Other thoughts

What are the nature of and limits to parents’ rights?

This is a post by Sarah Phillimore

Parents versus the state

The question of ‘parents rights’ has been bought into very stark focus by the court hearings around Charlie Gard. There has been an enormous wealth of comment, blogs and articles which demonstrates the strong emotional reactions of many to these proceedings; a stark illustration of the tensions around balancing completing ‘rights’ and interests of parent and child – particularly when the child is an unconscious baby.

A thoughtful article in the Independent summarised the key issues well – decisions over Charlie Gard’s future encapsulated a clash between medical opinion and parental instinct. The law is clear; where doctors and parents disagree over what treatment is in the ‘best interests’ of a child, neither parents nor doctors are able to demand or veto certain treatment. Any dispute must come before a court where a Judge will decide. The court had to operate on the fundamental principle of the Children Act 1989; that Charlie’s welfare would be the ‘paramount’ consideration.

Parents versus parents

Parents ‘rights’ when they argue between themselves about what is best for their child, are utterly subsumed into the idea of the ‘welfare of the child’. This principle was firmly and clearly restated by the Supreme Court in B (A Child) [2009] UKSC. See the judgment of  Lord Kerr at para 37 :

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

There is an immediate and obvious distinction between public law (cases involving the local authority and parents) and private law (cases involving disputes between family members). Where the state wishes to intervene in the sanctity of family life, it has to satisfy the test under section 31 of the Children Act 1989 and show the child is suffering or at risk of suffering significant harm. Nothing less will justify state intervention and this high threshold will mean that some children grow up in less than ideal situations. The risks and impracticality of any policy of deliberate ‘social engineering’ determine this outcome.

But in private law cases, it is different. The focus there is on which parent or which place would promote the child’s best interests and ‘parents’ rights’ are clearly subsumed as relevant only insofar as the parents claim a right to promote those best interests.

There are some who are critical of this approach and worry that the pendulum may have swung too far away from considering ‘parents rights’ or the rights of the family as a whole.

However, the emphasis on the welfare of the child is explained by the problems that arise when individual family members have very different views about what constitutes a child’s best interests. A stark example is found in the case of Gibbs v Gibbs in 2017 where the mother was eventually sent to prison for refusing to end her campaign to publicise the father as abusive towards their children. To attempt to resolve a dispute about a child by identifying, analysing and weighing in the balance the ‘rights’ of all adult disputants would take time and energy away from identifying what the child needs.

Some areas of concern

Why does the test to over rule a parents’ rights differ according to who or what wants to prevail? 

The question for the court, in deciding a clash between parents and a state agency that happened to be a hospital was not whether Charlie Gard would suffer ‘significant harm’ if further treatment was carried out. The issue was whether or not the treatment was in his ‘best interests’ – his welfare was paramount. 

Some commentators expressed concern about this. If social workers decide that a child should be removed from his or her parents’ care, they have to bring this to a court and satisfy the test under section 31 of the Children Act 1989. That children would ‘do better’ in another environment is never a justification – as Baroness Hale commented in Re B (Children) [2008] UKHL 35

In a totalitarian society, uniformity and conformity are valued. Hence the totalitarian state tries to separate the child from her family and mould her to its own design. Families in all their subversive variety are the breeding ground of diversity and individuality. In a free and democratic society we value diversity and individuality. Hence the family is given special protection in all the modern human rights instruments…

Already, it isn’t clear what weight is afforded to the views of parents who clash with the decisions preferred by a state agency. Why should a decision whether or not to end medical treatment for a child be subject to a different test to the decision whether or not to remove a child from the parents’ care?

No one has doubted that Charlie Gard’s parents were acting out of anything other than love for their son and wish to secure him the best possible treatment. If there was no evidence before the court that their decisions risked causing him significant harm, why should the court interfere? No doubt, Charlie Gard’s parents have found the process by which their wish to make decisions for their son was overruled by the courts, similar to the misery and bafflement of a parent who faces the adoption of their child, without their consent.

If there is no legal aid, what are the implications for access to justice?

A further anomaly is the automatic availability of legal aid to parents in care cases – but not parents facing applications by an NHS trust, or wishing to argue against an adoption order, or parents arguing between themselves – unless one can show evidence of domestic violence.

Charlie Gard’s parents did not have legal aid and could not afford to pay for a lawyer. They were fortunate to find lawyers prepared to act for nothing. Francis J commented at para 17 of his judgment:

it does seem to me that when Parliament changed the law in relation to legal aid and significantly restricted the availability of legal aid, yet continued to make legal aid available in care cases where the state is seeking orders against parents, it cannot have intended that parents in the position that these parents have been in should have no access to legal advice or representation. To most like-minded people, a National Health Service trust is as much an arm of the state as is a local authority. I can think of few more profound cases than ones where a trust is applying to the court for a declaration that a life- support machine should be switched off in respect of a child.

‘Rights’ which cannot be enforced in court because the parents can’t afford legal representation and don’t understand complicated law, are no rights at all.

The adversarial system and the standard of proof

An enormous problem – and one which I think firmly underpins most of the criticism and distrust of the family law system – is that an adversarial process which relies on oral evidence and cross examination may work tolerably well in circumstances where the disputed facts are often backed up by contemporaneous written documents. But it is often very difficult to test ‘evidence’ that is no more than the assertions of two people. Particularly when these people are giving an account of their relationship, built up over many years and which may have been experienced/witnessed by only them.

In cases where parents make allegations against each other of sexual or violent abuse, it is my view that waters have been seriously and dangerously muddied by the requirement that police forces were to commence investigations into sexual assaults on the basis that they ‘believe’ the complainant (who is usually described as the ‘victim’ ).To have as a ‘starting point’ a belief that one person is telling the truth fundamentally poisons the integrity of any investigative process. See the 2016 report of Sir Richard Henriques into the failures of the investigations of the Metropolitan police in ‘Operation Midland’.

Parents in care proceedings have raised serious criticisms about the standard of proof in care cases being on the ‘balance of probabilities’ – pointing out that removing a child from an unwilling parent is every bit as horrible as sentencing a parent to a prison sentence and the standard of proof should therefore meet the criminal standard of ‘beyond reasonable doubt’.

What are rights worth if they can be discarded by the state on a low standard of proof?

Enforcement of established rights

However even a ‘blameless’ parent who is vindicated at the conclusion of a finding of fact may not find that their ‘rights’ translate into any kind of action by the courts, because of the likely impact of such action on the emotional well being of the child.

This is often the argument used against removing a child from an adoptive placement to return to birth parents – but the UK has been criticised for failing to give sufficient recognition to the child’s right to be brought up by his or her birth parents.

What are ‘rights’ worth if they are not even considered, because ‘paramount’ is interpreted as ‘exclusive’ or ‘overwhelming’ ?


How do we establish what is in a child’s best interest if parents don’t have the ‘right’ to determine this?

This brief discussion above about the limits of parental autonomy to determine outcomes for their children highlights that as a society we have agreed that parents do not have the right to subject their children to whatever indignity they wish in the name of ‘family life’ or ‘respect for parents’.  The court will therefore have to hear evidence and make a decision based on the evidence before it.  The court is faced with a truly difficult job when before it come two parents who argue from entirely different perspectives about the fitness of the other to parent.

I have always supported the need for the state to intervene to protect the most vulnerable members of its society. Children are not the chattels of their parents; some children do need to be ‘rescued’.

But the state and its officers have to tread carefully around the ‘family’ and how they chose to intervene in its structures. The emotion and interest in the ‘rights’ of parents in the aftermath of proceedings around Charlie Gard demonstrate a clear need for further discussion and exploration of the nature and extent of parents rights. A system that appears to horrify a large proportion of the population subject to it, has either not been well explained or should not be defended.


‘Adoption by Stealth’ – the dangers of rhetoric and the law of unintended consequences


On July 10th the Family Rights Group launched their report ‘Co-operation or Coercion? Children coming into the care system under voluntary arrangements’ .

I wrote a brief summary of the speakers’ contributions and the report’s recommendations for The Transparency Project.

I commented that this was a very important report, with very sobering findings and it demanded an immediate call to action. It was very clear that parents were finding themselves subject to ‘soft coercion’ when agreeing to have their children accommodated under section 20; that no one took the time to explain to them what was going on and they didn’t realise that they kept their parental responsibility and could remove their children at any time.

This is a particular problem when looking at ‘foster to adopt’ placements. The aim of such placements is to ensure that more children are placed with their permanent carers as soon as possible on a fostering basis while the LA seeks a placement order from the courts.  This is a key example of the tensions inherent in protecting both parents’ and children’s rights.

Parents have a ‘right’ to a fair hearing under both Articles 6 and 8 of the ECHR; an opportunity to make their case and show evidence to the court that they can parent their child. But children have a ‘right’ not to suffer the harm that almost inevitably follows frequent placement between parents, foster carers and adoptive parents.

How do we balance those rights? I agree, to ask parents to ‘give up’ their babies via section 20 into a foster to adopt placement means they are signing up for something very significant, at a time when they are very vulnerable and without any scrutiny from the court or any real access to legal help. It may well be very difficult to ‘unpick’ such a placement as the months go by.

Parents who are involved in care proceedings have autotmatic access to fully funded legal representation, regardless of their wealth or the perceived merits of their case – which is absolutely how it should be. Parents whose children are accommodated under section 20 however, are most likely to only get independent legal advice if they can afford to pay for it, or if they can access help from a charity such as the Family Rights Group. Sometimes a LA can be prevailed upon to pay for a few hours chat with a solicitor but its easy to see how this could be insufficient as a real help to parents. The courts have been quick to condemn what they see as abuse and bad practice around use of section 20 as it removes decisions about where children live from any kind of court scrutiny.

Thus, the lack of understanding about section 20 is clearly a real and significant problem, as detailed by the report’s findings. Articles published in the Guardian on the day of the launch categorised this as ‘adoption by stealth’ and that parents were ‘tricked’ into handing over their children.

I understand that this is the reality of the problem as many parents will see it. I appreciate that journalists have to write in compelling and punchy language to engage their readers. But this rhetoric around such a sensitive issue troubles me.

What is the law about making an adoption order?

The articles did not make any mention of section 21 of the Adoption and Children Act 2002 which sets out clearly that ‘adoption by stealth’ is not a creature known to our law.  A child cannot be placed for adoption unless a placement order is made. There must be court scrutiny of this process and the parents will be involved in this court scrutiny.

The court cannot make a placement order unless:

  • the child is subject to a care order OR
  • the court is satisfied that the conditions in section 31(2) of the Children Act 1989 are met OR
  • the child has no parent or guardian

The conditions set out in section 31(2) are those required to exist before a court can make a care or supervision order:

  • that the child concerned is suffering, or is likely to suffer, significant harm; and
  • that the harm, or likelihood of harm, is attributable to—
    • the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
    • the child’s being beyond parental control.

This is a high threshold – for obvious reasons. Taking children away from their families is recognised as the most serious interference with people’s family and private lives; it has life long consequences for all concerned.

Section 22 of the Adoption and Children Act sets out that a local authority must apply to the court for a placement order in respect of a child if:

  • the child is placed for adoption by them or is being provided with accommodation by them,
  • no adoption agency is authorised to place the child for adoption,
  • the child has no parent or guardian or the authority consider that the conditions in section 31(2) of the 1989 Act are met, and
  • the authority are satisfied that the child ought to be placed for adoption.

EDIT 13/07/17 – I am grateful for the contributions of Tom Perkins, via Twitter

And its not just the ACA that operates as a fetter to arbitrary State interference or ‘stealthy’ social workers. As Tom points out, the SW profession itself is very alive to these issues of concern :

I feel the FRG review was a missed opportunity to promote the growing movement toward ‘Co Design + Co Production with young people and their parents … I was disappointed there was no reference in the FRG report to the DFE funded Guidance produced by BAAF in June 2013 which provides a very clear and easy to understand guide to the entire Foster to Adopt process. For example, compare P 9 of the FRG report and P8 of the BAAF guidance…..there is a world of difference. 

Tom points out that there is now a ‘very high level’ of scrutiny around section 20 which makes it very difficult for social workers to act ‘dishonestly’. Not only have individual Judges issued guidance on these of section 20 in their areas (see for e.g HHJ Bellamy and HHJ Wildblood QC) some have gone even further and have requested information about the LA’s section 20 population. Tom comments:

[The Judges] demanded and have been given access to the entire S20 population and demanded the following: Details of all new S20 admissions; what are the LA plans at 6 weeks? A detailed report from the LA if there is not a plan to come to Court. A detailed plan for each child who has been S20 longer than 6 weeks. 

This has forced those LAs to look hard and long at their S20 population and the reasons for the original admission. It would be hard to imagine that all aspects of the S20 admission – placement – assessment – outcome – long term plan – parental involvement / agreement / permissions etc., have not been scrutinised. Similarly, a number of LA’s have been revoking PO’s that have reached 12 months and the child not placed for adoption. The Care Plan has been changed to CO + LTF. Similarly, OFSTED routinely examine the S20 population during their monitoring visits / inspections. There is no mention within OFSTED reports of any concerns about parents not knowing / not signing S20 agreements….

For further discussion about the law and practice around adoption see these posts about when adoption is considered necessary. 

Why do I worry?

It would have been reassuring to have had at least some recognition of and discussion of this legal framework in both the Guardian articles and in discussions at the launch of the FRG report. Because without it, and resorting to such phrases as ‘adoption by stealth’ and ‘tricked’, there is a risk that the very dangerous narrative promoted by John Hemming and others gains traction and parents continue to be vulnerable to the bad (and expensive) advice they offer.

Hemming and his acolytes routinely dismiss family lawyers as ‘legal aid losers’ or ‘in the pocket of the LA’ and parents are advised (quite literally) to ‘flee’ the country rather than engage, thus ensuring they are denied access to help and representation that could keep their families intact.

The Family Rights Group is to be applauded for the work they have done and continue to do for parents and children. However, they cannot take the place – and I imagine would never suggest they could – of fully instructed, fully funded lawyers for whom the court arena is a second home.

I am glad that such issues are being discussed, that a brighter light is being shone on bad practice and historic failings. I hope to encourage these kind of discussions with the performance on September 23rd at the Arnolfini in Bristol ‘Happy Families – the conversations we are not having about adoption’

But it would be an enormous shame if one unintended consequence of this debate was to create even deeper distrust and fear of the legal system which remains the only true safeguard against the arbitrary interference of the State.

As Sir James Munby commented at the launch of the report on July 10th

When they were bad – they were horrid. The dangers of unregulated McKenzie Friends

On 5th January I made a formal complaint to John Hemming about the activities of the Justice For Families group, [JFF] of which (I assume) he remains the Chair. I raised a significant number of very serious concerns, including that the activities of JFF put vulnerable parents and children at risk of harm by facilitating or encouraging them to leave the country rather than face care proceedings.

I have never received a reply to this complaint. Hopefully, now that Mr Hemming is now freed from the demands of his time spent electioneering, he can devote some time to answering the very serious issues I raise about how JFF operates and how it makes money.

I raise this matter again for two reasons. First because of the recent publication of research in McKenzie Friends which worryingly, establishes that they are more active outside the court room, where presumably they are subject to very little scrutiny – or none at all.

Second, because I have received the following information from a Ms Green about Tim and Julie Haines, the two most active and high profile ‘advisers’ for JFF.

I quote Ms Green’s email to me:

I contacted Julie Haines through a Facebook group. She and her husband Tim Haines met with us claiming that although they don’t cost as much as a solicitor, they would need to be paid as they “don’t work for nothing” and need to “pay their bills”.

However, once meeting with the Haines, they soon went through everything and said there would be a very good chance they could get our children back but there would be a cost. That cost was £1,500. We paid two payments of £500 as we met with them at least 2 maybe 3 times.

These payments paid for a pathetic attempt at a “grounds of appeal” and a “Skeleton argument”. Had we have got a hearing at London’s RCJ we would have had to pay another £500. However our appeal was refused.

We didn’t appear to hear from them after that and we knew they still had the major documents (doctors reports, professionals witness statements,etc). We asked for these back and they said at first they would see what the cost was to send them back and insisted they had a tracking number which already meant they had paid for it. We waited week and nothing. Two weeks…. decided to contact them and they insisted it had been posted and that they would check with their post office. I asked for the tracking number only to be ignored.

My texts and WhatsApp messenger soon got blocked. So we contacted them on facebook. Told them we wanted our documents back and began to tell other members on facebook to warn them only to be abused and blocked then removed feom the group. I found a few others who had encountered the same problem with large payments for next to nothing work (we printed everything) and then the theft of our documents. My husband then contacted Tim and all he got was denial and lies. Then told people on facebook our case “was never going to be successful” yet soon took our money and built up our hopes knowing we lent this money from my pensioner mum and that money was the last of my dad’s from when he died.

They insisted we go to “bank of mum and dad” but they fooled us into thinking we would win this and we didn’t. We travelled to [REDACTED] to them for all this. As much as we love our daughter so much, we now wished we didn’t bother to go to the Haines as we were just desperate targets.

We threatened [to go to] the police and they told us to go ahead, that they wouldnt find anything there. Told us also is we persisted to “harass” them, they would take us to court. So they now go on to make thousands from desperate families for rubbish knowledgeless court bundles and empty promises.


In 2010 I had a run in with the Information Commissioner after I left two files of confidential documents in my car. They were stolen after my car was broken into. I was very lucky to escape with a reprimand, rather than the £40K fine which could have been imposed on me as a data controller. The ICO told me that if this happened again, my career would be over.

And this is absolutely as it should be. If I want the status, the interesting work and the money that comes from holding myself out as someone capable of dealing with people’s confidential information and advising them at the most difficult times of their lives, I have to hold myself out to be accountable. If I fail to meet the necessary high standards demanded by my profession. I should be removed from that profession, to protect those vulnerable people who might otherwise fall victim to my incompetence.

So what redress do vulnerable parents have against JFF or the Haines? Are they registered with the ICO as data handlers? What processes does JFF have in place to keep confidential information safe? What is their charging structure? Are they insured? What training do either Tim or Julie have?

We don’t know the answers to any of those questions. JFF and the Haines are utterly unaccountable, offering ‘services’ to the desperate and vulnerable with no guarantee of quality or redress if they get things wrong.  This is simply wrong on every level.

As I doubt very much Mr Hemming will ever answer my questions, perhaps he and the Haines can do what they have been threatening for over a year – take me to court for ‘defamation’. So these issues can be ventilated in open court and a decision made about who is telling the truth.


See this article I wrote with Paul Magrath and note in particular the questions we think you should be asking:

What questions should I ask?

For those who cannot afford legal representation however, a good quality McKenzie friend can be a real help. We suggest that any one looking to get help from a McKenzie friend should consider the following questions and issues.
1.What are their credentials? Have they been trained in any related or relevant profession (not law, but maybe accountancy, police or social work)?
2.If they charge, how much are they charging and for what?
3.Have you checked whether you could get a similar service from a lawyer? (Some lawyers will “unbundle” services to provide, say, a consultation to help identify the issues in the case and how best to prepare the paperwork.)
4.What level of experience do they have in the kind of proceedings you are engaged in?
5.Can they provide references? Does their website include testimonials and, if so, can you check them?
6.How did you find them? (Or did they find you?) Have you googled them, checked Facebook, LinkedIn and other social media for comments by or about them?
7.Do they have an agenda? If they are from a volunteer organisation, what is their reason for volunteering? Are they promoting an agenda, and if so, does that accord with your case or might it be a distraction?
8.Have you searched on BAILII or other legal websites to see whether they have been cited or referred to in judgments – either adversely (such as those quoted above) or with approval (though it is rare for judges specifically to mention McKenzie Friends unless they cause trouble).

The Death of Family Mediation

Family Law Mediation: Dead Man Walking

This is a post by Sarah Phillimore from a talk delivered to the Western Counties Branch of the Chartered Institute of Arbitrators on 27th April 2016

In the ‘Virginia Lawyers Weekly’ from April 2016 I read an interesting article by Chris Macturk.

In Tomorrow’s Lawyers, Richard Susskind writes, “It is exciting and yet disconcerting to contemplate that there is no finishing line for IT and the Internet.”
Susskind’s observation is equally applicable to the future of family law mediation. Like the Internet itself, there are ever-expanding and seemingly endless options to consider — options born of rapidly evolving applications of new and developing technology and clients’ desires for more access to a greater diversity of dispute resolution opportunities at a lower cost.

Clients’ desires for more access to a greater diversity of dispute resolution opportunities at a lower cost

That one sentence for me sums up the potential problem with promoting mediation upon family disputes. So many assumptions are packed into one short sentence. I think unpicking those assumptions will help me explain to you why I have problems with mediation offered as the solution in acrimonious family law problems.

The drivers behind the push for mediation

Mediation as a form of dispute resolution has a long pedigree. Mediation has for many thousands of years been recognised as a much more palatable option than fighting in out in court. Confucius, who died around 479 BC considered that the “first best” and socially proper way to settle disputes, used by the “superior man,” was by the method of mediation, following the ethics of the “middle way.” This consisted in bringing the disputants to something they both approved as the settlement of the dispute, by means of an intermediary.
That for me encapsulates the heart of mediation as I understand it – it is something the participants willingly engage in, with genuine desire to reach a settlement. The mediator does not impose upon the participants a framework other than basic courtesy. The participants will discover in their interactions a solution they can both live with.

This ancient wisdom began to be promoted in the legislative framework around family law with Part III of the Family Law Act 1996 which required those who wanted public funding to at least consider the prospect of mediation.

This was re-stated in the Access to Justice Act 1999 where the criteria set out in the funding code shall reflect the principle that in many family disputes mediation will be more appropriate than court proceedings.

Under section 10(1) of the Children and Families Act 2014, it is now a requirement for a person to attend a Mediation Information and Assessment Meeting [MIAM] before making certain kinds of applications to obtain a court order. There are exemptions to the requirement to attend for an MIAM and I will have a look at these later, as I think these are in interesting window into explaining how and why mediation will often not be the right option in family disputes.

However, even though few could disagree that it must be better to resolve one’s disputes with the aid of a ‘neutral peacemaker’ rather than embark on bitter and expensive legal proceedings, I think it would be naïve to assume that various Governments have promoted mediation because it is less emotionally stressful for participants. It is clear that the primary driver behind the push for mediation is that it was much cheaper than litigation.

As Chris Macturk points out, online dispute resolution has been remarkably effective in dealing with relatively uncomplex commercial disputes and – excitingly – has required no human intervention:

Online Dispute Resolution (ODR) has existed for many years, with perhaps its origin and infancy credited to eBay’s ODR process through SquareTrade which began in 1999. SquareTrade’s technology provides the opportunity for parties to resolve disputes concerning eBay purchases with or without the aid of a mediator.
A staggering number of disputes have been resolved using ODR. Modria, a newer ODR provider, states on its website, “Our founders created the online dispute resolution systems at eBay and PayPal which have processed hundreds of millions of disputes, 90 percent through automation – without human intervention.” While technology can increase access to justice at a lower cost, resolving a dispute over whether a Cabbage Patch doll was really “like new” doesn’t seem to compare to the difficulties presented in disputes involving real children. Even so, ODR is currently being offered and attempted for family law matters.

And here we have the roots of the problem. That far too much weight is placed on mediation as a solution in acrimonious family disputes. It cannot bear this weight and it buckles.

LASPO and what happened afterwards; mediation abandoned

To put the history of mediation applied to family proceedings squarely in context, we need to look at the Legal Aid, Sentencing and Punishment of Offenders Act 2012. If you want a clear summary of the genesis of this Act and its ‘seismic impact’ I recommend the ICRL blog

In essence, this Act removed large areas of law from the scope of legal aid, including private law disputes around children. The most notable impact of this has been the rise in numbers of litigants in person (LiPs), whose lack of legal knowledge and training has in turn caused two further developments;

  • cases involving LiPs take far more judicial time to resolve;
  • removal of insured and regulated lawyers has caused a considerable growth in the number of paid McKenzie friends (people who can get the court’s permission to attend to help a LiP by –for eg. Taking notes. They can address the court but only with permission). Some of these people are good. Some are terrible. None are regulated.

Matthias Mueller reported in Family Law in 2016 . The latest Family Court statistics published today (31 March 2016) show that the proportion of cases with unrepresented parties is continuing to rise.

The figures published by the Ministry of Justice, covering the period of October to December 2015, show that around the time that the LASPO reforms were implemented there was a marked increase in the number and proportion of cases where neither party are represented, with an equivalent drop in the proportion of those cases where both parties were represented.
The proportion of parties in private law cases without legal representation currently stands at 36%.
A report published earlier this week by the Citizens Advice Bureau, Standing alone: going to the family court without a lawyer, found that 9 in 10 people forced to represent themselves in court claimed that it had a negative effect on at least one other aspect of their life.
Last year the Justice Select Committee highlighted how the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is causing enormous strain on the family courts and poorer outcomes for those going through the justice system. It concluded that the changes to civil legal aid have meant that many people, including those that are most vulnerable, are no longer able to access justice.

But none of this was supposed to happen. What was supposed to happen is that people in disputes over their children would take to mediation. They would finally realise there was a much better way to resolve their problems by expensive adversarial fights in court. The reality however, was starkly different.

Mediator Marc Lopatin had a look at the statistics for an article in Family Law on 24th January 2014:

In 2013/14, the number of mediation starts plummeted by 38% following the removal of legal aid from family lawyers for most family law matters.
Practitioners will recall that in pre-LASPO times lawyers first had to make a compulsory referral to mediation before being allowed to access the next pot of legal aid. As a direct result, there were 13,609 mediation starts in 2012/13. With that requirement removed, this fell to 8,400 in 2013/14.
Not surprisingly, the fall in numbers gave way to a massive £16.8 million under spend by the MoJ on family mediation in 2013/14. One would imagine this to be extremely embarrassing for MoJ top brass given this is one saving they weren’t looking to make!
… Another illustration of policy failure is the paltry amount paid out to family lawyers for supporting clients at mediation with legal advice. The MoJ paid out a grand total of £9,000 to lawyers claiming ‘Help with Mediation’. That’s less than the price of going to court for a many private divorce client. And it should also be a cause for concern given decisions taken at mediation need be informed.
The answer is simple: pay legal family lawyers an acceptable sum to support mediation as a legal adviser. At present, the LAA offers lawyers £150 to perform this function. No wonder unbundled services replaced referrals to mediation in 2013/14.

Taken as a whole, the data makes the clear case for voluntarism over compulsion when it comes to success at mediation.

So, without lawyers to shepherd clients into mediation, their numbers plummeted by 38%. Those parents deprived of lawyers, were NOT turning to mediation. They were going to court as litigants in person or turning to paid McKenzie friend to help them in court.

The Cafcass statistics bear this out

We can see the impact of LASPO – court cases fall. But then rise again.
• Between April 2013 and March 2014 Cafcass received a total of 46,636 new private law cases. This figure shows a 2% increase compared with the previous financial year.
• Between April 2014 and March 2015 Cafcass received a total of 34,119 new private law cases. This figure shows a 27% decrease compared with the previous financial year.
• Between April 2015 and March 2016 Cafcass received a total of 37,415 new private law cases. This figure shows a 10% increase from the 34,119 cases received in the previous financial year.
In March 2017, Cafcass received a total of 3,907 new private law cases. This is a 16% increase on March 2016 levels. 3,907 rejecting mediation.

What was hoped for – didn’t happen. Why did parents not embrace mediation?
There seems little doubt that mediation by 2013 was well established and known to be successful. For example, in England and Wales, the Civil Mediation Council (CMC) was established in 2003 to promote the merits of commercial and civil mediation, and to represent the interests of mediation providers. Currently, the CMC has a membership of some 70 provider organisations and 400 individual mediators. National Family Mediation asserts that its providers deliver around 30,000 mediations in England and Wales per year, with full agreement being achieved in 83% of cases.

The Family Mediation Council describe mediation simply as:

Mediation can help you stay in control. No-one will make you do anything against your wishes. The mediator will help you find a solution which works for you both and explain how you can make an agreement legally binding.

This sounds great. Who could argue with that? But as we can see from the statistics, there is a worrying indication that people are not seeking mediation but would apparently prefer to be a litigant in person in an adversarial and frightening court environment with which most will be entirely unfamiliar. Why on earth do people do this to themselves?

MIAM Exemptions

The exemptions to the MIAM requirement I think provide a useful starting point. These are an interesting blend of practical and emotional difficulties. They emphasise that family disputes encompass a very wide range of personal, environmental and external difficulties – of violence, poverty, lack of transport for example. These are highly unlikely to feature in any commercial dispute.
• You, or the other party, has made an allegation of domestic violence against the other supported by clear evidence, for example either a police investigation or an injunction being issued within the last 12 months. (some mediators tell me they would take these cases; I think they are fools. An abusive person is simply seeking an arena to continue abusing – mediation provides a great arena! Mediation where there is significant imbalance of power is dangerous)
• The application you want to make to the court relates to other family law matters which you are currently involved in.
• An application to the court needs to be made urgently because there is a risk to the life or safety of the person who is making the application (the applicant) or his or her family (for example, their children) or his or her home.
• The dispute is about money and you or your husband, wife or civil partner (the respondent) is bankrupt.
• You and your husband, wife or civil partner are in agreement and there is no dispute. [???]
• You do not know where your husband, wife or civil partner is.
• You wish to make an application to the court but for certain reasons you don’t want to tell your husband, wife or civil partner in advance.
• You are currently involved with social services because there are concerns about the safety and wellbeing of your child or children.
• You can’t find a mediator within 15 miles of where you live, or you have contacted three mediators based within 15 miles of where you live and you are unable to get an appointment with any of them within 15 working days.
• You or your partner cannot access a mediator’s office because one of you has a disability. However, if the authorised mediator can provide the appropriate facilities then you will both still be required to attend the meeting.
• A mediator shows on the court form that mediation isn’t suitable, for example the other person isn’t willing to attend a MIAM.
• In the past four months you’ve tried mediation but it hasn’t been successful. A mediator has to confirm this and state that mediation is not the best way for you to resolve your dispute.
• You or your partner do not normally live in either England or Wales and therefore cannot be considered as “habitually resident“.

To ‘make’ mediation work in many family disputes I think runs a serious risk that mediation will have to develop into something very different and will need to move away from its guiding principle that of voluntary engagement. So whatever it becomes, it won’t be mediation.
Have a look at the Australian experience, in moving mediation on line. Thanks again to Chris Macturk:

Australia’s Family Law Act 1975, as amended by the Family Law Amendment (Shared Parental Responsibility) Act of 2006, provides that all persons who have a dispute about children must make a “genuine effort” to resolve that dispute by family dispute resolution before they can litigate.

The potential benefits of such a law aside, FamilyResolve allows parties to participate in a live, three-party videoconferencing session using a link sent via e-mail in satisfying this requirement. Further, with the use of technology, the mediator has a considerable range of options to help control the mediation session, options which would not otherwise be available in a face-to-face meeting. According to FamilyResolve’s website, “The mediator has the technical capability to allow both parties equal speaking time, to mute a party, so the other party can speak uninterrupted, as well as hide [a] participant’s visual web- cams.”
This is quite a shift from face-to-face mediation and begs the question if a mediator should be able to press the “mute” button or “hide” one of the parties to a mediation.

Whoa. Wait a minute. This isn’t mediation as I understand it. Refusing to allow one party to speak – to ‘mute’ them – seems to me highly inimical to what mediation is supposed to be about – providing a forum for the participants to identify their own solutions.

And I am afraid, this is the beating heart of most difficult family law disputes. It is that people don’t feel heard. And when people don’t feel heard, they often shout louder and dig their heels in harder. And they are often completely irrational, albeit genuine. Family law disputes strike at the very essence of our humanity. You are not just dealing with an argument about who drops the children off where and when. You are often dealing with the whole toxic emotional fall out of a relationship that crashed and burned, taking with it parties’ self respect and hopes and dreams for their entire futures. It’s big! It’s heavy!

Go back to what Marc said, when looking at the woeful post LASPO stats: Taken as a whole, the data makes the clear case for voluntarism over compulsion when it comes to success at mediation.

If what the government was hoping was that mediation could take of the role of state coercion when parents wont agree about what’s best for their children then what we have ended up with is a really frightening example of the law of unintended consequences. We now appear to have the worst of all possible worlds; disputes over children conducted by litigants in person in adversarial court proceedings.

What can we do about it?

Am I encouraging people to rush off to court? Of course I am not. I am not attempting some simplistic binary reduction‘mediation bad’ ‘litigation good’. The court environment is probably the last place that angry, upset people should be. But this idea that family mediation can work only if parties are ‘muted’ or otherwise coerced into attending is to me quite offensive.

Some cases are going to require the formality of the court arena, with both sides being allowed to argue their case and then a judge imposing a decision upon them, with the power to enforce if necessary. Mediators aren’t counsellors. Some people simply bring into the room with them too much emotional pain or denial to allow a mediation to proceed in any kind of constructive way.

And my own professional – and I am sorry to say personal – experience of mediators who claim to be highly skilled at managing this kind of situation, is that they are kidding themselves.

I conclude with the words of family law blogger Lucy Reed

I have many criticisms of how mediation IS – of the rigour and cost of its training, of the effectiveness of its regulation and of its business model and of its suitability for all cases – but those are all things about the *state* of mediation not the principle (or the people). I emphatically recognise mediation as a valuable and effective solution for many families (although not all). There is a place for both law and for mediation. We do not need to set ourselves up in opposition.
Indeed, I recall from my mediator training, in between the torture of neuro-linguistic programming and egg-sucking flipchartery (lawyers are allergic to flipcharts, this is our greatest weakness), we were told that mediation worked best in the “shadow of the law”. This is so crucial. People reach consensual resolution (in or out of court) on the basis of an informed understanding of their options, the risks and the alternatives. The two options of mediation and law are symbiotic not antipathetic (and of course there are many others such as arbitration).
I want to give a small illustration of my perspective of the current climate in which mediation operates before I go on. I recently dealt with a FHDRA at a court running an in court mediation scheme. I won’t give detail but suffice to say that the “voluntariness” of the mediation involved us being told the court had decided we were going to mediate, and the confidentiality of the mediation was entirely breached when the mediator told the court exactly what had transpired without the consent or prior notification of the parties. That is two of the pillars of mediation ridden roughshod over. This I hope is an aberration, but it is for me indicative of how much we’ve lost our way with our evangelism about the promotion of mediation as “the answer”. Mediation is brilliant for some and disastrous for others.

I suppose that all I am asking, is all I ask in every field of human endeavour; that from time to time we lift our eyes from our agenda and look around and ask ourselves honestly – what do we want to achieve? And what is the best way to achieve it?
To accept that mediation is cheap and successful indeed – but only where parties enter into willingly and both desire to reach an agreement. To force mediation upon the unwilling or the angry is a dreadful corruption of the very essence of mediation.

Hewson: We have a problem – online harassment and how we just don’t deal with it.


This is a post by Sarah Phillimore. It is grimly apt that I publish this during National Stalking Awareness Week. 


Too long; didn’t read – SUMMARY

No doubt some will dismiss what follows as trivial:  ‘handbags at dawn’ type spats or an amusing potty mouthed barrister. Judge for yourself. I set out below the ‘timeline’ I prepared for the police covering what happened between August 2016 – March 2017. Its worth noting that from 4th September 2016 to early March 2017 I had no contact with Ms Hewson on or off line. so whatever was fuelling her, it wasn’t direct provocation from me.

I hope that the majority, after reading what I set out here, will agree with me – something very wrong happened here. It should have been dealt with, it should have been stopped. It was not.

This has potentially very serious ramifications. Ms Hewson’s continued pubic vilification and intimidation of anyone who displeases her, must have the impact to both seriously diminish public trust in the Bar and cause real pain and suffering to those individuals she targets. As little or no help is forthcoming from any outside agency, If her victims respond in kind out of fear or frustration, they will themselves be labelled  ‘abusers’. That is exactly what happened to me; the police have been clear I have lost my status as ‘good victim’ by responding on occasion.

The failure or inability of any external agency – be it Chambers, the BSB, the police or Twitter itself – to take any kind of effective action to control this behaviour, shines an uncomfortable light on our collective inability to respond to abusive behaviour in the internet age. Social media is hijacked by those who wish to display and promote their own personality disorders. We witness yet another example of the slow, lingering death of public discussion.

But as with every harsh experience, I have learned some valuable lessons. For example, I have learned that the law will provide me with protection only if I can afford to buy it. That my professional obligation to refer wrong doing to my regulator means nothing, as they will not act and will not explain their failure to act.

EDIT The BSB finally replied to me at 17.46 today. They do not accept they failed to act with expedition in investigating my complaint. They had to take time to consider whether or not repeatedly calling me a ‘cunt’ on line was Ms Hewson exercising her right to a private life. I will treat this justification with the silent contempt it deserves. 

As I cannot afford civil litigation – this is my response. This will be my final word on the matter. I have gazed into the Abyss for far too long already. There are some very sad and damaged people online and they do enormous harm to others – and themselves.

I hope that this post may help some others feel less alone. I hope it may also prompt some much needed thought and discussion about exactly how we manage our interactions on line. This online world is far too rich in opportunity for learning and discussion to simply hand over to the rule of the mad, bad or sad.




Truth, Lies and Intimidation

A brief background

In May 2016 I made the rookie mistake of engaging with Barbara Hewson on line, criticising her view that family lawyers were all collusive and inefficient.  I wrote a blog post about it .

Hoaxtead Research also wrote a very clear summary of our ‘dispute’ and how my mild banter and criticisms were met with a barrage of offensive and untrue on line publications from Ms Hewson, which she shared far and wide, purposefully designed to frighten and intimidate me.

So far, so internet. But it will stop soon I thought. This person is a professional. Surely she can’t keep doing this? But she did. After 7 months and after I had spent nearly £2K on solicitors letters, made numerous complaints to her Chambers, 12 complaints to Twitter, 3 complaints to the Bar Standards Board, and finally to the police, who issued a harassment warning notice against her in March 2017 – she is STILL going strong, like a demonic Duracell bunny.

See the timeline below for further detail, but a non exhaustive list of Hewson’s abusive behaviour directed at me since August 2016 to date includes:

  • repeatedly publishing my photograph with insults attached  – ‘fuck off madam’
  • linking insults directly to and about my Chambers
  • foul, abusive language – for example, calling me a ‘nasty C**t’
  • encouraging one of her criminal associates to email me and a senior member of my Chambers directly and threaten to report me to the police
  • publicly discussing my sexuality on line with a man who I know to be a sexual abuser of women and girls (this man then takes to Facebook and repeats that I am an evil lesbian and ‘pure shit’)
  • continually making references to my daughter when she knows full well that her tweets are ‘liked’ and ‘retweeted’ by at least one convicted and unrepentant paedophile.
  • inciting her followers to target me – ‘will no one rid me of this McCarthyite barrister?’
  • targeting anyone else she perceives as supporting me and publishing abuse directed at them via Twitter or sending threatening emails to them or their employers.

I have been subject to serious abuse, but others have fared even worse. They have wished to retain their on line anonymity but been ‘outed’ by Ms Hewson who has no problem at all with posting people’s real names and email addresses, despite her very keen appreciation that her own privacy be respected. One particularly repulsive example of this kind of behaviour was her repeated publication of photographs of the children of at least two of her adversaries, with insulting comments attached.

I note that some of those people on the receiving end of this, have themselves behaved in a reprehensible way and subjected Ms Hewson to repeated on line harassment and trolling. I do not condone this behaviour from anyone. I do not act ‘in support’ of them or at their behest – as Ms Hewson consistently alleges. I knew nothing of them at all until June 2016 when I began to take a keener interest in the nature and extent of Ms Hewson’s on line abusive behaviour.

Ms Hewson has a right not to be abused on line. Anyone who does so is wrong and should face consequences. However, to behave as she did was without any kind of rational justification, no matter what her claimed provocation. Many of the people she targets on line are vulnerable and have mental health difficulties. She surely has the financial and intellectual resources to seek proper, and less public, redress against those she considers to have defamed or harassed her.

Her justifications for her behaviour are varied and weak; Ms Hewson has repeatedly claimed the defence of ‘freedom of speech’ when insulting and defaming me, or that she is indulging in ‘parody’ or ‘satire’. I should not have had to spend nearly £2K of my own money to point out that I do not accept she can legitimately claim ‘satire’ for discussing my sexuality in public with a man known to have sexually and physically abused women and girls. Further, it is simply absurd to claim – as she does – that  ‘freedom of speech’ an absolute and unrestricted right. It never has been, and in any kind of healthy society never could be.

She has claimed that when she insults me it is as ‘writer’ not as a barrister – but recent BSB guidelines on use of social media for barristers has hopefully kicked that one into touch. We are bound by Core Duty 5 AT ALL TIMES – not to behave in a way which would cause public trust in the profession to be diminished.

On January 30th 2017 she extended her harassment of me to the national press making a variety of dishonest assertions to the Times, including that she had reported me to both the police and the BSB. This was a lie. But no doubt one believed by those reading the article, to the further detriment of my professional reputation and integrity. The Times published a further article on April 12th detailing allegations that she had sent death threats to a student. Ms Hewson is apparently going to sue the Times for defamation but the time of publication (April 25th) I have heard nothing further about that. I have contacted the Times and offered my support in defending any such action. Because everything I say is true.

A big part of why this has been so difficult to bear is the absolute breathtaking hypocrisy demonstrated by Ms Hewson. Whilst holding herself out as a warrior for Freedom of Speech and writing for the online journal Spiked whose guiding principle is ‘freedom of speech – no ifs or buts’ , Ms Hewson has been assiduous in her efforts to silence those who disagree with her by threats, abuse and other forms of intimidation.


A failure by Regulators to Regulate.

Unpleasant and abusive people on line are common. The real issue here, for me at least, is what this sorry saga has revealed about the ability or willingness of the BSB to do its job.

I have made three complaints; on 14th September 2016, 7th February 2017 and 6th March 2017. The BSB have requested I get further evidence from ‘persons of standing’ to back up my complaints. In light of how Ms Hewson behaves, it is unsurprising that none of the 9 people I asked felt able to help me. Some expressed serious concerns about the impact on either their mental health or their employment, should they make complaint against Ms Hewson and risk incurring her anger. I am sad that I do not apparently count as a ‘person of standing’.

Ms Hewson’s decision to take to the national press in her campaign of intimidation, led to the second of my complaints to the BSB in February 2017. However, my first was apparently not even put to Ms Hewson until the 30th January 2017, nearly 5 months after I made it. 

At the time of writing I have not the foggiest idea what is happening to any of my complaints as the BSB have not provided any information, despite repeated requests.

From information Ms Hewson herself put in the public domain in 2016, it is clear that the BSB are well aware of her activities and have been for some time. At least four people have complained since 2014 but nothing apparently has happened. There is – in my view at least – a very real risk that this failure to take any action against Ms Hewson has empowered her to believe that she is untouchable.

I know of no other profession that would tolerate this kind of disgraceful public behaviour from one of its regulated members. How would you feel if your child’s teacher conducted themselves on line in this way? Or your GP? I suspect you would be horrified. Why then are barristers apparently exempt from censure for such appalling and public behaviour?

I made a formal complaint to the BSB on March 23rd about their twin failures; to act with any reasonable expedition to deal with my complaint or to respond to my emailed queries. I was told that I would receive a response by April 25th. None has been received, so I publish this.

Where do I go from here?


I am told that to apply for an injunction under the Protection from Harassment Act will cost me at least £10K. With regard to defamation,  the Monroe v Hopkins libel action was a sobering reminder of the costs those kind of proceedings are likely to incur.

I do not doubt that if I initiated civil action, I would win given the sheer weight and volume of the evidence I have against her – I have now over 500 archived links to her abusive publications on line, along with many emails sent to me and others. But when would I see my costs and/or damages? The little spare cash I did have as a ‘professional loser’ at the publicly funded family bar has now gone on just two solicitor’s letters that managed to stem for too short a time the flood of vitriolic and public attacks on me.

Would I have engaged with Ms Hewson back in May 2016 had I known the full extent of her unboundaried behaviour and that I would receive almost nothing by way of support or action from any other outside agency? Possibly not. But on reflection, I am glad I did. If this whole sorry tale can push individual Chambers and the BSB to greater recognition of the impact of social media and the need to engage with those who misuse it, then at least something positive can come out of this.

Although I count myself as a very resilient person, there have been times throughout this whole process where I have felt very alone and frightened. To be on the receiving end of such targeted harassment from a senior member of my own profession was, initially at least, terrifying. Over the months I have grown a thicker skin but what has really helped was being able to laugh at some of the more ridiculous and childish behaviours publicly demonstrated by Hewson. I remain grateful to those anonymous people on line who helped me gather evidence of her abusive behaviour.

However, while laughter is the best medicine, it does not combat the evil I have identified here, just makes it easier to live with. What has happened to me is happening to many others – some of whom are extremely vulnerable adults. I have witnessed over 7 months now, a disgraceful, public and persistent abuse of power and status; used to intimidate, distress and alarm. And a failure of our regulatory body to do anything about it.


You may not agree with me about how serious you think this is.

And you are entitled to disagree with me.

Unlike Ms Hewson, I will not stalk you, vilify you, abuse you or try to get you sacked if you do.


Time line of harassment by Ms Hewson from August 2016 to 31st March 2017

Mid August to early Oct Ms Hewson subjects me to almost daily harassment via Twitter, including publications of my photograph, details of my Chambers and making various comments that I am a ‘malicious crackpot’, ‘unhinged’ and is sympathetic to those who hold anti-Semitic views.

04/09/16 I cease direct communication with Ms Hewson via social media. All subsequent communications I make are to her solicitors

07/09/16 I complain directly to Ms Hewson’s Chambers. (they reply on 03.10.16 to say they cannot progress my complaint and I need to complain to the BSB)

14/09/16 I make direct complaint to the Bar Standards Board

20/09/16 The BSB confirm they have received my complaint on this date.

23/09/16 Ms Hewson has direct conversation via Twitter with a Mr E, wondering whether I am obsessed with her as a ‘lesbian thing’. Mr E then makes similar and further abusive comments both on Twitter and on a Facebook group. I am very alarmed as I know the identity of Mr E. He has been found by judgments in the family court to have sexually and physically abused his step daughter.

29/09/16 I instruct solicitors to send a letter before action – requesting that Ms Hewson refrain from any further mention of me on social media or I will apply for an injunction.

04/10/16 Unfortunately the letter does not have the desired effect. Ms Hewson late on 4th October, published a significant number of abusive tweets, referring directly to my proposed application and using derogatory terms. Ms Hewson has quoted tweets published by me in August, intending to imply that I am still engaged in conversations with her. This is dishonest.

05/10/16 My solicitors send a second letter before action, setting out very clearly why I am so concerned about her behaviour on 23rd September.

12/10/16 My solicitors send screen shots and archived links to Tweets to Ms Hewson’s solicitors in support of my letter before action, stating that if she does not cease her harassment of me, I will issue proceedings for an injunction. Ms Hewson then refrains from mentioning me directly. I have now spent nearly £2,000 on solicitors’ fees and cannot afford any further expenditure.

31/10/16 I make formal complaint to Wiltshire police about a very abusive email sent directly to my Chambers and two abusive comments left on my blog. I explain that I am concerned that Ms Hewson is directly or indirectly encouraging others to harass me, in light of her own long standing harassment of me.

11/11/16 I meet PC Sarah Greenman of the Wiltshire police at Bradford-on-Avon police station and we agree there is nothing that can be done as they cannot identify the individual who sent the email in October. However, PC Greenman says that if I had reported Ms Hewson’s behaviour of September at the time they would have considered taking a statement from me and arresting her

18/11/16 Around this date I understand the BSB refer my complaint to its Investigations and Hearings Team to look at possible breach by Ms Hewson of Core Duties 3 and 5 of the Code of Conduct.

24/11/16 Ms Hewson’s solicitors contact me to request that I withdraw my complaint to the BSB.

26/11/16 Ms Hewson recommences direct harassment of me on social media, apparently angered that I have suggested to Andy Woodward that he could contact the BSB if he was being harassed on line by a practicing barrister

03/12/16 Mr E attempts direct conversation with Ms Hewson via Twitter.

04/12/16 I email the BSB asking whether recent harassment from Ms Hewson can be added to my first complaint or if I need to make a fresh complaint. I receive no response to this request.

21/12/16 Some bizarre and inflammatory tweets from Ms Hewson saying that her detractors were ‘in the firing line’ and that ‘I hold the gun’. This tweet was reported to Twitter by many users, including myself, as posing a credible threat of violence. Ms Hewson then goes quiet again.
I email the BSB to ask again if I need to make a separate complaint about this or it can be included as evidence for my first complaint. Ms Lall says she will need to speak to her Line Manager and will respond in the New Year.

14/01/17 Ms Hewson’s direct harassment of myself recommences, including making direct reference to my Chambers. I have no idea why; I have not done or said anything to provoke her.

15/01/17 I email Ms Hewson’s solicitors requesting confirmation that I can serve any application for an injunction at their offices. I say I am very concerned that Ms Hewson is in contact with two men who have just been arrested for stalking Esther Baker and an unnamed journalist. These men are Simon Just and Darren Laverty.
I email Ms Lall in the following terms:
1. Do you require me to raise a separate complaint about this and other matters raised with you since November 2016, or can these issues simply be applied to my initial complaint of September 2016 as further evidence of a pattern of on going behaviour?
2. Could you confirm the likely timescales for investigation into my complaint of September 2016?
3. If I do apply for an injunction in civil proceedings against Ms Hewson pursuant to the PHA, or refer this matter onto the police, is the BSB likely to suspend its current investigations and/or delay making any fresh investigations until the outcome of the civil/criminal proceedings are known? I appreciate and understand that the function of the BSB is not to protect my personal safety and your investigations will necessarily take time. It may be that I have to take other action to protect myself and my reputation.
However, I am very anxious not to delay your investigations by any action I take as an individual. My concerns about Ms Hewson’s general fitness to practice are ever increasing and this clearly has implications for very many people other than myself, and to the reputation of the Bar as a whole.

16/01/17 I am emailed directly by Simon Just, who also emails a senior member of my Chambers. It is clear that he has been encouraged by Ms Hewson to do this and has read my email to her solicitors. Later this evening Ms Hewson emails directly a senior member of my Chambers, mistakenly believing he is my Head of Chambers. He forwards her email to me then deletes it and replies to Ms Hewson that he will not communicate any further with her about this.

17/01/17 Ms Hewson emails me directly saying that I am not to correspond with her or her solicitors. That evening I am informed that one of the people ‘liking’ and ‘retweeting’ her abusive tweets about me is Nigel Oldfield, a convicted paedophile. I become very alarmed.

18/01/17 Early this morning I telephone and email PC Sarah Greenman to say I wish to make a formal complaint as the harassment has started again and is escalating. I receive no reply so at lunchtime I ring the Wiltshire control desk who tell me PC Greenman is on annual leave but they will pass a message on.
Ms Lall telephones me that evening and asks that I provide further complaints from ‘persons of standing’ who are concerned about Ms Hewson’s behaviour.

19/01/17 I have a number of replies from people I contact, asking them to support my complaint about Ms Hewson, to say they are too afraid of reprisals. One fears for her job, Ms Hewson having contacted her employer and made a false allegation of misconduct.

20/01/17 Ms Hewson publishes on line part of my email to her solicitors. PC Greenman contacts me and asks me to make a report to the Metropolitan police as this is the area where Ms Hewson resides.

21/01/17 Early that morning I make a report to the Metropolitan police who refer me back to Wiltshire. Ms Hewson continues to make abusive and threatening publications on Twitter throughout the evening and late night, publishing part of my email to her solicitors and calling me a ‘malicious bitch’. PC Greenman replies to my email and we try to arrange a date to meet so she can take a statement.

22/01/17 Ms Hewson continues harassing me via Twitter – her ‘pinned tweet’ invites journalists to contact her regarding me. I email PC Greenman.
I email Ms Lall and request information by Monday 30th January about when the BSB will be in a position to respond to my complaint which they received on 20th September 2016.

23/01/17 In the morning I am contacted via email by Jonathan Ames a journalist for the Times who says Ms Hewson has sent him my email to her solicitors of 15th January 2017 and he asks for comment. I say it would be inappropriate as the BSB are investigating. At about 5pm her Twitter accounts are suspended after complaints from other users. She immediately sets up a third account which quickly degenerates into abusive harassment of various others.
I email PC Greenman

25/01/17 Ms Hewson’s third Twitter account is suspended. I email PC Greenman.

26/01/17 At 1.10 am Ms Hewson emails me directly. I forward this to her solicitors and ask them to remind her not to contact me, and I will treat such communication as further evidence of her harassment of me.

30/01/17 An article appears on page 3 of the Times, quoting my email. I have never given permission for my correspondence to be used in this way. I consider that Ms Hewson has now extended her harassment of me to the national press. I email PC Greenman again, requesting a date to meet to provide a statement. I email the BSB to request urgent information about the state of their investigation.

31/01/17 The BSB email me to say that they have sent a letter to Ms Hewson outlining my complaint against her conduct from May – Jan 17th 2017. She will have 3 weeks to reply.

01/02/17 Ms Hewson’s second Twitter account is reinstated but she ‘protects’ her account so only confirmed followers can see what she writes.

03/02/17 From about 9pm Ms Hewson unlocks her account and publishes a continual stream of derogatory tweets, including one that says, in reference to me ‘Will no one rid me of this McCarthyite barrister? What is wrong with her?’ This is – in my view – direct incitement to her followers. She is tweeting about my daughter. I report her to Twitter for the fourth time (I have since made eight more complaints).

04/02/17 On line harassment continues

05/02/17 On line harassment continues

06/02/17 I attend Bradford on Avon police station and PC Greenman takes a statement.
I make second complaint to the BSB that Ms Hewson is in breach of r69 of our Code of Conduct; she must not victimise someone who has made a complaint about her in good faith.

07/02/17 On line harassment continues

08/02/17 On line harassment continues. I forward screenshots to PC Greenman who replies to suggest I consider meeting with the Restorative Justice Team. I express scepticism but say I am willing to discuss the process with them.
That evening the on line harassment from Ms Hewson is probably the worst it has ever been to date. She compares me to Karen Matthews and says I am a liar and should be struck off. She denigrates my personal appearance. She includes my Chambers directly in her publications. She taunts the BSB directly.

09/02/17 I email PC Greenman and say I would be grateful if my statement could be finalised as soon as possible and forwarded to the Metropolitan police.
My Head of Chambers confirms via email that this matter will be raised at the Chambers Management Board meeting to consider what action Chambers can take against Ms Hewson.
A barrister colleague emails the BSB to express her concern about what she is reading.
Ms Hewson refrains from targeted harassment of me on this date.

10/11/02/17 Late on 10th February and in early hours of 11th February, Ms Hewson publishes large amount of abusive and derogatory material. This is even worse than her publications on 8th February. She is now including a colleague in Chambers, calls us ‘cunts’ and claims we are jealous of her. She tags my Chambers directly in her tweets. She says she is going to publish my complaint to the BSB on line as it is ‘drivel’.
This material remains on line until early evening of 11th Feb and Ms Hewson then deactivates her Twitter account.

12/02/17 At some point Ms Hewson restores her Twitter account, and announces via Social Media that she is retiring from the Bar. She then locks, unlocks and locks again her Twitter account over the next few days.
I attend Trowbridge police station at 1pm to sign my statement and dockets on evidence such as screen shots and blog posts.

13/02/17 PC Johnson of the Metropolitan police contacts me via my mobile to ask for information; he has not yet received any paperwork regarding my complaint.

14/02/17 The Management Board of my Chambers meet to discuss the activities of Ms Hewson.

15/16/02/17 Ms Hewson publishes variety of late night/early morning abusive tweets; including telling me I will ‘rue the day’, I am ‘dodgy’ and ‘evil’. And directly tagging in PC Greenman of the Wiltshire police.
I email Wiltshire police, the Met and the BSB. Ms Hewson has deleted these tweets by about 8am but I have screenshots and archived links.

17/18/.02.17 This evening my HoC confirms that Chambers will write to the BSB to express their dismay that the investigation into Ms Hewson is taking so long, in light of the abusive nature of her conduct and its impact (this letter is sent on 22/02/17).
Late this evening and early morning of 18th February 2017 Ms Hewson emails me directly; first by copying me into email sent to PC Greenman, demanding that I withdraw my complaint to the police; second she emails me directly asking to know if I am registered with the ICO. I forward both emails on to the police, the BSB and her Chambers, as Ms Hewson is using her Chambers address to send emails which I consider to be part of her continued campaign of harassment against me.
I send Ms Hewson’s Chambers a copy of this timeline. I consider it is important that they are aware of the full nature and extent of her activities as the implications for the reputation of their Chambers are serious. I ask if they can suspend or restrict Ms Hewson’s access to their Chambers’ email system.
Later that morning I am told that Ms Hewson has sent ‘cease and desist’ letters to 2 other barristers and a journalist, using her Chambers address in 2 of the 3 emails.
In one email she falsely asserts that I have chosen to publicise our dispute in the national press. I have done no such thing. This is a deliberately dishonest statement by Ms Hewson as the emails between myself and Jonathan Ames on 23rd January 2017 prove.
I obtain permission from one of the barristers and the journalist to forward copies of the emails they received to the police and the BSB. The emails have caused distress to all the recipients.

19/02/17 Linda Turnbull of the Standards Committee of 1 Grays Inn Square emails me to say that they will await the outcome of the police and BSB investigations of Ms Hewson.
That evening there is further relatively mild denigration of me by Ms Hewson on social media.

20/02/17 No on line harassment from Ms Hewson on this day.

21/02/17 From about 11pm further abusive publications; that I am associating with anti Semites, am hysterical and waste police time. My Chambers are directly included in some tweets.

22/02/17 I email the BSB with regard to my second complaint that Ms Hewson is victimising me for making a complaint and ask for clarification as to how to proceed. Do they wish me to make a fresh complaint for each new incident?

23/02/17 I am contacted by DC Adam Downs who leaves a message to say that my case has now been transferred to him at Islington. I email my updated timeline.
More on line abuse from Ms Hewson.

24/02/17 I speak to DC Downs around 9am and he informs me that he contacted Ms Hewson yesterday with a view to issuing her with a harassment warning notice and this probably prompted her abuse of me last night.
I confirm that I muted her account in September and blocked it in January and that I have frequently report her account to Twitter Support, to no avail.

25/02/17 Some mild denigration of me on Twitter in late evening/early morning of 25/26 February.

26/02/17 No on line harassment from Ms Hewson on this day.

27/28/02/17 Some mild denigration of me and direct tagging of Chambers but Ms Hewson does not mention my full name. However, she is clearly monitoring my social media output, as she engages in direct conversation with someone with whom I am having online disagreement and tells him I am a ‘monstrous’ example of feminism and a bully.
Later that day the BSB email to inform me that Ms Hewson has requested an extension of time to reply to my (I assume) first complaint, until 9th March. I reply to ask for a response to my email of 22/02/17 regarding the need to make a fresh complaint. I say that if I do not receive a response from the BSB I will make my third complaint on 6th March, relating to the dates from 06/02/17 – 06/03/17

01/03/17 Email from DC Downs to confirm that harassment warning notice will be served upon Ms Hewson by post, expected to arrive on Friday 3rd March. If she breaches it she will be arrestable.
No on line harassment from Ms Hewson on this day.

02/03/17 No on line harassment from Ms Hewson on this day
I email the Standards Committee of 1 GIS to inform them that Ms Hewson is to be issued with a harassment warning notice.

03/03/17 At 8.50pm I receive email notification from EventBrite that Ms Hewson has purchased a ticket to a conference on 9th June where I am clearly listed as speaking. At 8.51 she tweets that she is going to this conference ‘see you there?’ I am alarmed by this as there is no reason for her to go to this conference other than to attempt to make physical contact with me. She posts various tweets in which I am named.
I email DC Downs and ask that the police now give serious consideration to arresting Ms Hewson as this harassment has occurred after service of a PIN.

04/05/03/17 Late on Saturday night and early Sunday morning Ms Hewson publishes further derogatory tweets, and directs one to my HoC. I forward these to DC Downs.
On Sunday morning I have a telephone conversation with DC Downs who say he has received a 9 page email from Ms Hewson to say that the Met are breaching her human rights. He then emails me to say

I have reviewed these screenshots. Because twitter is a public domain everybody has the right to express their freedom of speech. This is regulated by twitter themselves. Unless you are physically mentioned with the @ sign to your direct twitter account, this does not qualify as harassment of malicious communications.

The harassment warning has been served to Ms HEWSON and remains in place.

Unless there are any direct messages or tweets with the @ sign to your account the police cannot take any further action. However, please continue to record tweets which you believe are aimed at you for any civil proceedings you wish to take.

06/03/17 Having received no response from the BSB to my email of 22nd February and 28th February, I make my third complaint that Ms Hewson continues to victimise me for having made a complaint about her.
The BSB then email after I have posted this complaint to say that I can submit new evidence in support of my first two complaints, rather than make a fresh complaint.
Later that evening/early morning of next day Ms Hewson posts some derogatory tweets about me using my direct Twitter handle. She also contacts the Head of my Chambers Family Team directly

07/03/17 I email DC Downs to request confirmation that the Met will take no further action against Ms Hewson and ask for copies of the PIN and my statement. I am considering applying for a civil injunction as a litigant in person.
Further derogatory tweets later that evening/early morning 8th March including the allegation that I make ‘vexatious, incessant, untrue and malicious’ complaints.

08/03/17 Ms Hewson is challenged by another Twitter user for re-publishing a tweet where this user was called a ‘cunt’. She points out that Ms Hewson is ‘targeting and harassing’ me in a ‘persistent’ way which looks ‘vindictive, malicious and obsessive’.
Ms Hewson refrains from any further harassment of me on this date.

09/03/17-29/03/17 Ms Hewson’s account remains protected and she steadily reduces the number of people ‘following’ her on Twitter from approx. 3K to approx. 100
I am not aware if she publishes anything derogatory about me or my Chambers.  The 9th of March was supposedly the date by which she was to respond to the BSB regarding my complaint but I receive no information about this and to this date remain entirely unaware of her response.

24/03/17 I am emailed by a student, Mehul Desai,  to say he is very distressed that Ms Hewson has been sending him threatening emails very late at night and has contacted his University. Ms Hewson is demanding that Mr Desai remove the publications he has made via Twitter of her correspondence.
I understand that Mr Desai also makes complaints to the police and the BSB about Ms Hewson’s behaviour.

30/03/17 Late at night on 30th or early in the morning of the 31st, Ms Hewson unlocks her accounts and makes derogatory remarks directed explicitly at me, another barrister and my Chambers. She also publishes my photograph again.

31/03/17 I consider making further complaint to the police but when I check Ms Hewson’s account around noon I note that it is protected again. As no one but her now (significantly depleted) numbers of followers can see what she publishes, I decide that I will not report this but will keep an eye on her on line activities and see what develops over the next few days, with a view to making a fresh police complaint if the public harassment continues.

It’s still going on – but enough is enough.  I can only hope now that with her much reduced following and the considerable publicity about her activities, my reputation is protected from her continued denigration. 


The Troubling Role of Trauma in Social Work – a parent’s view.

I am grateful for this guest post from contributor looked_after_child@yahoo.com. She asks how do social workers perceive ‘trauma’ and what impact does that perception have on their decision making? Are social workers being tempted to make ‘diagnosis’ of conditions that are outside their expertise?

When we see pictures of puppies or kittens we may have a strong impulse to go ‘Aaaah’. When we hear of ‘traumatised/abused/neglected children’ we should feel a visceral sense of revulsion. Social workers working with children will see it as their professional role to make things better for the ‘traumatised/neglected child’ but what does a traumatised/neglected child look like? That can be very hard to assess. At one end of the spectrum the child may be very quiet and at the other end a child may be beyond control and have any number of difficulties from extreme anxiety to violence. Are the problems of such children a result of abuse/trauma or could there be other reasons for their difficulties?

What if a social worker takes it upon themselves to assess the problem and becomes so fixed in his/her views that he/she fails to robustly assess all possible reasons for a child’s difficulties and take any steps he or she can to pinpoint exactly where the problems are? I believe many social workers have reached the point where they are now in danger of making these calls based on their own ‘hyper-vigilance’ around trauma/neglect.

What is trauma?

I must confess I never paid too much attention to ‘trauma’ before social workers entered my life and I began to hear this word again and again. I suppose my idea of trauma would have been a natural childbirth – the most natural thing in the world even if it is challenging when you are going through it.

Social workers seemed to use trauma as shorthand to explain why someone might be having a difficulty. This version of trauma seemed to me to be closer to a therapist’s version of trauma, an emotional wound or rupture that needed to be addressed before the person could move on with their life.

I’ve since had the benefit of hours of support from therapists around the ‘fall-out’ around our family situation so I think I really do now understand trauma – the life-changing, perspective-altering, ‘no-going back, get used to it’ type of trauma but I still have serious reservations about how social worker perceive trauma and the role it plays in people’s lives. The idea of a social worker fixing emotional wounds may help social workers get through a very challenging day but it seems to me to bring with it a number of really quite serious problems.

The danger of scapegoating

I believe that social workers often deal with parents in distress/despair including the ‘just about managing’ who have tipped over into crisis. They may, for example, be caring for disabled children, in poor health, living with violence, carrying debt they have no chance of paying off or in poor/insecure housing and employment. They may also not speak English very well or be dyslexic or have learning disabilities. They may have a whole range of vulnerabilities that they need help with including help parenting a child with unexplained emotional and behavioural difficulties.

I don’t want to make this an article about the destructive effects on families of policies that are ‘rebalancing’ our society so that we all become ‘economically productive units’ but it is a fact that these policies are really hurting many of the ‘just about managing’. Social workers may feel powerless when faced with the effects of these policies and may not have the resources to meaningfully address the difficulties of those affected but it is an undeniable fact these policies are having a hugely detrimental effect on the mental health of many of our children. (See http://www.childrenssociety.org.uk/news-and-blogs/press-releases/nine-homes-by-the-age-of-nine-–-housing-instability-marks-lives-of#163961_20170330102705)

When supporting families in dire circumstances, it is tempting for the social worker to take on the role of ‘expert’, stick a label of ‘incompetent’ on the parent without acknowledging the role of factors beyond the control of social worker or parent on the child’s difficulties. Parenting classes are a rite of passage for parents in this situation. Having being on an excellent but wildly inappropriate Troubled Families Programme this is emotive territory for me. There may be no money for anything else but in my view it is unethical to send parents on parenting courses without a very clear idea of the child’s/families difficulties and how the course will help in all spheres including around personalised health support.

The ‘nature vs nurture’ debate.

Where to start…
Trying to find answers for a child’s difficulties is such a highly contested area and moves well beyond the social work world. This contest is fought out for example in the arenas of genome sequencing and brain scanning and there are also a small number of clinical trials challenging myths that have informed whole policies including policies on social work training. (See http://link.springer.com/article/10.1007%2Fs10803-015-2680-6 ) There are ‘dirty tricks’ including presenting brain scans of children brought up in environments where they have been extremely mistreated,used to evidence harm caused by parental incompetence.

This battle is also fought by people based on their own difficult experiences of childhood or of parenting a child with unexplained and profound difficulties for whom they have been unable to get help. Few players do not have strongly held beliefs or professional reputations at stake.
Clinicians are grappling with the implications of this in terms of clinical practice. Policy makers have identified a tsunami of demand and know there are very limited clinical resources with the expertise to make these calls for individual children.

As an example of the difficulties clinicians face there are two diagnoses for virtually the same set of symptoms. Attachment disorder for the children of the disorganized, unresponsive parent living in poverty that is unable to parent their child successfully (cause – parental neglect) and late diagnosis Autism/Asperger Syndrome possibly with a demand avoidance profile for the children of ‘competent’ parents. (cause – as with all the Autisms largely genetic with a possible in-vitro environmental element).

Fraudsters abound with ‘bleach cures’ and dubious ‘therapies’ and families are desperate for answers. There are virtually no diagnostic paths for Fetal Alcohol Spectrum Disorder. No matter what the circumstances of their parents, it is, in my view, likely that the low priority given to mental health services for children has all-but failed a generation of self-harming, anxiety immobilised adolescents and their families, many with unidentified disabilities and difficulties such as sensory and sleep disorders,. (https://epi.org.uk/report/time_to_deliver/) It is also likely that low self-esteem is a major contributing factor for many children/young people with ‘behavioural’ difficulties. Somewhere in the mix comes trauma – the ‘emotional wound’ type and the ‘neglect’ type and the type you ‘recover from’ and the type you ‘learn to live with but never recover from’. The good news where trauma is concerned is that recovery is often possible with the right support unlike disability which is life-long.

Imagine what is like for a parent really struggling to get help for their child to be told the child’s difficulties are ‘on your head’, caused by ‘trauma’ and by a social worker to boot and yet many social workers believe this is their call.

What is the Social Workers role?

It may or may not be true that there is widespread mis-diagnosis of ADHD, ASD, Attachment and anxiety and similar disorders but it takes another clinician to make this call for an individual child and to generalise you need evidence of widespread mis-diagnosis via randomised clinical studies or equivalent.

I believe when trying to help a young person with profound emotional, behavioural difficulties social workers should be alert, question, look for guidance from clinical colleagues, raise concerns where you have them, provide personalised support to the best of your ability, fight for their clients rights for good support including good clinical support but you should always stick to your area of competency. The ability to make clinical diagnoses as a result of trauma just does not fall within it.

As if People Were Humans – Humanistic psychology in the Family Courts

I am grateful for this guest post from Mansour Jumaa who discusses how the family courts could be more humane in their operation, by deriving benefit from the teachings, principles and practice of Humanistic Psychology. 

“None of us are as smart as all of us” 

(Japanese proverb)

1 Introduction

1.1 This brief article suggests that the FLCS – Family Law Courts System – have nothing to lose but so much to benefit from when the teachings, principles and practice of Humanistic Psychology are embeded within the ethos and legal activities of the FLCS. My assumption is that readers of this Blog are familiar with the FLCS – Family Law Courts System. If you are a new visitor this Link provides a brief basic background information –

1. 2 I start with the background to this article then move on to give reasons why coaching interventions based on humanistic psychology principles are relevant for the FLCS?. Executive co-coaching is presented as the vehicle for the coaching interventions and Doctor MOJ’s Strategic Recipe – Leadership for S.E.L. – Social & Emotional Learning Development (S & E Q Development) is proposed as the implementation methodology. The article ends with a conclusion and a suggestion for the way forward.

2 Background

2.1 “As an RDP – Recently Divorced Person, a divorcee of less than 2 months, I am still psychologically and financially sore. Nevertheless, as I reflect, on an on-going basis, on my current situation, I consider myself ‘privileged’ to be unfortunate to be a member of a failed marriage!! I can confidently say I never thought, in a milion years, that divorce will happen to someone like me. I am, however, accepting it because it has happened to me. The next and current phase for me is to get positive outcomes from this experience for all those involved with me within the Family Law Courts System (FLCS), particularly for my 2 sons age 15 & 12 yrs old. This experience has exposed me to many aspects of family life, in relation to FLCS that I never knew existed – both in theory and practice. The concepts of L.I.P. – Litigation In Person; McKenzie Friends; Mediation; the role of several voluntary orgaisations – FNF – Families Need Fathers, are just a few examples of individuals and organisations within the Family Law Courts System. So why coaching interventions based on humanistic psychology principles for the FLCS? Let’s go to Section 3, next.

3 Why coaching interventions based on humanistic psychology principles for the FLCS?

3.1 My recent attendance and participation at the FNF – Families Need Fathers Conference and AGM in Bristol on the 18 March 2017 was a thoroughly enjoyable and a very professional experience. All the presenters – Dr Sue Whitcombe, Lori Busch, Paul Apreda, Sarah Phillimore including the Keynote Speaker, Sir James Munby were excellent. All, without exception, either explicitly or indirectly refered to or and used aspects of humanistic psychology principles in their presentation. Why is this so? This is, partly, because, it appears that there are concerted efforts within many quarters of the FLCS exploring how the legal process could be more humane while carrying out its legal duty of care. These Judgements and publications –

Unreasonable behaviour, unreasonable judges or unreasonable law? http://www.transparencyproject.org.uk/unreasonable-behaviour-unreasonable-judges-or-unreasonable-law/ ;

Poppi Worthington and the risk of ‘ghost’ miscarriages of justice

‘Achieving Best Evidence in Children Act cases’.

Achieving best evidence and use in Children Act cases

What do we mean by proving something ‘on the balance of probabilities’ ?

What do we mean by proving something ‘on the balance of probabilities’ ?

are just a few examples where reactions showed movement within the FLCS travelling in the direction of an attempt to make the Family Law Courts System as if People were Humans!! All the presentations at the FNF Conference, without exception, are, It appears, that their primary focus align with the humanistic perception on the innate goodness of human beings, the drive and potential of humans to achieve personal growth, human responsibility, and the actual lived experience of the human person. The overiding argument here is that, above all, each human is a unique being, who has the ability to choose and change, despite constraints we may face, despite the consraints and the pain that divorce brings.

3.2 The Family Law Courts System (FLCS) can work humanistically with these Core Beliefs and Practices. Who within the FLCS would argue against a legal process that aims to practise and demonstrate the organic processes parallel to those of a healthy human being? Who would raise objections to the FLCS organised in such a way to include being able to hold complexity; knowing when to conserve and when to embrace change in order to thrive; having an awareness of the FLCS’s needs as a caring organisation; being self-examining as well as open to different perspectives and experiences; holding the FLSC in ethical and spiritual good faith; being willing to actively adopt new practices where appropriate so that growth and development is enhanced, whilst honouring and maintaining the legal duty of care nessential (i.e. necessary and essential)? Who within the FLCS would object to aiming to apply the same criteria of respect, empowerment, authenticity, etc. that we have for our clients to ourselves as members of an organisation and to others we interact with? If there are no objections from the FLCS to these statements on Humanistic Practice as an Organisation based on UKAHPP’s Statement of Core Beliefs and the Codes of Ethical Principles and of Practice, then the FLCS in on the very difficult but doable journey to treat People within the system as if we were Humans!! But how is Humanistic psychology principles explored via executive co-coaching? The next Section provides some answers

4 Humanistic psychology principles explored through Executive Co-coaching

“There are more tears shed for answered questions than unanswered questions
(Mother Teresa)

4.1 The starting point is to understand the person and to ‘walk a mile in their shoes’ or otherwise get under their skin. In doing so and subsequently, using humanistic psychology principles you make deliberate effort in developing a good working relationship with your client and others you interact. Whilst they may not be your friends, you are friendly towards them and encourage them to like one another.

In your everyday activities and within your activities as a part of the FLCS, could you attest to the fact that you have developed or are developing some or all of these attributes?

  • you are a good listener and you can ‘walk a mile in others’ shoes’ – that means you can empathise with others, recognising that each stakeholder brings something to the table (DESIRE)
  • you have failth in others and you have used or you are familiar with and aspire to use some of the very effective interpersonal, group and emotional skills interventions developed by Prof John Heron over 40 years ago at the University of Surrey, England (DISCIPLINE)
  • you are always reflecting on your activities by using simple questions such as, ‘What did I do’? ‘So what’? and ‘And now what’? (DOING now) and
  • you on an on-going capacity encourage, just as you do, others to truly own their own problems and own their solutions, through on-going personal and peofessional development (DOING always)

These 4Ds approach are examples of the application of the humanistic psychology principls, teaching and practise that I have integrated into a process I termed Executive Co-Coaching.

4.2 What is Executive Co-coaching? Executive Co-coaching derives from the traditional executive coaching – a management development tool that has the potential to combine personal career development with organizational strategy and goals. However, with Executive Co-coaching, I have deliberately developed a process that focus not only on the individual but also on the Group’s E & S Q Development (Emotional and Social Quotient Development). In other words, what benefits the individual members of the Family Law Courts Systems [FLCS] could also benefit the client, the petitioner, the resondent and the legal industry.

4.3 The term executive co-coaching, however, is extended to have significant creative, original and innovative additional components. Working with my colleague, Dr Josephine Alleyne, I have drawn on our education, our experience and expertise as managers, experience as an accredited facilitator, educators and strategic negotiator in higher education to develop the role of the professional as an executive co-coach – that professional could be a legal professional or practitioner. The ‘co’ in co-coaching embraces, for example, the work of Prof John Heron on interpersonal, group and emotional skills. This is combined with the works of Henry and Walker on creative and innovative management approaches, the McKinsey Company’s
ground-breaking work on ’Decoding Leadership’ and other works. They are synthesised to come together as Doctor MOJ’s Strategic Recipe (see Box 1, Section 5, below). The recipe also uses.the processes of the Resource-Based View (RBV) to strategic management. The RBV is quite significant as the focus is on what you are able to achieve irrespective of the THIMMEL Resources at your disposal (THIMMEL – Time; Human; Information; Material; Money; Equipment/estates/energy; Land Resources – Jumaa & Garside 2016).

4.4 Executive co-coaching uses evidence-based management and leadership interventions in addition to perceiving the client (s) as whole person (s), a human being, with the sole aim of promoting and enhancing effective processes for learning (D1), leading (D2), living (D3) and laison (D4). It brings a human face to managing and leading within organisations – a quality that is not only desirable but nessential for law practice, in England and Wales in the 21st Century [nessential = necessary and essential].

Barrister Sarah Phillimore and her colleagues at The Transparency Project bring to the dialogue an intentionality in reflecting on what values are guiding decision-making in the Family Law Courts and how these values ought to guide policies, as well as the practice that is fair, accessible, affordable and fair justice”. The activities of The Transparency Project are firmly grounded within the humanistic psychology teachings, principles and practise. How could a purposeful application of the humanistic psycholgy principles be implementd within the FLCS? Section 5, next, provides some insights.

5 Implementation Methodoloy

“The reasonable man adapts himself to the world,
the unreasonable one persists in trying to adapt the world to
himself. Therefore all progress depends
on the unreasonable man”
George Bernard Shaw

5.1 Box 1, below, is Doctor MOJ’s Strategic Recipe – Leadership for S.E.L. – Social & Emotional Learning Development (S & E Q Development). This recipe is proposed as an evidence based approach to introduce the humanistic psycholgy principles within the FLCS. Using Box 1, the task is not to adapt the FLCS’s activities to ‘fit’ the contents of the Box, the challenge is to make, define and justify your assumptions in relation to your legal activities: goals; roles; processes and relationships against the chosen and identified contents for your particular needs. Depending on the project in hand different aspects of the Box will feature in your analysis, evaluation and application. The over-arching question you must ask when using any of the contents in Box 1 is – to what extent is this contributing to or serving as a hinderance to making your desired legal goals specific; roles explicit, processes clear and your legal relationships open? – Honest answers will add tremendous value to your legal processes outcomes (capabilities)

5.2 Why should you trust Doctor MOJ’s Strategic Recipe? The recipe is put together based on on-going Action Science reseach and development activities since1995 at the London Middlesex University, England. The approach is about doing research with people and not on people. A theme that runs through the recipe is emotional and social competence development. The heart and brain of the recipe is the S.T.E.P. DNA 4Ds in the first column. This is supported by McKinsey Company’s ground-breaking research Decoding Leadership (2015). The pther 4 columns to the right of the S.T.E.P. DNA 4Ds are true, tried and tested approaches.

5.3 What is the origin of the S.T.E.P. DNA 4Ds? The CLINLAP/LEADLAP Model, was developed at the London Middlesex University, in 1997. It is featured in Section 2 of the Best Selling Book – Effective Healthcare Leadership. Detailed interventions used in various assignments and roles, modified as necessary, appear on pages 90 – 91 of Effective Healthcare Leadership (Jasper & Jumaa 2005). This book was co-authored by Dr Jumaa with Late Prof Melanie Jasper. Doctor MOJ has further developed the CLINLAP/LEADLAP Mode as the S.T.E.P.Way and presented it successfully to critical research communities in Canada, Kenya, (2010) Liberia (2013), Mexico (2011), UK and the USA (2009, 2008). The final outcome is the S.T.E.P. DNA 4Ds. The over-arching approach to the implementation of the S.T.E.P. DNA 4Ds is via the 4Ds – Desire, Discipline, Doing now and Doing always.

5.4 Box 1, the Strategic Recipe, provides an evidence based tool kit for for personal and professional development for those who operate within the FLCS. Used wisely, systematically and correctly, based on the extended humanistic psychology principles, the S.T.E.P. DNA 4Ds. will guide the Family Law Courts System as if People were Humans. The S.T.E.P. DNA 4Ds is firmly guided by the notion that In the current workplace of the 21st century, emotional intelligence is about our relationships: (a) Our relationship with ourself (self-awareness and self-management) and (b) Our relationships with our colleagues and clients (social awareness and relationships management)

Box 1: Doctor MOJ’s Strategic Recipe – Leadership for S.E.L. – Social & Emotional Learning Development (S & E Q Development) (after Jumaa 2001)
The S.T.E.P. DNA 4Ds
(Jumaa, 2015)
McKinsey’s Decoding Leasership (2015) Tuckman
Stages of Group Development Emotional
(after Heron, 1990; Goleman in Italics) Mintzberg’s Managerial
Roles Practical
Competencies and Capabilities
(Jumaa, 2001)
Stakeholder influence

D1 – DESIRE Solving problems effectively* FORMING
Initial awareness. Why are we here? Awareness;
Self-awareness Leader
Entrepreneur Who’s Who?
Team’s Mission
A.S.T.R.E.A.M objectives
Technologoes and innovation focus

Operating with a strong results orientation* STORMING
Self –organisation Identification;
Self management Liaison
Resource Allocator
Disseminator Resources and Capabilities issues; Operating standards; Effective communication
Experiential learning methodology

D3 -DOING now
Seeking different perspectives* NORMING Sorting-out process – bidding for control and power Acceptance;
Social awareness Liaison
Monitor Acceptability; Suitability; and Feasibility
Personal development – ongoing

D4 – DOING always
Supporting others* PERFORMING
Maturity and mutual acceptance Transmutation;
Control; Catharsis
Relationship management Liaison
Disturbance Handler
Monitor Resistance management
‘Blame-Free’ context; Trust; Information Sharing; Feedback, Action

*Decoding leadership: What really matters (2015)

5.5 Successful implementation of the S.T.E.P. DNA 4Ds demand 4 nessential types of legal leadership: [nessential = necessary and essential]
1 Desire for Human Justice based on Stakeholder Leadership. Key question to ask is – What do legal professionals and practitioners need to do for effective management and leadership of the Family Law Courtts System and why? Stakeholder Leadership is about Influence of Power & Interest in yours and others’ actions and projects. Self-awarenees is necessary here as you consider the values and aspirations of major stakeholders and managers for this particular legal project
2 Discipline for Human Justice based on Technologies and innovation Leadership. Key question to ask is – Where is the FLCS now and why? Technologies & innovation Leadership focus on Social Media and Digital Communication. The operational question is what can the FLCS do efficientky and effectivey with social media and and digital communication? The challenge here is to fully and comprehensively identify & assess the FLCS’s strengths and weaknesses (i.e. – its Resources and Capabilities). You need an authentic, honest and an acute sense of Self Managenent to be effective here.
3 Doing now for Human Justice based on Experiential learning Leadership. Key question to ask is – How could the FLCS get to their desired goal/s and why? Which direction could they take and why? Experiential Learning Leadership is about Reflection – what? so what? and now what? -, Context-based Results and Impact. Explore the question – What might the FLCS do to improve its operations and services? A very well developed Social Awareness capabilty is neccesary here to assist you to Identify & Assess opportunities and threats (local, national and global) that face the FLCS now and in the future.
4 Doing always for Human Justice based on Personal development Leadership. Key question to ask is – Who, what and when do lawyers, practitioners and others in the FLCS need to sustain their achievements and why? Personal Development Leadership is about managing Resistances as a Positive Platform for Sustainability. Focus question shoud be What shoud the FLCS do to ensure on-going personal and professional development amongst key stakeholders? You need a well developed capability and competence in Relatiobships Management as you direct your energy to clarify an acknowledge major stakeholders’ social and ethical responsibilities and how these are compatible with the objectives of the FLCS. These 4 main leadership habits will serve you efficiently and effectively to achieve your goals and aspiration for a fair, just, transparent and accessible FCLS – Family Law Courts System.

5.6 Does the FCLS – Family Law Courts System need the type of interventions put forward in this article? The answer is a big YES!!. “We know that poor management costs UK plc £19bn in lower productivity, leaving us lagging behind our G7 EU neighbours. We need to equip our leaders and managers with the skills to embrace change, build trust and create working cultures with positive role models and inclusive values. Doing so will give us a better-managed Britain able to thrive in a post-Brexit economy.” (Anne Francke – Chief Executive, CMI – Chartered Management Institute, 2016). “Open justice is a hallmark of the rule of law. It is an essential requisite of the criminal justice system that it should be administered in public and subject to public scrutiny.The media play a vital role in representing the public and
erecting the public interest. However, as is well known, there are some exceptions to these principles. Difficulties and uncertainty can sometimes arise in ensuring they are correctly applied and observed” – (Source: Reporting Restriction Guidance)

6 Conclusion

6.1 The use, application, modification and the extension of the teachings, principles and practise of humanistic psychology is noticeable in all works of life – business, medicine, sports, teaching and parenting, to name but a few. This brief article has shown how the FLCS – Family Law Courts System could benefit from the teachings, principles and practice of Humanistic Psychology.
The Family Law Courts System as if People were Humans is a goal that is achievable using, for example Executive co-coaching. One method of implementation is based on the coaching interventions within Doctor MOJ’s Strategic Recipe – Leadership for S.E.L. – Social & Emotional Learning Development (S & E Q Development). Hundreds of enthusiasts have successfully used this methodology. Stress Concern International offers a Degree level Global Executive Certificate in Coaching and Mentoring with Doctor MOJ’s Strategic Recipe available for full consumption. If you are interested and would like to take part in this ‘feast’, please contact Barrister Sarah Phillimore at the Transparency Project. The Family Law Courts System as if People were Humans is an admirable goal that is achievable using, for example, Executive co-coaching based on humanistic psychology principles.


Historic Review of Humanistic Psychology–Introductory discussion of history and nature of the humanistic approach, by the Association for Humanistic Psychology

Humanistic View and Methods–Overview of humanistic methodology, from the Association. for Humanistic Psychology.

A Guide to Humanistic Psychology–Extensive introduction, broken into chapters by topic, by therapist John Rowan; chapters include bibliographies for further reading.

Daniel Goleman is author of:
1. “The Brain and Emotional Intelligence: New Insights,”
2. “Leadership: The Power of Emotional Intelligence,” and
3. “Emotional Intelligence.”

Human Rights Act claims – where are we now?

23rd March 2017
Section 20 and HRA claims in light of Hackney, Kirklees, Northamptonshire AND SW & TW

Sarah Phillimore St Johns Chambers www.childprotectionresource.online
If you found this presentation helpful, please consider making a donation to http://www.designability.org.uk


The situation has been clarified with regard to the procedural requirements of any HRA application and we are getting more illumination about the appropriate level of damages. But fundamentally we have a situation where the law provides outcomes which are arguably unjust. This will mean case law may continue to contort as judges continue to try find a way around.

Breach of duty /Damages re section 20 misuse
The Hackney case provoked significant comment from both lawyers and social workers on line I don’t agree that it marks ‘the end of damages for section 20 claims’ but it is an important case:
• use of word ‘object’
• continued relevance of good practice directions
• comment on quantum of damages for HRA breach

The beginning of the end for viable HRA claims for the publicly funded (or even anyone)?
• Hackney is critical of level of damages
• Kirklees sounds the alarm re issue of costs/statutory charge
• SW & TW set out strict procedural requirements to make HRA application.

London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26 (26 January 2017).

1) 8 children went into foster care for a few months after police intervention. The Williams’ initially signed a section 20 agreement . It is possible that their full legal rights, including this right of immediate removal, were not fully explained at the time. However, the parents quickly obtained legal advice and said they would consent to section 20 accommodation for a short time. The LA agreed that the children should go home but noted the bail conditions were still in place that prevented the parents from offering their children accommodation. The Williams knew they had the right to apply at any time to vary these bail conditions, but did not do so. Once the bail conditions were varied, the children returned home a few days later.

2) There were no criticisms of the initial police actions to remove the children for 72 hours. However, the subsequent action of the LA to accommodate the children saw the following 9 years spent in litigation as the Williams’ pursued various legal claims that their children had been wrongly removed.

Why did the Court of Appeal overturn the first instance decision?
3) In 2015 the first instance court held that the LA were liable to pay damages of £10,000 to each parent for breach of statutory duty and consequent interference with the parents’ Article 8 rights. The LA appealed and won.

4) The parents had argued that their consent to section 20 accommodation had been unfairly obtained and was not thus ‘true consent’. The Court of Appeal examined this claim from para 43 of their judgment, by looking at the guidance provided in both Coventry City Council v C [2013] EWHC 2190 (Fam) per Hedley J. and by Munby J in the earlier case of R (G) v Nottingham City Council and Nottingham University Hospitals NHS Trust [2008] EWHC 400 (Admin)

5) However, as the Court of Appeal note at para 48 – good practice guidance does not have the force of law. Further, the circumstances of the Williams were markedly different to those of the mothers in the cited cases; in particular the fact that the bail conditions imposed by the police, over which the local authority had no control, prevented the children from living with them.

6) The Court of Appeal then considered the case law that had arisen since the decision in the Coventry case: Re B (Looked after child) [2013] EWCA Civ 964 (sub nom Redcar and Cleveland Borough Council v Others); Re W (Children) [2014] EWCA Civ 1065; and Re N (Adoption: Jurisdiction) [2015] EWCA 1112.

7) These cases all touched upon the issue of active objection or passive consent to section 20 accommodation. The Court of Appeal noted the President’s firm words in Re N ‘

The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.

8) The Court of Appeal commented that as the ‘good practice guidance’ was set out AFTER the Williams’s children went into foster care, they would need to examine the actual law. The key consideration was section 20(7) which sets out that a LA may NOT provide accommodation for any child if any person who has PR is willing and able to accommodate him and OBJECTS.

9) The Court of Appeal commented at para 68:

The word ‘consent’ does not appear within s. 20. There is no express statutory requirement upon a local authority to obtain a positive expression of consent from a parent before accommodating a child under the various provisions in s. 20(1), (3), (4) and (5), let alone any requirement for such consent to be in writing and subject to any of the various refinements that have been described in the case-law to which I have referred. Nothing that is said in this judgment is intended in any manner to detract from or alter the terms of the good practice guidance that has been given, principally by Sir James Munby P and Hedley J, in these cases; the obvious wisdom and good sense of their words are plain to see. The present case is, however, a claim for damages pursuant to s. 8 of the Human Rights Act 1998, in relation to breach of statutory duty under s. 20 of the 1989 Act and breach of rights under Article 8 of the ECHR. Insofar as breach of statutory duty under s. 20 is concerned it is necessary, in my view, for a claimant to go further than establishing that the actions of the local authority fell short of what, subsequently identified, ‘good practice’ might require; the authority must be seen to have acted in breach of the terms of the statute.

10) The Williams could not have offered accommodation. The statutory test was not whether they offered consent to section 20 accommodation, but whether they actively objected to it. They would only have been able to do that if they had applied to vary the bail conditions, over which the LA had no control. Therefore the Court of Appeal did not agree that there was a breach of statutory duty here and thus no damages should be paid.

11) The Court of Appeal made brief comment about the level of damages awarded at para 87 of their judgment. Having decided that no damages should be paid, they did not need to determine quantum but expressed the very clear view that £10,000 was too high in any event.


12) This case involved parents who could not offer a home to their children so long as the police bail conditions remained in place. The local authority did not impose these conditions and were not responsible for varying them – although there was some argument as to what information the local authority passed to the police. The parents may not have ‘consented’ to what happened to their children but even if they had made active objection, they could not have taken their children home unless and until the bail conditions were varied.

13) In such a situation I agree with the Court of Appeal that it is plainly wrong to hold the local authority to blame for a breach of its statutory duty. However, these are quite distinct and particular facts which acted to deprive the parents of the reality of any ability to object.

14) Sadly I am sure there are bound to be further cases where misuse of section 20 involves vulnerable parents, who did not understand or did not have explained to them what section 20 means. Those kind of cases are often coupled with a ‘drift’ for the child in foster care of many months before care proceedings are issued. In such circumstances there is likely to be a reasonable argument for a disproportionate and hence unlawful breach of Article 8. The existence of ‘good practice’ guidance about such issues of course does not have the force of law but can provide a useful benchmark against which to measure if the local authority have acted proportionally.

15) However, considering the impact of the statutory charge, the brief dismissal of £10,000 as an appropriate level of damages sounds an interesting warning for future cases which may well go to render HRA claims pretty hopeless in practice. European jurisprudence is clear that damages for human rights breaches are awarded to provide ‘just satisfaction’, not punishment for the wrongdoer. Therefore levels of damages are likely to be low.

Kirklees Council CZ (Human Rights Claim: Costs) [2017] EWFC 11 (16 February 2017)

16) A clear example of an unlawful breach of Articles 8 and 6 of the ECHR – the parents’ child was removed from their care as a new born baby and lived with grandparents for a few weeks. This was done without telling the parents what the plan was and repeatedly misleading the court about whether or not the parents did know and did agree.

17) Cobb J realised that the amount of damages – £3,750 to each parent and child – will inevitably be swallowed up by the statutory charge.

18) The costs in the case before Cobb are set out at para 46 of the judgment. They are horrifying. The ‘grand total’ is around £120K. This is all public money. The parents argued hard for the LA to pay their costs, realising the impact of the statutory charge. However, Cobb J refused; the LA it seems had made sensible and timely efforts to settle this case, realising that their conduct could not be defended.

19) His reasons are set out very clearly at para 58:
• The court’s wide discretion cannot be condensed to one option only (i.e. to make a substantive award of costs) simply in order to achieve a ‘just’ outcome’
• If it had been the intention of Parliament that damages awarded under the HRA 1998 would be exempt from the statutory charge, it would have provided for this in the revised Statutory Charge Regulations (2013); it did not
• the Claimants could not be insulated against the eventuality that the shortfall in any assessment would in itself lead to the obliteration of a modest award of damages;
• The award of non-pecuniary damages under section 8(3) is intended to reflect the Court’s disapproval of infringement of the claimants’ rights, in providing “just satisfaction” to the claimant; it is not intended to be, of itself, a costs award.
• Parliament has devised a legitimate mechanism for the recovery of the costs incurred from those who benefit from state-funded support to pursue their litigation, and however unfairly it may operate in an individual case, it must be respected;
• The court cannot disregard the parties’ litigation conduct in evaluating costs; the Claimants did not conscientiously attempt to settle their claims but the LA did The impact of the Northamptonshire case.

H (A Minor) v Northamptonshire County Council & Anor [2017] EWHC 282 (Fam) (17 February 2017).

20) This case involved an 8 year old boy ‘H’ who was placed in long term foster care with contact to his father. The LA had failed to issue care proceedings until 2016, despite clear and obvious concerns about the care H was receiving from about 2012, and had wrongly restricted H’s contact with his father. H’s solicitors issued a HRA claim and the LAA granted a separate public funding certificate, Keehan J having stated that this application should be made separately but determined alongside the care proceedings.

21) H’s solicitors sought clarification from the LAA as to the impact of the statutory charge upon such a ‘free standing’ HRA application. The LAA replied to say that ‘subject to the extent of the connection between the Human Rights action and the initial Care proceedings any Damages recovered as a consequence of the Human Rights proceedings will be subject to the Statutory Charge and it is possible that the liability will extend to the costs arising from the Care proceeding. The consideration of the connection is made once the settlement is reached, and would depend on the facts of the case’.

22) The LA then made an open offer to settle H’s HRA claim for £18,000. The court decided that it was not possible to agree the amount of damages unless first knowing what the LAA were going to do about the statutory charge; if the costs of the care proceedings were included, the statutory charge would consume the entirely of the agreed damages. The LAA were thus invited to intervene in the proceedings. They initially stated that they would apply the statutory charge. However, their eventual position ‘at the 11th hour’ was that they would NOT apply the costs of the care proceedings to the statutory charge.

23) Because the LAA had taken so long to confirm its position, the LA agreed to pay H’s costs only up until the date the LAA were invited to intervene. All costs incurred thereafter should be met by the Lord Chancellor’s Department. It was argued that the provisions of s.51 SCA and CPR r.46.2 clearly provide the court with the power to make a costs order against a third party and the behaviour of the LAA justified the making of such an order. Keenhan J agreed he had the power to make such an order and he would do so. He confirmed that £21,500 was the appropriate sum of damages to be awarded to H.

24) Keehan J made it clear that he understood and deprecated the impact of the statutory charge, commenting at paras 120 and 121 of his judgment.

The issue I raise, in the context of HRA claims brought by children, and by parents, during the currency of pending care proceedings, is whether it is just, equitable or reasonable that damages awarded to a child, or to a parent, as a result of breaches of his/her Convention Rights by one organ of the State should be recouped by another organ of the State in respect of public law proceedings which would otherwise not be recoverable. Public funding in such cases is non means tested and non merits based. Furthermore, save in exceptional circumstances, the local authority issuing the care proceedings is not liable to pay the costs of any other party: Re T [2012] UKSC 36.
I very much doubt that such a recoupment is just, equitable or reasonable. In the vast majority of cases the effect of the recoupment of the child’s or parent’s costs of the care proceedings will be to wipe out the entirety of the HRA damages awarded. In this event, the child or the parent will not receive a penny.


General guidance offered by Keehan J

25) He discussed the judgment of Munby J (as he then was) in Re L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 (Fam), [2003] 2 FLR 160 which was expressly approved by and received the “whole-hearted endorsement” of the Court of Appeal in Re V (Care Proceedings: Human Rights Claims) [2004] 1 FLR 944, per Wall LJ at para 98. Re L drew an important distinction between those cases where HRA issues arise when care proceedings are on-going and where care proceedings have come to an end. In the latter case, the appropriate remedy may well be a free-standing application under section 7(1)(a) of the 1998 Act. However, if care proceedings are on-going, the President was very clear that HRA claims should be dealt with within the context of the care proceedings and by the court which is dealing with the care proceedings.

26) Keehan J was clear that the present case was an example of when it was permissible to issue a separate application for a HRA and that it was likely to be a tactical necessity if damages were sought, saying at para 115

…the decision in Re L, and the decision in Re V, may be distinguished from proceedings in which a HRA claim is pursued and damages are sought. Therefore, where the remedy sought in the HRA claim is not limited to injunctive or declaratory relief but includes a claim for damages, it is almost inevitable that those representing the Claimant will be well advised to issue separate proceedings and to seek the issue of a separate public funding certificate because of the potential applicability of the statutory charge in respect of any HRA damages awarded.


SW & TW (Human Right Claim: Procedure) (No1) [2017] EWHC 450 (FAM)

27) Another judgment of Cobb J, this sets out the ‘essential procedural points’ for making at HRA claim. See paragraph 3. Applications for ‘substantive relief’ should be issued as civil proceedings by way of a Part 8 CPR 1998 claim even if within existing CA proceedings.

28) Key points
a) claims for substantive relief such as declarations and/or damages should be issued formally, (NOT by introducing it in a skeleton argument!)even if made within existing proceedings; if the party is seeking to “rely on the Convention right or rights” (section 7(1)(b)) within the CA 1989 proceedings to influence the manner in which the family court exercises its powers, a lesser degree of formality contemplated by rule 29.5 may well be appropriate
b) A child claimant in HRA 1998 proceedings requires a litigation friend appointed under Part 21 of the CPR 2010; the appointment of a guardian or litigation friend for this type of claim is not effected under rule 16 FPR 2010. Cafcass cannot authorise its officers to act as litigation friends to children claimants, having regard to its functions, which are set out inter alia in section 12 of the Criminal Justice and Court Services Act 2000 (CJCSA 2000) moreover, Cafcass does not, as a matter of policy, support Children’s Guardians acting as litigation friends in HRA 1998 proceedings;
c) It is therefore not appropriate for a Children’s Guardian who has been appointed in specified CA 1989 proceedings to act as an informal litigation friend, or ‘front’ the claim as if he/she is a litigation friend, in a related HRA 1998 claim. The status of litigation friend can only be bestowed following one of two recognised formal processes – either the filing of a certificate of suitability under Part 21.4(3)/Part 21.5(3) or pursuant to court order (Part 21.6);
d) Given that the CPR 1998 applies to these claims, the regime of Part 36 CPR 1998 (‘Offers to Settle’) applies to them;
e) The full costs regime in Part 44 CPR 1998 also applies, including (in contrast to the position in family proceedings) the general rule that ‘costs follow the event’ in HRA 1998 claims (CPR, Part 44.2(2)(a): “(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party”; see also CZ v Kirklees MBC [2017] EWFC 11 at [61]));
f) the publicly funded claimant in a HRA 1998 claim who is also publicly funded in associated (or ‘connected’: section 25 Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO 2012)) proceedings, is vulnerable to a claim for recoupment of the costs of both sets of proceedings by way of statutory charge from any award of HRA 1998 damages;
g) In HRA 1998 proceedings, the Legal Aid Agency may issue a publicly funded certificate for a claimant to pursue declarations only, and not damages, as it did in this case, for the father; if this is so, this may have implications for (a) entitlement to any public funded remuneration for the lawyers for the work done on seeking a damages award, (b) the extent to which the successful claimant can recover any costs referable to pursuit of the claim for damages from the Local Authority if they have not been authorised to expend costs in pursuit of the same, and/or (c) the ability of the LAA to recoup funds from the damages (applying the statutory charge) for work done in respect of which there was no public funding certificate;
h) PLEASE think hard about settling! This case illustrates once again that the cost of pursuing relief under the HRA 1998 can very swiftly dwarf, or indeed obliterate, the financial benefits sought. Many such cases are surely suitable for non-court dispute resolution (NCDR) ….Parties in cases of this kind would do well to remind themselves of the comments of the Court of Appeal in Anufrijeva v LB Southwark & others [2003] EWCA Civ 1406 [2004] 1 FLR 8 at paras 79-80:

Can anything be done to avoid the statutory charge?

29) Free standing applications (BUT note implications of increased procedural formality)
30) Costs orders – but bear in mind litigation conduct
31) Section 17 of the Children Act 1989 section 17(7) allows cash payments.
32) General wellbeing provision of the Local Government Act 2000 – section 2(4) allows the LA to give financial assistance to any person
33) Complaint pursuant to section 26 of the Children Act 1989

Damages awarded in other cases – RANGE approximately £3k-£70K

34) P, C, S v the UK [2002] the European court awarded each parent €12,000 for breaches of their Article 8 and 6 rights in a case which involved removal of a baby at birth. This case also has some useful commentary as to how damages should be assessed.
35) Northamptonshire CC v AS [2015] – damages £16K.
36) Ferrari v Romania in the European Court of Human Rights in April 2015 where a father was awarded €7,500 after the state failed to properly engage with Hague Convention proceedings and caused delay.
37) In re A (A Child) in August 2015, the mother was awarded £3,000 for unlawful removal of her child.
38) Medway Council v M and T October [2015] awarded £20K to both mother and child for unlawful use of section 20 accommodation under Children Act 1989.
39) B (A Child) [2016] EWFC B10 January 2016 – £5K awarded for 3 year delay in revoking placement order that meant B lost out on developing a relationship with his siblings.
40) Case Soares de Melo c. Portugal (Application No 72850/14) [Feb 2016] award of €15,000 for decision to have children adopted without offering family sufficient support.
41) X, Y & Z re (Damages: Inordinate Delay in Issuing Proceedings) [2016] EWFC B44 (23 February 2016) – £65K awarded, highest level of damages known to date for misuse of section 20, and particular criticism of the failure of two IROs to act.
42) BB (A Child) [2016] 27th June EWFC B53 £7,500 awarded for misuse of section 20.
43) GD & BD (Children) [2016] 10-18 October 2016 EWCH 3312 – example of very poor police, LA and legal practice. £10,000 awarded to the mother and £5,000 to each child.
44) London Borough of Hackney v Williams and Anor [2017] – Court of Appeal sound the warning that £10K awarded at first instance was too high (in the event the court did not find a breach of statutory duty so no damages were awarded at all)
45) CZ (Human Rights Claim: Costs) [2017] EWFC 11 – £3,750 to each parent and child for unjustified removal at birth for about 3 weeks. However, costs likely to be completely absorbed by the statutory charge – publicly funded costs in region of £100K.

Are the family courts biased against men?

Too long, didn’t read: No.

This is a post by Sarah Phillimore

But as ever, its more complicated that that. This is clearly an issue that generates strong feelings. If there is no bias in fact there is certainly a perception from many that bias exists. What is going on here? And what if anything can we do about it?

On Saturday March 18th, I spoke at the Families Need Fathers’ Annual conference in Bristol. The text of what I said is largely what is set out in this post so I refer you to that for more detailed consideration of the statute and case law that informs my views.

I have already commented on accusations that I am ‘sexist’ in this post, which may also be worth a read if this is something that concerns you. All I can say is that I was grateful for the opportunity to speak before an audience that was overwhelmingly male and I hope I engaged respectfully and listened carefully what these men wanted to say to me. I am not ‘sexist’. I speak the truth as I see it. If you disagree – tell me and tell me why. But don’t fall back on stale and tired insults.

The issue of real or perceived bias sparked some interesting debate at the conference and later, via Twitter. The issue of how family courts treat men is certainly one we need to address, given the strength of feeling it engenders.

I was very concerned for example, to hear at the conference on Saturday that Dr Sue Whitcombe was alarmed by the bias she perceived from such agencies as CAFCASS, against fathers. The President of the Family Division urged her to raise this with the ‘top brass’. I hope she does.

Justice must, after all, be seen to be done.

Why can’t a father just see his kids as and when he wants?

This superficially simple question encapsulates the difficulties in this area. Is the family court deliberately, systemically biased against men? Is it sanctioned by either law or culture that the mother holds a veto on the father’s contact?

No. I don’t believe that for a moment. I think the reasons why so many men seem to believe that it is, are explained by many complicated factors. I set out below the ones which weigh on my mind and then some possible solutions or directions of travel.

I don’t mind you disagreeing with me. There may be things I need on my list, or things you think shouldn’t be there. By all means raise this me, in constructive comment. But if you just want to insult me, I am unlikely to find that persuasive.

Contributing factors to the perception of bias

  • Most mothers, most of the time, are primary carers of young children.
  • Many men, quite a lot of the time, appear to see looking after young children as boring, unrewarding, low status and they don’t want to do it.
  • When parents split, the situation that existed before the split is likely to be maintained – i.e. mother as primary carer.
  • Children aren’t parcels to be passed back and forth or a cake to be divided up between hungry parents. They need a home. They need stability, security and routine.
  • Quite a lot of men seem to see their relationship with their children thorough the lens of ‘their rights’ and are unwilling or unable to focus on the child’s experience
  • Quite a lot of women seem to see their relationship with their children as essential to their own identity and become ‘over enmeshed’ with child; they over-react to imagined or perceived defects in the father’s parenting. For further comment on this, see this post about the Rebecca Minnock case. 
  • Quite a lot of people seem to enter into intimate relationships and share their genetic material with people they do not like, do not trust and cannot communicate with.
  • The family courts does not have the tools needed to tackle the psychological dysfunction of parents. There is no easy access to therapeutic help or even supervised contact.
  • court buildings are poorly designed and don’t help parents talk to one another at court or feel comfortable in the court room; tensions remain high
  • The government has removed legal aid from private law cases and created a situation where mothers are encouraged to make allegations of violence against fathers to secure funding
  • there is a lack of judicial continuity as court loads increase but numbers of judges stay the same, or fall.
  • There is a growing number of ‘professional McKenzie friends’ who have rushed to fill the post LAPSO gap and some of whom provide dangerous and unhelpful advice
  • The debate is often ceded to the extremes at either end; to the detriment of sensible and constructive discussion

What can we do about this?

Having a Twitter spat can be entertaining for a brief moment but its utterly futile if all it achieves is people shouting at one another across the electronic abyss.

Here are my suggestions for some solutions. This almost certainly isn’t exhaustive. Please give me some more ideas. The very first step is that we MUST be willing to TALK to each other – not shout over one another. See for example Lucy Reed’s plea on Pink Tape. 

  • early, compulsory education about relationships and what makes them healthy and good
  • early, compulsory education about the realities of parenting and the need for BOTH parents to be involved.
  • pre-martial couples counselling so people at least ask each other ‘do we want children together?’ ‘What would we do if we split up?
  • Better access to advice for litigants in person; recognition that mediation is not the cure all for situations where there is an imbalance of power.
  • More resources for the family courts so there are enough judges to hear cases quickly and maintain continuity.
  • Recognition that CAFCASS personnel, social workers and private law children lawyers are more likely to be women. What’s going on here? Why don’t men want to do these jobs? Is it because areas of work dealing with children are seen as low status?
  • better recognised and better funded pathways to assessment and help for those cases which are becoming intractable.

And perhaps most importantly, and touched on by many at the conference and afterwards. DATA. DATA. DATA. What are the actual facts? What’s happening? What’s working? how can we get this data, interpret it and apply it? This is a clear and keen concern for many; see for example the recent speech by McFarlane LJ.

The President hopes this situation will improve by growth of digital court and consequent ability to ‘mine’ digital systems for data. I hope he’s right.

Over to you Peter.

EDIT 20th March 2017 – ‘lawful’ versus ‘sensible’ actions

Sadly I have to edit this post following my Twitter conversation on 19/03/17 with Peter who appeared to be relying on what I published as ‘expert advice’ that men could simply attend a school and remove their children without consulting the child’s mother or asking her permission.

If that is how Peter is going to interpret what I said, this causes me significant unease on a number of levels:

  • I do not offer ‘advice’ over Twitter. It would be foolish and irresponsible in the extreme to do so. I don’t know your case, I haven’t read the papers, I can’t possibly understand what is going on.
  • What I do – I hope helpfully – is attempt to explain general principles of law that may or may  not apply to your situation. I also point out that you should ALWAYS take time to get particular advice tailored to your particular situation, before deciding to do or not to do something.
  • With that in mind, these are the general principles Peter needs to bear in mind and pass on to the men he ‘advises’
    • If a father has parental responsibility and there is no court order in place preventing him, then there is nothing inherently ‘unlawful’ in turning up at school and taking your child;
    • In my experience in the South West, the police are highly unlikely to act if a child is with a parent who has parental responsibility, provided no court order is breached and they are satisfied that the child is safe and well;
    • HOWEVER the police will act to prevent the commission of a crime and to maintain public order. It is therefore usually extremely foolish if you are already in a situation of conflict with your ex, to do something, such as remove a child from school without prior warning or consultation, which can only be seen as  hostile act by the other parent;
    • If you are in a high conflict situation then I am afraid the practical reality is that the parent with primary residence does have an effective ‘veto’ on your actions, unless and until this can be resolved by you a) both talking to one another and sorting it out b) going to mediation and sorting it out c) going to court and getting an order to sort it out.

PLEASE REMEMBER that just because something is technically ‘lawful’ that does not mean for one second that it is either advisable or sensible to do it. I know it is frustrating to feel that you have to dance to someone else’s tune, particularly when you know you have done nothing to merit being excluded from your child’s life. But if you go down the path, in high conflict situations, of insisting on YOUR rights being exercised in face of opposition from the other parent, I can predict with near absolute certainty that your future looks bleak, in terms of any hope for resolving your difficulties and co-parenting in harmony.

I hope this is helpful Peter.





Much, much more of this please: the Bridget Lindley OBE Memorial Lecture 2017

Who holds the risk, how risk is assessed and how brave or risk averse those who make decisions for children?

This is a post by Sarah Phillimore 

On March 9th 2017 Lord Justice McFarlane delivered the first of the Bridget Lindley OBE Memorial Lectures.  He began by paying tribute to the memory of Bridget Lindley who dedicated her career to the work of the Family Rights Group. She is greatly missed.

I am sorry that I never got the chance to meet Bridget Lindley. I have often expressed both sorrow and exasperation at the apparent dearth of intelligent committed people who wish to direct their energies into understanding the child protection system and making it better, rather than wasting time and energy on unfair and unprincipled criticism and attack.

But I am glad that I got the chance to meet Lord Justice McFarlane and to witness first hand a member of the senior judiciary who is genuinely concerned and interested about what happens ‘at the coal face’ in the day to day toil of the family courts, so far removed from the gothic splendour of the RCJ and ermine robes of the High Court.

The historical development of our understanding of what is child abuse?

He offers an interesting historical precis of how our understanding of what happens to children has developed over the years. What we recognise now as clear ‘child abuse’ would not have been seen as such by a time traveller from the 19th Century – or even from the 20th Century.  As McFarlane LJ comments:

The ability of a society to acknowledge and begin to understand unpalatable truths, about how life is lived by some of its members, is a sign of maturity that only comes with time and the result of a long road carefully travelled. Thus it was only in the  middle of the 20th Century that it came to be accepted that a parent might physically ill-treat their child….

In terms of what kinds of mistreatment we are willing or able to identify as ‘child abuse’, he notes that the ‘professional pendulum’ will inevitably swing between under and over diagnosis before coming to settle on a well-informed understanding of what the available evidence in any particular case might indicate. We see this process in the continuing debates about ‘shaken baby syndrome’ and ‘parental alienation’. We may still have some way to travel along particular pathways in the debate but what is clear is that our knowledge base is immensely more sophisticated than it was in the 1970s.

What happens in other countries?

In this we seem to be apart from other European jurisdictions; an interesting counter weight to the oft expressed (and erroneous) view that the UK is ‘alone’ in permitting ‘forced adoption’. McFarlane JL recognises that other countries make the decision to take a child away from its parents as a largely administrative determination, overseen by tribunals. ‘Fact findings’ to determine if abuse has happened are rare; ‘permanency planning’ for children also appears not to feature in decisions about children.

So is the true picture that other European countries are less keen on promoting adoption because they simply do not have the court structures to enable them to determine the nature and degree of abuse children have suffered at the hands of parents?  It would be ironic indeed for many campaigning groups if the true picture from abroad is that both children and parents are less protected in systems which do not promote ‘forced adoption’. But sadly, I do not have anything like the knowledge base necessary to continue this interesting line of discussion and absent Claire Fenton Glynn’s return to this field, I don’t think anyone has.

Better knowledge and understanding of what other countries do to protect children is urgently required. We are very different from other European countries. We need to understand why and we must not be afraid of finding out what long term outcomes look like for children in the different systems.

The current strengths of our system

The strengths are immediate and obvious, despite the crude propaganda from several campaigning groups. Robust challenge is not merely permitted of the state’s case; it is expected, it is demanded, and the state funds it. We have developed a sophisticated understanding of not only the child’s experience in a family, but of how and why that family can be supported to look after their child.

But there is no room for complacency. Lord Justice McFarlane identifies ‘six short points’ and three significant problems that give him continuing cause for concern.

The Six Short points.

  • Neglect and resources – many cases involve low level neglect of children. At some point the balance tips away from trying to support the family into a decision to remove a child. So when is this tipping point? Who decides? What happens when the family has not been well supported as resources just aren’t available?
  • Post Adoption Contact – there is still no ‘sea change’ 10 years on from the Adoption and Children Act 2002. Attitudes persist that adoptions should be ‘closed’ and there appears to be little creative thought about how to consider other options for a child. See here for further discussion of this issue.
  • Interventions to support parents – why has it taken so long for initiatives such as FDAC and Pause to be made available, when they are so plainly beneficial in the right cases?
  • Special Guardianship Orders – are they being over-used? Is the pressure of the 26 week timetable causing problems?
  • Domestic abuse – are we really getting the balance right here? Isn’t it better for children to stay at home with protection and support? are the family courts keeping up with the criminal courts, and are they sufficiently alive to issues about coercive control? (NB the Transparency Project will be launching its Guide to understanding how issue of violence and abuse are dealt with in family courts at CPConf2017 on the 9th June – see here for more details)
  • Independent Reviewing Officers – there has been NO occasion when an IRO has bought a case back to court, even though many cases have clearly required that kind of scrutiny. Is a key aspect of system thus falling short? What can we do about it?

The Three Big Reasons to Hesitate

Is adoption the best option?

McFarlane LJ makes clear this is a genuine question. He has no concluded view but it is important to ask. I wholeheartedly agree. It has been a frequent feature of my commentary and complaints over the years that successive Governments have simply churned out the ‘adoption is best’ mantra without much thought or examination of the evidence base for that, or the demands of Article 8 of the ECHR.  He makes the clear and crucial point:

Adoption has changed in a number of important respects over the past two decades and a number of the characteristics of adoption, and the assumptions on which it hitherto has been based, have shifted.

Historically, when a child was adopted, both law and practice went to great lengths to achieve a total separation between the child and the natural family. That’s a much less achievable position with the exponential rise of social media. Also the ages at which children are adopted are rising – 20% of current adoptions are of children who are over 4 years old. Children are therefore more likely to have clear memories of their birth families, and have been exposed to more trauma within them.  McFarlane gives a well deserved shout out to the work of the POTATOs – Parents of Traumatised Adopted Teens – who give striking accounts of the difficulties they have faced parenting teenagers traumatised by their earlier experiences, often being given only a partial account of the actual experiences of their child. Often these children end up returning to the care system via section 20 of the CA when their parents can no longer cope.

There is a very welcome recognition from McFarlane LJ that the nature of adoptive parenting is probably now shifting; rather than providing cute babies for couples who can’t have their own children, adoptive parents must now be recognised as needing to provide specialised therapeutic parenting, which has impact upon not merely the recruitment and training of adopters but the provision of support for adoptive families, for the rest of the child’s minority and even beyond.

We also need much better information about long term outcomes – courts have to make decisions about a child’s adoption based on his or her welfare for an entire lifetime. On what evidence does a judge currently make that kind of decision? This links to the second big question.

But how do we know it has worked out alright?

Family judges get almost no feedback on the outcomes of their decisions. Even when an adoptive placement breaks down, the Judge is not informed as a matter of course. McFarlane LJ does not suggest it would be appropriate for the Judge to play any part in a review of why a placement breaks down, but it could only be beneficial for the Judge to be made aware, by a short report. He recalls the incredulity of a business consultant, called into to review the family justice system, on being told that the key decision makers, being paid a high salary, were given ‘absolutely no information as to whether their decisions had been effective’.

He comments

So my first two ‘buts’ are related. Without sound, wide-ranging research as to outcomes, and without detailed individual feedback as to the progress of particular cases, it is difficult, indeed logically it is impossible, for judges to have confidence that the current balance between child protection and human rights, which favours a massive erosion of the right to family life because it is ‘necessary’ to do so to protect the child, is indeed justified

Third Big Question: Transparency and the need to shine a light on what we do

Of all the valuable and worthwhile issues raised by McFarlane LJ in his speech, it is this final part that brings tears of gratitude to my eyes. He generously recognises the efforts of The Transparency Project in this regard – ‘transparency’ is about so much more than just allowing passive public scrutiny of processes and outcomes. We must generate a far greater understanding amongst the public about what is behind the decisions made.

He recognises the chilling impact of the less responsible of the groups which campaign against the ‘evil’ family courts, an issue about which I have raged and agonised for many years now, increasingly incredulous at the apparent lack of interest in just how much damage these groups can do.

He comments:

From what I have been told from a range of sources, and from my own exposure on a daily basis to litigants in person seeking to appeal child care decisions, there is a significant and growing distrust show by some parents in child care lawyers and judges. This is deeply worrying and needs to be addressed if it is not to lead to yet more parents disengaging from working with professionals and the process in a way which can, in my view, only damage their interests rather than enhance them.


Who holds the risk, how risk is assessed and how brave or risk averse those who make decisions for children at risk of significant harm may be are central issues in every child protection case.

We can’t respect human rights without engaging fully in the process where those rights are embedded. If parents are being prevented from engaging, either because they do not know their rights or they are being given ‘targeted advice’ NOT to engage, they risk losing their children. And their children risk losing their parents. It is that simple and that stark.

Judges need proper information on which to base their decisions about the rest of a child’s life. They cannot be left – in his rather terrifying metaphor – as if they are learning to play darts by throwing them randomly about, without sight of the dart board and not knowing if they had hit the board or the wall.

To this end, McFarlane LJ offers some suggestions for a solution:

  • significantly raise the level of public education and awareness as to the way in which the family system operates
  • ensure that parents are exposed to accurate and sound legal advice at the earliest stage, including pre-proceedings
  • conduct extensive research into long term outcomes for children so Judges can have proper information on which to base decisions.

An example of an innovative and low cost solution to both is the Family Court Information website at the Bristol CJC, brain child of Lucy Reed. It is frankly disgraceful that this initiative has not been taken up nationwide. I struggle to think of a better example of such valuable information being provided at such a low cost. Setting up the website for each court area would cost less than £1,000. The analytics for the web site show it is being accessed regularly far beyond the local area it serves. There is clearly a need here for accurate, clear information.

I applaud the range and depth of this speech. It grapples head on with some of the most difficult issues I have been worried about over many years now. I do hope that something so clear and courageous in its willingness to both ask and attempt to answer some really important and difficult questions, now heralds a new Dawn in the long, dark night of woeful and compromised ‘debate’ about the child protection system. We can no longer leave the field open to those who spread misinformation and misery.

It’s time to reclaim our child protection system. To celebrate its many strengths. To tackle head on without fear or shame, its many weaknesses.

It’s been a long time coming.


The full text of the speech is set out below

Holding the risk:
The balance between child protection and the right to family life
Lord Justice McFarlane

Bridget Lindley was an exceptional individual who, as Cathy Aston has just reminded us, dedicated nearly 30 years of her career to the work of the Family Rights Group. As a highly intelligent and focussed lawyer, Bridget could have succeeded in any field of legal endeavour to which she had set her mind, no doubt earning accolades and significant financial reward for herself in the process. The fact that she chose not to pursue personal success, but to devote her working life to the cause of family law and its improvement was to the great benefit to all of us who knew her but, more importantly, to the benefit of countless children and families.

It is no surprise that one of the two people who were invited to join the newly formed Family Justice Review, under the chairmanship of David Norgrove, to present ideas at the Review’s very first meeting was Bridget Lindley. Her authoritative contributions, both at that important first meeting and throughout the process commanded the attention and respect of the entire panel.

I regarded Bridget as a superb children’s lawyer, whose views on policy and how key policy aims might be met were always as sound as they were clear. I admired her greatly as a fellow professional and enjoyed her company as a friend. It is so desperately sad that her life ended so suddenly when she was still at the peak of her powers. She is greatly missed and The Family Justice Council are to be congratulated for instigating this series of lectures in her memory.


In preparing this lecture over recent weeks I have had the benefit of conversations with a number of friends and colleagues who have been kind enough to offer their views on the question of whether or not we currently have the balance “right” as between, on the one hand, the need to protect children from harm and, on the other, the need to respect the right to family life. More than once during these conversations I have had cause to recall the memorable scene in “Monty Python’s Life of Brian” where the chief conspirators in a plot to overthrow the Roman State, “Reg and Stan”, meet with others to discuss the revolution. The response to Reg’s, presumably rhetorical, question “And what have the Romans ever given us?”, is a whole list of helpful suggestions from his mild-mannered co-conspirators leading to the following concluding exchange:

Reg: “Alright … alright, but apart from better sanitation and medicine and education and irrigation and public health and roads and a fresh water system and baths and public order … what have the Romans done for us?”

Xerxes: “Brought peace!”

Those of us who practise regularly in the field of family law may be forgiven if we put forward discreet issues which may currently be at the tipping point of the balance referred to in my title because these are, indeed, current points of interest and importance. This is indeed what I am about to do in this lecture, but it is crucial that we do not lose sight of the big picture. The big picture is, in my view, that, in our jurisdiction Parliament, informed by the Law Commission, the courts and practitioners (legal, social work, and medical) have, over the course of three decades, developed a highly sophisticated system which affords very significant regard both to child protection and to human rights.

Indeed, it is because of the high level of knowledge and experience that has been developed within our system over all these years that we can contemplate the need for any fine, or as I may tentatively suggest in my conclusion gross, further tuning that may now be needed.

In order to make good the claim to sophistication that I have just made, and to describe in broad terms the overall landscape within which this debate sits, I propose to spend a short time colouring in the major background features relating to child protection and human rights before descending to certain specific current issues.

Child Protection
In relation to child protection I make no apology for rekindling a theme that I have developed elsewhere in the past. The understanding that some children may suffer significant harm as a result of the actions of those who should be caring for them is, astonishingly, a relatively new idea. It was only in the 1960s and 1970s – that the occurrence of physical abuse of children came to be accepted as a cause for injury by experts and the public at large.

In the opening paragraph of their seminal book “Child Abuse” published in 1978 by Kemp & Kemp the following appears:
“A book on child abuse could not have been written 100 years ago. If an investigator from the 1970s were to be transported back to the 19th Century so that he could survey the family scene through modern eyes, child abuse would be clearly visible to him. In the past, however, it was largely invisible to families and their communities. Before it could be acknowledged as a social ill, changes had to occur in the sensibilities and outlook of our culture.”

The ability of a society to acknowledge and begin to understand unpalatable truths, about how life is lived by some of its members, is a sign of maturity that only comes with time and the result of a long road carefully travelled. Thus it was only in the middle of the 20th century that it came to be accepted that a parent might physically ill-treat their child and the victim of, what had hitherto been described as, “unexplained infant trauma syndrome”, came to be recognised as “a battered baby”.

It is, I understand, recognised that a society’s ability to contemplate, understand and then accept the existence of more subtle, or even less palatable, categories of abuse takes time and follows on from the first stage, which is the entry level acceptance of physical abuse. The spectrum of abuse is broad and the shading within its various categories may be subtle, opaque and multi-faceted. It includes, as basic categories, neglect, sexual abuse and emotional harm, but, within each of these broad categories, like the sub-divisions of the roots of a plant, the many and various individual manifestations of harmful behaviour multiply and only fall to be understood by professionals on a progressive basis over an extended period of time.

The snapshot provided by the work of Kemp & Kemp in the 1960s and 70s illustrating the moment when the idea that some parents might physically harm their children is replicated by another snapshot paragraph, this time from the opening section of the “Report of the Inquiry into Child Abuse in Cleveland 1987” – the Butler-Sloss Inquiry – which reads as follows:

“Child abuse, the non-accidental injury of a child, received increasing attention in this country in the 1960s and followed upon its recognition in the United States. Public awareness of its nature and frequency grew in the 1970s. The background, early attitudes towards and subsequent general recognition of non-accidental injury has been set out in detail in various early reports on child abuse. A parallel can be drawn between the reluctance to recognise physical abuse in the United Kingdom in the 1960s and the reluctance by many to accept the reality of certain aspects of child sexual abuse in the 1980s … It is obviously important to recognise that the categories of abuse are not closed.”

Whilst noting that there is some historical evidence, for example from Paris in the 1860s, of abuse of older children and, following the passing of the Incest Act in 1908, of sexual assault within the family, the Cleveland Report goes on to state “there is perhaps a new recognition that younger children are also subject to abuse and their plight has only just come to light.”

The audience for this lecture and those who may subsequently read it are likely to be well versed in the details of the history lesson that I could now go on to give. Whilst I will, therefore, spare you the detail, the fact that our understanding of child abuse has developed to such an extent and at such a pace over the course of the last 40 years remains, to my mind, astonishing.

Our understanding of child sexual abuse has now, one hopes, settled down, albeit that it is inevitably constantly developing. The heady days of the 1980s, represented by the events leading to the Cleveland Inquiry, are long past. But, they represented, I would suggest, both necessary and inevitable swings of the professional pendulum between under-diagnosis and over-diagnosis, whilst the doctors, psychiatrists and psychologists came to settle on a well-informed understanding of what the available evidence in any particular case might indicate. The fruits of this important process of professional oscillation are well known and are now an entrenched part of our everyday work in this field.

The guidelines for the structure and content of achieving best evidence (“ABE”) interviews, for example, which we now take for granted, did not just fall from the sky but resulted from a period of intensive work by a number of gifted and insightful professionals over the course of years.

The first edition of the Royal College of Physicians “Physical Signs of Sexual Abuse in Children”, published in 1991, is a small A5 paperback running to well under 100 pages. The most recent 2015 Edition now published jointly with the Royal College of Paediatrics and Child Health and the American Academy of Paediatrics is a very substantial A4 size 300-page document.

Similar examples of the development of our understanding can be given across the board. Determining whether signs in a baby’s brain and eyes are diagnostic, or at least highly probative, of the child experiencing an unacceptable degree of force remain, to an extent, controversial. In particular, the degree of force required to produce bleeding in the brain and eyes remains something of an open question simply because of the impossibility of conducting clinical testing and producing an outcome which is acceptable across the mainstream of experts in biomechanics.

In other fields families in which it may be said there has been “factitious illness”, “parental alienation syndrome”, “ME”, “ADHD”, “spiritual abuse”, and many other circumstances in which children may have suffered significant harm have had their time in the spotlight and remain an aspect of our everyday caseload.

More recently, the identification of a standard list of ACE’s [‘Adverse Childhood Experiences’] and the understanding that the more ACE’s a child has experienced the greater is the impact on their welfare, both as a child and as an adult, has added to our understanding but, in doing so, has necessarily focussed on yet more children who may need protection from having been exposed to a cocktail of adverse experiences.

The diligent professional work over decades by those in the medical profession and elsewhere who have developed an understanding of what is, and also what is not, harmful to children has produced a body of knowledge which can only be seen as highly sophisticated when compared to that available in, say 1970. This is plainly beneficial in general terms to the protection of the children that we seek to serve in this jurisdiction. There is, however, a further important point to make. The fact that I, as a lawyer, wholly untutored in the medical world, can speak to you of these disparate and complicated matters and that each and every one of you, the lawyers in this audience, know precisely what I am talking about and have your own professional experience of dealing with individual cases that have engaged with these topics in granular detail, to my mind, speaks volumes and marks our system out at least from those others across the world, of which I have some little knowledge.

At the risk of speaking in a manner which may well be wholly unjustified, but, I fear is not, and with apologies to those in other jurisdictions who may be justly offended by what I now say, it is my belief that the degree to which we investigate potential child abuse within our family court system is on a wholly different basis and scale from that undertaken elsewhere. Across Europe the decision to take a child into care is largely an administrative determination overseen by tribunals and an administrative court structure. The idea of “fact finding” to determine whether or not abuse has occurred seems to be rare. The concept of ‘permanency planning’, which is at the centre of UK social work is, I understand, not a feature on the Continent.

It is no part of my pitch to you to adopt an arrogant position and suggest that the approach in this jurisdiction is “right” and other jurisdictions are “wrong”. My point is simply that it must be wholly beyond argument that we attach a high premium to understanding and, where it exists, identifying circumstances where children are, or are likely to be, experiencing significant harm. Secondly, this is not a one-sided process. One of the great benefits of our system, driven, as it is by the regard afforded to the human rights of the family and those accused of abuse, is the degree to which we not only tolerate but welcome robust and informed challenge to the detailed evidence in an alleged abuse case. Comparisons are sometimes made between the Legal Aid bill for child protection cases in this jurisdiction and that which is provided elsewhere. Whilst in fiscal terms that such a comparison is made is understandable, but, as I have attempted to illustrate, it is in no manner comparing like with like.

Again, with more than an eye to the human rights’ component, a cardinal benefit that arises from the court steeping itself in a very detailed understanding of the harmful events that the child has experienced in the past is that a bespoke and proportionate plan can be established for the future and, in particular, so that that plan may, in the right circumstances and despite the past occurrence of abuse, contemplate the child being brought either with her parents or, at least, elsewhere in the natural family.

One example of this comes clearly to mind. Ten or fifteen years it would be expected that, following a finding that a baby had been shaken, the care plan would not contemplate returning the child back home to the parents’ care. Now it is not infrequently the case that a detailed understanding of precisely what has occurred in the moments that it took to inflict such an injury renders the case amenable to intervention, support and therapy so that the child can be returned to the care of the family in the expectation that life will, henceforth, be lived in a different way so as to avoid the circumstances that led to the shaking.

Family Life
Turning, more shortly, to the second half of the “big picture”, namely respect for the right to family life, it is my belief that, in like manner but obviously different terms to that achieved for child protection, we have developed a sophisticated understanding of what is needed in order to afford full respect to each individual’s “right to family life” under ECHR, Article 8. I am taking this important aspect shortly because the history of its development and the fruits thereof are well known and, indeed, are expressly referred to in virtually every determination by a family court in child care proceedings relying upon the judgments of the Supreme Court in Re B (A Child) [2013] UKSC 33. I recently devoted an entire lecture to the topic of “Nothing Else Will Do” ([2016] Family Law 1403) and I do not intend to repeat one word of that lecture on this occasion.

Drawing matters together in terms of the big picture, I consider that as a result of the professionalism, dedication and experience of very many who have been involved in this work over the past two or three decades, not least, of course, Bridget Lindley, whose memory we celebrate tonight, we have developed, and are continuing to develop, a system which seeks to afford full regard to the need to protect children from significant harm but, at the same time, respects the human rights of those directly affected by the decision. It is at least adequate, I hope, in every single case. In the high-end cases, as has been said to me, it must be seen as “a Rolls Royce process” with high quality judges, free legal aid, the highest standard of legal representation, world class experts, and with the voice of the child being separately represented by a team of equal standing to the other parties.

There is, however, no room for complacency. Despite the deployment of high calibre resources, the courts sometimes get it wrong and must not be afraid so to find if that is the case. Recent examples, on either side of the line are the case of the Webster family [Webster v Norfolk CC [2009] EWCA Civ 59] and, more recently, the decision of the family court to return young Ellie Butler home, only for her to be murdered by her father 11 months later.

These individual tragedies, which undoubtedly they are, are also tragedies for society in general. The consequences of them underline just how high-risk the decision may be in a child protection case. The court order may remove a child from his or her family for the rest of their natural life, when, in truth, there is no justification for doing so, or, the court may decide to send a child home, believing that there is no continuing risk of harm when, awfully, the contrary is the case. That these high profile failures, when compared to the courts’ annual child protection case load of around 15,000 are few is no justification for complacency. Magistrates and judges who are making these important decisions case by case on behalf of society in general, carry a heavy burden. In terms of who in society “holds the risk” in these cases, the answer is that, more and more often, it is the magistrates and the judges.

Despite the very positive description that I have given of the “big picture”, thus far, there are three topics which have caused me to hesitate and to hold back from simply concluding that all is well, ending my lecture here and sitting down. Before turning to these three “buts”, as I shall call them, I propose to take a different tack at this point and offer a few short suggestions as topics for fine tuning of the system as it is at the moment.
Six Short Points
(1) Neglect and Resources
The first point relates to neglect cases. I do not have statistics, but it must be the case that low to medium level cases of persistent neglect make up the majority of care and adoption cases before the court. In such cases reference is had, and rightly so, to Mr Justice Hedley’s dicta in Re L (Care: Threshold Criteria) [2007] FLR 2050. In every case there is a line to be drawn, or as a matter of strict legal structure, two lines in deciding (a) whether the threshold criteria in CA 1989, s 31 are met and (b) whether the child’s welfare requires placement away from the family.

It is easy to describe the structure, it is easy to refer to Re L, but in these cases, which sit on the very cusp, making the decision whether to remove a child from home or leave her there is often far from easy. Where is the line? Who is drawing it? There is no neat Court of Appeal authority to help with the nitty gritty question as it falls to be decided case by case. A good deal must turn on the value judgment of the court, assisted by professional evidence as to what may or may not cause significant harm to a child. Courts are schooled to avoid ‘social engineering’; in Re B, Baroness Hale construed Lord Templeman’s well known dicta in Re KD (A Minor) [1988] AC 806 as ‘public authorities have no right to improve on nature’ [para 179]. Nor do they, yet in this field the danger of seeking to do exactly that is plain to see. ‘Social engineering’ and ‘child protection’ plainly sit on the same continuum; discerning where the line is drawn between the two is far from plain.

In Re B Baroness Hale, after referring to Hedley J in Re L, stated [para 182]:
‘But clearly we do remove some of those children. The difficulty is to identify what it is that tips the case over the threshold. Although every parent, every child, every family is different, and, as Hedley J put it, ‘significant harm is fact specific and must retain the breadth of meaning that human fallibility may require of it’, there must be some consistency in the approach of both local authorities and the court.’

Into this complicated mix, we must introduce the impact of resources, or the lack of them. In a neglect case, where permanent removal is a borderline decision, the question of what resources can be introduced into the home to support the parents may be determinative of the outcome. Resources have never been limitless and in the current times they are often scarce. Where, prior to court proceedings, the available support to a family is considered by social services to be insufficient, but a risk of significant harm to the child has been identified, then that risk cannot be left unaddressed. If there were doubt about this prior to the case of Baby P, there is none now. The risk is therefore transferred to the court by issuing proceedings and the case moves on down what might be called ‘the lack of resources tunnel’.

In such a case the court is faced with an application to remove the child because the resources are not there to support a continued placement at home. The court, despite, no doubt, investigating the alternatives, may find itself hemmed in (in the same ‘tunnel’) by the lack of resourced options, with removal as the only ‘safe’ prospect. Whilst I do no more than flag this scenario up, without offering any solution, I fear that it is typical of many cases up and down the land, often heard by the more junior members of the family judiciary, where finding the balance between child protection and family life is a very real and pressing daily issue and where guidance as to just where ‘the line is drawn’ and how the risk may be held is thin on the ground. In this regard, the fresh thinking in books such as ‘Re-imagining Child Protection’ by Professor Brid Featherstone and others (University of Bristol 2014) may offer a way forward.
(2) Post-adoption Contact
My second short point relates to post-adoption contact. When the Adoption and Children Act 2002 came into force there was some expectation that the previous approach to post-adoption contact, which heavily relied upon a ‘closed’ adoption model with, at most, modest ‘letterbox’ contact, might change. In Re P (A Child) [2008] EWCA Civ 535, relying upon the earlier priority placed on post-adoption contact by Baroness Hale in Down Lisburn Health and Social Services Trust v H [2006] UKHL 36, Wall LJ contemplated a possible sea change under the 2002 Act. Now, a decade later, the answer is that there has been no sea change. Even the introduction by the Children and Families Act 2014 of bespoke provisions for contact in adoptions following a placement order [ACA 2002, ss 51A + 51B] do not seem to have moved matters on.

Dr Elsbeth Neil and others at UEA have recently concluded a long term research project on the effects of post-adoption contact ; it should be required reading for us all. Recognising, whilst planning an adoptive placement for life, that the adopted individual will have other ongoing support needs, particularly in adolescence, is very important. Planning for, building on and supporting contact, possibly with relatives other than those in the immediate centre of the care proceedings, can be very helpful in the long term. It goes without saying, and here I do think that there has been a change, that the need for continuing contact between siblings should be prioritised.

I wonder if, in this regard, the old case law based [reaffirmed in Re T (Adoption: Contact) [2010] EWCA Civ 1527] can stand. Is it right that the views of the adopters should hold such sway? In all other respects, those before the court who hold a contrary view on any topic are told that ‘what is best for the child’ must prevail. Why, if face to face contact would benefit a child, not necessarily now but in some time after she has settled down, should the adopter have an effective veto? The new powers under ACA 2002, s 51A are wide. The court may make a contact order at the time of adoption or ‘at any time afterwards’. In the right case, there may well be justification in this power being used for the issue of contact to be set down for review, may be in a year or more after adoption to see if, in some way, provision of contact may provide the adopted person, the soon to be adult, with some bridge back to her roots.

(3) Benefits from focussing on parents
My third short point concerns interventions such as FDAC [the ‘Family Drugs and Alcohol Court’] and ‘Pause’ and it is simply to ask two questions:
(a) Why did it take us so long to get to FDAC and Pause, when they are plainly so beneficial in the right cases?
(b) What other models of intervention should we now be considering?

These are initiatives which, by focussing for a time on the parent, rather than exclusively on protecting the child, offer a way for some of breaking the cycle of vulnerability, addiction, confrontation with authority and failure which is so often the hallmark of families who come back and back before the family courts because, without intervention, they are placing their children at risk.

(4) Special Guardianship Orders
My fourth short point relates to Special Guardianship Orders. SGO’s are now not infrequently put forward, often at a late stage, as a solution which may keep a child in the family as opposed to moving off to an out of family placement. In the right case they have much to offer, but there is a fear, certainly amongst some of those to whom I have spoken, that they may be being over-used in cases where there has been inadequate time to assess the special guardian thoroughly. If problems occur down the line, and further court proceedings take place between family members, they will be private law proceedings and they are unlikely to attract Legal Aid.

The pressure to conclude proceedings within 26 weeks, during which the candidate for special guardianship may not have stepped forward until a late stage, adds to the feeling that, in some cases, making the order in some haste may give cause to repent at a later stage. In this regard the recent beefing up of the Special Guardianship Regulations 2005 by the 2016 Amendment Regulations and associated statutory guidance in January 2017 is welcome, as is the Viability Assessment Toolkit, which was one of the many brainchildren of Bridget Lindley, and which has been recently launched by FRG.

(5) Domestic Abuse
Fifthly, ‘domestic violence’. Because of the focus that I have chosen for this lecture, I have, reluctantly had to reduce other topics for no more than short mention rather than offering the in-depth consideration that they deserve. But, as my aim is in part to stimulate debate, and it is better for this very important topic to be included rather than not mentioned at all, it comes in here.

In short terms, and in the context of the balance between child protection and family life, I really wonder if we are getting it right with respect to domestic violence. From my prospective locked in the ‘audit department’ in the Court of Appeal, I no longer see any of the cases, and so I would readily bow to those who know more directly of these matters.

The prevalence of domestic abuse, and it may not necessarily include direct physical violence, has sadly not abated. Domestic abuse is a feature, I am told, in the majority of calls to the FRG Helpline. This is a topic which, rightly, has priority in No 10 Downing Street with a list of initiatives having been announced during the past few months. But how are we, in the courts, measuring up to achieving the best outcome for children and families?

Whilst resort to a refuge may in some cases be inevitable, surely it is better for children to stay at home under protective measures and with support. I wonder whether courts are using the power to make exclusion orders alongside an interim care order [CA 1989, s 38A] as often as may be necessary. And, in terms of the victim, I wonder if we are as clear in our analysis and our understanding of her joint roles as both victim and parent. Finally, is there a contradiction between the approach taken in child protection proceedings where, in bald terms, the message may be that there is to be absolutely no contact between the perpetrator and the child, as compared with private law proceedings where the emphasis may be upon contemplating some contact notwithstanding that domestic abuse has taken place.

Further, in this context, it may be that the family system needs to make sure that it is up to speed with developments in criminal law where, under the Serious Crimes Act 2015, s 76, it is now a criminal offence for one person who is connected with another person to engage in ‘controlling or coercive’ behaviour towards the other so as to have a serious effect on them.

As with some of the other points that I have raised, I realise that I am asking questions whilst offering no answers, but they are nevertheless questions which, in my view, deserve to be raised.
(6) Independent Reviewing Officers
In terms which are, I am afraid, equally brief, I finally wish to mention Independent Reviewing Officers. Those with a memory of 15 years ago will need no reminding of the ‘starred care plan’ case which went to the House of Lords in 2002 [Re S; Re W [2002] UKHL 10] in which the Court of Appeal sought to ensure that key (in human rights and welfare terms) provisions in a care plan were monitored and brought back to court if circumstances changed. Judicial legislation of that order was struck down by their Lordships, but, in the aftermath, the role of ‘Independent Reviewing Officer’ was established by regulation and guidance in 2005 to act as a guardian of the care plan and, where necessary, trigger a return to court. My understanding is that there have been no occasions when an IRO has brought a case back to court under this provision. Anecdotal accounts from around the country indicate that IRO’s are now rarely seen to be independent of the local authority and I have heard a litany of other causes for concern. If this key aspect of our system is indeed falling short of what was expected of it, what can be done to improve the situation?

A further concern in this respect, I understand, arises from a practice, in some areas, of LAC [‘Looked After Children’] Reviews being held in the foster home, with the result that parents are often excluded from the review meeting.

Three reasons to hesitate:
1. ‘But is adoption still the best option?’
Now I come back to the three “Buts” to which I referred earlier. The first is in the form of a question. A system which has adoption against the wishes of the natural family as an outcome, which is regularly chosen as best meeting the lifelong welfare needs of young individuals, must have confidence that that model of adoption does indeed normally best meet the lifelong needs of individuals who cannot safely be returned to their families during their childhood.

My general thesis that the current balance between child protection and human rights is largely sound is only tenable if adoption is, indeed, the most beneficial arrangement for the young people for whom it is chosen by the courts. My question, in short terms, is “But is it?”. If adoption was once the best outcome for children in these cases, does that continue to be the case today?

Before proceeding further, I need to make clear that this is a genuine question asked by me, and in no manner an indication that I, either as an individual or as a judge, have any concluded view one way or the other. It is, however, a question that I do think should be asked. Adoption has changed in a number of important respects over the past two decades and a number of the characteristics of adoption, and the assumptions upon which it hitherto has been based, have shifted.

As is well known, statutory adoption, introduced by the Adoption Act 1926, provided for the adoption of very young babies given up, with consent, by their mothers. The ability of the court to dispense with consent came later and, as a result Houghton Committee Report in 1972, adoption began to be used more actively as an option in the field of child protection, but the cohort of individuals who were adopted largely remained, as I understand it, very young babies. Prior to Houghton (figures for 1968) less than 10% of adopted children came from the care system.

The use of adoption in child protection achieved further impetus following the publication in the late 1970s of “The children who wait” (Rowe and Lambert) a ground-breaking work identifying the need to make better and more effective long term provision for the children who simply “waited” in long term foster care or children’s homes for periods of years without ever achieving a stable family base during their childhood. Thus, the age at which children were considered as candidates for adoption gradually rose over the years.

Once an adoption order was made, however, both the law and practice went to great lengths to achieve a total separation between the child and his or her natural family. Whilst the possibility of tracing natural family members once the adopted individual became an adult existed, the reality was that many years, if not lifetimes, would go by without any contact being made.

In more recent times social work practice, spurred on by consistent impetus from the highest level, for example the initiative of the Blair Government in 2001 and the coalition in 2011 to increase the number of adoptions, has led to the age at which children may be considered as candidates for adoption regularly encompassing youngsters of the ages of 5, 6, 7 years or older [currently 20% of actual adoptions are for children over 4 years old ].

The older a child is when he or she moves on to an adopted home, the more knowledge and understanding they will have about their life to date and the individuals that make up their natural family. Where that family has been dysfunctional, abusive or dangerous, the more that young individual will have suffered and the more likely it is that some deep-seated long-term harm will have been caused to their psychological makeup and personality. No matter how strong, skilled and loving the placement in their adoptive home may become, it must remain likely that the consequences of their earlier experience will be played out as they come to terms with the sense of their own identity whilst traversing the choppy waters of adolescence in the adoptive home.

The difficulties facing adopters and adopted children in this regard have been made significantly more difficult in recent years with the ever-increasing facility to trace and make contact (in an uncontrolled way) with individuals over the internet or via social media. Dame Eleanor King addressed this topic in detail when giving the Hershman/Levy Memorial Lecture in June 2013 (May I be your Facebook friend?: Life stories and social media [2013] Fam Law 1399). The challenges identified by Dame Eleanor four years ago have certainly not diminished and are likely to increase and become yet more sophisticated as the irreversible march of technological developments in this area of our lives continues.

I have recently become aware, and made contact with, an organisation called ‘POTATO’, standing for the “Parents of Traumatised Adopted Teens Organisation”. The stories that these adoptive parents tell of the difficulties they have encountered in this technologically advanced time in coping with teenagers who have been traumatised by their earlier experiences are striking. They give an account of only having received partial and inadequate information as to the harm suffered by the young people prior to their placement, a lack of therapeutic support in the early months and years of the placement and, when problems erupt during the teenage years, the adopters typically feel viewed by Social Services in the same light as failing “parents” in ordinary care proceedings. Not infrequently, where there is a crisis, resort is had to accommodation under the Children Act 1989, s.20.

It must be stressed that the POTATO parents are but one, relatively small, group. Whether their experience is typical of adopters in general, I do not know. There will, no doubt, be adoptions that have run an altogether smoother course without the need for support and intervention in the teenage years. Additionally, even if the adoptive placement has been troubled, that does not mean that any other form of placement would have been more effective.

Looked at from another angle, if adoptive families are now being used to provide ‘therapeutic’ intervention, then this should be fully recognised in terms of:
(a) The recruitment, training and briefing of adopters;
(b) Provision of support (including from CAMHS) at the time of placement; and
(c) Long-term support on into the teenage years and beyond.

It is, I believe, easy for professionals and courts who are dealing with children, understandably, to focus on the need to protect the child whilst he or she is a child. The welfare provision in the Adoption and Children Act 2002, s.1, however, requires primary consideration to be given to the welfare of the child “throughout his life”. Whilst the determinations made by courts in these cases must necessarily look to provide safe and good enough care for the child day by day during their childhood, the task in hand is, actually, bringing up an individual who is going to be an adult at the end of the process. A major justification for adoption has always been said to be, and rightly so, that the additional lifelong commitment made by adopters is likely to provide a child with the most secure and stable base for their development throughout their childhood and beyond. Our approach in the case law continues to be on the basis that this is so. There has been, however, a radical change in a number of the fundamental elements of our model of adoption in recent years:
– the characteristics of the young people who are now seen as candidates for adoption,
– the degree of support, or lack of it, that is afforded to them and their adopters once a placement has been achieved, and
– the erosion in the hitherto impermeable seal around the adoptive placement created by social media.
These changes are, in my view, sufficient to raise the question of whether our model of adoption continues to be as valuable to each of the individuals concerned as we have hitherto held that it is.

This discussion takes place in the light of our growing knowledge, assisted by academic research (particularly that of Dr Claire Fenton Glynn) to the effect that our deployment of adoption, contrary to the wishes of the family, in child protection cases is rare across the world.

I know that consideration is being given in some circles to arrangements that might fall short of full adoption, yet provide a young person with a sufficient base during childhood, whilst maintaining a bridge with their natural family. Long-term foster care, but with a planned rehabilitation to a member of the natural family in the lead up to adulthood, or the idea of ‘lifelong links’ where a young person who cannot actually live in the natural family is actively encouraged to develop a relationship in late teens with a family member are but two such ideas. In each case the family member might not necessarily be a particularly close relative of the individual.

Data and research on whether or not our model of forced adoption in child protection cases has indeed met the needs of individuals on, indeed well on, into adult life is not readily available. In any event, because of the changes that I have identified that have taken place in the last decade or so, such research based on older adoptions may be of limited value. Data that is available as to adoption “break down” is also unlikely to be of great assistance. My understanding is that the concept of “break down” is given quite a narrow meaning. For example, in cases such as those involving some of the POTATO families, where the young adopted person is received into section 20 accommodation, that is not regarded as a “break down”. If the adopted parents’ relationship breaks down, but the adoptee remains living with one or other parent, then, again, this is not, an “adoption breakdown”, even if the impact of the young person’s presence in the family may have had a considerable contribution to the ending of the couple’s relationship.

Having posed the question as to whether adoption is the best arrangement for these older children who have experienced the adverse impact of dysfunctional family life and abuse, I am entirely clear that it is not for me, and not for judges and lawyers in general, to provide an answer. If, however, the question is a valid one, it can only be answered by substantial research by suitably qualified experts. Such research is, in my view, sorely needed.

2. ‘But how do we know it has worked out alright?’
The second “But” that I believe exists is related to the first. Magistrates and judges up and down the country on every day of the week are making these highly intrusive draconian orders removing children permanently from their natural families on the basis that to do so is better for the child and that “nothing else will do”. But, I ask rhetorically, “How do we know this is so?”

Family judges receive almost no feedback upon the outcome of the decisions that they make. The only feedback that does occur is haphazard and normally arises because the case in one form of another happens to come back to court at a later date. There is no regular system of keeping the judge informed with the progress of events six months, a year, five years, ten years, down the line. I don’t anticipate that any judge who made the adoption orders in relation to the POTATO family cases know what has occurred. The last the judge normally sees or knows of a case is to preside over the happy celebratory hearing that typically marks the making of an adoption order.

Even when an adoptive placement formally breaks down, the judge is not informed. My understanding is that in such cases a formal “break down review” is undertaken by the relevant Social Services department. It would be both unnecessary and inappropriate for a judge to play any part in that review process itself, but a short report of the outcome sent to the judge would, in my view, be nothing but beneficial.

Fifteen years or so ago, the Lord Chancellor’s Department, as it then was, recruited a consultant with business and managerial experience to conduct a short term review of family justice. I well recall his incredulity that the system was paying a high salary to important decision makers, i.e. the judges, yet those decision makers were given absolutely no information as to whether their decisions had been effective; a situation that would be completely unheard of in any commercial management structure. In my mind, I liken the present situation to one where an individual who is learning to become a proficient darts player is instructed to throw the darts behind him, over his shoulder, without any sight of the dart board and without anyone telling him whether he had even hit the wall, let alone the board or the bulls eye.

So my first two “Buts” are related. Without sound, wide-ranging research as to outcomes, and without detailed individual feedback as to the progress of particular cases, it is difficult, indeed logically it is impossible, for judges to have confidence that the current balance between child protection and human rights, which favours a massive erosion of the right to family life because it is “necessary” to do so to protect the child, is indeed justified.

3. Transparency: the need to shine a light on what we do
The third “But” is more of a catch all, to which the label “transparency” might generally be applied.

As soon as I mention “transparency” I suspect that you will immediately have focused in on the narrow, but obviously important, topic of whether or not the public and the press should be allowed in to family court hearings. Whilst I have been for years on record as being generally in favour of greater transparency in that context, it is plainly a complicated issue upon which polarised and strongly held opinions are held by people whose views I respect. I am also aware that the President is soon to receive the fruits of a number of consultation exercises in order to consider the next step forward in this regard. I am therefore deliberately not going to say anything more on the topic of allowing public or press access to the family court in this lecture. Not to do so has the benefit of allowing us to consider other aspects of transparency, which is an altogether wider topic than one that simply focuses on the reporting of family court cases.

Whilst the observations that I am about to make are my own, I am extremely grateful to the Transparency Project and, in particular Lucy Reed and Sarah Phillimore, two of the driving forces behind that project, who generously gave time to discuss these matters with me.

‘Transparency’ is much more than simply allowing passive public scrutiny of our processes and outcomes. Those of us in the system need to be proactive in shining a light on our work, both in general and, if necessary, in particular cases, so as to generate a far greater understanding amongst the public of what lies behind the important decisions that are taken about children by the courts, as an arm of the State, in the public’s name.

Delivering effective change in this regard is likely to require innovative thinking “outside the box”. Positive steps are necessary to engage the mainstream media to carry material which accurately describes the family court process. A neutral account of the system, possibly backed up by video content, should be readily available online.

Before descending to detail, it is helpful to step back and take a wide view. There is little point in having a child protection/family justice system which affords proper respect to the human rights of children and family members if those individuals whose rights are to be respected do not know of them or understand how they may achieve access to the justice system in a way that permits them to benefit from that level of respect. Respect for human rights is only likely to be as effective as the ability of the individual involved to engage with the process and gain access to that respect.

Parents who are drawn into child protection proceedings for the first time are unlikely to have any understanding at all of the processes that are about to be deployed, as they will see it, “against them”. Ignorance of the system, both in general terms and with respect to its detailed provisions must massively erode the ability of any individual to take part in the various pre-proceedings and court processes in a way which maximises the potential for their rights to a fair process and family life to be respected. The worse we are at explaining what is involved at the pre-proceedings stage, the less a parent is likely to be able to engage effectively with the process.

That this is so is, in part, due to the high level of ignorance and misunderstanding that I believe there is in the population in general as to the operation of the family justice system. This is part of a wider point that can be made as to the woeful level of public education and awareness as to the legal system in general. The family court, which sits in private, and which is not often the subject of portrayal in television drama to the extent of, say, the Crown Court, is no doubt even less well understood by the general public than other areas.

Unfortunately, the vacuum created by the lack of sound and accurate information about the system provides a space into which ill-informed, and at times deliberately incorrect, commentary and advice can be introduced. Regular ill-informed and deliberately partial press commentary must have an impact upon the perception of the public in general. Targeted “advice” by some semi-professional McKenzie friends and other lay organisations to vulnerable individuals who find themselves the subject of care proceedings has the effect, in some cases, of moving those individuals directly away from engaging effectively in the court process or achieving access to a system which, I believe, would respect their right to a fair process and to family life. In a system which, in current times, puts a priority upon parents being able to accept where their parenting may have fallen short in the past, display insight into what needs to be done for them to live life in a safer way in the future and a willingness to co-operate with the professionals in achieving that change, it is, to put it neutrally, a very high risk strategy for some parents to disengage entirely from the process, refuse to be assessed by independent experts, dispense with the expert lawyers freely provided by the State and, in some extreme cases, flee with their children to Ireland, France or further afield.

From what I have been told from a range of sources, and from my own exposure on a daily basis to litigants in person seeking to appeal child care decisions, there is a significant and growing distrust shown by some parents in child care lawyers and judges. This is deeply worrying and needs to be addressed if it is not to lead to yet more parents disengaging from working with professionals and the process in a way which can, in my view, only damage their interests rather than enhance them.

I could go on, but the point must be plain. To achieve the benefit of respect for human rights, it is necessary to engage fully with the process within which respect for those rights is embedded. To do the contrary, either through general ignorance or as a result of targeted advice, fundamentally compromises the ability of the system to deliver that respect and is likely to reduce significantly the prospect of that parent achieving any outcome which they might consider to be favourable.

Having flagged up the problem, I do not, in this lecture, offer a comprehensive solution but the following headline suggestions can be made;
(a) significantly raise the level of public education and awareness as to the way in which the family system operates;
(b) ensure that parents are exposed to accurate and sound legal advice at the earliest stage, including any pre-proceedings activity such as a formal social work assessment, suggested accommodation under CA 1989 s.20 or family group conferences.

In an ideal world, my reference to pre-proceedings legal advice would be followed by an expectation that legal aid would readily be extended so that a parent may gain access to bespoke legal advice whenever it is needed. In the current climate, however, we cannot anticipate any extension of legal aid but the absence of legal aid does not prevent the provision of detailed general legal advice, which can be accessed by a parent from other sources.

The Transparency Project website, for example, contains a number of accessible explanations of the law and procedure aimed at the non-lawyer under the general title “Children Law for Dummies!”.

The Bristol Family Court has established a “Family Court Information” website aimed at families who find themselves involved in proceedings. It gives straightforward down to earth descriptions of the process, together with links to videos and other material available elsewhere, for example, the FRG website. This is an excellent resource and if social workers were required to refer parents to it in any case where proceedings were being contemplated, the gap between ignorance and achieving full-on legal representation once the proceedings start may, to an extent, be bridged. I am told that the cost of establishing the Family Court Information website is under £1,000 per court centre. I cannot understand why it has not been replicated by each and every one of the other 40 or so family hearing centres around the country.

Another angle of approach to the same problem is demonstrated by the regular, almost daily, blogs or articles which appear on the Transparency Project website and, elsewhere, by individual bloggers such as ‘Pink Tape’, ‘Secretbarrister’, and ‘Suesspiciousminds’. Such articles may take a general point of public interest, or even more usefully, pick up a news item on a particular family case and comment upon it from an informed perspective, having researched the transcript of the judgment, if available, and any other resource. The purpose is to seek to explain the case, for all to read, in an open and accessible manner.

These innovative and important initiatives are valuable, but they are by no means enough to open up the family court and knowledge of our processes so as to provide the sort of general transparency which I consider is both justified for the public in general and desperately needed for the individuals who find themselves at the focus of child care proceedings. It is not enough for the rest of us to leave the heavy lifting to a handful of volunteer, well-motivated, commentators whose output may or may not be picked up by those who need to read it. There is a need for all of us in the system to consider how we, individually or collectively, can improve awareness of what we do, and how our processes can be effectively navigated in order to achieve full respect for the human rights of all involved. This all involves extra work over and above the day job which is already over borne with demands on the time of each individual, under-resourced and under, almost untenable pressures of time. The response “I am simply too busy to do any of that” is entirely understandable. But, how much of the busy-ness of our respective professional lives is taken up with unpicking the results of steps taken by those who have been ill-informed of what is required of them at an earlier stage. Time spent in making our processes much more transparent and accessible must surely go to reduce the ultimate complexity and burden of cases further down the line as well as achieving the higher aim of improving access to justice.

Who holds the risk, how risk is assessed and how brave or risk averse those who make decisions for children at risk of significant harm may be, are central issues in every child protection case.

Increasingly it seems that, for a range of understandable reasons, social workers are passing the decision making to the courts and it is the judges and magistrates who are being called upon to determine whether children should remain with their families or be placed elsewhere. The increased caseload is not cases of high-end gross abuse involving serious physical injury or sexual abuse; these have always come to the courts. The ‘new’ cases tend to be those involving long-term neglect as a result of inadequate parenting or other slow-burning, but none the less harmful, family dysfunction leading to emotional harm.

As I have explained, I consider that our system of investigating child abuse, protecting children and affording respect for the value of family life is one which has many excellent qualities and one which is likely to strike the balance of risk correctly in most cases.

It is right to stress that the outcome for children who cannot safely live in their families must always be to achieve security and permanence in another home throughout their childhood; the question is how best that can be achieved in each individual case.

The hesitation that I have expressed in the concluding part of this lecture is borne from an awareness that, in various ways and at an increasing pace, the world is changing in terms of the characteristics of some of the young people who are chosen for adoption, the range of problems that they may exhibit in years to come, the ability of those who are adopted and their natural families to trace each other and keep in contact via technology and the need for support for adopters in dealing with the fall-out from these problems often many years down the line.

For 30 years and more, since the move to adopt children from care took off, the courts have accepted and worked on the principle that adoption with little or no contact with the natural family provides the best option for the upbringing of a child who cannot be cared for in her family for her childhood and beyond. The stability and security provided by adoption is said to provide a quality of care which far outstrips any other model that might be available. The change in the adoption landscape that I have described now leads me to question whether that still remains the case for some, at least, of the children for whom we have hitherto taken it as a given. A future which may include reception into s 20 accommodation or even care, placement breakdown, relationship breakdown, unstructured (and possibly unknown) contact with the natural family, upset and confusion seems a long cry from the sunny upland of a happy, settled, secure future with a ‘forever family’ which has been the traditional goal of those making adoption orders to date.

If I am right in raising this question, it cannot be answered by lawyers or judges. It can only be addressed by research, and it would need to be fairly extensive research, into current adoption placements some years after orders have been made and, separately, research into the long-term outcomes for those who were adopted 20 or more years ago.

Judges and magistrates are asked to make these decisions by choosing which outcome is best when measured against the individual’s whole lifetime. Whilst these are decisions taken in child protection proceedings, they are not just to do with child protection. Indeed, I would say, the adoption decision is not even largely to do with child protection. Making an adoption order radically shifts the tectonic plates of an individual’s legal identity (and those of others) for life. That is a very big thing to do in order to protect that individual from harm during their formative years. Is an order of that magnitude necessary? How do we know that it is indeed the best outcome for the young person whose future life is being decided by the court? And, if I am right that we can no longer be certain that it is, how is it possible to say that by making adoption orders, particularly in the middle to low range of abuse cases, we are indeed getting the balance right between child protection and the right to family life.