Other thoughts

The Migrant Child with no Recourse to Public Funds

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

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

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

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

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

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

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

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

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

 

Further Reading

Financial and Housing Advice.

Hackney Migrant Centre guide to section 17 – The guide contains information, advice and guidance gathered from those who have experience of seeking this kind of support. The guide covers an explanation of section 17 support, the child in need assessment, what support might look like, what happens if support is refused and a helpful evidence checklist. The guide also contains signposting to partner drop-in’s and immigration advice sources.

 

 

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

This is a post by Sarah Phillimore

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

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

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

 

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

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

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

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

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

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

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

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

 

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

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

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

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

 

Appealing to another court to about the findings

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

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

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

Feelings and Dogma cannot set the agenda in Family Justice

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

The Response of Families Need Fathers to the Family Inquiry Panel

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

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

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

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

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

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

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

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

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

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

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

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

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

Parental Alienation

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

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

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

Prevalence of Abuse and How to Make Progress

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

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

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

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

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

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

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

This is a post by Sarah Phillimore

Response of the CPR to the Family Inquiry into the courts response to domestic violence

I have commented critically on the nature of the Inquiry and the response of some such as Charlotte Proudman to what necessitates such an Inquiry – making the reasonable point that serious allegations require some kind of evidence.

I confess that I missed the initial call by a group of family lawyers into an independent review of how domestic abuse is treated in the family courts – reported here in Family Law Week on 29th May 2019 and here in the Guardian. 

What happens when the starting point is ‘victim’?

The letter from the lawyers group is a detailed and clearly articulated statement of case that makes many good points.  They say

There is no data collected about the implementation of Practice Direction 12J but anecdotal evidence suggests, as remarked by Lord Justice Munby in 2016, that there are very real concerns about its application in practice at different levels of the judiciary and across the country.

This echoes the points made by Dr Proudman in her post for The Transparency Project. I commented that her experience did not reflect mine, nor that of the other family lawyers who commented via Twitter. We clearly see here the dangers of relying on one person’s subjective experience over anothers – as the tiresome but accurate cliche has it ‘anecdotes are not data’.

But there is something interesting going on. The group states:

We can say from our experience that Practice Direction 12J is often ignored or ‘nodded through’ without any proper risk assessment, leaving women and children vulnerable. Where a fact-finding hearing is listed, the victim is increasingly being told to limit the number of allegations that can be considered by the judge, meaning that there is not a full forensic and expert assessment of the risks. The impact of coercive control, emotional abuse, economic abuse and other forms of non- physical violence are routinely overlooked.

And its there in that use of the word ‘victim’. Clearly if your starting point is that anyone who makes an allegation of abuse is in fact a victim of that abuse then you are going to take a very different and probably negative view of a judge who takes another approach – as indeed every judge must. To deal with any family case on the basis that one party’s allegations are accepted as fact prior to any attempt to hear evidence about contested allegations is simply a denial of justice. It is wrong. Advising police, for example, that they must commence their investigations by ‘believing the victim’ has been rightly decried by the Henriques Report and caused much human misery and massive waste of public money.

The fact that anyone who alleges abuse is automatically a victim is embedded in the recommendations

A domestic abuse coordinator in each court appointed in order to specifically ensure that victims going through the court process are properly protected and all necessary measures are in place, to try to minimise the risk of further abuse through the court process.

And this is a real problem. It is my very clear experience, arising I accept from 20 years experience, not robust peer reviewed research, that while out and out lies made by women about abuse suffered are rare, exaggeration and re-stating history are very commonplace.  Unkindness, cruelty, blinkered thinking, denial etc etc are qualities that I am afraid are demonstrated equally by men and women. I do not doubt that violence in relationships is a real and serious problem and I do not doubt that the majority of physical violence is perpetrated by men against women. But emotional abuse, ‘gas lighting’, unreasonable behaviour are common to both sexes.

Many of my cases chart a drearily predictable course. I will represent a woman who makes a large number of allegations, often over many years. There will be nothing by way of corroboration from either the police or the medical profession. There will be nothing by way of statements from family or friends. The relationship with the father has utterly broken down; often he will contribute to this by behaviour which can be measured objectively as selfish and unkind. But when the allegations encompass drugging, rape, serious physical violence and there is literally nothing before the court but the assertion of the ‘victim’ that this is is so – what do the lawyers or indeed anyone expect the courts to be able to do with all this?

The group make the following suggestion for reform:

Training for the judiciary to better understand domestic abuse, particularly the nuances and subtleties of abuse such as gas lighting, coercive control, and financial abuse especially apparent when hidden by a polite, non-threatening perpetrator. Input from psychologists in this regard is key.

To which I make the following reply. Judges don’t need ‘training’ to know what violence is. They live in the world. They know what violence is. What they need is evidence on which to base decisions. The family justice system simply is not set up to offer inquisitorial tribunals to unpick relationships that may span decades and involve considerable amounts of ‘nuances and subtleties’.

 

Conclusions – we need the data

This polarisation of the debate into women = victim and men = perpetrator and everything must then stem from that, has done real harm. We can see this in the actiivities of such groups as Fathers 4 Justice. it is easy to dismiss them as posturing idiots but the anger they feel didn’t come from no where.  To simply remove men from the debate – as the Panel membership appears to do, Mr Justice Cobb as the lone exception – is to fuel this kind of anger and distrust to the detriment of us all.

It is a great shame as I agree with and think very sensible many of the recommendations made by the group of lawyers. Removal of legal aid has caused enormous problems. Findings of fact need to be held far more often and far earlier. But I don’t accept the problems in the system are due to ‘lack of understanding’ from judges about issues of violence. They stem more from the very clear understanding by judges of their duties to the Rule of Law and procedural fairness. These are concepts vital to any society worth living in.

The real problem for the FJS is that our judges do not have the infra structure to support them to make speedy and robust decisions.  I accept that cases drag on and there is little by way of support either during or after the court process.

However, without establishing a firm factual foundation for investigation, any proposed ‘three month’ inquiry into all of this is clearly doomed. Because we just do not have a consensus about what is really going on. Groups support women will say false allegations of abuse are very rare, groups supporting men say entirely the opposite. Just what is the evidence about the rate of false allegations and how do we find this data?

The group of lawyers say, rightly:

There is no data collected about the implementation of Practice Direction 12J but anecdotal evidence suggests, as remarked by Lord Justice Munby in 2016, that there are very real concerns about its application in practice at different levels of the judiciary and across the country.

What the group of lawyers recommend and I heartily endorse is this:

that robust recording of decision making is made by the Judge, and collated by an appointed court recording officer so that we can begin to assess the scale of the problem and so understand how we must deal with it.

This will be the only recommendation of the Family Inquiry that will make any sense at all.  In my view.  Nothing will change unless it can be identified and faced.

 

Why I no longer support opening up the family courts

This is a post by Sarah Phillimore

Yesterday I was told that a published judgment in a family case had been the subject of an article in a tabloid newspaper. I am not going to link to either the case or the article for reasons which I hope will become very clear. But if anyone doubts the veracity of what I am saying, contact me and I will share the links with you privately.

The article was the usual tabloid fodder. No discussion of the wider issues examined by the judgment, no recognition of the work done by parents, the social workers, or the court. It read to me simply as an exercise in slut shaming. Given the level of detail about the services the parents had been offered it was apparently easy for people in their locality to know who they are. The parents, I am told and understandably – are distraught.

I had an email discussion with a journalist about this. I haven’t asked their permission to repeat their emails so I don’t. But you will get a flavour of the conversation from mine:

This is why transparency will stall as journalists are so irresponsible….

Really? You didn’t notice even a whiff of slut shaming in their approach? It is this kind of thing that will slam door shut on transparency. Journalists have to step up…

OK but the door to transparency remains firmly shut – this is why. Again the excuse that journalists only hold mirror up to society, rarely any recognition of or responsibility taken for how your profession feeds that. A great shame. The mother is distraught. That is a whole group of lawyers who won’t be supporting the next publication of a judgment and I too am wavering.

The damage done by journalists over the death of Peter Connolly is with us still. They continue to compound this damage as for example we see with the reporting of Andrew Norfolk over the ‘Muslim Foster carers’ case. Time and time again I see gleeful reporting of women who have had children removed as just some kind of shameful baby making machines. But these are real people – with real children.

It is just not good enough to say that journalists are ‘just giving the public what they want’. Journalists need to accept that they are also responsible for encouraging and feeding this – going to ever more lurid extremes in their reporting to secure readership and comment.

I have always been wary about whether or not we have the journalists we need to report on sensitive family matters. I have decided now that we do not. I remain very grateful for the efforts of Tortoise media to provide more detailed coverage of these important issues but my fear is that they will always be overshadowed and overwhelmed by the tsunami of nasty, prurient baiting that comes from the majority of the press.

I am still glad I played a small part in Louise Tickle’s victory in the Court of Appeal to challenge an unlawful Reporting Restrictions Order, and that it will lead to a greater discussion about transparency. What she revealed about the nature and extent to which lawyers either understood or applied the law was frightening – the expensive administrative labyrinth she entered into merely to make an appeal, even more so. I will continue to admire and pay tribute to the courage and tenacity she showed to do the right thing.

But should anyone care to ask for my views in the forthcoming Transparency Review then they will be as set out above. I sadly don’t think the majority of our journalists have the will or the ability to report on family matters in any other way than sensationalised click bait. And this hurts people. It doesn’t ‘shine a light’ on the system or increase public understanding. Its just the 2019 equivalent of the stocks or the ducking stool.

I will not support further opening up of the family courts. I will no longer support the pain and misery of my parent clients being offered up for public entertainment. I will no longer agree to the publication of any judgment in a case where I act, unless and until I can see some recognition from our Fourth Estate of the power they wield, and the harm they do.

What can we do to help parents understand and participate in care proceedings?

This is a post by Sarah Phillimore.

Imagine you have landed on an alien planet. The locals speak a completely different language. Their customs and culture are completely different to anything you know. There is no one available to translate for you. No one to explain. What happens?

Since starting this site in 2014 I have become more and more aware that many parents simply do not understand what is going on in care proceedings. Sadly, this group often comprises my own clients; after I have patted myself on the back about my great skills at establishing rapport and explaining things in simple terms, it becomes clear a few weeks or months later that they didn’t really understand at all. And by then it is often too late.

This was brought home to me with particular force recently. I was asked by a parent to look at the final judgment in her case and advise her if there was any way at all she could resist the making of an adoption order. With a terrible poignancy she sent me photographs of each page of the final judgment, laid out on her floor. The pages were in random order; some were missing. She clearly had no understanding at all of what had gone on.  She emailed me:

I wish I did right, from the beginning. But I guess it’s to late for me. My sw called me in today, to say they found a family for E, breaks my heart. To even hear her say that. I just dont know what I can do. I probably, will just have to accept it, and concentrate on my two kids who’s also placed in long-term care. Thank you so so much I appreciate your time. I’m sorry if somethings i wrote didnt make sense. English is not my first language and I do struggle with this.

In the narrative of many parents, often their lawyer is entirely absent. The social worker is afforded a God like power to make all decisions.

Quite rightly as a society we endorse non-means non-merits tested legal aid for parents in care proceedings – but without some kind of bridge between parents and their lawyers, is this a benefit that we are squandering? I do not think this lack of understanding comes about because parents are stupid – but mainly because they are afraid and confused. Language barriers of course, do not help but these problems of lack of understanding are not restricted to those who do not have English as a first language.

We know advocates for parents can help – David Tobis has shown how it works in the USA. There are also pockets of good work around the country  – see what New Beginnings are doing and individuals such as Surviving Safeguarding – but the lack of nationwide standards means that there are many dangerous people and organisations who purport to ‘help and advise’ very vulnerable parents.

I asked another parent for her views about the benefits of advocacy in child protection cases and her post is below.  It is clearly not only the relationships with lawyers that parents need help with.

Advocacy in Child Protection Interventions – guest post from a parent

Imagine you have landed on an alien planet. The locals speak a completely different language. Their customs and culture are completely different to anything you know. There is no one available to translate for you. No one to explain. What happens? You find yourself stumbling along, learning only by experience, by trial and error. Even if you do happen upon someone who does speak your language, they are incredibly busy and have little time to truly sit down with you. Time goes on and you do your best to muddle along but make mistakes in the form of misinterpreting or being unable to make your communication clear. You attempt to use their customs and communication styles but because you don’t have the cypher to the code they speak in your attempts are often misinterpreted, or even ignored because they simply don’t have the time to move at your pace. Wouldn’t it be incredibly useful if there was someone to act as a bridge and help you to understand better?

I am the mother of two children. One whom I have not seen and spoken to in nearly two years, the other who lives with me for a substantial amount of each week. There was a time when all three of us lived together, unfortunately that came to an end when I experienced a crisis. I had experienced domestic abuse, the result of which left my ex-partner with a conviction. I had experienced his wrath in the subsequent months leading from his arrest and conviction in the form of family court proceedings I weathered the storm, fought nearly 12 months through court, moved areas and tried my best to continue as a single mother of a child with a disability and a toddler. I had no family support. It would be wrong of me to say that I sailed through the whole process because things like this take its toll and with the best will in the world, co-parenting with someone who holds a grudge and who has made it very clear that they believe you are an incompetent parent is no easy task.

I asked for support, for a carer’s assessment so I could have a modicum of time to myself, to regroup and recharge, unfortunately that assessment was not forthcoming and a few short months later I reached crisis point. At that point social services became heavily involved and I was shoved onto what felt very much like a conveyer belt moving at great speed the controls for which were written in a foreign language.

My children’s case has been closed to my local authority now for a little over 6 months. I however am left with many questions, the result of which has led to an ongoing complaint. I am 18 months into that complaint with no resolution in sight. In an attempt to understand and find answers I have taken to Twitter and much online reading and have come to an understanding that there are many parents out there who simply do not understand the process they have gone through, have lingering doubts they were treated fairly and want answers. I count myself as one of those parents.

There seems to be a common theme amongst those of us who talk online, and also from many professionals (social workers, adopters, foster carers, barristers) who also spend their free time sharing their views, practices and experiences within the child protections system: parents are frequently not adequately supported.

This is where good advocacy could help. A good advocate tasked solely with the job of understanding you and your ‘planet’ whilst having plenty of knowledge of the ‘planet’ you find yourself on and finding a way to help you, and the ‘locals’ navigate your way through. Time would not be wasted. Misunderstandings may not happen, and if they did they could be cleared up. All the while keeping the goal at the centre of the process: safe and happy children. This is the position parents potentially find themselves in when they enter the planet of child protection. Parents and social workers often want the same things: for the children at the centre to be safe, to thrive, to be happy. A common goal. It was certainly my goal. Unfortunately somehow, and I take responsibility in this for I am not the best communicator when afraid and feeling very much alone, it was a goal that seemed to become lost amongst much alien talk of me being ‘disengaged’, ‘mentally unwell’, ‘abusive’, ‘neglectful’, ‘unaware’, ‘robotic’, ‘alcohol dependant ’etc etc etc.

From a purely personal point of view, I struggle to assimilate and understand lots of information at once unless I can refer back to it. I asked repeatedly if I could communicate via email (except in meetings of course). These requests were largely ignored. I took to initially politely emailing LA employees with questions or clarifications of my understanding. I sent information I had gathered over the years to refute some of the claims that were being made of me. I was also aware though that social workers have huge caseloads – I was frightened of annoying them, or of coming across as ‘unhinged’ – this is a left-over of years of dv.

It was only after a I had met someone now close to me who just happened to work within the system that I realised I should have continued to keep pressing my point home, I should have continued to ask questions – by that time the damage had already been done. I did manage to assert myself enough to now have a meaningful relationship with my youngest child, but my eldest is not lost not only to me but also to their sibling. Things could have been so different. A good advocate would have spoken up, would have helped me understand, would have helped point out the poor process that was taking place (and it was poor – that is becoming more evident). Very little of what I experienced could truly be seen as ‘child centred’ – and much of that, I now firmly believe, was because there was not someone who could help me to see into the culture of the alien planet I was on and could help the ‘locals’ see me rather than the preconceived ideas they had of me based on my inability (within the child protection arena, since, whether intended or not, the treatment I received was unfortunately quite similar to the tactics of my abusers, and probably unbeknownst to the social workers involved, only served to silence me) to advocate for myself and my children.

What is the evidence base for orders about indirect contact?

This is an article by Sarah Phillimore and Families Need Fathers. It was first published in the May edition of the Family Law Journal and is reproduced here with acknowledgment and thanks

Indirect contact: on what basis do such orders promote the welfare of children?

This article examines the evidential basis supporting orders for indirect contact to provide a mechanism whereby direct contact may at some point resume. The authors are concerned that this ‘wait and see’ strategy at best achieves nothing and at worst is actively harmful. They call for better research about the impact of indirect contact in cases of entrenched opposition, and greater willingness to consider psychological intervention at earlier stages.

For the purposes of this piece, ‘indirect contact’ is defined as letters, cards, emails – usually at specified times or events.

There are many reported cases where parents (usually fathers) are refused direct contact in private law proceedings. A recent one is R (a child – appeal: termination of contact) [2019] EWHC 132 (Fam) (29 January 2019). Here the court was initially prepared to refuse direct contact, even having accepted that the child would then be parented solely by his mother:

‘… who had been identified not only as having caused emotional harm to him through her alienation of him from his father but also and as significantly whose parenting was identified as creating an enmeshed relationship where R was unable to developmentally separate, to develop his own identity separate to that of his mother.’

The appeal was allowed in essence because (para [77]):

‘… the combination of the consequences of the findings of fact that had been made and the lack of full exploration of the options available (in particular in relation to therapy for the mother) meant that the end of the road had not been reached.’

Therefore the appellate court was ready to take a stand in a case where a finding had been made that the resident parent had caused emotional harm by alienation. But what about the presumably greater number of cases where no such clear finding is made against either parent?

Where there is no clear finding against either parent

I recently represented a father in such a case on his application for permission to appeal a refusal to make an order for direct contact. The child was born in 2007.and in 2010 the court made findings against the father of behaviour that was unpleasant but not sufficiently serious to rule out direct contact, Such contact was positive until 2011 when it ceased, the child demonstrating increased anxiety until eventually claiming to have no father at all.

The father’s position was that this was nothing to do with the quality of his relationship with his son but rather that, from the outset, the mother was ‘entrenched’ ‘ in her opposition to it. NYAS and Cafcass intervened, the court suggested that the mother undergo therapy and she had some kind of counselling, but nothing shifted.

Throughout, the court adopted the ‘wait and see’ strategy, in the hope that ‘time would heal’ and the indirect contact would blossom into direct contact. In 2015 the father’s appeal was before the full Court of Appeal who shared his concern about this strategy and noted that if it continued to fail, then expert evidence ought to be considered. The father subsequently applied for a psychological assessment of the mother.

By the time that application came to court in 2016 the child could not contemplate even discussion about his father; the applications for further expert evidence was refused. The father appealed again but in 2017 that appeal was dismissed, the Court of Appeal agreeing that continuing the proceedings was not in the child’s best interests. The father continued, with his now decade long battle which finally ended in October 2018 where Mr Justice Moor refused permission to appeal against the final decision at first instance to refuse direct contact.

The client perspective

I asked my client for his views.

‘The non resident parent usually, sooner or later, comes to a point where they see their attempt at trying to maintain contact with their child as futile. This point can be reached even before contemplating making a court application when told by those familiar with the cycle of the family justice system that it is unlikely they will maintain contact where the non resident parent opposes it, sometimes it takes one year of court attendances and going to contact centres, sometimes it takes many years before a parent gives up or is forced to give up, the system is designed to make maintaining contact as difficult as possible.
… At the last contact session my Son said “see you next time” he waved as he left, I have not seen him for seven years now.
… Where it is clear the resident parent will never support the child to have a meaningful relationship with their parent it is essential that the Judges order direct contact….It should be acknowledged by the Judges that indirect contact merely supports an entrenched resident parent’s ability, either deliberately or incidentally, to also entrench the child’s views against the other parent, indirect contact makes matters worse.’

This case appeared to me a clear example of the failure of the ‘wait and see’ strategy when one parent was entrenched in opposition. I could find no research or other literature which offered any evidential basis for this as a successful strategy. I therefore I asked Families Need Fathers if they could conduct a survey of their members.

The FNF survey on indirect contact

FNF conducted a survey of 154 service users, (95% dads), who had final orders for indirect contact only.

In just one case (0.6%) was direct contact restored, seemingly, without further intervention in a situation where the indirect contact order was mostly complied with.

Three others reported direct contact resuming, but not attributable to factors beyond indirect contact. In one case a direct relationship was re-established through the intervention of an elder sibling. In another, direct contact was established following a successful appeal and in one more through a change of residence.

Almost universally (97%) respondents said that these orders were made in response to implacable hostility towards them from the parent with whom the child lived.
In most cases (58%) someone in a position of authority specifically suggested that given time things might settle down and lead to the restoration of visitation. Cafcass were the most likely to express such optimism (37%), as did a third of Judges (34%) either in the final order, in a final judgement or both.

In the vast majority of cases (92%) the orders made included a requirement for the children to be supported in responding to letters or gifts received. However, 79% of respondents said that they ‘never’ received a response, 13% did so rarely or occasionally and just 4% reported full compliance.

Many expressed doubt that their correspondence was reaching their children at all. In one case a father who always sent gifts for his daughter’s birthday and at Christmas, reported evidence that the mother was writing brief ‘thank you’ cards for receipt of gifts purporting to be from the child so as to give the appearance of compliance with court orders.

Clearly this survey is not based on a scientifically balanced sample, but these figures suggest that parties are being offered false hope in spades with virtually no prospect of a positive outcome during the children’s minorities. Not surprisingly, some respondents, in hindsight, considered that they were being fobbed-off with hope for the convenience of the Courts or Cafcass – perhaps to make the figures of duration of proceedings look better against targets or to save their money by not exhausting all possible routes to a solution. Many expressed frustration and disappointment at the lack of stronger interventions by the courts to ensure any meaningful contact.

The low level of compliance with these orders and lack of enforcement of family court orders, precisely in the more hostile situations where it is most needed, has led to infinitesimally low levels of successful outcomes. Perhaps we need to remind ourselves that these are situations where courts were satisfied that contact was not only safe, but also best served the welfare interests of the children.

Personal stories

Dozens of respondents shared their stories of personal devastation. Several had contemplated suicide and one grandparent had done so. Two spoke of suffering from Post-Traumatic Stress Disorder, others described other consequent stress on them and their families:

‘I felt – and still feel bereft. I have struggled with my mental health since then; I am on anti-depressants and sometimes cannot work because I haven’t slept in days. My wife holds me through the night when I am crying and missing my children and I wonder who holds them when they cry that they are missing me.’

Some parents agreed that indirect contact, where correspondence was received, at least informed a child that the other parent continues to love them and has not abandoned them. However, should relationships then be restored in adulthood, it does not take away from damage done. The internal ‘wiring’ of the brain is set. The relationship may be all but extinct. This suggests that indirect contact should be used only as part of or pending a plan of intervention, to restore meaningful relationships.

Family courts are there to weigh up the evidence in determining the best interests of children. Many respondents expressed the view that ‘hope’ is an inadequate basis for meeting children’s welfare needs; doing nothing may merely create the fragile illusion of calm for children. Respondents were convinced that it would be a mistake to assume that children are not being harmed whilst living in an environment that denigrates half of their family. Inevitably, the comments made to us suggested not only a deep frustration with family justice, but concern at the lack of support for children left harbouring false perspectives and unjustified hostility to once-loved parents. Respondents’ experiences also demonstrated the lack of support for themselves when court proceedings were over without a satisfactory outcome. One father, who had withdrawn his application on advice from CAFCASS after the mother promised to ‘de-escalate’ the situation, said this:

‘In the last phone call I had with my daughter, she told me that she remembered loving me once, but “luckily I have been allowed to stay away from you and now I realise only an insane person would want to see you.”’

Father who withdrew court application for direct contact on advice from Cafcass and promise of de-escalation by the mother.

Conclusion: The need for proper research

It was the view of the (now) President of the Family Division in the 2017 Bridget Lindley Memorial Lecture that judges need better information about outcomes – without information about outcomes, Judges were left trying to hit a bullseye by throwing a dart over their shoulders.

If indirect contact is to be relied upon as a mechanism to restore direct contact, then we need proper research about this. Currently data on Child Arrangements Orders does not even distinguish between orders for direct and indirect contact. There is, we suggest, a need to consider proper psychological intervention about how to break entrenched parent deadlock and more willingness to consider change of residence.

It is the view of the authors that it is clear that mere passage of time is highly unlikely to ‘heal’ entrenched opposition – rather it is likely to cement it, particularly as many fathers cannot simply sit and wait as years go by with no direct contact.

Michael Lewkowicz
Families Need Fathers
Sarah Phillimore
St Johns Chambers Bristol

Why does Everyone Hate the Family Court ? Part Four.

Heads You Lose: Tails You Lose

Sarah Phillimore writes:  I am grateful for this post from Emma Sutcliffe, part 4 in our series ‘why does everyone hate the family courts’?  Emma’s previous post on this topic can be found here.

The family justice system is very much in the public eye at the time of writing on May 15th 2019- 120 MPs have called for an inquiry into how the courts operate and The Victoria Derbyshire programme has hosted two discussions so far. It seems to be promoting the Women’s Aid line that the family courts ‘push contact with abusers at all costs’. I don’t think that is true.

But what I can’t deny is the level of fear, misery and misinformation around the family justice system and the fact that people often come out of it more brutalised than when they went in. What is the problem? How can we fix it? The only way I know how, having very little by way of political or media influence, is to continue to host these kind of discussions in the hope that somehow, some where a seed will be planted that may grow.

I don’t agree with everything that Emma says, I don’t agree the system is ‘set up against women’ . I am also concerned to see a picture painted of two parents – who presumably at one point loved each other enough to have children together – who now treat each other as bitter enemies. I don’t think the family court is responsible for that level of bad feeling, but I accept that as an arena it is the worst place to put frightened or angry people.

However, the point of this post is not to get Emma to agree with me or hound her for being ‘wrong’. The point is to identify where our perceptions differ and what shapes that. Is that divide a product of misunderstanding? Or some deeper ideological differences? Is the perception of parents’ clouded by their pain and misery? Or is my response foggy or jaded because of professional arrogance?

What should be happening here is the entirely sensible requirement when preparing for an adversarial environment, that you develop a theory of the case and you prepare your cross examination around that. A case with no strong narrative arc is messy and uncompelling. If the burden of proof is on you then a lack of focus on your theory of the case may be enough to sink you. What Emma describes here sounds to me like game playing of a much more cynical kind and verging on the unethical. Its not a tactic I ever employ or would ever advise. Once your life is being held up to microscopic examination in a court setting, then playing games should be the very last thing on your mind. 

However, this was Emma’s experience.  And, as she so powerfully says, no one should ever have to  ‘put on a performance’ to persuade a court to analyse the evidence before it and make a decision in the best interests of the child. Our courts should not be a theatre. If there is anything about the system and the people in it that encourages this – it needs to stop. 

How does a barrister prepare you to lose your children?

By roughing you over as if you’re a criminal. Family court is vilifying, humiliating and terrifying. It is worse when the narcissist you divorced is your opponent. Because the only person a narcissist loves is themselves and they’re quite prepared to lose whatever it takes in the process so that they don’t lose face. It’s called a ‘scorched earth policy’ and my barrister pummelled me in readiness of every court statement and appearance for the inevitable lies, fury and shouting that accompanies any head to head with someone who would even suggest their own children would be better in the care system than with their own mother.

The barrister who worked for me made me look straight on at the loss of my children and study assiduously both the recommendations of the court and the people who made the recommendations. ‘what’s the sound track in the court?’ He asked when we first met — some 16 hearings in by the point.

‘You are a bad parent’ he told me. Looking directly at me as he delivered a crushing home truth — “because just by even being in family court and having strangers decide how your children are going to play out their childhood you have let them down. In the eyes of the court therefore you are a bad parent”.

Am having got me to a state of despair he then sought to get me ‘judge ready’.

“This is the Anna* we need the judge to see — an exhausted, working mum who has been driven to seek to need the court’s help to deal with an utterly uncooperative parent. We need to mitigate risk to the judge — that you can accept your flaws but still do your best for the children. Let us let the baddest parent show themselves for what they are. Otherwise this just looks to the judge like two very clever people who are adept at arguing whilst their children look on. You need to accept and convey that you are contrite and remorseful that such behaviour has and would cause them emotional harm if it were to continue.”

And with that I had an epiphany.

Like it of not; family court is a game of chess. And the system is set up against women. Children are the sacrificial pawns and to win this game I had to have the agility of the Queen and read the board. The king appears to be the dominant player, but it’s the queen who can contort to whatever move is needed to protect and win the game.

And so, with that in mind I determined to adjust my mindset and moves. I could lose 50 percent of holiday time with my children for a few years until they get wise enough to reject their father’s bullying by themselves or I could dig my heels in, battle the court officers and keep portraying myself as a battling parent too determined to beat my ex than protect my children.

Thanks to that roughing over by the barrister the small lose or ultimate lose strategy was easy to shapeshift into.

Once he knew I understood the games and the rules, the barrister and my solicitor then crafted every statement and every question in every hearing thereafter to play to the soundtrack of the court — hardworking, long suffering caring mother, able to withstand every ludicrous allegation and still demonstrate cooperativity.

And as we walked into the final hearing — the narcissist did what narcissists ultimately do and lost it when he didn’t get exactly what he believed he was entitled to — adoration and dominance.

Judges do not like risk. And they do not like arrogance. They care not for how much money someone has, what car they drive, how well connected they are or if they are dressed in Armani or Primarni. They want to know that you show up, you accept help, you recognise your flaws and vulnerabilities and you put your children first. Game over. I lost the small battle.

The loss was wonderful because it was palatable. And in his summing up the judge adeptly dismissed every taunt, claim and even overuled his own biased officers. Furthermore he praised me for my courage under persistent sniper fire and concluded with words that were music — the music of the court — to my ears and to my children:

‘I cannot be confident that if residency were given to Dad that given the ludicrous allegations Mum has successfully defended Dad would not seek continued punishment of Mum using the children. Further time with dad risks psychological harm to the daughter. And without changes in the environment when a child is 12 they will start to vote with their feet and at this point it is Dad who risks losing the relationship without making changes. Given that the children are articulate, intelligent and clearly gifted, if they goose not to go to a parent’s house when they are 12 the court will not force the contact’.

The 24 months of worry that I would lose my children and my life was lifted during that 40 min judgment.

I had been judged.
My children had been heard and understood and our concerns justified.

There is no greater victory.
The loss that never ends — the loss of a meaningful loving relationships of trust, fairness, unselfishness and courage to give your children what they need — is the ultimate loss. I won the residency order. I won my children’s faith. The only loss I have is respect for their Father. That is the loss that knows no end.

Years later, however, I remain enraged about the performance I had to make to be ‘the exhausted, desperate Mum the judge needs to see’. I resent that my strengths — accuracy, challenging injustice, truthfulness and obstinance — qualities admired as ones of leadership in a man were instructed to be turned down because they are interpreted as non-compliant in a woman. We should speak up when something is not right, when undermining is taking place, when systems, people, Cafcass Officers are corrupt and corruptible. We tell our children to be brave, be bold, be yourself. Then we tell those girls who become women to stop these characteristics and accept the archetypes directed by our own Family Courts and the officials that turn the cogs.

The Cafcass Officer didn’t like my challenges. The psychologist accepted and praised my enquiring mind and described my ex for being fixed and resolute (uncooperative) whilst telling the court I held ‘the key to the resolution of the conflict — by backing down, shutting up, accepting the abuse persistently doled our through gaslighting, stonewalling and intransigence. I could flex and contort to any slight so the abuse could continue unchecked if I wanted residency of my children. Three different judges wanted or saw three different ‘Anna’s’ — one saw a frustrated mum, one only saw a mum with anxiety and hurried me out of his court, one saw why I was ‘challenging’ and that my ability withstand years of abuse and coercive control transacted through my children was attributable to my being bold, brave, myself.

The Barrister did what he had to do to get me the right result for the misogyny of the family court with officers and paid-for experts waiting to point their fingers and say ‘difficult woman, difficult woman’.

Because challenging women challenge them and their infrastructures, assessments and belittling of women.

So I’m here. And I’m ready to fight back for all those women who don’t have my strength or have had their resilience worn away by the family courts. It is time for change.

Fabricated and Induced Illness

This is a post by Sarah Phillimore. I was recently alerted to a Radio 5 Live Investigation into ‘Fabricated and Induced Illness’ [FII] in May 2019. I think this is a useful opportunity to explore FII in more detail for readers of this site. 

The history of Fabricated and Induced Illness [FII]

Concerns that parents may exaggerate or even cause their children’s symptoms of illness have been around for a long time. It used to come with the flowery title ‘Munchausens Syndrome by Proxy’, from the fictional character Baron Munchausen who told outrageous lies about his non existent achievements.

Obviously, this description was confusing to many parents and professionals, as well as wrongly giving the impression that it was a psychiatric condition in its own right. As Kate Grieve commented in 2015, the case of R v LM [2004] QCA 192 at para. 67 (4 June 2004)  in the Supreme Court of Queensland, Australia, held that “the term factitious disorder (Munchausen’s Syndrome) by proxy is merely descriptive of a behaviour, not a psychiatrically identifiable illness or condition”. She further comments:

FII is not a mental illness as can be diagnosed. Perpetrators will have various psychological, psychiatric, and environmental features leading to the behaviour of fabricating or inducing illness in a child. FII is a form of child abuse where the perpetrator uses medical professionals as tools to subject the child to harm.

Therefore, now we use the more sober descriptor ‘Fabricated and Induced Illness’  [FII] but obviously the problem remains the same.

The NHS describe it in this way.

FII covers a wide range of symptoms and behaviours involving parents seeking healthcare for a child. This ranges from extreme neglect (failing to seek medical care) to induced illness.

Behaviours in FII include a mother or other carer who:

  • persuades healthcare professionals that their child is ill when they’re perfectly healthy
  • exaggerates or lies about their child’s symptoms
  • manipulates test results to suggest the presence of illness – for example, by putting glucose in urine samples to suggest the child has diabetes
  • deliberately induces symptoms of illness – for example, by poisoning her child with unnecessary medication or other substances

How widespread is FII?

FII It is undoubtedly a ‘real thing’ and can cause serious harm to children as well as a massive drain on NHS resources. But it is also a rare thing – it is difficult to estimate with certainty how many cases arise each year, but some estimate about 50. The NHS refer to one study which published in 2000 which estimated 89 cases of FII in a population of 100,000 over a two-year period. However, they believe this figure is a likely under-estimate of the actual number of cases.

Taking a figure of 50 per year, is on a par with statistics around children who are murdered; 330 children were killed between 2009 to 2015  i.e. about 47 per year. Compare this with road traffic accidents  – in 2011, 2,412 children aged 0-15 years were killed or seriously injured on Britain’s roads. So about 7 children a day will die or be badly hurt on the roads as opposed to less than 1 a week being victim to FII.

Fiightback told Radio 5 Live that they had about 600 people seeking their support and 70% had been ‘cleared’. They had attempted FOI requests from LA to be told that no data was held about numbers of FII cases.

Concerns that cases of FII are rising

The group “Fiightback” was set up “to support those accused of FII, to fight for an unbaised criteria, a fair investigation and a pathway to rebuild the lives of those wrongly accused”. It shared with the BBC their worries about a ‘wave of false allegations’ of FII.

It now wants a review into the number of FII child protection investigations like Amy’s, as well as the FII guidelines for medical and social work staff.

It also wants national and local policy on responses to accusations of FII to be looked at, and new standards set.

Carol Monaghan MP – who has led calls in Parliament to raise awareness of FII – said she would support an inquiry.

She added: “Disturbingly, diagnoses can be made by health professionals who have not met or examined the child, and child protection procedures can then be instigated as a result of a remote diagnosis.”

I can’t comment on the statistics that inform that comment about ‘wave of false allegations’ because I don’t know them. I can’t find any references on the Fiightback website. All I can say that in my practice spanning 20 years I have only been instructed to act in a handful of FII cases. I have not encountered in the past few years any noticeable increase. And I would be very troubled if diagnosis of any medical condition was attempted by any doctor who had not actually met the child – unless this was a court authorised review of medical records collected by other doctors for e.g.

But if such concerns are raised, then it is right that they are properly investigated and we have clear evidence to either support or deny them. A suggestion was made in 2018 that such cases are on the rise because local authorities want to avoid paying for services – that is an extremely serious situation, if true. Andy Bilson commented to Radio 5 Live that the definition of FII appeared to be widening in some areas to include parents who ‘genuinely’ believed their child was ill – thus bringing into the net of suspicion those parents seeking services for their children.

Efficient and speedy investigation is needed.

FII brings the ‘perfect storm’ for a family justice system, already prone to risk averse decision making. FII represents something that doesn’t happen often, but when it does the consequences for child could be catastrophic. Little wonder then that many professionals may act defensively.

And of course, professionals are fallible. A decision made hastily to separate parents and child may turn out, after proper investigation to have been the wrong decision, based on imperfect understanding of the medical evidence as it initially presented. The Websters for example, whose child’s broken bones were caused by scurvy, rather than deliberate infliction of force. Sally Clark, who was convicted of murder on the failure of Professor Sir Roy Meadows to understand and apply statistics correctly.

We need a clear idea about how many cases there are and how many do not result in any findings against the parent – as the impact of such cases can be devastating if no findings are made. Amy, the mother interviewed by BBC Five Live commented :

I felt like my character was assassinated, my family was ripped apart and my child was stolen

So how do we manage these cases?

Few would disagree that if a competent medical practitioner raises a concern that a child is being hurt by a parent, that this needs to be investigated and the child kept safe while the investigation is carried out. The problem of course is that this investigation can often take many months or even years and throughout that time the child is likely to be living separately from his parents, although hopefully still having regular contact.

The key therefore must be to make sure investigations are carried out as efficiently and quickly as possible.  The NHS guidance for medical professions highlights the necessary steps.

  • Its important to have a senior paediatrician to carry out an overview of the case and to seek further specialist advice or testing if needed.
  • A detailed chronology must be written of all the available information related to the child’s medical history. 
  • Doctors must contact the relevant child protection team of the local authority’s children’s services to inform them of the concerns.
  • Other agencies involved with the child’s welfare, may be contacted in case they have information that’s relevant such as the child being absent from school.
  • The police will also need to be informed and all professionals must meet to discuss the best way to proceed with the case.
  • Covert (secret) video surveillance may be used to collect evidence that can help to confirm a suspected case of FII but this will require proper authorisation and is rare in practice as usually the parent will not be allowed unsupervised access to a child once concerns about FII are raised.  For a discussion about surveillance of families by social workers, see this post from Pink Tape. 

The LA will usually start care proceedings immediately and seek separation of child and parent, unless there are other family members who can help to provide constant supervision.  There may well be parallel police and care proceedings – while care proceedings should never ‘wait’ for criminal proceedings to get started or conclude, it is clear that if a live police investigation is also on going, this has the potential to cause delay.

As ever the focus must be on the evidence – what is needed, who is best person to provide it, and how should it be tested. This are not easy cases and will require more than most continuity of Judge and lawyers.

Further Reading

Re X, Y and Z (Children) [2010] EWHC – Application by local authority to withdraw from proceedings, under FPR r 4.5, for interim care of three children. Local authority ordered to contribute to the costs of the parents.

Concerns over Fake Illness Cases in Troubled GOSH department – April 2018 Melanie Newman

Safeguarding children in whom illness is fabricated or induced – 2008 Statutory guidance from Department of Education, on protecting children where carers or parents make a child ill or pretend a child is ill.

Regional Child Protection procedures for West Midlands – guidance on FII 2017

Achieving Best Evidence in Children Act cases. 

 

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

This is a post by Sarah Phillimore.

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

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

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

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

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

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

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

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

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

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

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

What is the scale of this problem?

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

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

a) Why do parents flee

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

c) what the hell is going on?

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

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

b) What countries do they go to

c) how many ‘do well’ and settle

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

 

Way forward

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

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

As one person commented:

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

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

Further reading

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

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

Keep on Running September 2016 Child Protection Resource

Keep on Running Part II April 2018 Child Protection Resource.