Other thoughts

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.

 

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

This is a post by Sarah Phillimore

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

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

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

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

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

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

Giving child abusers moral authority.

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

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

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

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

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

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

Then matters took an even more sinister turn.

Vivien Hobbs and The Legal UK Partnership LLP

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

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

Dear Ms Phillimore

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

 

EDIT APRIL 4th 2019

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

Edit April 4th 2019 a bit later 

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

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

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

And Ms Haigh has begun tweeting.

I have replied to Ms Hobbs

Dear Ms Hobbs

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

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

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

Any further emails from you will be deleted unread.

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

 

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

EDIT APRIL 9th 2019

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

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

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

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

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

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

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

 

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

This is a post by Sarah Phillimore

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

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

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

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

So there are two issues we need to unpick:

First – what is a child?

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

What is a child?

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

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

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

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

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

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

 

How and when is transgender identify discovered?

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

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

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

The author comments:

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

it is materially relevant to an issue in question; or

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

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

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

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

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

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

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

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

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

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

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

But the real beating heard of the argument is here.

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

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

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

Further reading

Interesting discussion in Lancashire County Council v TP & Ors (Permission to Withdraw Care Proceedings) [2019] EWFC 30 around concerns that parents:

  • have acted in a precipitate manner in relation to perceived gender dysphoria in children in their care (aged 13 and 6 years)
  • are resistant to acknowledging any potential disadvantages to R and H of being identified as transgender prematurely and the impact on their emotional, physical and sexual development. They are unable to provide appropriate and balanced support to R and H to make informed decisions as they get older.

However, largely as a result of the experts reports, including that of Dr Dr Pasterski, a consultant psychologist specialising in gender identity,  the local authority accepted that the threshold as it was originally drafted, could not be sustained and should not be pursued. The LA therefore asked for permission to withdraw its application for care orders, and the court allowed this.

The most interesting paragraph, in my view, is 75 where the court concluded:

In respect of paragraphs 29(a) and (b) of the vestigial possible threshold in respect of the concerns about the early and complete social transition of R and H, and the alleged unwillingness of CP and TP to recognise the long-term implications of such an early transition the evidence of Dr Pasterski compellingly rebuts these concerns. Her evidence in respect of the ‘2 critical historical misunderstandings‘ not only explains the approach of CP and TP but provides clinical justification for that approach. Notwithstanding even the Guardian’s caution in respect of the openness of CP and TP to the possibility of an alteration in the children’s attitude to their gender identity I conclude that Dr Pasterski’s evidence demonstrates that it is obvious that neither of these grounds would meet threshold. Taken together with the panoramic evidence of the child focused approach of CP and TP it is overwhelmingly obvious that neither H nor R have suffered or are at risk of suffering significant emotional harm arising from their complete social transition into females occurring at a very young age. The evidence demonstrates to the contrary, this was likely to minimise any harm or risk of harm. The evidence does not support the contention that it was actively encouraged rather than appropriately supported.

H at the time of judgment was 6 years old and had been ‘supported’ to transition at an even earlier age. The elder sibling had also ‘transitioned’ before the age of 8 years. I am not confident that it is a safe finding to conclude that there was no risk to the psychological integrity of such young children for adults to be ‘supporting’ transition. It is difficult for me to understand how the court can so cleanly draw a distinction between ‘active encouragement’ and ‘appropriate support’ when such activity was occurring when H was only four years old:

In addition, H was sent to primary school dressed in a girls’ uniform (aged 4), when the school expressly asked that this not happen.

No doubt there will be other cases to come, so watch this space. I hope that Dr Pasterski’s evidence can stand the test of time, otherwise some very young children are going to find their life course altered in ways that may not be in their best interests as they grow.

EDIT thanks to Twitter, I have been alerted to another case via a mumsnet thread, which makes the Judge’s apparent uncritical acceptance of Dr Pasterski’s evidence here even more worrying.

The link to the reported case in that thread no longer works: it is here Jay v Secretary of State for Justice [2018] EWHC 2620 (Fam) (08 October 2018).  I note para 29 and the evidence of Dr Barrett which raises the issue that a wish to transition may arise from other elements of disatisfaction. Dr Pasterski however was able to opine without any reservations that Ms Jay had gender dysphoria:

“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.”

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.”