protocol will not be supported by the NHS – which may initiate child safeguarding referrals. 
  • All children and young people being considered for hormone treatment will be prospectively enrolled into a research study which will track them into adulthood and provide a secure evidence base about the effects of hormonal interventions
  • ‘Social transition’ is recognised as not a neutral act – it may have significant effects on psychological functioning and is to be discouraged. It should only be pursued in order to alleviate clinically significant distress or impairment in social functioning and only after an ‘explicit informed consent process’. 
  • Emphasis on a multidisciplinary team that goes beyond “gender dysphoria specialists,” to include experts in other relevant areas such as paediatrics, autism etc to enable holistic support for gender dysphoric children. 

The Bad – captured language and magical thinking 

Some have raised serious concerns about some of the language used in the consultation documents. As Isla Mac commented (see further reading below), service specifications are provided in ‘captured language’ based on ‘magical thinking’ which is ‘meaningless nonsense’ and is likely to impede the necessary interventions of the multidisciplinary teams. 

I do not share the same degree of concern raised by Mac and could find only one reference to ‘sex assigned at birth’ against another reference to ‘birth registered sex’. 

What does trouble me however is that the term ‘gender identity’ is embedded in the consulation at numerous points – I have not noted any attempt to define what this means and to what extent it differs from simple reliance on sex-based stereotypes. For example in the ‘background section’ it says 

A quick look at the term used to describe a discrepancy between birth-assigned sex and gender identity is ‘gender incongruence’.

Conclusions

However, I balance my concern over use of the term ‘gender identity’ or ‘sex assigned at birth’ against the very welcome rejection of the WPATH guidelines. We now have a long over due return to an approach that sees the whole child in the context of their family and their environment, rather than simply affirming a ‘trans child’ to be hurried through to medical transition. 

I will therefore be responding to the consultation to say I broadly agree with it. Whether you also agree or you don’t, it is important that the consultation hears from as many people as possible. Please have your say. 

Further reading 

The Cass Review’s interim report

Society for Evidence Based Gender Medicine wrote about the proposals on October 24th 

Isla Mac raised her concerns about the language in the report, noting that magical thinking would not assist children facing mental health challenges. 

Time for Climate Change in the Family Justice System

The Family Justice Council held its annual Bridget Lindley Memorial Lecture and conference in Bristol on April 6th 2022. Helen Adam gave the keynote address. She is a mediator and Chair of the Family Solutions Working Group who published in October 2020 ‘What about Me? Reframing Support for Families following Parental Separation, capturing a range of interventions for separating parents in one coherent document, in recognition that many cases would be better served outside the court arena. Helen expanded on that theme in her presentation – ‘Time for Climate Change in the Family Justice System’.

She set out her vision for a more humane system that supports families. She recognised that for most, ‘conscious uncoupling’ is unrealistic and the law can’t make people discard emotions. Helen drew a comparison between the Family Justice System and the climate change movement, where there were similar tensions between long established systems and a growing body of evidence that challenges these systems. The message is simple – we cannot go on as we are – but it is also unwelcome as changes will be hard and cost money. But evidence is real and growing that the adversarial system is harmful and is has become impossible to ignore

The Ministry of Justice Risk of Harm Report in June 2020 found that adversarial process often worsened conflict between parents and had damaging impacts on victims of abuse and children. Under conditions of extreme stress even ordinarily robust people can project intense emotions and feel the the other side to be malicious, even dangerous. Family separation is always stressful for children but what drives long term negative impacts is the level of conflict witnessed before, during and after. Reducing parenting conflict is associated with long term positive outcomes.  

Ultimately this is harmful to all society and we need a different, gentler, more humane approach. But the problem seems too huge and difficult to overcome and we end up in state of depressed helplessness. Helen identified possible solutions

  • political support that crosses party lines and co-ordination.
  • public education programme to correct wrong language and wrong attitudes which are outdated.
  • authoritative website – a go to place with clear information for parents and children.
  • Resourcing ‘touchpoints’ – GPs, schools – to provide information and signposting about separation 
  • direct support for children – voice of child is key component, but giving a child a ‘right’ to be heard doesn’t help if it can’t be exercised.
  • Mediation – but this needs triaging as some cases involving abuse just aren’t suitable.

Helen considers that a real benefit of mediation is in allowing a person to explain their situation, gather information about options and have an opportunity to ‘reframe’ family separation and see though the lens of the future. There are many resources out there, such as the Separated Parents Information Plan, but we need a national body of such programmes that meet high standards.

Lawyers have vital role to play in a ‘precourt’ space but parental separation is not primarily a legal issue, as it encompasses issues of safety, emotional states, child consultation, parenting and financial considerations. Parents need models that are supportive and problem solving and judges need training about issues that go beyond law. Without co-ordination what we have currently is just a ‘hotch potch’. But no change can be brought into effect without political intervention.

Language is critical part of any reframing. Helen queried the use of ‘Family Justice System’ – If that is what is said on the tin, that is what people expect, to play out rights and wrongs, to ‘win’ or to exact retribution. David Norgrove said our system is about ‘least worst outcomes’. If we renamed the FJS as ‘least worst outcome system’ would so many people want to go through it? If we don’t want families to go to war, we need to offer them something else. 

Family law is completely different to all other forms of law which is retrospective, correcting past wrongs. We should be forward looking and wanting best outcomes, not just one parent’s concept of justice. Kate Stanley explained that where a system exists with a power dynamic, everyone embraces the language of the most powerful. Change has to come from the top – judges, magistrates and lawyers. We need the paradigm shift that the climate change movement has seen. We are 30 years on from the Children Act. Are we leaving green footprint in lives of families we work with? How is our work impacting families?

Then Ellen Lefley of JUSTICE spoke about improving access to justice for Separting/ed Parents – the full report is due out in July 2022. Access to justice needs understanding as broad concept, about just procedures and just outcomes. There are many barriers to access to justice – institutional, physical, mental, financial. For private family law, its not about increasing access to courts but to the most appropriate resources to resolve problems. The financial vulnerabilities of parents in such cases often means they can’t pay for more creative solutions. We have to ask – what is going on? What intervention is most suitable? How will they access it? Other jurisdictions show that the family court can be at forefront of initial non adversarial triage system which can have encouraging outcomes  – less delay, people weren’t trying and failing. However, high conflict situations were better off going straight to court. This triage resulted in higher settlements and lower rates of return to court.

Then we heard about recent research regarding ‘Profile of parents within the Family Court’ from Dr Linda Cusworth and Jude Eyre, Associate Director of the Nuffield Family Justice Observatory. The research indicated the heightened vulnerability of adults in private law proceedings in the year preceding the court action, i.e. it was not going to court that initiated the problems. Parents in private law proceedings had higher rates of mental health distress, including anxiety and depression when compared to the general population. There were higher rates of self harm and exposure to domestic abuse as either victim or perpetrator.

What does this mean? And what can we do next? The research confirms domestic abuse is a mainstream not minority issue for the FJS. We need to think of the ‘mental model’ of the person for whom we are designing systems. whatever we do, in or out of court, these circumstances of vulnerability are present and real. All services need to be alive and actively screening and thinking about routes though. If parents are vulnerable rather than vexed, how do we engage to minimise anxiety? How can we bring learning about power dynamics into the court hearing? Can we address information gaps for litigants? How can we widen range of services the court can signpost to? Much lies beyond court and legal responsibilities, we need to look outwards to local safeguarding partnerships, clinical commissioning groups and third sector with rich experience. 

We then heard about the experiences of parents and children in the FJS. One parent had benefitted from mediation but another could not, because of safety issues. She made a very strong point that she and her children needed the protection of the family court, which had ‘saved her life’. The voices of children have been gathered together ‘In Our Shoes’ –  contact [email protected] to get free copy, the President confirming that this should be compulsory reading for everyone in the system. 

Some comments

It’s impossible to disagree with anything that was said by the speakers. The adversarial system is clearly the last place any stressed and anxious parents need to be. Cases that drag on for years – as many do – are clearly going to cause children life long emotional damage. We can all see how easily and quickly situations become polarised and how the children suffer the most when caught in the middle.

All the speakers appeared to have arrived at the same solution – we must identify better solutions for families than simply funnelling them through an adversarial system which appears to achieve little and does it very slowly. But equally, all noted that the barriers to such triage are significant. To be blunt, there is often very little on offer or it requires significant financial resources to obtain. The money wasted on a bloated adversarial court system could be redirected to provide more focused and effective interventions – but it’s going to require a political will and co-ordination that I frankly do not think I will see in my lifetime. The Children Act 1989 was the last great piece of legislation to reform a fragmented system within 30 years, that crossed political lines and united everyone.

We may now have reached a similar crisis point but the political landscape now appears to be have shifted; politicians work with sound bites, quick fixes and policies that will play well with the electorate. Reforming the FJS isn’t ‘sexy’ – but it is essential.

But what is also essential is recognising the powerful statement of the women who said the family courts saved her life. The elephant in the room is the 10% of estimated cases that will be impervious to mediation, support or ‘re-framing’ – those cases which involve men and women who are truly damaged and dangerous and who require a robust court structure to minimise the harm they do. I welcome the proposals for more effective triage – just so long as we do retain the option for judicial control over those cases which need it.

Further Reading

See Practice Direction 36Z which establishes a pilot scheme running until February 2024 to allow certain applications, and stages in proceedings relating to such applications, to follow a procedure different to that specified in the Family Procedure Rules 2010 (“the FPR”) and supporting Practice Directions. These courts are at Bournemouth; Caernarfon; Mold; Prestatyn; Weymouth and Wrexham. It will be interesting to see the results.

The purpose of the pilot is set out at para 2.1

The revised process has been designed for all court users, but with a particular focus on improving the experience of the family court and outcomes for survivors of domestic abuse, including children and litigants in person. The pilot seeks to test a more investigative approach, featuring earlier gatekeeping and information gathering to enable earlier triaging decisions and to front-load engagement with parties rather than engaging through multiple hearings. The court will also seek to hear the voice of the child more clearly through each case in this pilot, with the aim that appropriate engagement and communication are considered throughout proceedings. A more holistic, multi-agency approach is planned, with the court engaging and developing positive working relationships with key local partners such as mediators and local authorities. A review stage during the pilot process will aim to ensure that court orders meet the welfare needs of the child and reduce the number of cases which come back to court.

‘Interesting Times’

The Speech of Sir Andrew McFarlane President of the Family Division

FLBA National Conference: Manchester 16th October 2021

This is a post by Sarah Phillimore.

It is of course an ancient Chinese curse ‘may you live in interesting times’ and thus an intriguing title for this address, which you can read in full here. I propose to consider some selected highlights of what our President sees for the future of the Family Justice System.

First the President sets out what he wants to achieve over the remaining few years of his term. The following items will always be on his ‘to do list’.

  • Delivering the implementation of the long-running Digital Reform Programme for Civil, Family and Tribunals
  • Ensure everyone abides by the recommendations of the Public Law Working Groups.
  • Move the Family Court out of its silo and work effectively with other jurisdictions.
  • Protect and enhance the well being of everyone involved in the delivery of family justice.

Two topics however will demand additional time, focus and resources

  • resolution of private law disputes between parents about caring for their children post separation – this was covered in a previous Key Note address ‘Supporting Families in Conflict: There is a better way’
  • Transparency – the processes by which the Family Court may be made more open so that the wider public may gain a greater understanding of the work done here. I have undergone a sea change in my own approach to transparency – from actively campaigning for more openness, to now grave concerns about many journalists and parents will seek to use information made publicly available. The President will shortly publish the conclusions of the ‘‘Transparency Review’ that has been undertaken during the past year. Unfortunately this delay in publication meant the President felt it would be premature to consider it now.

Therefore the President turned to consider other matters.

The Future of Remote Hearings.

No national guidance will be issued but each local court centre will be trusted to exercise their discretion on a case by case basis and within broad parameters. The President made some comment about these parameters. It is clear that we will not return to the working practices of February 2020. The courts have now become used to remote working and it should be the formal of choice in appropriate hearings. The central theme is that parties and their lawyers should normally be physically present when an important decision is being taken. A clear negative about remote hearings is the absence of that time ‘at the door of the court’ to focus on issues and possibly settlement. But its clear that remote hearings – ‘for the right case’ – are here to stay.

Well Being

The system is currently running ‘hot’ and at a level above its normal capacity. The backlog of work remains high and is increasing. The President is clear that this level of working is not sustainable in the long run. Judges also need downtime and sympathy for late filing of position statements etc is going to be in short supply. He is concerned that orders are now taking days to draft after hearings and containing an over abundance of recitals – a new and ‘unwelcome’ development. Hopefully a Practice Direction will be issued early next year.

Public Law

The recommendations contained in the main report of the Public Law Working Group under the chairmanship of Mr Justice Keehan were launched in April 2021 with the firm expectation that they should be taken up by every local authority in England and Wales by now. The aim is to ensure that cases only come to court when they need to do so and when they are ready to do so in terms of assessments and all other necessary evidence. The big question of whether there is a case for the abolition, or replacement, of supervision orders has been referred to the Law Commission. The sub-group’s deliberations are focussed upon making supervision orders more robust and effective. A final report on this topic, which is expected by April 2022, will include draft Best Practice Guidance. Another sub-group on Adoption has started work with a final report expected later in 2022.

Family Public Law digital programme

The FPL digital programme is now fully operational in 10 of the 43 care centres. Between 10 and 12 further centres will become fully operational next week and it is envisaged that all other centres will join them before the end of the year. Taking up and implementing a substantial new software programme has not been without difficulties, which have been made no easier by doing so during the pandemic when all involved are working beyond their ordinary capacity.

Reform Programme

Looking at the Reform programme more generally, five reformed digital services have now been fully delivered: – Divorce – Financial Remedy Consent – Financial Remedy Contested – Probate – Family Public Law. In addition some 60% of all private law applications are now made online. Over ½ million digital applications have now been made using these services and the level of performance has been transferred: 9 – Divorce now takes 20 weeks from start to finish – Financial remedy consents are dealt with in 3 weeks – C100 applications are going to gatekeeping teams within 2 days of receipt – The FPL provides fully digital files for the judiciary.

Conclusion

The President concluded with words of praise

May I conclude by saying what I have now said on very many occasions. The record of achievement of the Family Court from the very first day of the first Lockdown has been profoundly impressive. Every single individual, be they lawyers, court staff, social workers or judges and magistrates, did their utmost to keep the system going and available for those who turn to us for protection or the resolution of intractable disputes. What has been achieved makes me proud to be part of the Family justice system and one of your number.

It certainly looks as if great strides have been made to embrace new technology and move away from a paper based service which hopefully will not only increase efficiency and but reduce costs. I am certainly pleased that remote hearings are here to stay when it comes to the shorter more administrative hearings. The joys of leaving the house at 5.30am to attend a 20 minutes directions hearing in Plymouth certainly diminished over the years – if those days are gone, I am very glad.

But of most interest to me is what the President wasn’t able to speak about – the Transparency Review and what it will mean for not only how we work in the Family Courts, but how others will be able to discuss how we work. I wish I could say I was filled with delighted anticipation for the forthcoming Review and how it will usher in a new golden dawn of shared information and understanding. Sadly, events of the last few years – most notably the woefully imbalanced ‘Dispatches’ report that could apparently find not a single father to interview – have made me much more pessimistic.

But as ever, I am always happy to be proved wrong. It is clear to me that trust and confidence in the system will not come from simply improved ease of access and IT improvements, but rather that people can be helped to understand the nature of the work that is done and most importantly the inevitable limitations of any system of law to mend broken relationships and emotional dysfunction.

Family Justice Board statement: Priorities for the family Justice System.

This was issued in December 2020. I will be interested to see how this pans out. There are rather too many vague statements of intent:

“to ensure the most vulnerable children and families are prioritised and the future system is designed around their needs”

“All reform in this area must continue to have the best interests of children and families at its heart, and lead to improved outcomes for children”

Which troubles me in light of the concerns I have raised over the focus of the MoJ Expert Panel – to identify and prioritise ‘victimhood’ at the start of the process, with little or no focus on the Article 6 rights to a fair hearing.

It’s all well and good to trumpet ‘best interests’ and ‘good outcomes’ – but who is deciding what each of these terms mean and what they look like? The family justice system exists first and foremost to apply the law. It cannot create law or finance policy decisions. Some of the most difficult care cases involve teenagers in acute mental distress. Access to help and support – even a safe place to stay – is very difficult and unlikely to improve in the near future. I am unsure what the family justice system can do to make that situation any better.

For ‘reforms’ to any legal system to have any benefit, they must be focused on both the limitiations and the demands of a legal system. There must be equality before the law, not assumptions at the outset re ‘victims’ or ‘perpetrators’. There must be recognition that so much of what needs to change to secure better outcomes for children, will rely on services external to the family court which require central government funding to survive.

Particularly with regard to care proceedings, rather than looking on how to make final hearings better, shouldn’t we be thinking more about how we avoid the court process? Why are applications in both private and public law proceedings so relentlessly on the rise? It certainly suggests a failure of any attempt to ‘problem solve’ or mediate. My best guess at why this is happening is because those agencies and services which might have been able to divert a family away from the court are no longer operating or have been greatly reduced. The court becomes the only option.

I know its easy to criticise and difficult to do better. I don’t wish to cast aspersions on the good intentions and hard work of those who have contributed towards this. I am glad to see efforts being put towards increasing the number of available judges. But there remain some pretty big elephants in the room who will, at some point, need feeding.

  1. The family justice system exists to safeguard vulnerable children and adults, and to act in the best interests of the child at all times. Our success depends on effective, timely coordination across a wide range of agencies, an everyday challenge that has been greatly exacerbated by the Covid-19 pandemic.
  2. Increasing numbers of children have experienced delay to the court proceedings in which major decisions will be made about their lives. We are acutely aware of the impact this has on their identity, mental health and wellbeing, on top of the range of additional challenges which led to their involvement in proceedings.
  3. As a Board, we have agreed a programme of prioritised action that will tackle the immediate pressures and deliver the longer-term reforms that are needed to ensure the most vulnerable children and families are prioritised and the future system is designed around their needs and runs smoothly.
  4. This note summarises the priorities that we have identified for attention and have tasked the Family Justice Reform Implementation Group to coordinate and oversee. Details of our specific priorities for public and private family law are outlined within specific reports issued alongside this statement.
  5. Children within outstanding cases are experiencing greater delay as the family justice system has long been struggling with caseloads. The timeliness of care proceedings has deteriorated in recent years, and private law applications have grown by around a quarter since 2014. This has had a lasting impact on vulnerable children who are awaiting decisions that will define their future, and on the wellbeing of staff across the system.
  6. System capacity has been further – and profoundly – challenged by the outbreak of Covid-19. The response within the system has been nothing short of extraordinary – from local authority social workers and Cafcass/Cafcass Cymru officers maintaining family contact through a blend of ‘in person’ and remote visits, to the national implementation of virtual court proceedings by HMCTS, legal professionals and the judiciary. These efforts, and the careful triaging of activity, ensured that work and support continued with the most vulnerable people.
  7. We recognise and pay tribute to the dedication and tireless effort of professionals across the sector. We know that you are dealing with caseloads that are far higher than before, and that your work is made so much more challenging in the current context. We have already taken a number of steps to try to alleviate pressure within the system:
  8. • Since the outbreak of the pandemic, a national cross-sector Covid-19 recovery group has met frequently to coordinate the system response; 2 • HMCTS has recruited approximately 900 additional support staff across all jurisdictions, with currently around 700 further appointments sought; • Approximately £3.5m additional funding has helped Cafcass increase staffing levels to respond to record levels of open cases; • A programme of recruitment to increase judicial capacity is ongoing.
  9. Whilst additional resources are essential to stabilising the system, we know that further measures are needed urgently to address the immediate challenges posed by the pandemic and entrenched, longer term issues. The measures that we are focusing on as priorities to pursue are set out below.
  10. Immediate recovery priorities. In private family law, we need to focus initially on delivering interim measures to increase the efficiency and flexibility with which applications are dealt and progressed. The first priority must be the pursuit of immediate changes to alleviate the backlog of cases growing in ways which ensure risk is identified and the most urgent cases seen first.
  11. These changes include, for example, the courts adopting more collaborative case management planning during gatekeeping, or embedding the temporary flexibilities afforded by Practice Direction 36Q over the management of Child Arrangements applications. There has been significant innovation and learning from the ways in which local courts have responded and these are now being shared through regional networks so that the measures that are easiest to implement and have the greatest impact can be introduced everywhere, tailored to local circumstances.
  12. In public family law cases, the Board recognises that the immediate focus must remain on ensuring that the children, young people and families who are most severely impacted by delay stemming from Covid-19, are prioritised. There is an immediate need to ensure cases with serious child safeguarding risks are taken to court and heard in a timely manner, and collective action is needed to progress permanence decisions and find ways to manage the most complex and contested hearings in a way that is just.
  13. Longer term reform plans Private law – the Family Justice Reform Implementation Group will continue developing a programme of pilot projects to test a revised Child Arrangements Programme, to deliver an earlier gateway to court which offers families a more rounded assessment of the needs of children and their families, and an improved offer for non-adversarial problem solving. Those cases that proceed to court would be offered a differentiated approach to adjudication, dependant on need, with more effective case management and review, in line with the findings of the President’s Private Law Working Group and the Expert Panel on Harm in the Family Courts.
  14. Work to design this reform programme is underway now, and further information will be cascaded in due course. A guiding objective of these longer-term reforms will be to ensure that the system continues to put children and families first.
  15. Public law –the system needs to be ready to support all vulnerable children and adults who depend upon it, and the greatest need is to ensure that those who need support and safeguarding receive it at the right time. Where appropriate, pre-proceedings work and the extended family network should be used. The priority should be to renew existing good practice within the Public Law Outline and implement a system-wide leadership focus on practice improvement.
  16. These recommendations re-state and re-emphasise the statutory and regulatory requirements and good practice. All reform in this area must continue to have the best interests of children and families at its heart, and lead to improved outcomes for children.
  17. Coordinating delivery – a national, regional and local approach The task of addressing the profound challenges facing family justice needs to be a genuinely shared endeavour. The system is complex and multi-faceted, and no single organisation can deliver the changes that are needed in isolation. The Family Justice Reform Implementation Group – comprised of leaders from across the system – will be accountable to the Family Justice Board for overseeing delivery of our priorities.
  18. Pressures and challenges prevalent in one part of the country will be different from those elsewhere – a prescriptive central plan will never recognise and accommodate this regional variation. In recognition of this, the Implementation Group is finalising the regional and local arrangements that it will adopt to ensure the activities of greatest potential impact in different parts of the country are pursued. Local Family Justice Boards are uniquely well positioned to ensure that priority actions respond to the most pressing local and regional challenges and will have an essential role to play.
  19. We will share further information about the national, regional and local delivery arrangements in early January 2021. Issued with the endorsement of Family Justice Board members and observers

Child Protection Resource: 2019 The Year in Review

This is a post by Sarah Phillimore

It has certainly been a busy year. 2019 made me think again and hard about some of my previously unchallenged assumptions – that the people I met on this road were invariably to be trusted to fight the good fight. I have seen instead increasing polarisation and promotion of narrative over substance. I have seen examples of cowardice and dishonesty from those I previously admired that has made me gasp.

But it is always better to know. I have certainly dialled down my ‘crusading’ given my realisation of just how tricky things are out there. I will remain very interested in what the 3 month ‘Inquiry’ into the FJS can possibly achieve, particularly given the ‘capture’ of many campaigning groups by people I know to be criminal and dangerous.

I remain sceptical that journalists have the ability or even the will to report on the FJS accurately or responsibly. While I was very pleased to be part of the appeal that lead to new October guidance on Reporting in the Family Courts, this may yet be a phyrric victory if journalists cannot be persuaded to move away from the salacious headline over accurate and fair reporting.

But the aim of the CPR is not to provide a platform for me to moan about things, although I will happily admit to hijacking it on a few occasions to do exactly that.

The aim of this site has always been to provide accurate and useful information for everyone in the child protection system – parents, lawyers, social workers etc. So its interesting to look at what posts were popular this year.

What did the audience want?

In 2018 the three most popular posts, with not much to divide them, were

interestingly, the post about section 20 of the Children Act 1989 – which in previous years had vied with the post about mental health as the most popular, had slumped to 4th place – which I hope reflects the growing unease and greater knowledge about the use and misuse of section 20.

So what was the picture in 2019?

This is – for me – pretty interesting. Its the first time since the site’s inception in 2014 that the post on mental health in care proceedings has been knocked from the top spot – to be replaced with ‘The Social Worker is Out to Get Me – Common concerns we hear from parents’ . In 2019 that post had gathered about 10K new views. I can only speculate why that is but guess that it may be a reflection of the growing awareness of ‘fake news’ and manipulation of social media. It’s interesting to note that all Top 3 posts are now from the ‘Mythbusting’ menu of the website.

The post meanwhile that continues to provoke the angriest comments was from June 2018 where I attempted to break down an argument that mothers abused children more than fathers – I concluded that it was pretty even but fathers just pipped the mothers at the post. The degree of consistent abuse and vitriol I have received from this post indicates that it is a very sensitive area and those with a stake in it often express themselves in very worryingly aggressive tones.

The massive dip in users in November 2019 is explained by a switch to a different host and the site went off line for 2 days.

Hopes for 2020

In 2019 the site had 390,871 users, the vast majority – 87% – new users coming from organic google searches. This is an increase from 2017 at 340,024 but a decrease from 2018 when this number was 437,338.

Again, I can only guess at the reason for this dip. It may be due to Twitter now refusing to publish anything with a link to this site; this censorship began around April 2019 and has never been explained by Twitter, despite frequent efforts to contact it. The noticeable ‘dip’ in users around that time as can be seen above, supports that view.

It may also be that other and better sources of information are spreading and available.

I really hope its the latter. As I keep saying – either we simplify our laws and our procedures or we provide better support for those who have no choice but to go through the system. Once the analytics show me that no one is reading anymore, then I will close down the site.

But for now, I think the need is still there. Let’s see what 2020 brings now we can finally focus on something other than Brexit. One thing I hope to see in CPR’s future is its own podcast!

A Happy New Year to all my readers.

How pushing the ‘victim/perpetrator’ dichotomy in the Family Court system hurts us all

This is a talk delivered by Sarah Phillimore at the Families Need Fathers conference in London on September 14th 2019

The abstract concept of ‘Justice’ is often portrayed as the Greek goddess Themis, usually depicted holding a sword and scales. This represents her ability to cut fact from fiction with no middle ground and the need to be balanced and pragmatic. However the blindfold is a modern addition.  It symbolises that justice must be blind i.e. applied equally to all who come before her.

In recent years there appears to have been an orchestrated campaign against both the scales and the blindfold, when it comes to issues of violence in intimate relationships before the family courts.  For the first time in my 20 years now as a lawyer, I see not merely journalists and campaigners showcasing their lack of understanding of law and procedure – I see them joined and supported by actual politicians and actual ‘Inquiries’ established by actual Government departments. I and others have commented critically about this elsewhere

If this sounds harsh I am sorry. I do not say this to diminish the suffering of victims of abuse. Violence in relationships is common and is a blight on our society. I agree that a parent who is abusive to anyone, let alone their child’s other parent, is not a good parent and they should not have unfettered access to a child without some clear evidence that this is safe.  I agree that women are more likely to be the victims of violence at the hands of male partners. Further, I would be surprised to find anyone who doesn’t think it outrageous that people risk being cross examined directly by those who may be using the court system to further abuse and humiliate. Happily, in my experience at least this is not commonplace – Just out of interest – how many people in this room have either questioned directly an ex partner in court or been questioned directly by an ex partner?

We must be able to say the names of those children who have died painful and frightening deaths at the hands of their adult carers, when the child protection system failed to ask the right questions or properly assess risk – Ellie Butler, Alexa-Marie Quinn, Peter Connelly, Victoria Climbie, Elsie Scully-Hicks Daniel Pelka

Even this short list is too long. When the child protection system fails it is their faces that we must see.

 

 

 

 

 

 

 

But. It is clear that children risk being hurt and killed by men AND women. Even in that short list above shows women are capable of hurting and killing children, or of deliberately lying to protect the men they know are hurting them.

The only fool proof way to prevent children from pain and suffering is to prevent them from ever being born.  There is no system that can protect against all risk. We need to do better – and I will discuss today how we can do that – but the answer to a system that you find unsatisfactory and potentially unfair is NOT to agitate to make it even more unsatisfactory and unfair.

I don’t agree the current crop of campaigners will achieve anything to make victims and their children safer. The MoJ Inquiry and the Sunday Mirror ‘campaign’ etc etc etc is a call to examine or change laws which do not actually exist.  I am repeatedly told via social media that we ‘must’ see a change to the law that permits ‘snap decisions which promote contact at all costs’. This is not, never has been and never will be the law.

To campaign on such a false premise is a waste of time and energy. More sinisterly, the ‘changes’ which people want to see, appear to involve very significant challenge to the integrity of both the rule of law and due process.

  • by describing complainants as ‘victims’ at the very outset.
  • Assuming that these ‘victims’ are women
  • By inviting under the campaigning umbrella a number of women who have been found to have caused very serious harm to their children, yet rejecting those findings as yet more ‘failings’ of the family courts. [For comment on Victoria Haigh and the very many judgments against her, see this post from The Transparency Project. ]

 

I believe Brexit has unleashed something very harmful into our attempts to talk about serious issues; experts are disdained, facts are distorted and feelings are what matter. This joined forces with another trend – the identification of ‘complainants’ as ‘victims’ before any allegation is either accepted as true or found to be so. This first emerged in the criminal justice system; tragically as a very well intentioned effort to combat some of the truly disgusting treatment meted out by police and lawyers to those who complained about sexual assault.

However, the law of unintended consequences continues to operate, and as Richard Henriques warned and the the trial of Carl Beech showed, to designate people as ‘victims’ at the very outset of any investigative procedure, has the potential to cause serious and damaging consequences for the integrity of what follows.

The time has long gone for those of us who are deeply troubled by all of this to attempt to reclaim the narrative, to restore the position that words have meaning. They are important. Because language shapes thought – not the other way around.

There are two fundamental and serious problems in using the word ‘victim’ to describe a complainant whose allegations have either not been proved or have not been accepted. It is unfair to all who participate in court proceedings.

  • setting up a complainant as a ‘victim’ at the inception of the court process gives that person a wholly unrealistic view of how their evidence may be treated in an adversarial court process. It is not enough to simply assert something – you must prove it.
  • Treating one party as a victim prior to any findings made about the factual basis for that status, risks undermining the fairness of the proceedings and casting the respondent as a ‘villain’ at the outset.

So I will attempt today to go back to basics.

  • What is the rule of law? What is ‘due process’? And why are they important?
  • What is evidence? And how does the family court use it? How should you present it?
  • Where is the system failing and what can we do to make it better?

 

What do we mean by the ‘rule of law’ and ‘due process’ ?

The Secretary-General of the United Nations defined the rule of law in this way:

a principle of governance in  which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.” (Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies (S/2004/616).

The rule of law is one of six of the key Worldwide Governance Indicators (The others being Voice & Accountability, Political Stability and Lack of Violence, Government Effectiveness, Regulatory Quality, and Control of Corruption).

‘Due process’ is under the umbrella of the Rule of Law:

  • procedural due process – legal proceedings which are carried out in accordance with established rules and principles; and
  • substantive due process – legal proceedings should not result in the unfair, arbitrary or unreasonable treatment of an individual.

If you are in any doubt as to the importance of the ‘rule of law’ or due process, visit and spend some time in one of the countries which doesn’t have either.

 

So what IS evidence? And how does the court treat it?

I make no apology for going back to basics, such is the staggering level of misinformation  I am seeing on a daily basis from those who purport to have positions of authority and credibility.

Evidence is anything that you experience, read or are told that causes you to believe something happened. It is the information used in court to try and prove something. It can be obtained from documents, objects or witnesses.

Establishing the evidence in a case allows you to ask ‘what does it prove?’. A thing that is proved or accepted then becomes a fact which is relevant to the outcome of the case.  We need to know the facts in order to decide what consequences follow or what the risks are and how they are to be managed. The Family Justice System (FJS) puts proof of facts at its heart.

In 2013 Mr Justice Baker addressed a conference asking  – how can we improve decision making in the family courts? He identified the twin evils of delay and cost which impact on the quality of decisions made. He commented on the alternatives to litigation, such as mediation or arbitration that might work to mitigate those evils. But he was also clear that alternatives to litigation could never be complete substitutes for litigation.

But there will always be a substantial number of disputes in which a forensic process is unavoidable, a process that involves consideration of allegations and cross-allegations made by the parties, a judicial analysis of the evidence, the makings of findings and an assessment of the consequences of those findings. There are some people who genuinely believe this can be done by some sort of committee without involving lawyers at all. Such views are profoundly mistaken.

This does not mean of course that our current system is without flaws. ‘Fact finding’ may sound simple but is anything but. The foocus on most law degrees is dissection of the lofty legal decisions of the superior courts – but when they hit the ground in practice, the vast majority of legal endeavours will involve the identification and processing of facts.

Understanding how to identify and apply facts in court is complicated.  Jerome Micheal, the author of ‘The nature of judicial proof: An inquiry into the logical, legal, and empirical aspects of the law of evidence’ summarised his view of the ‘theoretical basis of the arts of controversy’ in 1948, pointing out that there are very many things we need to appreciate when we approach evidence in a court. Among others, we need to understand probability, causation, the distinction between direct or perceptual and indirect or inferential knowledge. We base much of our understanding on presuppositions about human nature and behaviour – these often change over time or as research develops – but we need some basic knowledge about how humans think and react.

Judges often say findings of fact must be based on evidence, not speculation – Re A (A Child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12) but as that case illustrates, the line between the two is not always clear or easy to find and obviously involves some subjective discretion form the decision maker.

However, regardless of all the obvious imperfections of the fact finding exercise,  we have as yet, no other system to deal with contested allegations.  I am not sure what else could be suggested – we return to trial by combat? Or in the modern era presumably this will be ‘trial by Facebook’ – whoever can garner the most ‘likes’ and ‘shares’ or the biggest amount in their crowd funder will ‘win’. I have a horrible suspicion that this is exactly how some people think it should work, as we have seen in both the Minnock and Baldwin cases.

But unless and until Parliament decides to dissolve the courts of law in favour of the courts of public opinion, we need to focus on what we have got.

 

The family court process

Deciding what ‘weight’ attaches to the evidence will comprise a mixture of objective and subjective elements. Judges have a pretty wide discretion; it is not a ground of appeal that you didn’t agree with the judge’s decision. You have to show the judge was wrong – he or she took into account the wrong things or ignored the right things. Just because a Judge fails to explicitly mention a particular point, doesn’t mean the appeal court will allow your challenge to succeed. A useful example of this can be found in the case of A and R (Children), Re [2018] EWHC 2771 (Fam) where the Recorder was criticised for not making explicit reference to some parts of PD 12J.

Family courts operate an ‘adversarial’ as opposed to ‘inquisitorial’ system. This means that the Judge can only decide the case that is in front of him or her. The Judge does not take on an investigative role. Evidence is presented to the court and challenged by the parties as ‘adversaries’ in the court process. Claims that we are in fact ‘quasi-inquisitorial’ seems to mean in practice to amount to little more but that lawyers are asked to tone down their combativeness a notch.

The court must take into account all the pieces of evidence in the context of all other evidence, The civil standard of proof applies, which means facts must be proved ‘on the balance of probabilities’: If it is more likely than not that the thing happened it is proved – see Re B [2008] UKHL 35). This is known as the ‘binary system’ as there are only two options  – true or false. I appreciate that there is legitimate criticism of this, particularly given the low standard of proof and again I would like to see more official recognition of this, rather than the predominant congratulatory back slapping that the family courts have ‘discovered the truth’. 

Over time rules of evidence developed, to attempt to make proceedings as consistent and fair as possible. For example, in most civil cases ‘hearsay evidence’ is not permitted – that is the evidence of those who tell the court, not what they know themselves, but what they have heard from others. A fundamental point of fairness is that if you don’t accept the evidence offered against you, you must have the ability to challenge it. Its obviously very difficult to challenge the words of someone not in court. For this reason if hearsay is accepted in family court proceedings, the judge must think very carefully about the weight to be attached to it. 

 

Expert Evidence

particular bone of contention revolves around the use of experts – as these experts are often in the ‘soft science’ field of psychology.  I accept that the use of experts is not without controversy and I have seen a worrying lack of humility from some about the strength of their conclusions. However, it’s important to remember that ‘the expert advises but the court decides’ . Expert evidence is just one piece of a jigsaw that a judge needs to try and put together – it is rarely the entire answer to the case  – see Re T [2004] 2 FLR 838.

As Professor Luthert commented in R v Harris and Others [2005] EWCA Crim 1980: It is very easy to try and fill those areas of ignorance with what we know, but I think it is very important to accept that we do not necessarily have a sufficient understanding to explain every case.

 A judge does not have to accept an expert’s evidence but must explain why the evidence is not accepted. See the comments of Lord Justice Ward and Lady Justice Butler-Sloss in the case of Re B (Care: Expert Witnesses) [1996] 1 FLR 667

I accept we need a greater awareness of and willingness to challenge experts on the basis of confirmation bias or scientific prejudice but as barrister David Beddingfield comemented in 2013 –  this can be tricky  – see Expert Evidence – Another Chapter in a Continuing Story in Family Law Week:

The expert, as we all know, is expected to give an opinion about the most significant issues in a case. A paradox underlies the use of all expert evidence: the reason an expert is required is that the decision-maker lacks the expertise of the expert and requires that expert’s help. How is that same decision-maker also competent tojudge the content of the expert’s evidence? How is the decision-maker to choose, for example between two competing experts, each using different methodologies beyond the ken of any non-specialist?

 

Practical problems in family cases – Documents versus words

The uncontroversial ‘gold standard’ of evidence is the contemporaneous documentary record. And this is the fundamental reason why allegations about what did or did not happen in intimate relationships can be so difficult to prove in court, even on a low standard of proof. Many cases I have dealt with involve a bitterly fought battle between parents who make allegations each against the other which are starkly different. It is difficult to discern patterns of behaviour and very difficult to cross examine on a bare denial.

Relationships, which may have endured over decades, may offer the court little evidence but the words of the parties themselves.  Not many of us – I hope – enter into a relationship expecting to keep a running log of all the bad behaviour of our partners.

I was asked a very interesting question about this issue of ‘collecting evidence’

…. would it help to suggest that people keep diaries, records, photos, dates, times, places – particularly when there are already difficulties i.e. any statements may be seen to be more credible if they are detailed and based on contemporaneous notes?

And my answer to that is ‘be careful’. You do run a risk that you may appear to be offering self serving or manipulated evidence. The courts are often very wary of recordings of arguments etc because of course it is difficult to know what happened immediately before the recording started. I have seen recordings and diary entries used with powerful effect but there is always a suspicion that such one party may have acted deliberately to antagonise the other in order to ‘collect evidence’ . I appreciate this is a very difficult position to be in – much abuse occurs behind closed doors and the abuser is able to present a very different face to those outside the relationship.

But it remains an inescapable truth that the more serious the allegations you make, the less likely is any court to simply accept them, absent any supporting evidence – see for example the case of Sivasubramaniam v Wandsworth County Court & Ors [2002] EWCA Civ 1738. The complainant described events to the court in this way:

part of a long-running criminal conspiracy against him involving members of Wandsworth Borough Council solicitors, lawyers and the chief executive and the finance officer and their assistants, members of the Wandsworth police, doctors in the hospitals, social workers, local court officials, judges and the lessee occupying the flat below his. The conspiracy involved unsuccessful attempts to murder him … It had included impersonation of him, had involved the fraudulent termination of four sets of legal proceedings that he was conducting, including the two with which we are concerned, while he was detained under the Mental Health Act or under medication thereafter, and continued to this day.

Unsurprisingly the court declared that no Judge would be able to accept such a version of events on one person’s word alone.

 

 

Gold Standard Evidence versus Witness Credibility

The courts have said for a long time that the best way of testing witness credibility is to test witnesses against objective facts which are independent of their testimony.

Lord Goff in Armagas Ltd v. Mundogas S.A. (The Ocean Frost), [1985] 1 Lloyd’s Rep. 1, p. 57:

Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.

Lord Pearce in the House of Lords in Onassis v Vergottis [1968] 2 Lloyds Rep 403 at p 431:

Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred.

It is clear that people who have been traumatised by abuse over many years can behave in ways that reflect that trauma. They may not be able to be clear or consistent in their account.  They may have been too afraid or too ashamed to have told any one else so have no police or medical evidence. Or they may worry about ‘rocking the boat’ and risking losing contact with their children. Exposure to gradually escalating abuse and intimidation can become numbing and appear ‘normal’ – the ‘boiling a frog’ principle.

The massive problem for the court system however is that a tendency to be inconsistent or reveal crucial details at a much later stage is also strongly suggestive of someone who is lying.

Therefore the credibility of witnesses in family cases is often of supreme importance. It really matters how you come across when you give evidence. The appeal courts often say that they are at a disadvantage when examining a challenge to the decision of the first court, as they don’t have the same opportunity to assess how people gave their evidence as well as what they actually said. I think there is a danger – of which the courts are aware – that too much or improper weight can be put on demeanour as an indication of credibility.  They are two very different things –  ‘demeanour’ is concerned with whether or not a witness appears to be telling the truth.

It is usually unreliable and often dangerous to draw conclusions from demeanour alone. Is someone hesitant because they are lying or just naturally cautious? These problems are magnified where the witness is from a different country or culture than the Judge or is giving evidence through an interpreter. I accept that most of us still do have a view of how a ‘victim’ should present in court – particularly if that alleged victim is female, and I accept there is a risk that people who don’t fit the general stereotype of ‘victim’ – i.e. weak, timid, tearful – may find their accounts treated as less credible.

The case of Excelerate Technology v Cumberbatch [2015] provides some useful discussion about how Judges assess credibility. It is determined by looking at the following issues.

  • is the witness a truthful or untruthful person?
  • If truthful, is he telling something less than the truth on this issue?
  • if untruthful is he telling the truth on this issue? Not all liars lie all the time and motivations for lying can vary; see the Lucas direction.
  • If truthful and telling the truth as he sees it, can his memory be relied upon?
  • Is what is asserted so improbable that it is on balance more likely than not he was mistaken in his recollection?

 

 

What can we do to improve the situation?

So – what do we do? I accept that court arenas are unpleasant places at the best of times. Attempting to establish the truth or otherwise of your experiences in an abusive relationship is very far from the best of times.

The lawyers and judges must have a clear understanding of how to make proceedings as fair and efficient as possible:

  • have clear understanding of the requirements of PD 12J – see below.
  • Be wary of making any decision based on the demeanour of a witness or what a victim ‘ought’ to do
  • make sure vulnerable witnesses have a safe place to sit and wait before the hearing starts
  • make sure that issues of screens in court, video links and intermediaries are properly discussed in good time.
  • be more willing to impose serious penalties on those who are found to have lied in their evidence
  • list findings of fact as soon as possible and be prepared to take enforcement action as soon as it becomes clear the resident parent won’t accept the findings of the court

What will help the parties?

  • Understand the court process
  • Understand the burden and standard of proof
  • where ever you can – find some additional evidence that supports what you are saying. Are there any medical records or police reports? Did you say anything to a friend or family member at the time? Would they be willing to come to court and be cross examined about what you said?
  • If you have nothing other than your words – that is still evidence but you must be careful to be as clear and consistent as you can. Set out your statement in short numbered paragraphs and go in chronological order. Include everything that you can remember.

However, it has been my view for some time that the fundamental challenges to fair, efficient and humane processing of legal complaints about violence in intimate relationships are very little to do with the lawyers, the Judges and their lack of understanding or training. The real problems will require political will and a huge amount of cash to sort out.

  • court buildings that are not fit for purpose – no or very few waiting rooms, no separate entrance, courts sitting in cramped rooms with very little space, inadequate technology to accommodate video links etc
  • lack of judges and available court rooms to hear fact findings quickly – cases quickly become stuck and are allowed to drift.
  • lack of judicial continuity which is detrimental to effective case management – see comments in the case of A and R (Children), Re [2018] EWHC 2771 (Fam) para 57 -61.
  • lack of legal aid so that vulnerable witnesses may have be face being cross examined by their alleged abuser, the issues in the case are not identified and presented efficiently, litigants in person can’t afford to instruct experts etc, etc, etc.
  • wider societal problems, such as lack of available safe and affordable housing so that the financially weaker partner finds it very difficult to leave an abusive relationship particularly if there are children involved.

This is what we need to tackle. And I have to wonder why we are all so keen to be distracted by yet another newspaper campaign based on what seems to be a complete lack of knowledge or understanding of any of the issues I raise above. At the moment, the only people I can see who will benefit from all this are those who are pushing for Judges to be ‘trained’ – presumably by their own organisations and at significant cost.

And a the elephant in the room will remain. Why do so many people behave so badly in intimate relationships? And why do so many people have so little self worth that they accept it or cannot recognise it until many years have passed and great harm has been done? What as a society are we going to do about this? is there anything ‘we’ can do?

All I can say with certainty is that continued insistence on the FJS or any external agency to ‘fix’ the problems of cruel, unreasonable or otherwise dysfunctional people is doomed to expensive and emotionally harmful failure. And those who will suffer most, as they always do, are the children.

 

 

APPENDIX

Definitions in Practice Direction 12 J

Domestic abuse” includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment;

“coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim;

“controlling behaviour” means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour;

“development” means physical, intellectual, emotional, social or behavioural development;
“harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another, by domestic abuse or otherwise;

“health” means physical or mental health;

“ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical

 

Para 5 what must the court do?

  • dentify at the earliest opportunity (usually at the FHDRA) the factual and welfare issues involved;
  • consider the nature of any allegation, admission or evidence of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms;
  • give directions to enable contested relevant factual and welfare issues to be tried as soon as possible and fairly;
  • ensure that where domestic abuse is admitted or proven, any child arrangements order in place protects the safety and wellbeing of the child and the parent with whom the child is living, and does not expose either of them to the risk of further harm; and
  • ensure that any interim child arrangements order (i.e. considered by the court before determination of the facts, and in the absence of admission) is only made having followed the guidance in paragraphs 25–27 below.
    In particular, the court must be satisfied that any contact ordered with a parent who has perpetrated domestic abuse does not expose the child and/or other parent to the risk of harm and is in the best interests of the child.

Para 8

In considering, on an application for a child arrangements order by consent, whether there is any risk of harm to the child, the court must consider all the evidence and information available. The court may direct a report under Section 7 of the Children Act 1989 to be provided either orally or in writing, before it makes its decision; in such a case, the court must ask for information about any advice given by the officer preparing the report to the parties and whether they, or the child, have been referred to any other agency, including local authority children’s services. If the report is not in writing, the court must make a note of its substance on the court file and a summary of the same shall be set out in a Schedule to the relevant order.

How do we deal with tension around open justice and protecting the vulnerable? Para 10:

If at any stage the court is advised by any party (in the application form, or otherwise), by Cafcass or CAFCASS Cymru or otherwise that there is a need for special arrangements to protect the party or child attending any hearing, the court must ensure so far as practicable that appropriate arrangements are made for the hearing (including the waiting arrangements at court prior to the hearing, and arrangements for entering and exiting the court building) and for all subsequent hearings in the case, unless it is advised and considers that these are no longer necessary. Where practicable, the court should enquire of the alleged victim of domestic abuse how best she/he wishes to participate.

Why are fact findings important – para 16

The court should determine as soon as possible whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegation of domestic abuse –

(a) in order to provide a factual basis for any welfare report or for assessment of the factors set out in paragraphs 36 and 37 below;

(b) in order to provide a basis for an accurate assessment of risk;

(c) before it can consider any final welfare-based order(s) in relation to child arrangements; or

(d) before it considers the need for a domestic abuse-related Activity (such as a Domestic Violence Perpetrator Programme (DVPP)).

Para 40 In its judgment or reasons the court should always make clear how its findings on the issue of domestic abuse have influenced its decision on the issue of arrangements for the child. In particular, where the court has found domestic abuse proved but nonetheless makes an order which results in the child having future contact with the perpetrator of domestic abuse, the court must always explain, whether by way of reference to the welfare check-list, the factors in paragraphs 36 and 37 or otherwise, why it takes the view that the order which it has made will not expose the child to the risk of harm and is beneficial for the child.

 






The woeful state of our debate; when facts just don’t matter anymore

This is a post by Sarah Phillimore

I feel like I am caught on a constant hamster wheel of the same problems and the same criticisms. Nothing seems to change or get any better. Rather, it gets much, much worse as now we see actual Government departments being drawn into an Inquiry on what I fear is a false premise.

So what’s the latest update at the coal face of the dispiriting Mine of Fact lite Narrative?

I have written before about my disquiet over the narrative that appears to be gaining traction in the ‘debate’ about the Family Justice System (FJS). The influence of those pushing the notion that the FJS exists as a tool of misogynistic oppression, and that judges are simply ignorant or uncaring around issues of violence and abuse, has apparently been taken up wholesale by the Ministry of Justice with its 3 month ‘Inquiry’ recently announced. I have also written about this in critical terms; pointing that 3 months is barely long enough to arrange the first meeting and decide the terms of reference.

However, I was initially hearted to see the MP Louise Haigh, one of those who had pressed for the Inquiry, apparently acknowledge via Twitter the true scope of the difficulties.

Cuts to legal aid and soaring complex caseloads for dedicated social workers are all part of a family courts system under incredible pressure,” she wrote. “There needs to be the political will and resource to fix the structural problems in order to keep our children safe.”

However, this optimism was short lived. It soon became clear that the Panel chosen to undertake this Inquiry came from a narrow group and arguably fails to reflect the sheer weight of the competing perspectives and issues that come together to challenge our FJS.

The Ministry of Justice said this about the Panel on May 21st

The three-month project aims to ensure that the family court works first and foremost in the explicit interests of the child, such as their safety, health and well-being. The MOJ-chaired panel will consist of a range of experts including senior members of the judiciary, leading academics and charities.

And – rather worryingly, as the MoJ are apparently silent about how they are going to ‘fact check’ or reassure themselves of the credibility of any complainants:

A public call for evidence will also be launched imminently and will look to those with direct involvement to share their experiences.

The panel was then announced as

  • Melissa Case & Nicola Hewer, Director of Family and Criminal Justice Policy, MOJ (Chair)
  • Professor Liz Trinder, University of Exeter
  • Professor Rosemary Hunter FAcSS, University of Kent
  • Professor Mandy Burton, University of Leicester
  • Mr Justice Stephen Cobb, Judiciary
  • District Judge Katherine Suh, Judiciary
  • Nicki Norman, Acting Co-Chief Executive, Women’s Aid
  • Dierdre Fottrell QC & Lorraine Cavanagh QC (joint representatives), Association of Lawyers for Children
  • Isabelle Trowler, Chief Social Worker for England (Children & Families)

The panel will also be supported by analysts, researchers and relevant policy officials from MOJ.

This is a list of the great and good indeed. But what is immediately apparent is that it contains only one man – Mr Justice Cobb. Women’s Aid get a representative but no charity or organisation that exists to support men within the system is represented. How is this right? How does this encourage faith in the Inquiry to look with the necessary impartiality at the various issues that bedevil the system? Women’s Aid for example have been shown repeatedly to present unhelpful and inaccurate information in pursuit of their agenda.

Why wasn’t a group such as Families Need Fathers approached (I asked them; they weren’t). The dangers of approaching a problem from one perspective only should not really need pointing out. I have already commented about my real unease that women such as Victoria Haigh are being promoted and supported by  ‘those prominent in the domestic violence sector’.  This is not a men versus women issue – both sexes are capable of horrible cruelty and unkindness towards each other and their children. This has to be recognised and accepted before it can be dealt with.

My misery increased when I read a guest post published by the Transparency Project by barrister Charlotte Proudman. It was a piece published without comment or context – simply saying that ‘other pieces were in the pipeline’. I commented directly that I thought this was irresponsible given that Ms Proudman appeared to be making some very serious assertions about the failings of the judiciary to deal properly or at all with issues of domestic violence in the FJS and yet provided nothing by way of any evidence to support these  worrying claims – that did not chime with any of the barristers who commented via social media.

Nor was unease confined to the lawyers.

 

No one gets a free pass

I am glad to see the Transparency Project published a response on 6th July to the unease that this post generated, but remain sorry that such comment was not made at the time. To publish initially Ms Proudman’s post, without comment or context, that made such frankly incredible claims, risks appearing like endorsement.

I am also concerned to see it said by the Transparency Project in their response that people objected to the post because they didn’t ‘like’ what was said or were using their own anecdotal experience as somehow superior to Ms Proudman’s.

My concerns are not about shutting up people who don’t agree with me. But if people are making incredible assertions, that chime not at all with my experience, then I do not think it is unreasonable to ask that the person making the assertion support it with some evidence and that their views not simply be published without comment or context.

This is far too important an area to be decided by any individual’s ‘feelings’ or inherent prejudice or assumptions. I am glad that the Transparency Project does not wish to ‘play it safe’ and will continue to publish a variety of views – but no one should get a free pass about the need for evidence.

I remember hearing Dan Levitin, author of ‘A field Guide to Lies’  speak at the Bristol Festival of Ideas in 2017. He told us we have a moral obligation to check our assumptions and challenge our colleagues. I wrote then and believe still:

The key message from Dan Levitin was that we must ALL take personal responsibility for educating ourselves to think critically and challenge people that we know are pushing misinformation. We cannot discuss issues sensibly or at all unless we are able to agree on what the ‘facts’ are. There are no ‘alternative facts’ only ‘facts’. But peoples’ beliefs about what is or is not a fact can shift over time.

The consequences of the degraded respect for ‘facts’ and ‘experts’ are all around us. Challenges to the FJS need to be based on proper data, properly analysed. The consequences if it is not are very serious. I am afraid the constitution of the Panel for the Inquiry and the continued promotion of incredible assertions on no evidence, gives me very little confidence that one inherently skewed narrative is going to be challenged sufficiently or at all.

But we shall see. I hope I am wrong.






The NSPCC and child protection – what I learned this month about speaking up

I started this website with the help of Mumsnet users in 2014. I thought it would be a good way to address some of the misinformation on offer about care proceedings and child protection in England and Wales.  The website analytics seem to bear that out – so far in 2019 (from Jan 1st until June 23rd 2019) the site has 202,170 users, about 34,000 every month.

Child protection seems to be an ever green topic of difficulty for many. I will restate it in the simplest terms I can.

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

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

What I have witnessed developing over the last year or so has caused me increasing concern about the extent to which groups of adult men wish to re-frame the discussion about the sexuality of children. And the extent to which they are often coy about stating exactly how they define ‘a child’. The difference between a 9 year old and a 16 year old is vast and in every domain; physical, sexual, social.

Their scripts should not be written for them by adults who have a particular drum to beat – I have already written, for example, at my deep unease about how a High Court Judge dealt with a 3 year old ‘transitioning’.

(as an interesting aside I found myself subject to a recent actual blackmail attempt by the pro-paedophile organisation Prostasia after querying why they had a man involved in their organisation who had been arrested in 2012 for sexual contact with a child under 13. The rage of thwarted male entitlement is strong indeed.)

My concerns finally reached their zenith on June 12th 2019. Idly scrolling through my Twitter feed I noted that a number of people had raised concerns with the NSPCC over allegations that one of their employees had come to work dressed in his rubber fetish gear, masturbated in the toilets at work, filmed it and published on the world wide web. The response of the NSPCC was – via their public twitter feed – to call those who raised concerns ‘bullies’ and asked people to report them. Various high profile Twitter users followed suit, calling them ‘homophobes’ – as apparently the employee in question is a gay man.

I wrote the following email to the NSPCC

The text of the email is here:

I write using my Chambers email address so that you are able to reassure yourself as to my identity and my interest in/knowledge of child protection law and safeguarding policies. I have been a specialist family law barrister since 1999. I have copied my MP Michelle Donelan into this email given the level of my concerns.

On the evening of 12th June 2019 I became aware via the social media site ‘Twitter’ of an allegation that a member of your staff had engaged in sexual activity on NSPCC premises, had filmed himself engaged in this activity and published that recording to the internet, making it clear that he was filming himself on NSPCC premises. I then further noted that when members of the public attempted to alert you to this via Twitter, your response via your public Twitter feed was to describe this as ‘homophobia’, and to suggest any such tweets should be reported as in breach of the Twitter terms of service as ‘bullying’.

On the morning of June 13th 2019 I therefore published a tweet, including the Twitter handle of your organisation, asking your organisation to make it clear what investigations you proposed into this allegation. I am well aware that social media is frequently used irresponsibly by some to make malicious and false allegations and I certainly want to play no part in dissemination of false information. However, I assume that if the allegation about your member of staff was in fact malicious or otherwise false, you would be able to respond quickly to reassure the public. That you have not done so, causes me considerable concern.

This allegation, if true, represents unboundaried and actively dangerous behaviour. It would be unacceptable in any workplace, but is even more alarming in the context of your charitable status and significant statutory powers in the field of child protection. The public is entitled to know what your response is to such a serious allegation.

I asked for a reply by 4pm today and have heard nothing.

Please therefore would you respond to me by 4pm on Friday 14th June. If you are unable by then to reassure me that either this allegation is false or that you are taking urgent steps to investigate, I will refer this matter on to the Charities Commission without further reference to you.

Regards
SP

I received no response to this email other than some cut and paste job sent at 16.05 on 14th June, by which time I had already made a referral to the Charities Commission. [EDIT – this should read ‘Charity Commission’]

I was then contacted by the Sunday Times and a news agency, neither of which reported on this – I was told by the news agency that ‘no paper would touch this’. I expressed frustration and concern about this – why? why would no paper report on this? It is a clear and obvious matter of public interest that a charity set up to safeguard children would attempt publicly to shame people who had attempted to bring serious allegations to their attention.

A week after that, I offer grateful thanks to Roll on Friday, The Sunday Mirror and Mumsnet users who seemed to be the only ones prepared to recognise and report upon a matter of public interest.

I note with increasing concern that matters appear to be continuing along the same path of seriousness; that the NSPCC appears to see itself as an organisation geared to the promotion and protection of the sexuality of adult men. On every metric of which I am aware, adult men are those who pose the biggest risk of sexual harm to children.  The most recent news is that the NSPCC are apparently subject to a variety of ‘conditions’ before they will be ‘allowed’ to take part in London Pride.

 

Where now?

Imagine if I said as a disabled woman – you may not criticise my behaviour. If you do I will call you ‘disablist’ – I will try and get you sacked etc, etc. That would obviously be ridiculous. Disabled people are people after all; we aren’t saints. Exactly the same argument applies to those who identify as gay or trans or any thing else. No one is above scrutiny. No one can use their identify as part of a minority, persecuted or not, to shut down legitimate concern about their activities. To allow this will be to put children at serious risk of harm from those predatory adults who will claim membership of particular groups to evade scrutiny. We must speak up against this.

The Charities Commission request 30 days for a response. On 15th July I will consider that response, or lack thereof.  If I am not satisfied that they and the NSPCC understand the seriousness of this situation I will raise money via the Crowdjustice web site to investigate what legal action is possible.

I hope very much that the response I get will reassure me – and the many others who complained – that the NSPCC does understand its charitable objectives and guiding principles and it will never, ever, again attempt to shame or dissuade people from raising concerns if it appears to be acting in breach of those.

IIf you are or if you know of a lawyer with specialist knowledge in charities, regulatory law or judicial review, do please get in touch. My next steps must be to identify specialist lawyers who would be willing to take on a legal action via funding from Crowd Justice.

I will update this post on July 15th 2019.

 

 

EDIT JULY 27th

I am pleased to note that the NSPCC did contact me on July 15th to say that they had referred themselves to the Charity Commission, recognising that this was a serious incident. I have yet to hear back from the Charity Commission itself and will chase them for information in September.