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What’s in a name? Complainant versus victim.

This is a post by Sarah Phillimore. 

The verdict in the Carl Beech case has only just been delivered and the recriminations have begun. If anyone was in any doubt about the dangers inherent in identifying a complainant as a ‘victim’ at the outset of any investigation or court hearing, then here you have it.

An allegation which is not accepted or not proven is not a fact. Someone may identify themselves readily as a victim when in fact they are mistaken – or worse, a fantasist or a liar. Proceedings in either a civil or criminal case hear evidence and make determinations. There is no presumption of guilt in a criminal court. Those making assertions in civil courts must prove them on the balance of probabilities.

I have had cause to be critical of the Ministry of Justice and its recently set up 3 month Inquiry into how the family courts deal with allegations of domestic abuse. My unease stems largely from the fact that the MoJ appear to be operating from the presumption that men are perpetrators of violence and women their victims, even before any evidence has been heard.

My unease has now increased when I learned today of a ‘new service’ set up and funded by the MoJ to deliver support to ‘victims of domestic abuse in family courts’. I queried use of word ‘victim’ and was told the MoJ have set the terms of the service, including its terminology.

I have had long standing concerns about the use of the word ‘victim’ to describe a complainant. In summary:

  • setting up a complainant as a ‘victim’ at the inception of the court process gives that person a wholly unrealistic view of how their evidence may be treated in an adversarial court process.
  • Treating one party as a victim prior to any findings made about the factual basis for that status, risks undermining the fairness of the proceedings and casting the respondent as a ‘villain’ at the outset.

This raises so many questions

  • Who benefits from this dangerous muddying of the forensic waters?
  • Why isn’t it possible to offer support to anyone going through the court process without first deeming them a ‘victim’ on possibly nothing other than their wish to identify as such?
  • Is this seen as an ‘easier’ response than improving the woeful physical nature of many court buildings or cheaper than providing legal representation to both sides of a private law dispute?

 

I have therefore made a FOI request on 8th August 2019 and will update on 29th August.

I would be grateful for the following information, relating to the project which the Ministry of Justice has asked the Citizens Witness Service to run ‘delivering support to victims of domestic abuse in family courts’.

I am told that this service has already launched in Worcester Family Court in July and is about to launch In Swindon. I can find no information about this service on line but was told that the MoJ ‘as funder’ has set the definition and scope of this service, including the terminology of ‘victim’ . Either applicant or respondent – or presumably both – are apparently ‘deemed’ to be victims if they declare themselves to be. The service is offered prior to any determination of any contested allegation by the family court.

I have raised concern that this practice of identifying a complainant as a ‘victim’ prior to such determination of what actually happened, is fraught with difficulty; there is a clear tension between a forensic process that may end in rejecting a complainant’s account and a service that supports someone as a ‘victim’ at the very inception of the court process.

I am told that this service is being offered after ‘wide ranging consultation with victims of domestic abuse’.

I would like to know therefore

1. The time period over which this consultation took place
2. The identities of those individuals or organisations who were consulted.
3. The cost of this consultation
4. The cost of the service to date
5. The anticipated running costs of this service over the first 12 months of its inception.
6. The number and location of those Family Courts who will be running the service

Further Reading

My response to the Inquiry Assessing risk of harm to children and parents in private law children cases

 

Feelings and Dogma cannot set the agenda in Family Justice

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

You Had Better Make Some Noise – Abusers will exploit bad laws and poor safeguarding

This is a post by Sarah Phillimore

I was delighted to be asked to speak on July 27th 2019 by Make More Noise

As the organisers say:

There has been a surge of Feminist activism across the UK in the past year. Women are agitated and organised. We are finding our voice and our voice is saying NO.

Make More Noise are one such group, created to provide a space for women to talk freely and address uncomfortable truths.

 

Why am I interested in this?

I am a woman. I am a disabled woman. The delusion of self ID as a cure for unhappiness is shown to me, and every other disabled person in the world, every single day. We cannot identify out of ourselves. Every day the people around us and the hostile environments we have to navigate tell us what our reality is. To claim another’s identify is a choice for the privileged – a black woman cannot self Identify as white but Rachel Dolezal can claim to be a black woman and take a Nigerian name.

But I am also a lawyer. Who has worked in child protection for 20 years. I have been campaigning since 2014 for greater openness and honesty in our debate about the family justice system.

So it would seem that my experiences both personal and professional have led me to this moment. There is so much to worry about when we face the erasure of biological sex as a category of identification that I have decided to focus my concerns on the implications for children.

 

My central hypothesis this: people would rather cause pain than feel it.

We have a lack of mature discussion in our society about issues of grave importance to us all. I am quite sure that social media is partly behind this.  I see the law being increasingly used as a weapon to silence people who step out of line, the rights of a few achieving dominance over the rights of many others. I see the efforts of some groups and individuals to push back against this – such as Fair Cop and Maya Forstater – but the fact that such groups have felt compelled to take action is an indication of what a strange place our public discourse has reached. People are sacked for expressing ‘wrong think’, the police are used to enforce one person’s feelings against another person’s Article 10 rights to freedom of expression.

And who suffers most in such a scenario where a legal system is used to prioritise the rights of one minority above others? Those at the very bottom of any pyramid power structure – children.

So what supports my hypothesis?

  • High court decisions only 3 years apart about transitioning pre schoolers
  • The NSPCC debacle and the intervention of Prostasia

The shifting position of the High Court

The case of Re J in 2016 involved a 4 year old, who his mother claimed ‘disdained his penis’ and wished to be a girl. The High Court did not agree and ordered that the child lived with his father. Mermaids supported the mother and issued an angry press release after the judgment saying they would appeal – they did not.  I wrote about this case here which contains links to the judgment and press release.

However, only three years later came the case of Lancashire County Council v TP & Ors (Permission to Withdraw Care Proceedings) [2019] EWFC 30. This involved foster carers who had two unrelated children in their care who decided they wanted to transition – the youngest aged 3 years old. [EDIT apologies – youngest was transitioned at FOUR YEARS OLD. Doesn’t make any difference to my argument] The LA were applying to withdraw care proceedings, so it was a different situation from re J. But even so, its interesting to see how the Judge framed this issue of transitioning pre schoolers:

Notwithstanding even the Guardian’s caution in respect of the openness of [the foster carers] to the possibility of an alteration in the children’s attitude to their gender identity I conclude that Dr Pasterski’s evidence demonstrates that it is obvious that neither of these grounds would meet threshold. Taken together with the panoramic evidence of the child focused approach of [the foster carers] it is overwhelmingly obvious that neither H nor R have suffered or are at risk of suffering significant emotional harm arising from their complete social transition into females occurring at a very young age. The evidence demonstrates to the contrary, this was likely to minimise any harm or risk of harm. The evidence does not support the contention that it was actively encouraged rather than appropriately supported.

How on earth is it ‘overwhelmingly obvious’ that a 3 year old will experience no harm from a decision to transition from male to female? I have a difficulty here with such an uncritical acceptance of the evidence of Dr Pasterski. Not merely because I find it extremely hard to accept that any 3 year old has the understanding or the language to communicate a desire to change sex, but I note the approach of Dr Paterski in an earlier case.

Jay v Secretary of State for Justice [2018] EWHC 2620 (Fam) (08 October 2018) considered a man in his 40s who wished to become a woman. While Dr Paterski opined without any reservation that this was a genuine case of gender dysphoria, Dr Barrett struck a more cautious note, given that some of Ms Jay’s reported history was ‘directly at odds’ with documentary records.

“… If collateral corroboration is not convincingly elicited I would have grave doubts and wonder whether [Ms Jay]’s somewhat dependent personality had caused her to unwisely latch onto a change of gender role as a seemingly universal solution to both why her life had gone wrong and how it might be rectified.”

It is worth contemplating, with considerable unease, just what would happen if Re J was being heard and decided this week. Would the High Court have been able to protect a little boy from the mother who was telling everyone he ‘disdained’ his penis? Or would he have been sacrificed to what appears to be compulsive drive to be seen as ‘woke’ and ‘inclusive’ ?

The NSPCC debacle and the intervention of Prostasia

All of you I am sure are familiar with the NSPCC’s public response to people who raised concerns about one of their employees who allegedly filmed himself masturbating at work and published a video online. I am pleased that, belatedly, they had the sense to realise that telling people who raised concerns that they were bigots who should be reported was not an appropriate response and they have referred themselves to the Charity Commission. I await with interest the outcome of that.

What happened to me on Twitter after that was also interesting.

I was discussing that people should consider not making further charitable donations to the NSPCC but consider smaller local charities. An organisation called Prostasia popped up and suggested they might be a worthwhile beneficiary. Which was odd as a quick google showed them to be based in California and advocating ‘sex positive’ child protection, whatever that means.

What I suspect it means is support for men who want to have sex with children. This suspicion was confirmed when another Twitter user found a copy of a mug shot of a man who was active in the conversation and on the Prostasia website. This stated he had been arrested in 2012 for sexual conduct with a child under 13. Prostasia then blocked us all and then tried to blackmail me, which is a whole other story I don’t have time for now – but is a clear indication of the murky ethical waters in which this organisation swims.

 

What does this show me?

The inability or unwillingness of both pro-trans activists and pro-paedophile groups to distinguish teenagers from pre-schoolers.

Because what Prostasia has in common with the views of the legal adviser for Mermaids is a persistent refusal to identify what they mean by ‘a child’.

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

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

What I have witnessed developing over the last year or so has caused me increasing concern about the extent to which some men wish to re-frame the discussion about the sexuality of children. They wish to push back the boundaries regarding age and consent. This seems clear to me because of the extent to which they are often coy about stating exactly how they define ‘a child’. The difference between – for example –  a typical 9 year old and a typical 16 year old is vast and in every domain; physical, sexual, social.

And what is the problem with this?

I was alerted to a blog post in March of this year by the Mermaids legal adviser. The author remained anonymous but was arguing that

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

I commented at the time

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

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

Anyone who is unwilling or unable to see the difference between a child of 6 and a child of 16 is someone who wishes to blur the boundaries around child protection and safeguarding. Why would anyone wish to do this? I can only assume it is to make it easier to secure the eradication of the rights of children to be protected from the imposition of men’s sexual will.  And what is worse, their rights will be eradicated at the same time we are told WE are the villans, WE are the bigots.

The facts are always friendly. That was and will remain my rallying cry. Lets have proper discussion . Not all who wish to transition do so out of realistaion of their ‘essential self’ – a self that no one apparently can define. Some will do so because they are predators. Predators predate. That is what they do. For example, the recent trial of convicted paedophile Carl Beech revealed that he had volunteered at the NSPCC between 2012 and 2015 .

The wolf is no longer at the door. The wolf Is in the kitchen and claiming a legal right to be there.  And I am now too old and too fed up to do anything other than speak up. This will not be done in my name.

 

FURTHER READING

In whose best interests? Transgender Children: Choices and Consequences.

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

Video of talk now on YouTube

My response to the Inquiry Assessing risk of harm to children and parents in private law children cases

This is a post by Sarah Phillimore

Good practice’ would be to commission serious and proper research into the actual nature of the problem, rather than inviting personal anecdote to take the place of robust data. I am very concerned about the nature of this Inquiry; the manner of its inception and the choice of its Panel. Why are there no representatives of any father’s charities? Why has the Inquiry proceeded on entirely partial assumptions about Judges simply ignoring evidence? Is evidence going to be gathered about the rate of false or exaggerated allegations of violence? About the impact of LASPO on encouraging such in order to qualify for legal aid?

Take the survey here

Response ID ANON-CNG1-5F53-C
Submitted to Assessing risk of harm to children and parents in private law children cases
Submitted on 2019-07-19 20:27:16

Your experience of private law children proceedings

1 Please tell us in your own words about how the family court responded to allegations of domestic abuse or other serious offences in
your case, and/or the effects on you and/or your children.

I have represented mothers, fathers and children in contested private law cases for 20 years now. In my experience, the family courts respond as appropriately as they can, taking into account the serious difficulties caused by lack of availability of legal aid and judges. The failings in the law, in my view, has been a reluctance to hold early findings of fact and allowing intractably hostile parents to drag out proceedings over many years, by which time the children have ‘aged out’. I have not experienced any judge being ‘ignorant’ of issues around abuse and violence. I do not think Judges need ‘training’ about violence – they need space and time
to adjudicate properly upon cases. I am extremely concerned that many calling for ‘training’ appear to have a financial interest in such training becoming widespread.

2 Was your experience in the family court:
In 2018-2019, In 2014-2017, Before 2014

Raising allegations of domestic abuse or other serious offences in private law children proceedings

Are there any difficulties in raising the issue of domestic abuse or other serious offences against a parent or child, in private law children proceedings?
Yes

The difficulties in raising issues of domestic violence, in my view, clearly do NOT arise from misunderstanding or ignorance of the law. The difficulties arise from the lack of available court time and the increasing number of litigants in person. There is clearly a lack of understanding about the forensic process and the requirements of proof amongst those who are not legally trained. Better education about this might help. I suspect the ‘I believe’ policy has done enormous harm here. Women come to court expecting to be ‘believed’ and it is a shock to find out that the court process demands proof.

Children’s voices

4 How are children’s voices taken into account in private law children proceedings where there are allegations of domestic abuse or other
serious offences? Do children feel heard in these cases? What helps or obstructs children being heard?
It is my experience over 20 years of representing children that the vast majority do NOT wish to participate in court proceedings. They want a decision to be made about their future by an adult who cares about what happens to them. They generally cannot and do not wish to engage with the evidence. My experience of guardians is generally positive; they appear to be committed and produce thoughtful and helpful reports. I have also noticed an increased willingness amongst judges to see and speak to children outside the actual proceedings, which I think is very positive.

The procedure where domestic abuse is raised

5 Are fact-finding hearings held when they should be?
No
There appears to be a reluctance to hold findings of fact on the basis that ‘it won’t help’ if there is a perception that the allegations are not ‘serious’ enough to mean that direct contact would not be ordered. This seems to offer only a short term gain; my experience is that allegations which are not ‘put to bed’ continue to cause considerable difficulty for the proper resolution of contested private law cases.

6 Where domestic abuse is found to have occurred, how is future risk assessed and by whom? Is risk assessed only in relation to
children, or also in relation to the non-abusive parent?
In my experience risk is assessed by CAFCASS, a social worker or the judge. Risk is generally seen ‘in the round’. I am not aware of any Judge who would say that a person who is violent to a parent but not the child could still be a ‘good parent’.

7 How effective is Practice Direction 12J in protecting children and victims of domestic abuse from harm?
It does what it can. But it clearly cannot assist in those cases – sadly frequent – where women will continue or resume a relationship with a violent man. Nor can it mitigate against structural problems such as lack of alternative housing.

8 What are the challenges for courts in implementing PD12J? Is it implemented consistently? If not, how and why do judges vary in their
implementation of the Practice Direction.
In my experience in London and and on the South Western Circuit I have not noticed any worrying inconsistencies in implementation of the PD.

9 What has been the impact of the presumption of parental involvement in cases where domestic abuse is alleged? How is the
presumption applied or disapplied in these cases?

The presumption is a joke. It is meaningless. It has no impact.

10 Where domestic abuse is found to have occurred, to what extent do the child arrangement orders made by the court differ from orders made in cases not involving domestic abuse?

Depending on the level of severity of abuse, the distinction is in the nature and degree of contact ordered. When serious allegations are found proved, the order is
invariably for indirect contact only.

Safety and protection at court for victims of domestic abuse and other serious offences
11 What is the experience of victims of domestic abuse or other serious offences in requesting arrangements to protect their safety at
court?
Over 20 years I have found the courts become much more responsive to issues around safety at court. However, much of this depends on the physical resources of the court building itself. Some are simply not fit for purpose and it is very difficult in those buildings to ensure that the parties are kept separate.

12 Do family courts make the right decisions about whether an alleged victim of domestic abuse or other serious offences is vulnerable?
Yes
Vulnerable people clearly need appropriate help and representation at court. There appears to be good and widespread understanding amongst lawyers about what is needed.

13 What is the experience of victims of domestic abuse and other serious offences of being directly cross-examined by their alleged
abuser/alleged perpetrator? What is their experience of having to ask questions of their alleged abuser/perpetrator?
I have never known this to happen. When my client was facing XX by a former partner she alleged was abusive, the Judge asked questions. But this is clearly a dreadful situation and should not be tolerated. Both alleged victim and alleged perpetrator ought to have legal representation. It is not fair to ask that the Judge undertake this role.

14 What are the challenges for courts in implementing FPR Part 3A and PD3AA? Are they implemented consistently? If not, how and why
are they inconsistent?
Resources and time.
My experience is that they are implemented consistently.

15 How effective are these provisions in protecting victims of domestic abuse or other serious offences from harm in private law children
proceedings?
I have no idea. The proceedings themselves are very difficult for vulnerable parties, regardless of the efforts made. I do not know what is meant by ‘effective’ in this question.

Repeated applications to the family court in the context of domestic abuse

16 What evidence is there of repeated applications in relation to children being used as a form of abuse, harassment or control of the
other parent?

I do not think this happens very often. Such applications may well be interpreted by one party as an attempt at control. But people are entitled to make applications to the court to secure their legal rights. I have found Judge’s willing to make section 91(14) directions in the appropriate circumstances.

17 Under what circumstances do family courts make orders under s.91(14)?
add text in box:
They are mindful of the guidance of the Court of Appeal and consider it a serious application.

18 How do courts deal with applications for leave to apply following a s.91(14) order?
add text in box:
i have very little experience of this, which suggests to me it is not a common occurrence

19 What are the challenges for courts in applying s.91(14), including applications for leave to apply? Is there consistency in
decision-making? If not, how and why do inconsistencies arise?
I have found the majority of tribunals to consistently apply the Court of Appeal guidance. One judge did not; I appealed her decision and succeeded on that point. She wrongly stated that section 91(14) was not draconian and made an order against my male client.

20 How effective are s.91(14) orders in protecting children and non-abusive parents from harm?
add text in box: I have no idea. They appear to be an effective safeguard against unmeritorious applications.

Outcomes for children

21 What evidence is there of children and parents suffering harm as a result of orders made in private law children proceedings, where
there has been domestic abuse or other serious offences against a parent or child? (This can include harm to a parent caused by a child arrangements order which requires them to interact with the other parent in order to facilitate contact).

This is the problem. There is no ‘evidence’. There is a wealth of anecdote and complaint. But I am aware of no robust evidence. I do not consider the Women’s Aid reporting to be robust. This inquiry is going to invite a great deal of personal anecdote which may or may not have a firm factual foundation. I do not consider this is the way for a mature democracy to proceed to make decisions about any kind of justice system and I am frankly alarmed by this venture and the questions I have just attempted to answer.

22 What evidence is there about the risk of harm to children in continuing to have a relationship – or in not having a relationship – with a
domestically abusive parent (including a parent who has exercised coercive control over the family)?
I REPEAT ANSWER ABOVE

23 What evidence is there about the risk of harm to children in continuing to have a relationship – or in not having a relationship – with a
parent who has committed other serious offences against the other parent or a child such as child abuse, rape, sexual assault or murder?
I REPEAT ANSWER ABOVE

Any other comments or suggestions

24 Are there any examples of good practices in the family courts or which the family courts could adopt (perhaps from other areas of law)
in relation to the matters being considered by the panel?
‘Good practice’ would be to commission serious and proper research into the actual nature of the problem, rather than inviting personal anecdote to take the place of robust data. I am very concerned about the nature of this Inquiry; the manner of its inception and the choice of its Panel. Why are there no representatives of any father’s charities? Why has the Inquiry proceeded on entirely partial assumptions about Judges simply ignoring evidence? Is evidence going to be gathered about the rate of false or exaggerated allegations of violence? About the impact of LASPO on encouraging such in order to qualify for legal aid?

25 Do you wish to make any other comments on the matters being considered by the panel?
write text in box:
I think I have said enough. I hope my cynicism and alarm at this exercise prove unfounded

EDIT 

Have a look at this.  The aim is to protect against ‘perpetrators’. But tricky thing is this – who is deciding they are perpetrators? Is mere assertion now enough?

 

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

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

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

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

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

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

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

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

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

I wrote the following email to the NSPCC

The text of the email is here:

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

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

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

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

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

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

Regards
SP

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

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

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

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

 

Where now?

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

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

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

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

I will update this post on July 15th 2019.

 

 

EDIT JULY 27th

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

Child in need or ‘looked after child’. Why does it matter?

This is a post by Sarah Phillimore.

Teasing out the various issues arising under section 17 and section 20 of the Children Act when it comes to ‘providing accommodation’ and the consequences that flow from that, appears to be yet another example of complicated and confusing statutory provisions which put enormous obstacles in the way of parents being able to understand the process. We must either simplify our laws or increase provision of legal aid. 

What happens to children under 16 who need help from the State with somewhere to live?

Mrs Justice Black SA v KCC [2010] EWHC 848 (Admin)

“There are various provisions of the Children Act 1989 apart from s 17(6) which deal with the provision of accommodation by a local authority. Although this is not the first time I have had to consider this aspect of the Act, I continue to have difficulty in understanding how the various provisions fit together, how it was envisaged that the scheme would work in practice and how it was thought that it would enable local authorities and others to ascertain, relatively simply, whether a child is looked after or not…”

The distinction between ‘in need’ and ‘looked after’

A child can be a ‘child in need’ and get help and services under section 17 of the Children Act 1989. Or a child can be a ‘looked after’ child and get help and services under section 22 of the Act.

The distinction between these two is significant. A ‘looked after’ child gets more help, including a duty on the LA to consider offering support even when she is older than 18. A ‘looked after’ child will also experience more intervention from the LA, for example the statute provides that frequent reviews are required.

The Children (Leaving Care) Act 2000 creates new categories of young people entitled to support.

  • Eligible child – aged 16 or 17 and are currently looked after, either on a care order or accommodated, who has been looked after for a period or periods of 13 weeks since their 14th birthday (this total should include at least one spell of over 4 weeks, but does not include respite). This category defines those who will go on to become Relevant and Former Relevant young people when they cease to be looked after.
  • Relevant child – Aged 16 or 17 (not yet 18) and have left care, having previously been in the category of Eligible child.

There is a duty to financially support them up to the age of 18. The allowances paid to them should not fall below the level of Income Support or Income Based Job Seekers Allowance.

There is a further category of ‘Former Relevant child’ , being those aged 18 to 25 and who have
left care having previously been Eligible or Relevant, or both. The LA is under a duty to consider the need to financially support them.

A ‘looked after’ child is defined at section 22 of the Children Act 1989 as a child who is under a care order OR IF the accommodation provided is by the LA ‘in the exercise of its functions’

‘Functions’ exclude anything done under section 17, 23B and 24B of the Children Act 1989.

Accommodation is only ‘accommodation’ if it is provided for a continuous period of more than 24 hours.

So what does this mean?

Section 17 imposes a general duty on the LA to safeguard and promote welfare of children in their area. This may include providing accommodation.

Section 23B relates to 16-17 year olds and section 24B relates to those who are at least 16.

Therefore if your accommodation is provided under section 17 you are NOT a ‘looked after’ child. We must then look to sections 20 and 23 of the Children Act 1989 to understand what are the relevant ‘functions’ which decide whether or not a child is ‘looked after’.

Section 20(4) is ‘permissive’ . It does not impose a duty on a local authority to accommodate a child but says that they can do so if they think it would promote the child’s welfare and those with PR consent.

Section 20(1) however is mandatory – so a local authority MUST provide accommodation to a child if there is no one who has parental responsibility for him, or no one who can exercise it.

Section 23 is also mandatory and tells the LA that when they are looking after a child they must provided accommodation and other services. Section 23(2) sets out that accommodation can be provided by placing the child with family or any other suitable person. These people will be considered foster carers (so must be assessed and found suitable to meet regulations around standard of foster care) UNLESS that person is the child’s parent or has PR for the child or a Child Arrangements Order.

Further, section 23(6) sets out the LA ‘looking after a child shall make arrangements to enable him to live with’ a parent or person with PR, or a relative, friend or other person connected with him. The LA must also try to find accommodation near to his home and with other siblings (section 23 (7)).

The drafting of this section, as Mrs Justice Black recognises, is confusing and seems to set up different routes into ‘providing accommodation’.

It’s not the label that matters, its the facts and the legal consequences.

R (on the application of M) v London Borough of Hammersmith and Fulham [2008] UKHL 13 made it clear that if the LA claim to be acting under section 17, a child will still be a looked after child if the circumstances are such that the LA should have gone down the section 20 route.

Difficulty has arisen when a child goes to live with a relative and the LA claim that this is a ‘private’ arrangement and therefore not one that should be described as the LA ‘providing’ accommodation. The court is willing to accept that there may be some cases where a LA could ‘side step’ their duty to accommodate by helping to set up a private fostering arrangement.

Private fostering arrangements are dealt with in section 66 of the CA and cover children who are under 16 and cared for in their own home by someone other than a parent, a person with parental responsibility or a relative.  A ‘relative’ is defined under section 105 of the Children Act 1989 as a grandparent, brother, sister, uncle or aunt (whether by blood or marriage) or step-parent.

Has the LA taken a ‘major role’ in making arrangements for the child to be accommodated?

It is a question of fact in every particular case. Where a LA takes a ‘major role’ in making arrangements for a child to be fostered, it is more likely to be considered to be exercising its duties under sections 20 and 23, no matter what it claims is the label to be attached to its actions.

Helpful issues to analyse are likely to be:

  • is the LA attempting to regulate the terms of the placement? for e.g. having a view about the child’s school or who has contact with the child?
  • What is the LA saying about providing financial help for the child? A true private arrangement will be between the parents and the proposed carers who must understand that the parents will be providing financial support.

Does it then matter if the LA argues section 23(2) or 23(6)?

The court said ‘no’ in SA v KCC [2010] and set out a simple approach to the statute. If the child falls within section 20(1) – there is no one with PR or no one who can exercise it – then the LA is providing accommodation for the child regardless of whether or not it finds a home with a friend or relative and regardless of whether or not the LA chooses to accommodate a child under section 23(2) or 23(6).

The LA in that case had tried to argue that whenever a child goes to live with a relative under section 23(6) then such children are not ‘provided accommodation’ unless there is care order in place. The court rejected this ‘rigid position’ as being potentially disadvantageous to the child and ignores the ‘enormous variation that there is in the circumstances of children, and their parents and carers’.

What’s in a name? The right of parents to name their child – when can the state interfere?

I was reminded of the case of C (Children) [2016] EWCA Civ 374 at a recent court hearing where the issue arose about the local authority’s duty to register the birth of a child who is subject to a care order. Hopefully that matter will be subject of some further guidance – my argument being that a failure by a parent to register a birth is an abnegation of parental responsibility, not an exercise of it and therefore the local authority ought to be allowed to register after the required 42 days without needing the court’s permission. 

However the issue of what name a child should be registered with is of much greater significance and It is clear that any argument between parent and local authority must be subject to over sight by the court. But what gives the local authority the right to have an opinion in the first place? To answer this question requires an examination of what happened in C Children.  

How far can the state interfere with a parents wish to register (or not) the birth and name of their baby?

The issue of registering a birth is interesting in the context of care proceedings as there appears to be a view in some quarters that registering a birth makes your baby the ‘property of the state’ and refusing to register means the local authority cannot issue care proceedings. This view has no substance, but of course that doesn’t prevent people from spreading it and believing it.

Registering the birth: the operation of the Birth and Deaths Registration Act 1953

The purpose of the BDRA 1953 is to create a document of public record evidencing all births and deaths in England and Wales. It determines what information is needed to register a child’s brith, who may provide that information and when they must do it.  There is no absolute requirement to register a ‘name’ at the same time as the birth, but provision is made in section 13 BDRA 1953 for the registration of a forename following a delay of up to twelve months or for the alteration of a name during the same period of time:

Section 1(2) BDRA 1953 sets out who is qualified to provide the necessary information to the Registrar; these people are known as “qualified informants”: They are the father and mother, the occupier of the house where the child was born, any person present at the birth or any person having charge of the child.  These ‘qualified informants’ have 42 days from the date of birth to register it

Section 4 BDRA 1953 provides that where, after the expiration of forty-two days, ‘the birth of the child has, owing to the default of the persons required to give information concerning it, not been registered…’, the Registrar can require any qualified informant to attend at a place appointed by the Registrar to give the required information and to sign the register in the presence of the registrar.

So it seems pretty clear from this that the act of registering a birth is an exercise of parental responsibility but is not restricted to actual parents; the focus here is on the proper registration of the birth so that the child can be recognised and identified in the society into which he is born. It is an administrative requirement, not an illustration of something special and particular for parents.

Naming your child – an issue of fundamental significance

if registering a child’s birth is rightly described as a mere administrative act, it is clear that the choice of name for a child is an act of a very different nature and quality and is likely to be of far more emotional importance to most parents.  This exercise of parental responsibility should only be interfered with in exceptional circumstances. As was recognised in C Children at para 40:

One of the first questions asked by friends and relatives following the birth of a child is ‘what is the baby’s name?’ It may be thought that any individual who has had the happy experience of debating with his or her partner possible forenames for their unborn child would be astonished at the proposition that the choice of the name of their child could be regarded as other than their right as the child’s parents, and their first act of parental responsibility. The name given to a child ordinarily evolves over the months of the pregnancy through a bundle of cultural, familial and taste influences. The forename finally chosen forms a critical part of his or her evolving identity….If a baby cannot be brought up by his or her parents, often the forename given to him or her by their mother is the only lasting gift they have from her. It may be the first, and only, act of parental responsibility by his or her mother. It is likely, therefore, to be of infinite value to that child as part of his or her identity….The naming of a child is not however merely a right or privilege, but also a responsibility; people, and particularly children, are capable of great unkindness and often are not accepting of the unusual or bizarre. It does not need expert evidence or academic research to appreciate that a name which attracts ridicule, teasing, bullying or embarrassment will have a deleterious effect on a child’s self-esteem and self-confidence with potentially long term consequences for him or her. The burden of such a name can also cause that child to feel considerable resentment towards the parent who inflicted it upon him or her….

 

Facts of C Children [2016]

So what happened in this case to justify the court refusing to allow a mother to name her children?  This case involved a mother with serious mental health issues. She had a long standing diagnosis of a psychotic disorder and of schizophrenia of an “undifferentiated type with an underlying personality disorder”. She did not accept the diagnosis and thus would not accept any treatment but she was found to have capacity to give instructions in the care proceedings.

Her three elder children had been removed from her care. She then had twin children who were subject to ICOs shortly after birth. Their father was not known; the children were conceived after the mother was raped. She told the midwife she wanted to call the twins ‘Preacher’ and ‘Cyanide’. The local authority tried to persuade her against this but failed – the mother argued that it was a ‘lovely, pretty name’ and that because Hitler killed himself with cyanide, this was a positive connotation.

After some weeks of attempts to change the mother’s mind, the local authority first asked the court to exercise its inherent jurisdiction under s.100 Children Act 1989 to prevent the children being so named but the court did not agree that this was the right route. However, as registering a birth and naming a child were ‘aspects of parental responsibility’, they were actions of a parent which could be limited by the local authority under s.33(3)(b) Children Act 1989. The court then declared that the local authority were allowed to prevent the mother from registering the children with those names.

The mother appealed on the basis that that the judge was wrong in concluding that the naming of the child and the registration of the child’s birth were each an exercise of parental responsibility and that the judge erred in concluding that a local authority has power under section 33(3)(b) CA 1989 to determine that the mother should not register her children’s births with her chosen names. Therefore, it was her human right to choose their names and register them without the interference of the local authority.

The Court of Appeal rejected the mother’s grounds and agreed that the registration of the births and naming of children were acts of parental responsibility, but also that a court could, under its inherent jurisdiction intervene in these circumstances and that the appropriate statutory route was therefore s.100 Children Act 1989.

The first court had not been happy to consider use of the inherent jurisdiction because it did not consider that the test of significant harm was met but King LJ in the Court of Appeal held that some names – such as Cyanide – were so awful that they gave rise to reasonable cause to believe that any child given that name was likely to suffer significant emotional harm. The Court did not have the same objections to ‘Preacher’ but did not think it right for one child to be named by the mother and the other not, so agreed that this name should not be registered either.

Happily in October 2015 the twins moved permanently to live with the foster family caring for their two eldest half siblings live, who chose names that they would like their brother and sister to be called

The limits to what a parent may do to a child under heading of “parental responsibility”.

This case is a useful illustration of the fact that PR while very important and worthy of protection, is not a green light for a parent to do whatever they want.  The Children Act defines “parental responsibility” as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

In Re H-B (Contact) [2015] EWCA Civ 389, the then President of the Family Division, Sir James Munby P, quoted with approval the judgment of McFarlane LJ in Re W (Direct Contact) [2012] EWCA Civ 999 at para 72: i:

I wish to emphasise this, parental responsibility is more, much more than a mere lawyer’s concept or a principle of law. It is a fundamentally important reflection of the realities of the human condition, of the very essence of the relationship of parent and child. Parental responsibility exists outside and anterior to the law. Parental responsibility involves duties owed by the parent not just to the court. First and foremost, and even more importantly, parental responsibility involves duties owed by each parent to the child.

The foundation of the exercise of PR is therefore those acts which contribute to or secure the welfare of the child. Refusing to register your child’s birth or giving a child a name that many others are likely to find offensive or ludicrous is an abnegation of PR, not an exercise of it and parents have no ‘right’ to do harm to their child.

 

 

Why does everyone hate the Family Court ? Part Two

I am grateful for Emma Sutcliffe for this guest post. Its been an interesting month for thinking and talking about why the family court seems to inspire such strong and invariably negative feelings. I first wrote about this on January 8th where I shared two narratives from two parents – a mother and a father, both with a very different perspective but united in their fear and distrust of the process they had experienced. 

Then I heard Professor Jo Delanhunty QC’s Gresham College talk, wishing the Children Act 1989 its happy 30th Birthday, and her clear and urgent reminder that the ethos of the Act was in serious danger of being undermined by the lack of resources now provided to support what it wanted to do – to recognise the child as the heart of every decision and to enable parents to care safety for their children. 

Short on the heels of this, I had to then consider the astonishing allegations of Victoria Haigh; who appears to be developing a presence as a ‘campaigner’ against the family court system without apparent concern or criticism from others in this field and despite the very serious findings made against her about the harm she inflicted on her own child. I can only assume the lack of challenge to her more fantastical assertions stems from the fact that they ‘feel right’ to a lot of people. This is depressing indeed. 

So what do we do? I have very little power or influence. But that’s the same for  most of us. Acting alone we can achieve little. But if we come together and were prepared to talk – openly and honestly – I want to believe that we could achieve something positive. 

So I am very grateful for Emma for sticking with our conversations on line, not always easy for either of us at times, and producing a powerful articulation of how and why her reaction to the family justice system was so negative. 

 

Why do people hate family court?

Emma Sutcliffe

People hate family court for the same reasons they hate hospitals; something pathological has happened to you that you cannot resolve alone and you have to put your life in the hands of people who are deemed to be more expert about your condition than you are. If you’re in family court you’ve likely been through something painful, there’s no guarantee it will stop hurting and the interventions themselves cause bruises. There’s also a hefty bill at the end and the surrounding quality of life direct and indirect costs of loss of earnings and utter exhaustion. Plus … like lots of diseases, it might not go away, it might come back; next time it could be fatal.

Why the determined correlation with medicine? I’m trying to align what I know with what I’ve experienced – knowledge of facts and wisdom of interpretation. I’ve been a medical writer for 25 years following a degree in medical biochemistry and application of that in the research and development of medicines. My entire nature is that of enquiry and fact-based decision making and behaviours. I believe in logic, cause and effect, sensibly following ‘doctor’s orders’.

I’ve also spent too much time in family court as a petitioner which saw 18 hearings in 22 months. My faith in facts, practitioners and the sensibility of court orders was put to the test before, during and after every one of those hearings. It was like preparing for surgery.

Let’s cut to the end result to be able to get back to the original question of ‘hatred’: although technically ‘I won’ — as in the contact order I applied for (on police recommendation) was granted — the experience was like surgery without anaesthetic where you leave feeling as though the presenting diseases may have been excised but fragments of infection are lingering away in septic reservoirs leaving with you a body and mind too reversibly damaged to recover and parent well. ‘Our case’ was just a lose:lose for the entire family. Both families; the old and the new and the penumbrae of families around us.

Our case had its ‘final hearing’ (an oxymoron if you consider that toxic parenting is a chronic condition) more than a year ago. I’m still haunted by the ghosts of hearings past and have my very own reservoir of Post Traumatic Stress Disorder leaving a lasting impression. The reality of the court orders is that unlike doctor’s orders, I’m already forced into breaking them and live every day with the fresh fear that CAFCASS will find me to be in breach and my ex husband will take me back to court. Because family court transacts on what has happened and assumes that children’s needs are fixed. Funnily enough, children grow and change whereas court orders don’t (without another set of injurious hearings reopening wounds) and as I now have a sentient, articulate adolescent determinedly refusing to stay at Dad’s house that essentially turns me into a criminal and opens me up again to allegations of the never-proved, academically derided ‘junk theory’ of parental alienation.

Like Andrew Wakefield’s infamous MMR causal link to autism saw him struck off yet the myths still perpetuate; parental alienation accusations conveniently drown out what ironically is ‘the voice of the child’ – child says ‘this is happening to me; I don’t like it’, CAFCASS officers respond with ‘they’re too young to know what they’re saying, they are the mouthpiece of the parent’. Pick a lane please. By all accounts, therefore, if recent judges’ blunt condemnations that ‘alienating mothers should be subjected to a three-strikes and you’re out’ – or imprisoned – then who knows if my next blog will be about life behind bars?

Therein lies the promulgation to distrust, fear, anger — hatred.

Despite living in purgatory, I have been able to step back and consider what in the hell happened there. My observations are that, like medicine, where a diagnosis, prognosis and treatment is sought through sedulous investigation of symptoms to reach a purely factual outcome – so too does the law of family court (specifically the implementation of ‘The Children’s Act’) rely on facts to achieve a sensible outcome that secures the best outcome for the child. As such, both the practices of medicine and law are ones which rely on its participants and processes being underpinned by integrity and accuracy. Trust should therefore be implicit.

However, neither medicine nor law accommodates human nature and emotions – which when put under pressure will contort and eclipse rational and logical decision-making. When afraid, hurt, confused or distressed the easiest of the emotion to employ is anger. Family court is that A&E part of the hospital where anger dominates; complex decisions are being made amidst a melee of jargon, allegations, process and manipulation. It becomes too easy to archetype ‘all mums are histrionic and cry wolf on domestic abuse’ or ‘all dads are intimidating and claim parental alienation’. However, this isn’t about gender – it is about which parent is the angriest parent in family court because they are more likely to be the one also prepared to be the most ruthless; to take the greatest risks. When parties enter the court they will each know how to attack and defend and how far the other is prepared to go.

The hate of family court is the knowledge that parties will default to their character type and court processes and practitioners by their very need to be thorough and percipient to protect a child have to also be open to the angriest party’s determination to exploit those people and processes in continued pursuit of punishment.

People hate family court because it prolongs the pain of punitive pursuit.

I could further my anecdotes and detail the utterly ludicrous allegations postured at me that I had to defend. But that would be pointless precisely because I was able to defend them thanks to a brilliant barrister and very caring solicitor who, importantly, were able to get me to listen all the while that my anger and fears were raging towards a maelstrom that possibly would have seen me lose custody of my own children and only be permitted supervised visits. If my ex had got his way and the full force of his anger and risk-taking of out and out lies had succeeded in influencing the judge as they biased the CAFCASS officer throughout proceedings then this story might have been very different indeed and even have seen our children placed in the care system. I won’t comment on the allegations because that’s the subject of a different blog (how narcissistic parents behave in court).

But that is why only relying on ‘facts’, denying how emotions can influence behaviours and seeing things in the fixed black/white process of the law is merely sticking a plaster over a seeping wound. People hate family court because it is sterile and doesn’t accurately reflect life outside the chambers. The law is fixed, but life is fluid. And people’s emotions over their children will always spill over … the angrier, the louder, the more heinous the allegations, the blunt threats and brinksmanship of disingenuous practitioners … when faced with the prospect of fight or flight, most mothers without strong legal support will run.

There needs to be allowance for the emotions of all parties and just as a good doctor seeks to help the physical and holistic needs of a patient; so too must family court consider the importance of helping and communicating that it should be a place for resolution rather than fuelling hatred. That can only begin when we seek to align knowledge of facts and wisdom of interpretation.

Transparency: Be careful what you wish for

This post originally appeared on The Transparency Project but objections were raised to my use of the feature image. So I repost it here.

 

This post is to comment on the latest ramifications of the long journey of two parents who faced the same accusation in both criminal and family courts but with very different outcomes.

The Transparency Project commented on this case in 2016; first looking at the legal position with regard to over turning adoption orders. Julie Doughty described the factual background in June 2016, asking the question ‘can an adoption order be undone?’ (answer – yes but it’s very rare):

In …  Re X [2016] EWHC 1342 (Fam), the President of the Family Division, Sir James Munby, gave permission for a full re-hearing of the original allegations made in care proceedings in 2012 involving an injury to child, now aged four, who was adopted in 2015. The problem that has since arisen is that the criminal proceedings brought against the parents, later in 2015, were dropped part-way through the trial. The trial judge directed that the parents be acquitted, as there was no case to answer. The standard of proof in a criminal case is of course higher than in a family case, but the parents now want that family case overturned. This is understandable, because if they want to have more children, or to work with children in the future, the family court finding will still say they pose a risk. However, their barrister told the President that if they were successful at the re-hearing, they would go on to challenge the adoption itself.

I also commented on this decision to hold a re-hearing in November 2016: ‘You can’t handle (51%) of the Truth’ . By October 2016 the parents were clear they did not wish to participate in any rehearing  and did not wish to challenge the adoption order. They provided written statements setting out that they could not contemplate removing X from a settled home after so much time had gone by. However, the LA, Guardian and adoptive parents all wanted a hearing.

The LA accused the parents of cynically withdrawing from a case they knew they could not win. The criminal prosecution had failed not because the parents were a victim of a miscarriage of justice and had been ‘exonerated’ but because prosecution witnesses could not agree about the existence or otherwise of metaphyseal fractures; accepted by all as a difficult area of diagnosis. Metaphyseal fractures are also called ‘corner fractures’ or ‘bucket handle fractures’ as they refer to an injury to the metaphysis, which is the growing plate at each end of a long bone, like a thigh bone. Most experts agree it is a indicator of abuse as the force applied to cause these fractures is shaking. Metaphyseal fractures occur almost exclusively in children under 2 because they are small enough to be shaken and they cannot protect their limbs.

The prosecution decided, very properly, that they could offer no further evidence against the parents in light of their own experts’ lack of certainty when set against the high criminal standard of proof.

This emphasis on declaring ‘the truth’ on the balance of probabilities, troubled me then, and troubles me now. In 2016 I commented:

What I had hoped we would see would be some open, transparent and honest discussion about the often enormous and sometimes irreconcilable tensions between doing right by parents and doing right by their children. Some recognition of the unnecessarily cruel bluntness of the lack of options for children to keep in contact with birth families, when decisions are made for adopted children, and which the Court of Appeal recognised in Re W [2016] needed further thought.

However, what it looks like we may get is some dreadful pantomime, further spending of many thousands of pounds of public money in some charade that by holding a re hearing of a finding of fact on the civil standard of proof (the balance of probabilities) we will somehow get to The Truth and we must do this because it will benefit the child.

What happened after October 2016?

For reasons which are not explained, the decisions of the court made in 2016 around this re-hearing have only just been published on the BAILII website in December 2018 so we are finally able to understand how this unusual situation has resolved.

Can a hearing take place if the parents won’t participate? And what are the implications for ‘The Truth’ ?

The first issue to be determined was whether or not the parents’ refusal to participate in the new finding of fact meant it should not go ahead. The court decided it should, commenting at para 30 and my emphasis added:

The fact is that, because of everything which has happened in this most unusual litigation, we are in a very good position to know what the birth parents’ case is and how it would, in all probability, be deployed before me were they to remain participating fully in the re-hearing. So I am reasonably confident that the essential fairness and validity of the process will not be compromised by their absence, just as I am reasonably confident that, even if they play no part in it at all, the process will be able to find out the truth for X and for the public.

I have highlighted that part of the judgment as it does not reassure me that any of the points I raised in 2016 have been answered; rather my concerns have increased. This creates a situation where the child and the wider public are asked to accept that ‘The Truth’ has been discovered on a balance of probabilities, with no participation from the parents and a Judge who is then only ‘reasonably confident’ that the process will work. By the time of the conclusion of the renewed fact finding the President was on firmer footing (see para 47), and was now ‘confident’ the truth had prevailed – but this remains ‘the Truth’ only on a balance of probabilities.

The court then continued with the finding of fact over a 12 day hearing in October and November 2016. See X (A Child) (No 4) [2018] EWHC 1815 (Fam)(decided in 2016 but not handed down in open court until 14 December 2018)

The court found that the parents had hurt X and they had decided at a late stage to try to avoid a finding of fact because they knew ‘the game was up’. The (then) President commented at para 125:

…I ought to say something about the timing and asserted basis for their attempted withdrawal from the proceedings. I cannot accept their protestation that the motivation for this was concern for X’s welfare and a recognition that there was little realistic prospect, whatever my findings, of ever being able to challenge the adoption order. If that had indeed been the case, they could have sought to withdraw much earlier. The truth, as it seems to me, is that, faced with the overwhelming weight of all the expert evidence which by then had been marshalled, they realised that ‘the game was up’ and cynically sought to withdraw, hoping that this would stymie any attempt to re-visit Judge Nathan’s original findings and thus prevent those findings being vindicated…

Matters of interest: Controversial expert evidence

These proceedings touch on a number of key issues that frequently become the subject of discussion and concern about how we deal with allegations that parents have hurt children. I have already commented on the issue of the standard of proof in family proceedings above. Annie will give below her perspective as a parent on how she reacts to the potential for different outcomes on the same facts in criminal and family courts.

It also highlights the difficulties around ‘controversial’ expert evidence which we touch upon in our guidance note relating to experts in the family courts – see Part 6relating to issues of medical controversy. In the criminal court the parents instructed Dr David Ayoub, a board certified radiologist licensed to practise medicine in the United States of America in the states of Illinois, Missouri and Iowa.

He could not be persuaded to attend the renewed fact finding in 2016 so the court considered his 2015 report and the evidence given in the criminal proceedings. Dr Ayoub had taken the controversial view that metaphyseal fractures happen extremely rarely and ‘for a great deal of the time, the medical community fail to take account of rickets’. His evidence was dismissed by the court as ‘worthless’, noting the reactions of the other doctors who described Dr Ayoub’s evidence as ‘nonsense’ (see para 43)

Asked by me to amplify what he meant by “nonsense”, whether he was using it with the colloquial meaning of “bonkers” or with the meaning “lacking any sense”, Dr Somers unhesitatingly replied “both.” Dr Somers said that Dr Ayoub’s interpretation of the images was “so far removed from any competent radiological interpretation that I have encountered that I would question either motive or competence.” He said of Dr Ayoub’s report that it “obfuscates important issues with a selective interpretation of the evidence in order to support an unproven theory.”

It is worth commenting that this is quite an incredible exchange for one expert to have with a Judge about the quality of another purported expert. There are other reported examples of parents attempting to rely on ‘foreign’ experts of less than stellar reputation and I wonder whether this is the inevitable consequence of the growing distrust of ‘the system’ and belief that all experts are in the pockets of the local authority – for an interesting example of the problems this can cause note also A (A Child), Re [2013]EWCA Civ 43. For further comments and concern about Dr Ayoub, see this article from The Times on 10th December 2018,which noted that Dr Ayoub had given evidence in other cases in the UK, further claiming calls were mounting to curb ‘incompetent experts’ and growing fears about their lack of regulation or control.

Matters of interest: Should a Reporting Restrictions Order continue to conceal the parents’ identities?

it is this issue which I think is probably the most pertinent for those of us who are interested in greater openness and transparency in the family courts. We have to grapple with the possible consequences of increased transparency, particularly in light of what seems to be a prevailing journalistic culture that rests very heavily on salacious and personal details as necessary to drive a story. When other members of the Transparency Project commented on a first draft of this post they asked why had chosen not to name the parents. My response was that I had not consciously chosen not to name them – but I felt very sorry for both of them. I have no doubt that they were encouraged to act as they did by those self styled campaigners against the family court system who persistently offer parents very bad advice on the basis that the whole system is corrupt and designed to steal children. Anyone who wants to know their names will find them by following the links in this post. I still feel uneasy about naming them here, even though I know this is futile.

The parents had welcomed considerable publicity after the collapse of the criminal trial in 2015 and their names were well known. The mother gave an interview to the Daily Mirrorsaying:

People need to know this goes on and be told the truth – you can take your baby into hospital scared they might be ill and the hospital can steal your baby away from you.

Their criminal barrister was quoted in the same article as saying:

Every step of the way when people had the opportunity to stand back, look at things again and say ‘we have made a mistake’, they ploughed on instead. These innocent parents have been spared a criminal conviction and a prison sentence for a crime they never committed. But they have had their child stolen from them. Their life sentence is that they are likely never to see their baby again.”

Sadly, this comment could not be excused as excitement in the heat of the moment arising from media attention, as the barrister’s Chambers published a blog which is still on linemaking the same points and quoting the parents’ junior criminal counsel as saying

“This tragic case highlights the real dangers of the Government’s drive to increase adoption and speed up family proceedings at all costs.”

Alarmingly, the blog post claims the parents were ‘exonerated’. They were not. The prosecution offered no further evidence. This is not a positive finding that the parents were innocent of any accusations made against them. This has echoes of the unfortunate ‘exoneration’ of Ben Butler by a family court when his text messages later revealed a very different picture; sadly after he had killed his daughter.

Such claims of exoneration are awkward when read against the 2016 fact finding. X did not have rickets. There was no miscarriage of justice. X had suffered ‘really serious abuse, child cruelty’.

At para 121 the court noted.

Standing back from all the detail, the overall picture is deeply troubling. Over a few short weeks, during the first few weeks of life, and extending, I am satisfied, over some period of time before taken to RSCH, X suffered an extraordinary constellation of what, I am satisfied, were inflicted injuries for which there is no innocent explanation: the constellation of marks and bruises noted by Dr Maynard (excepting the handful for which there may be an innocent explanation); two torn frenulae; and a number of fractures to different limbs. This was really serious child abuse, child cruelty. Whoever was the perpetrator must have known that X required medical attention. Even if someone was neither the perpetrator nor present at the time when injuries were inflicted, that person must have realised, even if only as time went by, that something was seriously wrong and that X required medical attention. Yet, until the final episode of oral bleeding, neither of the birth parents made any real attempt to obtain medical assistance for X, let alone to protect X from what was going on. Whoever was, or were, the perpetrator or perpetrators, both of the birth parents carry a high measure of responsibility for what on any view were serious parental failures.

Despite the considerable public attention already upon the parents in 2016, the court at that time agreed to impose a Reporting Restrictions Order to prohibit further naming or photographs, noting that the absence of that kind of detail would reduce the amount of publicity that could risk identification of the child or adoptive parents during the second finding of fact. The matter would be considered again when proceedings were concluded and this was done at a hearing on 30th November 2018 X (A Child) (No 5) [2018] EWHC 3442 (Fam) (14 December 2018)

In light of the outcome of the renewed finding of fact, it is not surprising that the mother now wished for the RRO to continue. She had since separated from the father who did not participate in the hearing. Her lawyers argued on her behalf that the mother was:

a vulnerable woman, lacking in formal education and certainly lacking in sufficient sophistication to negotiate dealing with the press. In the aftermath of the criminal hearing, [she] quickly came to regret having been forthcoming to the media. She experienced a level of interest and unwelcome attention that she had not anticipated and with which she could not easily cope. She withdrew from any further such involvement. She learned her lesson after the damage was done, but this socially disadvantaged young woman could never have been expected to have understood the ramifications of ‘going public’ and should not now be held responsible for the actions of others, who could have been expected to have such understanding.

However the court was not sympathetic to this argument. After conducting the balancing exercise between Articles 8 and 10 the court was clear that the parents should not be shielded by anonymity. The arguments put forward by the adoptive parents and the Press Association found favour:

…that there are in the public domain two competing narratives: one, the false narrative, in which identified birth parents portray themselves as the victims of a miscarriage of justice; the other, the correct narrative, in which unidentified birth parents are shown to have wrongly portrayed themselves as the victims of a miscarriage of justice. If the RRO continues in relation to the birth parents, it will not be possible to ‘link up’ the two competing narratives and therefore not possible to demonstrate that the false narrative is indeed false. It will remain indefinitely on the internet without anyone being able to counter it and demonstrate its falsity. More specifically, the allegation (now, as we know, false) of the identified birth parents that they – two named individuals – were the victims of a miscarriage of justice will remain indefinitely on the internet without the possibility of challenge and refutation. Ms Cover and Ms Rensten seek to meet this argument by submitting that the dragon is sleeping and will not be revived unless the birth parents are now identified. Even assuming that their premise is correct, this does not meet Ms Fottrell’s point, which is that the false narrative is out there – readily accessible by anyone with access to the internet.

A birth parent’s perspective

Annie, one half of the Project Coordinator role at the Transparency Project and author of Surviving Safeguarding: a parent’s guide to the child protection process adds her perspective.

I remember this case as it unfolded in the glare of the media in 2016.

What I, and other parents read was that these parents had taken their child to hospital, quite rightly, for medical help, and were accused of harming him or her, meaning that the baby was removed from their care at six weeks old. These parents were then put through the ordeal of a criminal trial and were found innocent of harming their baby. In the meantime, the Family Court had found, on the balance of probabilities, that the child had been harmed and decided that the baby should never be returned to their (seemingly innocent) parents and forcibly adopted. After being cleared of any criminal charges, the parents launched an appeal to have that child returned, an appeal which they then withdrew from, saying that their child had been with the adopted parents so long it would not be fair to move them.

To add insult to injury, Sir James Munby, the President of the Family Court Division (as he was then) added in cynical comments saying that he thought the parents had withdrawn because they “knew the game was up”. He stood by the family court findings (that the child was harmed by the parents).

I, like many birth parents with experience of the child protection system, felt both confused and angry by what I was reading. I felt angry with Munby and defensive towards the parents. How could birth parents who had been found innocent of abusing their child still go on to lose that child to a non-consensual adoption? It seemed utter madness – and a terrifying concept. Since 2015, I have offered direct advocacy to birth parents embroiled in the child protection process. What was I supposed to say to a parent who came to me, frightened, and not engaging with the local authority as a result, who had read this story in publications like the Daily Mail? How was I to reassure them that if they engaged with the help being offered that they had a far better chance of their family staying together when this story was being splashed all over the news and shared in amongst Facebook groups set up to protest against forced adoption? And quite frankly, who could blame these parents for feeling scared? I was, too.

I’ve since read the judgments, and taken time to review what evidence is available in the public domain. I understand better, and my view has changed. However, in the main, most members of the general public don’t read judgments. In the main, we read the news reports and form our opinions from them.

When it comes to parents involved with Children’s Services, these news reports only serve to exacerbate our fears that social workers are the “bogeymen” who will steal our children, even when we are found innocent. This perpetuates the “them and us” narrative, and means we are far less likely to either ask for help, or engage with the help being offered to safeguard children.

Conclusions

Sir James Munby’s confidence that the ‘true’ narrative will now overpower the false one, perhaps displays too great a faith in the ability of people to readily abandon narratives that chime with their own emotional reactions when presented with ‘facts’ (particularly if these are facts established as likely only on 51%). Publishing information on the internet does not by itself remedy the harms caused by adherence to more general conspiracy theories; a matter I have discussed in more detail at the Child Protection Resource.

However, this case with its harrowing and hopefully very unusual set of circumstances, sets out some powerful lessons. I think it is a continuing reminder of the need to be honest about what findings of fact in court can achieve. They are rarely about ‘exonerating’ or ‘damning’ but rather making a finding on a particular standard of proof. That means we need good quality evidence and experts who adhere to good standards of practice. Although Sir James was at the end ‘confident’ that ‘the truth’ had prevailed, the situation as highlighted in the criminal proceedings remained; the images of the fractures were of poor quality and the experts were not unanimous about what they saw.

As Annie comments above, it is a very clear example of just how confused those are outside the system about how it operates. The different standards of proof in criminal and civil cases is rarely understood, and when it is many parents make the reasonable comment that if their child is going to be adopted, it should be on the higher standard of proof.

However, most compellingly of all in my view, this case is a reminder of that he genie cannot be put back in the bottle. If we are pushing for greater openness and transparency, we all need to be mindful of the possible consequences. Once information is ‘out there’ it is very difficult to control how it will be republished or reinterpreted, no matter how hard you insist yours is the ‘right’ version. Once you have got journalists excited about the intimate details of your case, you may well attract more attention than you bargained for and end up the centre of a story that you had not anticipated.

Possibly parents who have greater faith in a court system will be less likely to seek to use journalists to fight their cause. But the risk of people pushing a false narrative with intent to deceive will remain and we are naive to think that publishing ‘the facts’ at a later stage will undo all the damage.

Feature Pic courtesy of Michell Zappa on Flickr (Creative Commons licence) – thanks!

Born into Care: Newborns in Care Proceedings In England

On 9th October 2018 I attended the launch of the Summary Report of ‘Born into care: Newborns in care proceedings in England’ from the Nuffield Family Justice Observatory for England and Wales.

The Nuffield Family Justice Observatory aims to support the best possible decisions for children by improving the use of data and research evidence in the family justice system. The main report will be online as of 10th October; this post deals with a summary and overview of its main findings.

The focus of the report is new borns subject to care proceedings, ‘new born’ being defined as an infant less than 7 days old. ‘An infant’ is a child less than 12 months old. The study used CAFCASS data from 2007 to 2017 to provide the first estimate of what proportion of care proceedings for infants are issued for newborns.

Numbers are on the rise

In the decade covered by the study, 173,002 children were involved in care proceedings and 47,172 (27%) were infants. At the outset, 32% of care proceedings were for newborns – by the end that had increased to 42%. Newborn cases also increased in volume over time; at the outset 1,039 cases were issued involving newborns; at the end 2,447. Thus the likelihood of newborns in the general population become subject to care proceedings has more than doubled. 

Regional variations

An alarming finding was the marked difference between the regions. The North West had the highest rates at 30 newborn cases per 10,000 live births in general population. Contrast this to London which had only 18 newborn cases per 10,000 live births.  A minority of LAs departed significantly from the expected average – the range for such outliers in 2016 was between 55 and 159 newborns per 10,000 live births. This is clearly troubling, and we need to investigate more closely the reasons behind such regional disparity.

The report suggests that differences are most likely attributable ‘to an interaction between professional practice and socio-demographic factors’. Of particular interest to me was the suggestion that we should investigate the influence of the local Designated Family Judges.  As it is a matter of some annoyance to me that different courts are developing divergent ‘local practice’  with regard to primarily administrative matters, it is not a great leap to think that a particular culture or approach may start to take root under the leadership of a particular Judge.

Subsequent Infants

This refers to newborns who had already had an older sibling appearing in care proceedings. In 2012/3 and 2016/7 this represented 47% of newborns. Without the experiences of an older sibling to inform the court, this raises issues about how the claim of ‘significant harm’ is going to be proved to the court – pregnancy provides only a very short window for an assessment of parenting capacity and support for change.

Duration of care proceedings

In 2012/13 only 28% of care proceedings completed within 26 weeks – in 2016/7 this increased to 61%. More research is needed to understand what is happening and what is different about the 39% of cases that do not complete within 26 weeks.

Final Legal orders

The total percentage of newborns subject to final care and placement orders was 47%. 21% were placed with extended family. 13% were placed with family. This requires further investigation – we need to know more about the circumstances behind those percentages.

Further questions

The report identifies the following areas requiring further consideration

  • Is increasing financial hardship for families a factor in the rising rates of newborns in care proceedings?
  • What is the impact of the reduction in preventative services on rates of newborns coming before the courts?
  • Does a defensive risk averse culture mean that professionals are less likely to want to work with the family without the security of a court order?
  • What accounts for fluctuations in the volume of newborn cases over time and place?

 

Main themes emerging from discussion

  • Loss of empathy in the system. What’s going wrong when people in the system want to do their best. ‘The arms that we used to put around families – which are no longer there’.
  • Development of ‘best practice’ in the maternity setting  – how to make the whole experience of removal less brutal for mothers (and fathers). A lot of this would be fairly simple to adopt and wouldn’t cost a huge amount – so why aren’t we doing it?
  • A need for better knowledge about what is done elsewhere – how do jurisdictions beyond England protect newborns, whilst also ensuring the rights of parents and wider family.
  • We have the numbers – now we need to drill down and look at reasons WHY such care proceedings are initiated.
  • And what happens AFTER proceedings? Are there groups of children who should be followed up?

 

Further reading

Care Crisis Review – report from the Family Rights Group

A little less conversation a little more action 

Myths and Monsters of Child Protection 

Evidence and Admissions made in the Family Court – what happens if the police are interested?

Section 98 of the Children Act

The purpose of this section is to encourage parents to speak openly and honestly in the family court about what happened to their child. It is supposed to provide them with safeguards against the involvement of the police who might want to prosecute them for criminal offences if they admit to, or the family court finds they have, hurt their children.

However, the situation is very complicated for even experienced lawyers to understand and it seems that it would be risky for any family lawyer to attempt to reassure their client that information or admissions contained in family proceedings will stay there.

98 of the Children Act 1989 provides that:

1. In any proceedings in which a court is hearing an application for an order under Part IV and V, no person shall be excused from-

A. giving evidence on any matter; or

B. answering any question put to him in the course of his giving evidence, on the ground that doing so might incriminate him or his spouse or civil partner of an offence.

2. A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse or civil partner in proceedings for an offence other than perjury.

I tried to provide a ‘translation’ of this in this post. 

Attempt at Plain English Version: No guarantees of confidentiality can be given by the family court.

The judge should give a warning in the following terms when a parent is being questioned about causing harm to a child:

  • I need to explain a rule of law to you. Its important you understand this. Your lawyer can explain it further to you, it is their duty to do so.
  • allegations are made against you in these family proceedings. The family court is not involved in any decisions made in the criminal courts about whether you should be found guilty or acquitted of any criminal offence.
  • However, in these family proceedings, the court will have to decide whether or not the allegations made against you are true. If they are found to be true, this would mean you have done something which may also be a criminal offence.
  • in the family proceedings you aren’t allowed to refuse to answer questions or provide evidence in writing on the basis that your answers might show you or your spouse had done something criminally wrong.
  • If you do give evidence that suggests you have done something criminally wrong, this evidence is NOT allowed in any criminal proceedings against you UNLESS you are being prosecuted for perjury (i.e. you have lied on oath in the family court).
  • BUT you must understand that if the family court gives permission that ANYTHING you say or write down for these proceedings may be given to the police for them to use during their investigations into your conduct AND if you did end up in a criminal court, the prosecution might make an application for permission to ask you questions about anything you said in the family court.

The court gave guidance in A Local Authority v PG [2014] EWHC 63 (Fam) about the impact of section 98:

  • when a party to care proceedings is ordered to file and serve a response to threshold and/or to file and serve a narrative statement, that party must comply with that order and must do so by the date set out in the order;
  • the importance of parents or intervenors giving a frank, honest and full account of relevant events and matters cannot be overstated. It is a vital and central component of the family justice system;
  • a legal practitioner is entitled to advise a client of (i) the provisions and import of s.98 of the 1989 CA and (ii) the ability of the police and/or a co-accused to make application for disclosure into the criminal proceedings of statements, reports and documents filed in the care proceedings;
  • it is wholly inappropriate and potentially a contempt of court, however, for a legal practitioner to advise a client not to comply with an order made in care proceedings;
  • It is wholly inappropriate and potentially a contempt of court for a legal practitioner to advise a client not to give a full, accurate and comprehensive response to the findings of fact sought by a local authority in the threshold criteria document. This applies both where that advice is limited in time, eg until after a criminal defence statement has been filed and served and, worse still, the advice is given not to make such a response at all.

Some important points

Automatic disclosure of judgments under Rule 12.73

Rule 12.73 of the FPR 2010 and PD 12G mean any party has an automatic right to disclose to police/CPS whole or part of a judgment in a family case for the purpose of a criminal investigation or to enable the CPS to discharge its functions. BUT neither police nor the CPS can disclose the judgment or the information it contains  to any person without the permission of the family court judge.

Factors set out in Re C 1996

The leading authority remains  Re C sub nom Re EC [1996] 2 FLR 725 CA The court set out the following matters which a judge will consider when deciding to let the police have information from the family court. Each case must be decided on its merits and the importance of these factors will vary from case to case. The case also predates the shift in attitudes towards more openness in family proceedings and the impact of Articles 8 and 10 of the ECHR and the Human Rights Act 1998, so will need to be seen in that context.

  • The welfare and interests of the child or children concerned in the care proceedings. If the child is likely to be adversely affected by the order in any serious way, this will be a very important factor.
  • The welfare and interests of other children generally.
  • The maintenance of confidentiality in children’s cases.
  • The importance of encouraging frankness in children’s cases. The underlying purpose of s 98 is to encourage people to tell the truth in cases concerning children, and the incentive is that any admission will not be admissible in evidence in a criminal trial. But the incentive of guaranteed confidentiality is not given by the words of the section.
  • The public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice.
  • The public interest in the prosecution of serious crime and the punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children. There is a strong public interest in making available material to the police which is relevant to a criminal trial. In many cases, this is likely to be a very important factor.
  • The gravity of the alleged offence and the relevance of the evidence to it. If the evidence has little or no bearing on the investigation or the trial, this will militate against a disclosure order.
  • The desirability of co-operation between various agencies concerned with the welfare of children, including the social services departments, the police service, medical practitioners, health visitors, schools, etc. This is particularly important in cases concerning children.
  • In a case to which s 98(2) applies, the terms of the section itself, namely, that the witness was not excused from answering incriminating questions, and that any statement of admission would not be admissible against him in criminal proceedings. Fairness to the person who has incriminated himself and any others affected by the incriminating statement and any danger of oppression would also be relevant considerations.
  • Any other material disclosure which has already taken place.

 

A parent who confesses

There is also very useful discussion about the operation of section 98(2) and disclosure of documents to the police in the case of Re X and Y (Children: Disclosure of Judgment to Police) [2014]. This case involved a parent who confessed to causing a serious injury to a child. This confession came AFTER a fact finding hearing where the Judge couldn’t decide which parent hurt the child. On giving judgment the Judge commented that it would be possible to rehabilitate the child back to the family if the perpetrator gave a full and frank account.  The father confessed to causing the injury 2 days later and the parents separated. The children went back to their mother and Baker J gave a further judgment, exonerating the mother of causing harm.

The Father then applied for an order to stop any of this information being sent to the police/CPS. The police had by now closed their file on the case. The police cross applied to see the information about the confession so they could decide whether or not to prosecute the father. Baker J allowed the police and CPS to see the judgments but with limits on their use; they could not discuss the contents of the judgments with either parent without the court’s permission.

At para 22, Baker J considered the question of whether the father’s confession could be used in criminal proceedings – was he protected by section 98? It is for the criminal courts to decide if a admission could be used as evidence within the criminal trial or whether section 98(2) provided protection but noted that he knew of no reported case where section 98(2) has been considered by the criminal courts. In the family court, such confessions have been used to ‘shape the nature and range of the inquiries’ the police undertake [Oxfordshire CC v P [1995] 1 FLR 797].

Therefore, the police can ask a suspect about his previous confession in a further interview. If the suspects admits it was truthful, that could be evidence admitted into his criminal trial. However, being questioned in a police interview in this way runs a serious risk that any protection offered by section 98 would be nullified – as recognised by the court in Re M [2001] 2 FLR 1316.

There is – as yet – no judicial answer to the question raised in Re X &Y as to whether a suspect’s confession could be raised in a criminal trial as a ‘previous inconsistent statement’ pursuant to s119 of the Criminal Justice Act 1993.

This seems to be the worst of all worlds. Of course the police are going to be interested in a confession or an adverse judgment. Of course they are going to want to rely on it and ask questions about it. It does seem that the practical use of section 98 has been considerably eroded.

 

Liz Ingham comments:

It seems a shame, particularly in a climate where the police and CPS appear to await the outcomes of fact finding hearings before deciding on whether to prosecute and where there is sometimes inordinate delay in criminal trials being heard, that the laudable aim of section 98(2) to encourage frankness in the family courts is being eroded by the spectre of criminal proceedings waiting in the wings.

The section was put there for a purpose – if it was not to provide a complete shield for parents who are frank in children cases in order to encourage them to be so, what was the point of it? Is it right to leave the amount of protection it provides to a parent to be determined in the criminal courts where there is no necessity to consider the factors which may compete against the criminal jurisdiction’s perception of fairness such as the need to preserve the integrity of the family justice system as a whole in providing swift and child focused justice? Would it not be better to have children returned home to one parent quickly following being injured by the other parent than to be removed from their birth family for months at best (pending a fact finding hearing) and for life at worst (due to both parents remaining in the pool of perpetrators) even if the price for that were that the guilty parent escaped criminal prosecution? For the children in Re X & Y, perhaps it was fortunate that Baker J did not give the warning under section 98(2). It might have discouraged the Father from being frank and the children would have remained separated from both of their parents.

 

 

Further Reading