Other thoughts

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

This is a post by Sarah Phillimore

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

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

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

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

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

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

Summary

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

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

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

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

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

 

I shall explain my reasoning in more detail below.

The statutory basis for the paramountcy principle.

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

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

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

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

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

 

The authorities considered by the President

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Interestingly the court then stated

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

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

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

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

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

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

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

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

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

Victoria Haigh: When Child Abusers are given moral authority

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

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

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

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

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

So far, so internet.

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

 

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

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

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

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

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

This sounds shocking. But it is not true. The truth is this. Victoria Haigh was found to have told lies about her ex sexually abusing their daughter. She was found to have tried to make contact with her on a garage forecourt and she was sent to prison for breach of a non-molestation order. She was found, on evidence, to be a child abuser.

See for example:

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

Family Law week summarised these proceedings in this way

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

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

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

The author of the interview asks

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

EDIT February 5th 2019

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

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

EDIT March 9th 2019

This article originally referred to Ms Haigh being found guilty of attempting to abduct her child from the garage forecourt. On Friday 6th March I received an email from Ms Haigh’s lawyers at 10.24am accusing me of making ‘false’ allegations about Ms Haigh and threatening action in defamation. I have agreed to amend ‘attempt to abduct’ for ‘breach of a non molestation order’ as I agree it is important to be accurate about such serious and important matters. However, I assert that to call Ms Haigh a ‘child abuser’ is true and accurate and I do not resile from that description.  I will await with interest any summons to the High Court to defend my position which I shall very happily do.

 

Further reading

Judgment of Sir Nicholas Wall August 2011

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

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

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

 

 

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

This is a post by Sarah Phillimore

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

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

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

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

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

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

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

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

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

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

Harsh but fair; the parent’s view

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

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

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

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

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

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

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

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

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

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

Conclusion

(un)amusing postscript

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

We urgently need to do better than this.

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

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

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

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

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

They comment further

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

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

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

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

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

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

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

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

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

John’s story

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In whose best interests? Transgender Children: Choices and Consequences

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

First disclaimer. I am not a bigot.

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

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

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

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

Second comment. We cannot sacrifice facts for feelings.

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

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

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

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

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

They describe themselves in this way:

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

The decisions in Re J [2016]

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

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

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

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

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

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

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

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

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

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

 

What happened after 2016?

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

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

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

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

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

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

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

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

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

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

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

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

To what extent are adult influences driving children?

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

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

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

 

Conclusions

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

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

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

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

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

 

Edit 26th December 3.40pm

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

Second Edit 26th December 5.55pm

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

 

Third Edit 1st January 2019

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

 

Further reading

Articles

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

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

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

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

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

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

 

Talks

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

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

 

Case law

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

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

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

Why its time to open up the Family Courts

On Saturday 3rd November I attended a workshop at UWE organised by journalist Louise Tickle as part of her project to investigate opening up the family courts and recalibrate the balance between privacy and scrutiny. Disclaimer: both Louise and I are members of  The Transparency Project, so our interest in and commitment to further openness of the family courts is obvious and I make no secret of my bias in favour of this happening as soon as possible.

I have undergone an evolution in my views since 2011, when I first took up any kind of campaigning role. Whilst I initially parroted the phrase ‘private not secret’ and worried about the impact on children of increased scrutiny, my exposure over the years to obvious examples of where the system was failing has changed my views.

This blog post is an attempt to outline what I think are the most important reasons for opening up the family courts and what we can do about the real and serious fears of many that we are simply encouraging a salacious and irresponsible Press to make free with a family’s misery.

Have a look at the Twitter hashtag #openfamilycourt for some contemporaneous tweeting about what happened at the workshop.

Justice must be seen to be done

This is the simple, basic and big one.  As David Burrows has pointed out (see ‘Further Reading’ below), family lawyers look through the wrong end of the telescope, assuming that family cases must be held in private from the outset when in fact it is the ‘open court principle’ that is the default position.  Issues of permissible privacy and statutory limitation, especially regarding children can be discussed from that starting point.

As far as is possible we should strive to make sure that the public can access the courts and understand the system of justice that operates in their name.  It is the fundamental principle underpinning our entire system of justice and for too long the family court system has been allowed to develop along tracks which lead it far away.

 

Lack of scrutiny can have terrible consequences.

It is very clear to me – not just from this workshop, but from attempts to engage with a wide range of people over many years – that most of us are just stuck on broadcast when it comes to issues that cause us particular pain. Our view of the situation narrows to encompass only that which has hurt us. This is entirely understandable and I don’t criticise anyone for it unless and until they demonstrate to me that their minds are closed to any possibility that their views may sensibly be challenged.

This single issue focus is often a massive block to any sensible discussion about how we move forward and it is made far worse by the obstacles the current family justice system puts in the way of understanding and scrutiny. I don’t pretend that opening the courts would be a miracle cure for the single issue campaigner – but it would allow me more authority when I say that their perception or their understanding is wrong; THIS is what happened.

I have often wondered why the lawyers are so absent from the parents’ narratives on social media. I am now beginning to understand exactly why. What was telling from many of the parents at the workshop was that the lack of public scrutiny meant that no one really understood the system they were entering, they felt powerless to engage with or even challenge their own lawyer and the power imbalance was thus magnified.  A system of parent advocates could be a way forward. 

 

Lack of scrutiny allows stale cliche to become unchallenged truth

There are stock phrases and belief systems that influence the family justice system. Many – in my view – are based on imperfect understanding of existing research, wishful thinking or used as a quick get away from any attempt to actually think and worry about a situation that may actually be incapable of resolution, so lets just get rid of it quickly. Lack of scrutiny or outside challenge means they have been allowed to harden over the years into inescapable ‘truth’.

We are doing this in the child’s best interests, which are paramount.

The most stale and dangerous of them all. It needs unpicking. First how do we find out what is in the child’s best interests and what does ‘paramountcy’ actually mean in the context of the family and wider community?

Children in my cases roughly fall into two camps. They are very young and they can’t speak. We thus find their ‘wishes and feelings’ reported as ‘If Baby X could speak I am sure he would say he would like a warm loving home!’. Or they are frightened and angry teenagers who are desperate for an adult to take control and keep them safe, but find instead that the adults tip toe around them ‘respecting’ their autonomy – until of course the teenager says or does something the adult doesn’t like, in which case all that Gillick competence dries up and blows away.

I am fed up of being involved in cases where children are separately represented but who won’t meet with their lawyers and give instructions. Not only is this a massive drain on the public purse but it also means we aren’t listening to what these children are telling us loud and clear. Be the adult. Make decisions to keep me safe.  There is a limit to the extent that children’s views can inform us of their best interests.  They lack perspective and understanding about how their choices today can impact their lives down the line. And most of them, on some level, understand that – and crave an adult who cares enough to take that burden of responsibility away.

What is in a ‘child’s best interests’ is then perhaps more accurately rendered as ‘what do I the adult, with my preconceptions, bias, or dangerously high workload, think I can get away with recommending on the basis that its in the child’s best interests?’

Even more perniciously, is the fact that a child’s ‘best interests’ has become narrowed to seeing that child entire and alone in the universe – divorced from family, friends, community etc. The fact that it might be in a the child’s long term best interests to remain links with his family is overshadowed by the immediate ‘best interests’ to be removed from a potentially harmful situation. We see this in the cry of the social worker ‘I am not here for you! I am here for YOUR CHILD’. We see this in the words of the court – Lord Kerr in B (A Child) [2009]

All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s best interests. This is the paramount consideration. It is only as a contributor to the child’s welfare that parenthood assumes any significance.In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim.

i think this is wrong, is going too far, is using section 1 of the CA as a vehicle to drive us far away from what is actually in the best interests of children – to have a safe, permanent home and good relationships with those who love them and who share their identity. Children are not born as a blank slate to be easily picked up and dropped into a new adopted family.

I could be entirely wrong about all of this. But we are not able to talk about it, openly and honestly.  It is worth noting that all those at the workshop echoed the concerns expressed by the (now) President of the Family Division in 2017 – that there is no feedback loop in the system. Judges aren’t routinely told about outcomes for children. Greater scrutiny and openness can only improve this dire state of affairs.

 

But what about the risks to children of increased openness?

I accept that this is a real and serious fear and was certainly recognised by those at the workshop. What I don’t accept however is that debate stops at mere recitation of this risk. If reliance is placed on any assumption that open family courts will harm children then I am going to need to see a lot more research that goes beyond a small and self selecting group. The 2014 report from NYAS/ALC involved only 11 children, for example. Earlier research in 2010 asked only 51 children.

I am going to demand actual analysis of the harm that will befall a child if family proceedings are reported but the name of the child is kept out of it.

It seems to me that the reality is that those in the child’s locality will already be well aware that there have been some sort of legal proceedings; those outside the child’s locality won’t care. So long as the child’s name is kept out of it, so no digital footprint is created that might lead to unpleasant shocks in years to come, what actually is the harm that is caused? If the only harm that is identified is some degree of embarrassment, can that always and automatically be enough to over turn the fundamental principle of open justice?

Maybe I am wrong about this too. But whatever your interpretation of current research, there is never any excuse for Judges and lawyers then to fail to apply the relevant law and to carry out the necessary balancing act between Articles 8 and 10. The recent difficulties faced by Louise Tickle in attempting to persuade a Judge to relax a reporting restrictions order is a clear example of this.

 

Conclusions

So what do I think the next steps should be? If my pious arguments about legal principle and open justice don’t move you, maybe this will. The practical reality is – now that every one is a micro publisher, with an audience of potentially millions around the world – that the genie is already out of the bottle with regard to information circulating on social media and we either take control of this or we let it drown us. What do I think the next steps should be?

  • Louise continues with her investigations
  • Some one commissions fresh research into the likely impact of open courts on children, with a sample size greater than 11.
  • Proper analysis and investigation of what other jurisidictions are doing and how they protect children – see article below in Further Reading where I set out what is being done in some US states
  • Proper backing and funding to a system for parent advocates – to help parents bridge the gap of understanding and enable them to engage better with their lawyers.
  • A form of accreditation for journalists who wish to report on family cases so we reduce the risk of the current salacious and irresponsible ‘cherry picking’ only the ‘sexy’ information to report,  which causes such justifiable distrust in journalism as a profession.

 

Further Reading

The recent debate about opening up the Family Courts Sarah Phillimore December 2014 (includes discussion of what happens in some US States).

Transparency: What can I talk about? Who can I talk to? Sarah Phillimore 2014

Family proceedings: ‘the open court principle’ David Burrows December 2014

Opening up a closed system; the second Bridget Lindley Memorial Lecture Louise Tickle March 2018

Legal Blogging: a dry run in the Court of Protection Lucy Reed Pink Tape August 2018

Parent Advocates – a necessary bridge between the parent and the professional

I am grateful for this guest post from @DVHurts who discussed the notion of ‘parent advocates’ explored at the recent conference on 29th October 2018 organised by the Family Rights Group. This is something I have long thought would be a very useful addition to the system; such thoughts were cemented by discussions on November 3rd at a workshop organised by journalist Louise Tickle about opening up the family court – again what is repeated by parents is that they need help to understand the process and to get the best out of their lawyers. 

 

My position was clear and inflexible.  I didn’t want counsellors working out the personal problems on my payroll.  I wanted at least five years of sobriety, regardless of how much education they had.  They had to have been no breach of sobriety to grasp the spiritual nature of recovery and to ensure that the focus would stay on the client and not shift to themselves                                                                                                                                            

For a little light reading over the last week I have been browsing through Slaying the Dragon, The History of Addiction Treatment and Recovery in America, by William L .White. By grace, I do not have addiction problems myself , but I am interested in the treatment of addiction. The above quote originated from one of the addiction counsellors in the treatment centre, he was himself an alcoholic in good recovery. He was employed by the facility , alongside others in recovery and paid the same as other staff members in similar grades of work. The care team is described as inter-disciplinary not multi disciplinary.

 Also this week I attended this week Your Family Your Voice Alliance conference: Tackling the care crisis-Families Driving Reform run by the Family Rights Group  I came away with hope in my heart, that change is not only possible but will happen. the conference outlined one of the catalysts for change should be the training and  employment of parent advocates. Just as a recovered alcoholic has been shown by research to be the most effective person to lead another into sobriety, a parent who has been through the system, will as an expert through experience, be able to come alongside a parent and guide them through.

The conference was opened by the Your Family Your Voice Co- Chair and a Family Rights Group trustee Angela Frazer -Wicks, who like me is a  birth parent.  She has campaigned and worked with local authorities and is an excellent example of how a  dedicated parent can work within the system.

There  were a number of topics covered in the conference, but in this post I am just want to concentrate on parent advocacy. I am birth parent and this therefore is a personal view. A large part of my journey and recovery into wellness has been due to peer support and so I am an enthusiast. One of the primary factors was not realising that I was not the only person in the universe ploughing through the muck.The other has been my situation is not hopeless, there are tools to use , that others have done so in the past and I wanted what they had and I could get it when I had put the work in. They were willing to get down into the hole I found myself and show me the way out. During this process of change I also had help  on a 1:1 basis and having the ability to call on someone who understood the situation from their own experience has been key. By putting in the work, which includes looking into how your family ended up in the situation in the first place , which absolutely must not be a shaming exercise,  (shame is negative as I explored here) but a realistic evaluation, combined with solutions.

 What is an advocate? 

The dictionary definition relates more to a lawyer, one who puts your case in a court of law. So normally a well educated professional. Yet peer advocates who are now widely used within mental health services do not fulfil this role. They are more a bridge between the service user and the professional, when the service user does not have the capacity to understand , whether through mental health problems or simply fear.                               

There is another word paraclete, which originates from late Greek, which also means advocate and mediator. I understand lawyers can be both, however I think I am trying to look at a different role, with boundaries that are there but less rigid than between a lawyer and a client. It actually is more helpful as a definition, as it explains that a paraclete is one who is a comforter as well as speaking on you behalf. In Christianity the Holy Spirit is referred as the paraclete, the one who speaks to God on your behalf when you don’t know what to say and signposts you in the right direction.  He is always there to call on and if you listen, you will  be looked after. It is a personalised “service”.I  understand, that some won’t  like the religious illustration, but it is most effective way, I can personally explain what I see the role of the advocate to be.

Parent advocates, alongside other measures instigated by parents in New York City have reduced children in out of home placements by 82% since 1992. There are still approximately 100 parent advocates in New York today.  David Tobias, Ph.D. who as Executive director of the Child Welfare Fund, was at the coalface of the change to parents being seen as partners in the child protection system.In his address to conference , he stressed that not every parent could become an advocate and there was extensive training before they were accredited as advocates. This goes back to the quote at the top of this post. Parent advocates , would have to be selected from those that have the necessary maturity and qualities that can act as that bridge. They would not be a disruptive force, sure they would have their own bias, as we all do but would have worked through that , in order to put the family they are supporting first. They would need regular supervision, just as counsellors do.

When questioned, David said we need to get a curriculum together to train advocates. That sounds easy enough as it could draw from mental health advocacy training. So what else is stopping us? Money basically and to a lesser extent geography, as of course we are talking about a country not a city.

The other problem that arose in addiction centres is the professionals accepting the recovered addicts as equals in a team, the hierarchy being flattened was not universally popular, though these problems ironed over time.

We have been discussing this a number of years now, it needs to become a reality, the evidence is there, that parent advocacy works and the system is sinking from all perspectives, care figures rocketing ,parents broken, courts over stretched, social workers stressed and leaving the profession.

Last but not least the system is failing children. It could be started,  it could be evaluated,what  financial cost would there be of a number of parent advocates per area in relation to the millions spent on proceedings and looked after care at the moment?

There has been a discussion on Twitter and I think this is an excellent suggestion:

 

I fought the law – what are the implications of section 12 of the Administration of Justice Act?

I was asked by the journalist Louise Tickle to consider whether or not she would be in contempt of court if she published a blog post detailing her frustrations with the way the family court had dealt with a recent application made by a number of journalists.

In brief, the journalists attended a final hearing which had come about due to a decision made by the Court of Appeal that has already been reported and is in the pubic domain. That judgement names the relevant LA and social worker and provides personal detail about the mother, including her ethnicity and the date of birth of her child. What the journalists wanted to do was to report on the final hearing but also link in their reporting to this published judgment as otherwise it was difficult to understand how the case had taken the shape it had.

The Judge at the final hearing was not minded to permit publication of anything that might identify the ethnicity of the mother nor the identities of any professional parties – which poses the immediate problem that no reference could then be made to the prior judgment already published which contained that information.

Louise was unhappy with this outcome and I had to agree it was deeply unsatisfactory. I have not held back criticising journalists who refuse to link to judgments or even read them and end up publishing something partial and inaccurate. Therefore I am troubled to be told that journalists who wished to report by reference to the actual facts already in the public domain were being told that they may not – and even worse, that their right to freedom of expression from Article 10 of the ECHR, did not appear to be given any proper consideration by the Judge or the other advocates.

I read Louise’s proposed blog post and ran this past my understanding of the consequences that followed from applying section 12 of the Administration of Justice Act. My analysis of the law follows below.

I don’t think Louise is going to be hauled before a Judge and found in contempt of court for publishing her blog. But I didn’t feel that I could offer robustly confident advice that she would not. It is clear that each case will turn on its own facts and thus there is very little guidance for the lay person or lawyer who doesn’t deal with such matters on a regular basis – which I imagine is all of us.

For so long the family court have operated without public scrutiny that I do not think it is common place for Judges to be asked to consider relaxing the requirements of section12 AJA in general run of the mill family cases.

I hope I am right about all this. But I am not sure. It seems a rather unsatisfactory state of affairs that public comment about the family justice system should operate under such a climate of fear. Being found in contempt of court is a serious business; one possible punishment is the loss of your liberty. When facing serious consequences, the law that imposes them needs to be clear and it needs to be accessible. Lawyers need to understand and apply the necessary balancing exercise between Articles 8 and 10. How many do?

I do not think that our law about reporting matters in the family court is clear, accessible or consistently applied and .I will follow developments here with interest. Louise has launched a crowdfunder to raise the costs of her proposed appeal.

My view of the law.

Section 12 of the Administration of Justice Act 1960 forbids the publication of information relating to proceedings under the Children Act 1989 or the Adoption Act 2002. There is no time limit so the prohibition operates even after proceedings end.

Sub section (2) of the AJA exempts ‘the publication of the text or a summary of the whole or part of an order made by a court sitting in private’ UNLESS the court expressly prohibits the publication. There is no other exemption or explanation of terms offered by the statute.
We therefore need to look to case law and other general principles to understand what is meant by ‘information’.

With regard to publication, something is ‘published’ whenever it would be considered published according to the law of defamation UNLESS someone is communicating information to a professional in order to protect a child. A blog post published on the internet would thus clearly meet the definition of publication and by publishing a general blog, Ms Tickle could not avail herself of the defence that she is communicating to a professional.

Publication of “the nature of the dispute”, which is permissible, and publication of even summaries of the evidence, which is not.

What is meant by ‘information’? Munby J (as he then was) considered this in Re: B (A Child) (Disclosure) [2004] 2 FLR 142. He identified classes of information falling into this category as likely to be [para 66] :

  • accounts of what has gone on in front of the judge sitting in private
  • documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings,
  • Transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment. (I emphasise that this list is not necessarily exhaustive.)… likewise…extracts or quotations from such documents…also the publication of summaries

The identity of witnesses in care proceedings is not protected by section 12 and if any witness does want to remain anonymous they will have to convince the court that their need for anonymity was more important than the need for openness.

Section 12 does not prevent publication

  • of the fact that proceedings are happening, or
  • Identification of the parties or even of the ward himself. EDIT BUT PLEASE NOTE THAT s97 of the Children Act forbids naming children in current care proceedings.
  • or the comings and goings of the parties and witnesses,
  • or incidents taking place outside the court or indeed within the precincts of the court but outside the room in which the judge is conducting the proceedings.

However. at para 77 Munby J poses his final question ‘the extent to which section 12 prohibits discussion of the details of a case’. It is likely to be this question that is of most interest to Ms Tickle. He found he was assisted by Wilson J’s analysis in X v Dempster. There the question (see at p 896) was whether there was a breach of section 12 by publishing the words:
“Says a friend of [the mother]: “She has been portrayed as a bad mother who is unfit to look after her children. Nothing could be further from the truth. She is wonderful to [them] and they love her. She wants custody of [them] and we will see what happens in court”.”

Wilson J commented:

I am satisfied that the reference to the portrayal of the mother in the proceedings as a bad mother went far beyond a description of the nature of the dispute and reached deeply into the substance of the matters which the court has closed its doors to consider. If the reference could successfully be finessed as a legitimate identification of the nature of the dispute, the privacy of the proceedings in the interests of the child would be not just appropriately circumscribed but gravely invaded.

Munby J agreed with this observation and concluded:

Every case will, in the final analysis, turn on its own particular facts. The circumstances of the human condition, and thus of litigation, being infinitely various, it is quite impossible to define in abstract or purely formal terms where precisely the line is to be drawn. Wilson J’s discussion in X v Dempster, if I may respectfully say so, comes as close as anyone is likely to be able to illuminating the essential distinction between publication of “the nature of the dispute”, which is permissible, and publication of even summaries of the evidence, which is not.

Consideration of the case law when applied to Ms Tickle’s proposed blog

For a lawyer asked to give advice, the heart sinks upon encountering the phrase ‘every case will, in the final analysis, turn on its own particular facts’. This clearly makes it difficult to offer firm advice.

It is my view that the thrust of the blog post is very clearly to highlight Ms Tickle’s understandable frustration with what seems like a wholly inadequate approach by the court to the necessary balancing exercise of ECHR Articles 8 and 10. I do not think that anything she proposes to publish will fall foul of the distinction identified in X v Dempster. The ‘dispute’ which she wishes to highlight is in fact removed from the actual facts of the care/placement proceedings before the court and is a dispute about an ancillary matter; the relaxation or otherwise of reporting restrictions given that risk (I assume) of jigsaw identification once any reporting of this matter is linked to an earlier Appeal Court decision already in the public domain.

I must stress to Ms Tickle that in offering my opinion as I do, cannot be seen as any kind of guarantee that she would NOT face proceedings for contempt arising out of her blog post. It may be that my opinion is not shared by a Judge hearing this matter. However, I reflect upon the fact that she has clearly taken great care to strip any identifying details from the blog. In my view it is unlikely that any such proceedings would be bought; I would consider them wholly disproportionate in all the circumstances. In my view, the LA is the only party likely to consider such action and I would hope they have better things on which to spend their time and money.

 

Further reading

The opposite of transparency – an appeal against a reporting restrictions order Louise Tickle’s post on the Open Family Court website.

For a more general discussion of the principles around transparency in the family court see this post 

Or visit The Transparency Project website. 

I have mainly stopped screaming; the imbalance between support and intervention.

Thanks to this guest post from a parent who wishes to remain anonymous.

I have mainly stopped screaming, I screamed a lot at first at the injustice of it all and the pain of separation. Today though I am suppressing an internal scream, the anguish now being punched out onto my keyboard.

I answered a strange mobile number this afternoon, I don’t normally but is just as well, because my son had borrowed his neighbours phone, to contact me. Could he have some money please a fiver would do? In truth I had been waiting for this call and this is why:

Over a month ago a letter was opened and ignored by him, it was telling him he had to apply for universal credit as income support had finished. He is at college, and has been offered a job and is just waiting to start it, for anyone who wishes to judge. My son has a communication disorder, so severe that he reached the criteria for a special school and he had been statemented at 7 years old. He is a care leaver and through circumstances he was placed into a flat by himself on leaving care.  Except he was not supposed to be on his own, his EHCP stated that his was to receive 20 hours of support a week, via employing support workers . It hasn’t happened, not one single solitary hour , and because he is over 18 it is apparently none of my business.  He does have some limited help from the pathway team and I am not criticising individuals. I spent hours in meetings before he left care making sure there was a workable transition plan in place. For what?

To apply for Universal Credit or to use any Government on line service you first have prove your identity. Now I have tried this very recently and nearly threw my laptop out of the window. Despite having input 3 bank cards and my driving licence, Government Verify via the Post Office still refused to recognise me and I am signed up to the electoral register, get post etc. In fact Verify has a failure rate of over 50% https://www.bbc.co.uk/news/uk-politics-41642044. So what chance does a care leaver , let alone one with learning difficulties actually have of managing this transition onto universal credit by themselves.

My son also did not understand that if a standing order bounces , you quickly rack up overdraft charges. So before long having no money actually turns into mounting debt. To some small extent he is lucky, we still have a relationship and I know how to cope. Before this change to universal credit he was actually managing money very well, as I told him to set himself a weekly budget and only use cash. Many care leavers lose their links to family members and if no one teaches them about financial matters how are they supposed to know?

The child protection system to me is like a three humped camel (bear with me) , the first hump consists of pre proceedings, this hump is too little and can be non functional, the third hump is after the young person leaves proceedings, this is much the same as the first. The middle hump, is enormous and bloated , it consumes all the nourishment that should be in the other humps. It shouldn’t be there as it unbalances the camel and makes it topple over. We know that the system is teetering, someone please listen, for the sake of the young people like my son who are being failed by a gross imbalance between support and intervention.

 

 

 

Garbage In: Garbage Out? The use of predictive algorithms in decisions about child protection

Machine learning is becoming a methodological substrate for knowledge and action. But machine learning is not ethically neutral. It is skewed by data and obfuscated by nature…

Dan McQuillan ‘People’s Councils for Ethical Machine Learning’

The use of Artificial Intelligence (‘AI’) and relying on algorithms to determine what children are at risk of harm have been in the news of late. The word ‘algorithm’ is an old word; imported into English from the name of a ninth century mathematician called al-Khwarizmi. Originally it meant simply what is now called the ‘Arabic’ system of numbers (as opposed to Roman numerals’) but later it took on a more particular meaning and is now defined as ‘a process or set of rules to be followed in calculations or other problem-solving operations, especially by a computer’.

James Hind describes AI in this way:

It’s the great fashion in recent years that everyone gets into AI, which usually means either they have something that automates a system, or it is a pattern recognition tool that pulls conclusions out of big data fed to a network, which acts on the conclusion….There is an obsession with big data, which always has to be cleaned up by low paid humans in places like India to be useable in a pattern recognition system.  These pattern recognition systems such as neural networks operate according to hundreds and thousands of data points, building up through statistics a model upon which conclusions and decisions are made. These models and processes are so complex that not even the designers know how they come to their conclusions, what is called a black box situation.

A positive case is made for better and more efficient identification of children who are most at need as early as possible. In the context of austerity and reduced spending on services such early identification is necessary in order to prevent harm to children’s development. Early identification could also help children avoid more intensive and intrusive child protection services – the end result of which may be removal from their families. There is also a view that decisions about child protection can be too subjective – it can only be a good thing to have some more ‘objective science’ about such important and often life changing decisions.

But there are many who have voiced serious concerns about the efficacy and assumed benign consequences of using artificial intelligence to determine if children are at risk.

The history of predictive analytics in child protection – Allegheny County

Discussions about child protection have long centred on the debate about what is better – removing children quickly from risk or trying to support families manage better?  This discussion has gradually enlarged to consider how we can best identify families which are most at risk and make sure that increasingly scarce services are targeted effectively.

A ‘predictive analytics algorithm’ is basically a sophisticated kind of pattern recognition, commonly used in credit reports and automated buying and selling in financial markets. Its application to decisions about risk in child protection services is not a ‘new thing’ but its applications to date have been fairly limited.

The social scientists, Emily Putnam-Hornstein, of the University of Southern California, and Rhema Vaithianathan, of Auckland University of Technology in New Zealand were asked to help investigate how predictive analytics could improve the handling of maltreatment allegations in the USA. 

Allegheny County in  the southwest of the U.S. state of Pennsylvania (with a population of 1,225,365 in 2016) experienced a tragic series of children dying after being ‘screened out’ as low risk by human call handlers dealing with telephone referrals about children who the caller worried were being mistreated. In 2016 Allegheny County became the first jurisdiction anywhere in the world to attempt to use a ‘predictive-analytics algorithm’ to try and do a better job of identifying families most in need of intervention.  76,964 allegations of maltreatment made between April 2010 and April 2014 were used as the basis of the algorithm.

 

What’s the problem?

The New York Times commented that the use of the algorithm appeared to be  having a positive impact on child protection in Allegheny County:

In December, 16 months after the Allegheny Family Screening Tool was first used, Cherna’s team shared preliminary data with me on how the predictive-analytics program was affecting screening decisions. So far, they had found that black and white families were being treated more consistently, based on their risk scores, than they were before the program’s introduction. And the percentage of low-risk cases being recommended for investigation had dropped — from nearly half, in the years before the program began, to around one-third. That meant caseworkers were spending less time investigating well-functioning families, who in turn were not being hassled by an intrusive government agency. At the same time, high-risk calls were being screened in more often. Not by much — just a few percentage points. But in the world of child welfare, that represented progress.

However It is important to note that the algorithm used in Allegheny County was to help to decide who got a home visit –  NOT to make far more intrusive decisions about removing a child.

Follow the money

Another important and positive distinction is that the workings of the algorithm in Allegheny County are public and transparent; the local community are involved and able to ask questions. Dan McQuillan commented in May 2018 about the repercussions of imposing ‘machine based learning’ and possible ways of challenging it via ‘People’s Councils’:

Unconstrained machine learning enables and delimits our knowledge of the world in particular ways: the abstractions and operations of machine learning produce a “view from above” whose consequences for both ethics and legality parallel the dilemmas of drone warfare. The family of machine learning methods is not somehow inherently bad or dangerous, nor does implementing them signal any intent to cause harm. Nevertheless, the machine learning assemblage produces a targeting gaze whose algorithms obfuscate the legality of its judgments, and whose iterations threaten to create both specific injustices and broader states of exception. Given the urgent need to provide some kind of balance before machine learning becomes embedded everywhere, this article proposes people’s councils as a way to contest machinic judgments and reassert openness and discourse.

 

When matters are not discussed openly and transparently, the concerns increase. As the New York Times commented, secrecy around algorithms marketed and guarded by private profit making firms raise very serious questions:

That’s a chief objection lodged against two Florida companies: Eckerd Connects, a nonprofit, and its for-profit partner, MindShare Technology. Their predictive-analytics package, called Rapid Safety Feedback, is now being used, the companies say, by child-welfare agencies in Connecticut, Louisiana, Maine, Oklahoma and Tennessee. Early last month, the Illinois Department of Children and Family Services announced that it would stop using the program, for which it had already been billed $366,000 — in part because Eckerd and MindShare refused to reveal details about what goes into their formula, even after the deaths of children whose cases had not been flagged as high risk.

It is very disturbing to read that Hackney rejected a recent FOI request about its screening profile on this basis:

London Borough of Hackney is working with Xantura as a development
partner. Because of this, we believe that it would be damaging to
Xantura’s commercial interests to have the financial details of our
agreement made public. We believe that the public benefit of knowing the
financial details is in this case outweighed by the need to protect their
interests and, by extension, those of Hackney in developing the project.
We therefore exempt this part of your request under Section 43 of the
Freedom of Information Act.

 

It is not simply concerns about where the money goes. There are serious worries about how data is collected and analysed and what the repercussions could be in taking predictive analytics into fields far beyond simply call screening.

Political scientist and technologist Virginia Eubanks argues that automated decision making has far reaching consequences, particularly for the  poor. Louise Russell-Prywata commented on reviewing Eubanks work:

The story of Indiana’s welfare reform contains all the key elements of an automation bogeyman: an explicit aim to reduce costs and move people off benefits; a whiff of dodginess about the award process for a $1.3 billion contract to privatise a state service; widespread tech failure upon implementation; the inability to effectively hold the corporate contractor to account for this failure; the removal of human connections; and pressure on community services such as food banks to deal with the consequences.

Garbage In: Garbage Out

Emily Keddell and Tony Stanley discussed the concerns about predicative algorithms used by certain local authorities such as Hackney, in an article for Community care in March 2018 

They identify a number of concerns. Some are easy for me to understand. For example, how is consent obtained to use people’s data to inform these systems? There are serious worries about the actual accuracy of such tools and the risks of false positives are high – one tool developed in New Zealand was just 25% accurate at the top decile of risk over five years – meaning there were no findings of actual harm for 75% of those identified by the tool as high risk.

Some concerns however reveal the depth of my ignorance about how such systems work. Which is a worry. If I don’t understand it, how can I – a lawyer often acting for parents – ever hope to challenge it? The authors comment in the following terms:

The source and quality of the predictive variables, the quality of data linkage, the type of statistical methods used, the outcome the algorithm is trained on and the accuracy of the algorithm all require examination.

I think this translates to the famous phrase ‘Garbage In: Garbage out’ i.e. systems that manipulate data to produce likely outcomes, are only as good as the data they are fed. What happens if someone makes a false allegation about you? Is that ‘data’ that will be recorded to inform your future risk? How do you know what ‘data’ is stored about you and how do you challenge it?

The authors comment:

The big problem in an algorithm drawing on administrative data is that it will contain bias relating to poverty and deprivation. Where council housing data is used, for example, those who don’t need council housing will be absent. Those caught up in criminal justice systems and social services of any kind lead to an oversampling of the poor.

Big datasets such as these make some people invisible, while others become super visible, caught in the glare of the many data points that the council or government holds about them. Where such processes occur under the veil of commercial sensitivity, even the most basic of ethical or data checks are difficult to undertake.

Dr Patrick Brown, Associate professor, Amsterdam Institute of Social Science Research, University of Amsterdam; editor, Health, Risk and Society commented in a letter to the Guardian on September 19th 2018:

Our own research into child protection notes a weak evidence base for interventions, with social workers falling back on crude assumptions. Stereotypes discriminate against some families and lead to the overlooking of risk in other cases, yet may become entrenched and legitimised when incorporated into technology. Research is needed into whether these technologies enhance decision-making or whether they become uncritically relied on by pressured professionals with burgeoning caseloads. Enticed by software-driven solutions, our overstretched and decentralised child-protection system may lack the capacity for a robust ethical and evidence-based reflection on these technologies.

James Hind puts it this way:

If the reader has coded anything, they will learn that bad code and inputs result in bad outputs.  For example, if I dumped into an AI system voting intentions of a large sample of voters in Clacton UK, and used this to predict how the UK will vote in an overall general election, it might suggest UKIP would form the next government, but when the prediction is tested in real life, UKIP will if they are lucky only have control of the Clacton seat in Parliament. In a rising number of cases it has been discovered that the models built on big data are faulty, biased against certain groups, and are unable to handle unique situations.  People are forced to conform to a narrow set of categories to access services or be on the good side of a statistical artificial computer model that has no relation to reality.

It is a tragedy that for reasons of money, faith in a flawed technology, and a lack of trust of the wisdom and knowledge of human beings with decades of experience in their fields, the AI has replaced the human with tragic consequences for individuals and society.  Families wrongly suffer their children being taken into care, or being imprisoned because the computer judged according to its model this was the right outcome, and nobody can challenge the system data model, because nobody understands how it came to the conclusion.

Conclusion

Even from my brief investigation and reading, there are clearly a number of issues of serious ethical and practical concerns that make it worrying that use of AI to identify children at risk appears to be something that is being enthusiastically touted by senior figures in the social work profession. I was glad to see Professor Lauren Devine of the University of the West of England tweeting today (September 24th) that she is concerned about the use of AI and will commence research funded by the Economic and Research Council in 2019 into the ‘risk of risk’. I will be very interested in her findings.

I will leave the last word to Tina Shaw who also commented in a letter to the Guardian:

Why are cash-strapped councils wasting money on predictive software telling us what we already know? It’s not rocket science. Poverty, addictions, poor health, school exclusions etc, have always been predictors of potential difficulties for children. They should be spending what little money there is on preventive services, Sure Start nurseries, youth clubs and teaching assistants.

EDIT September 26th – further comments

Some interesting discussion followed on Twitter. I have added additional resources to the list of further reading below and note the key concerns raised by those commenting:

  • Sophie Ayres emphasised the issue of legality of sharing information to feed the algorithm without the consent of the data subject: ‘how does a Children Services team have the right to information such as school attendance. Usually at the start of a social work assessment – consent forms are signed by parents to say sw can contact other agencies. If parents to not consent at CIN stage – SW cannot seek info’.
  • Lack of accountability concerned Professor Devine:  ‘also the content of their algorithm? These things are cheap to put together, unaccountable and sold for huge profit’.
  • SocialWhatNow echoed the concern about lack of accountability and wanted to know what the SWs using these systems thought about them: ‘Clarity needed. Some data not used in final models. Problem is it’s all under the radar. Embedded w/out consultation or discussion w/ the public or those who use it. Which leads me to ask, what do the social workers who use these systems think? Where are they?’
  • Dan McQuillan touched on the far reaching consequences of use of AI: ‘that’s symbolic of two other qualities of ai that affect services as well; the fragility of the algorithm and the thoughtlessness it can produce. the systemic effects may not be so obvious but are likely to be more far reaching’

Further reading

London councils are using data analytics to predict which children are at risk for neglect and abuse, 18th September 2017 Jack Graham Apolitical

Automating Inequality: How High-Tech Tools Profile, Police and Punish the PoorVirginia Eubanks 2018

Can an Algorithm tell when kids are in danger? The New York Times 2nd January 2018

A Child Abuse Prediction Model Fails Poor Families 15th January 2018 Wired

21 Fairness Definitions and their politics 1st March 2018 Arvind Narayanan. Computer scientists and statisticians have devised numerous mathematical criteria to define what it means for a classifier or a model to be fair. The proliferation of these definitions represents an attempt to make technical sense of the complex, shifting social understanding of fairness.

Artificial intelligence in children’s services: the ethical and practical issues Community Care March 29th 2018

People’s Council for Ethical Machine Learning 2nd May 2018 Dan McQuillan

Councils use 377,000 people’s data in efforts to predict child abuse 16th September 2018 The Guardian

Don’t trust algorithms to predict child-abuse risk: Letters to the Guardian 19th September 2018

Government, Big Data and Child Protection 20th September 2018 Researching Reform.

New Algorithms perpetuate old biases in child protection cases Elizabeth Brico 20th September 2018

Documents relating to the Children’s Safeguarding Profiling System – Freedom of Information request made to Hackney – request refused as damaging to commercial interests.

Social Workers and AI 25th September 2018 Jo Fox

HOW FAIR IS AN ALGORITHM? A COMMENT ON THE ALGORITHM ASSESSMENT REPORT 7th December 2018 Emily Keddell

Predictive analytics and the What Works Centre for Children’s Social Care — Connecting some dots the old fashioned way 11 February 2019 Social What Now