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Speaking to student social workers about the Law – and some other stuff

 

On Monday 27th November 2017 I went to talk to some student social workers about the law around care proceedings  – how important it was for them to understand what the law demands. Without that understanding, social workers cannot analyse their cases effectively and they may not appreciate what kind of evidence they need to present to the court.

I have often wondered if it is lack of proper understanding of the burden and standard of proof which explains why so many care cases go off the rails. I spoke to the students for about an hour, largely exploring areas I discuss in this post about the importance of the rule of law and this post about achieving best evidence in Children Act cases.

“Whats the point in doing the job?”

But – for me at least – the most interesting part of the day was the discussion that followed afterwards. We spoke about the importance of discussion between the different professions to enable us to understand the parameters and limits of our different roles.

I spoke about how social media was still on balance a very positive force in my life as it had enabled me to meet and talk to people I would otherwise never have met. It also allows information to be widely shared.

I asked the students what their perception now was of the role of social worker. The answer was immediate and very sad:

We started the year excited but the constant social work bashing makes us think ‘what’s the point… there is no one who talks about us doing a ‘cracking job’.

The students explained that they were receiving negative messages from all sides – from the parents who visited the college to speak and even from representatives of their own profession.

Of particular note to the students was the way the profession was portrayed by Social Work Tutor. The students confirmed that the discussion on the Facebook groups could be really helpful but they were rightly wary and quite shocked by some of the discussion which involved revealing identifying details about families or encouraging a mocking attitude towards them.

This was a very timely discussion for me – only the previous evening I had engaged in lengthy discussion with a number of others on Twitter about our concerns about Social Work Tutor – which have been fairly and comprehensively assessed on Pink Tape here.

For those who haven’t been following the debate, there have been long standing concerns raised by many that Social Work Tutor promotes a message about the profession that is fundamentally unhelpful and really quite damaging – disseminating a view of social work as a dangerous and draining profession where parents are to be either feared or laughed at.

The alternative view is that SWT has provided a useful forum via his Facebook groups that allow aspiring social workers to exchange ideas and resources and that is reliance on humourous ‘memes’ was just typical officer worker banter.

The students were unanimous in their condemnation of use of ‘banter’ as a shield to poke fun at parents, pointing out that to the recipient of ‘banter’ it usually feels like abuse. There is a fine line between banter and bullying.

The students were also very concerned about the frequent use of memes to underscore just what a horrible job social work is – this was a very demoralising message for the students to receive. They also questioned why there couldn’t be more of a positive message about what social workers aspired to do, other than the ‘social worker as super hero’ message. The students recognised this as inherently unhelpful – not merely enforcing dividing lines between them and parents but as simply unrealistic in a culture of austerity and reduced resources.

This led to an interesting discussion about how difficult it is for the social work profession to celebrate their positive achievements, owing to various laws which prohibit dissemination of information about care cases. The recent Tower Hamlets Muslim foster carer row being one of the worst examples of this.

This was an interesting afternoon but also sad. What can we do to stop the initial excitement of these students draining away in the face of persistent negative messages about their profession? Social work is an essential profession in any civilised society and it is very sobering to think that the students did not feel they could be proud of wanting to be a part of this.

My only answer is that we continue to have honest, open conversations and we keep the bantering memes to a minimum.

 

Multi Agency Response to children living with domestic abuse

Regular contributor @DVHurts writes about the recent report investigating the multi agency response to children living with domestic abuse. Some good practice is noted but also criticism of practices that do not keep children safe, such as written agreements that do not focus on the perpetrator as the source of the abuse and therefore the risk. 

I am highlighting a recent joint inspection report by OFSTEAD, HMICFRS, Care Quality Commission and HM Inspectors of Probation, into the multi agency response to children living with domestic abuse. You can read the whole report here.

This report is about the second joint targeted area inspection programme, which
began in September 2016 and which examined ‘the multi-agency response to
children living with domestic abuse’. The findings in this report consider the extent to
which, in the six local authorities inspected, children’s social care, health
professionals, the police and probation officers were effective in safeguarding
children who live with domestic abuse. The report calls for a national public service
initiative to raise awareness of domestic abuse and violence. It also calls for a
greater focus on perpetrators and better strategies for the prevention of domestic
abuse.

It raises the question whether a public health campaign similar to drink driving or drug awareness should be rolled out considering the enormous human and financial cost of domestic violence:

There needs to be a public service message aimed at reducing the prevalence of
domestic abuse as part of a long-term strategy. The focus of this public service
message needs to be on those perpetrators who have offended or might offend, and
to communicate a better understanding of the behaviour and attitudes of those
perpetrating abuse.

Once again firefighting by services, rather than prevention is highlighted:

Work with families that we saw on inspection was often in reaction to
individual crises. Agencies can be overwhelmed by the frequency of
serious incidents, particularly higher risk ones. However, keeping children
safe over time needs long-term solutions.

There was criticism on the concentration on the victim, rather than the perpetrator by services:

A pattern emerged that suggests agencies focus on the victim as the only solution.
In the worst cases, agencies placed an inappropriate attribution of responsibility on
the mother to protect her children. The end of an abusive relationship was
considered to reduce the risk to children, when in fact research tells us that
separation can escalate risk.
Most agencies did not focus on the perpetrator of the abuse enough. Instead, they
focused on removing the family from the perpetrator, leaving them to move on to
another family and, potentially, a repeated pattern of abuse.

On a more positive note, the inspectors highlighted several areas of good practice , including midwifery, in particular staff who are not frightened to ask the awkward questions:

In Hounslow, for example, inspectors praised the ‘One Stop Shop’ service
for parents who are subject to domestic abuse. The service is open one
morning a week. Parents can access a range of services, advice and
support from various professionals including legal advice, support from an
independent domestic violence adviser (IDVA), children’s social care, the
police, housing, substance misuse support, a refuge worker and an
independent sexual violence adviser. Inspectors noted that:
‘parents are gaining an understanding of the impact of living with
domestic abuse, leading to their being better able to meet the needs of
their children and keeping them safe’.

On the other hand there was criticism of practice that was highly unlikely to keep children safe:

Some of the thinking and practice we saw with victims in contexts of coercive
control were clearly inappropriate. This included the use of written agreements
that placed responsibility for managing the risk to children with the victim.
Written agreements are similar to written contracts, where social workers and
parents agree a set of terms that the parents sign. The terms may include
things like, the victim will not continue a relationship with her abusive partner,
she will not allow him into the house, she will not be in contact with him, and
so on.

The use of written agreements in two of the six local authorities was
widespread. However, we saw no evidence that they are effective. Given that
the focus of written agreements is often not the perpetrator who is the source
of the abuse and therefore the risk, it is unsurprising that they are ineffective.

Then something that a number of woman will relate to, and is often the subject of comments on this blog( not just from me):

 

Some of the women we spoke to in our focus groups described how their abusers used their distress as evidence that they were unstable. Often the women believed they were regarded as having mental health conditions or of being emotionally incapable of caring for their children. In one case, this resulted in a mother being evicted from her home and her partner being given sole custody of her children, whom she did not see for several months. Eventually her abuser, who had a severe alcohol addiction, was evicted and custody returned to the mother

Untangling this web and being consistent in identifying who needs to be held
responsible, and for what, will always be challenges for professionals. We found
instances of language being used that incorrectly held victims responsible for
the risk of domestic abuse. For example, we saw reports that described an
abusive situation as a ‘lifestyle choice’ and reports stating that victims had
learnt to ‘make better relationship choices’. We also found instances of
the multi-agency response to children living with domestic abuse
inappropriate practice, including a police log that had been updated to state
that a safeguarding visit would not be completed because both parties were ‘as
bad as one another’.

A lack of focus on perpetrators can lead to a short-term view of risks. We saw examples of swift action being taken to secure the immediate safety of the
victim and children, without any action being taken to address the root causes
of the perpetrator’s behaviour. In temporarily resolving the immediate incident,professionals can lose sight of the greater risks posed in future.

One survivor of domestic abuse told us:
‘I called the police on him multiple times and they just kind of patted him
on the back and said ‘calm down son’. And I’m like, ‘he’s just thrown me
down the goddamn stairs’.

It is a comprehensive, readable report and has been reported on elsewhere: http://www.communitycare.co.uk/2017/09/21/written-agreements-still-common-part-child-protection-practice/

http://www.telegraph.co.uk/education/2017/09/19/domestic-abuse-victims-ignored-police-officers-see-lifestyle/Mul

Costs of Experts in Care Proceedings – what happens when parents dispense with their lawyers?

 

The decision in J (A Child: Care Proceedings: Apportionment of Expert’s fees) [2017] EWFC B49 is mainly concerned with how to ensure the court gets help from expert witnesses now that their fees are subject to pretty stringent caps by the Legal Aid Agency (LAA -formerly Legal Services Commission or LSC)

I set out the discussion about hourly rates and apportionment of fees below; its pretty dry stuff but horribly necessary. It is clear that we live in a society now where a decision by the court that an expert’s opinion is ‘necessary’ is a decision that can be thwarted by a branch of the government that has set the level of acceptable rates for expert pay. It is possible to argue that your expert should be paid more but only in ‘exceptional circumstances’.

Matters were complicated here by both parents refusing to instruct lawyers and thus take advantage of the non means non merits tested public funding they would get.

If all the parties had lawyers the costs would probably be split 4 ways – in this case the court had to split them between the LA and the guardian. This does in fact reduce the burden on the LAA as it faces only 50% of the bill rather than 75% had costs been split four ways and the LA was the only party not with a legal aid certificate. So hopefully it won’t be a problem in this case. But what if it is? What if there are problems for the guardian on his publicly funded certificate? Best case scenario is further delay while arguments are had with LAA. Worst case scenario  is the court doesn’t get the evidence it needs and more experts are put off appearing in family courts over concerns they may not get paid for the work they do.

The discussion and clarification about issues of apportionment of expert fees are very relevant for lawyers, which is why I deal with it below. But the real worry for me about this case is WHY are the parents not accepting lawyers? I accept from some Twitter discussions about this, it could just be that they are distrustful of lawyers having had previous bad experiences.

But I worry – and have plenty of evidence to support my worry – that whispering in their ears will be the voices of those such as Hemming. That they have been told not to trust ‘legal aid losers’ and thus they will try and fight their corner alone. Their baby has a serious head injury and they are in the pool of perpetrators. One of the options before the court is adoption. To attempt to participate in these proceedings without a lawyer is sheer madness. But to end up paying money to some dodgy McKenzie Friends would make it a tragedy.

I remain shocked, sad and baffled that the activities of some self styled McKenzie friends appear to attract so little attention or concern in the wider world. I hope these parents do not come to regret the choice they made here.

For more details about my concerns about Hemming and his organisation JFF, see the posts set out here. 

Summary of the decision in Re J concerning experts’ fees

  • There is no ‘normal rule’ that costs are apportioned equally between all parties. The court retains discretion.
  • Hourly rates are matter for the LAA to determine but apportionment of fees a mater for the court – probably…
  • Guidance re applying for prior authority is inconsistent but to avoid delay it should be done quickly
  • The LAA should give reasons for its refusal

Fixed rates paid to experts when parties are legally aided.

1. Para 1 of Schedule 5 to the Civil Legal Aid (Remuneration) Regulations 2013 provides that subject to paragraph 2, the Lord Chancellor must pay remuneration to the provider for the expert service at the fixed fees or at rates not exceeding the rates set out in the Table. The Table that follows sets out a list of different categories of expert and the permitted maximum hourly rate for that expert.
2. It is possible to get paid more than these rates. This is set out at paragraph 2 of Schedule 5, if the circumstances are ‘exceptional’. This is defined as meaning the expert evidence must be ‘key’ to the client’s case AND either the material is so complex an expert with high level of seniority is required OR the material is so ‘specialised and unusual’ that only very few experts could deal with it.
3. If parties want to get their expert paid by the Lord Chancellor via the Legal Aid Agency, beyond the rates set in the Table because of exceptional circumstances, they have to apply to the LAA for ‘prior authority’ , i.e. permission to go over the fixed rates. If they don’t get this permission, the solicitors could end up with the bill as they have now a contractual relationship with the expert to pay for his or her services. They are not expected to take this risk and can’t be compelled to take it.
4. The application for prior authority is via a prescribed form. If refused there is no right of appeal. The solicitor can ask the LAA to reconsider but only challenge to refusal is by way of judicial review. The LAA suggest that they take 9 days to process an application but in reality it appears it will take much longer than that. This is potentially a cause for delay in Children Act cases.

Is equal apportionment of fees the ‘normal order’ where there is no issue over resources? ANSWER NO

5. This was the first question posed in Re J. With regard to the issue of apportioning fees the court examined the decision of the Court of Appeal in Re JG (A Child) [2014] EWCA Civ 656. The Lord Chancellor asserted it was the ‘normal’ rule that costs should be apportioned equally between the parties and any departure from this ‘normal’ rule that increases a burden on a publicly funded party should be confined to only ‘exceptional circumstances’. The court rejected the idea that such a ‘normal rule’ existed and said ‘it all depends on the particular circumstances of the case’ (para 16).
6. Instead the court looked to the decision in Calderdale MBC v S and the LSC [2005] 1 FLR 751. All parties were publicly funded except the LA. The parties jointly appointed an expert. The LSC persuaded the court to apportion 50% of the costs to the LA. On appeal Bodey J apportioned costs equally between all parties – so the LA paid 25%.
7. Bodey J was clear this was a matter for the court’s discretion. In the exercise of its discretion the court must consider all circumstances but in particular:
a. The adequacy of the work done by the LA itself
b. Where the report is directed at threshold or welfare issues
c. The need for each party to have confidence in the integrity of the forensic process.
8. The court in Re J considered two other authorities and concluded it was clear that the court has discretion as to what order is made as to the costs of instructing experts in family proceedings.

The Family Procedure Rules 2010

9. The impact of Rule 25.12(6) FPR mirrors Rule 35.9(5) CPR and provides:
Unless the court directs otherwise, the relevant parties are jointly and severally liable for the payment of the expert’s fees and expenses
10. The court conceded this is an odd provision as it appears to be concerning itself with the contractual relationship between the parties and the expert. However, the court decided that when reading it alongside Rule 2512(4)(a) – the court may give directions about experts fees and expenses – it is not intended to be prescriptive and simply establishes a ‘default’ position in the absence of any other court directions. This does not however set up a ‘normal rule’ that costs are to be apportioned equally.

What happens when one party has no money?

11. In re J neither parent was able to pay anything as they had very limited means and they had refused to instruct lawyers even though they would have attracted non means and non merits tested legal aid. If the parents had been legally aided the court had no doubt it would have ordered the expert fees to be shared equally between all parties. Black LJ in re JG was very clear that ‘equality is not the norm’ and the impecuniosity of a party may justify the unequal apportionment of an expert’s fees between the parties’.
12. The court therefore concluded at para 18 of the judgment that it had to accept this was a case ‘in which fairness and common sense dictate that an order requiring an equal sharing of the experts’ fees is wholly inappropriate’. The fees should be paid equally by the guardian and the LA.
13. However, the court still needed to consider the Guidance published by the LAA, which was updated in September 2014. Para 1.6 of the Guidance headed ‘Joint instructions and apportionment generally’ advises that it is normal practice for an application to be made for prior authority wherever a party’s legal representative or the expert are unwilling to take a risk as to assessment of expert fees’
14. There is also Guidance published in 2013 on Remuneration of Expert Witnesses which was updated in April 2015. Section 4 of that guidance appears to contradict para 1.6 of the 2014 guidance as it makes application for prior authority mandatory – ‘you MUST always apply for prior authority where you seek to incur costs of an expert service at higher rates than those set out in the Remuneration Regulations…’
15. Para 4.5 of the 2013 Guidance also recognises that unequal apportionment of costs will not always be unusual in care proceedings – for e.g. one party may be an intervenor and it wouldn’t be appropriate for them to bear an equal share of an expert report going to an issue which is not relevant to their intervention.

So what happened in Re J about splitting costs between LA and Guardian?

16. The court approved the instruction of two experts and determined their fees should be split 50/50 between the LA and the Guardian. The court asked – why is prior authority needed before a letter of instruction can be sent? And if an application is made for prior authority for an unequal apportionment of an expert’s fees ordered by the court, is it open to the LAA to refuse that application?
17. Sir Nicholas Wall P in A local authority v S and others [2012] EWHC 1442 (Fam) was clear that the LSC has power conferred on it by Parliament to refuse to fund an instruction or fund in part only. The only remedy is by judicial review. BUT that was a case dealing with the hourly rate paid to experts. How payment of that hourly rate is to be shared between the parties is NOT subject to any regulations. ‘The issue of apportionment is at large’ (para 24).
18. The court was doubtful that the LAA could interfere with the decision of the court about apportionment, but this was a question for another court on another day. However, the guardian’s solicitor thought it prudent to apply for prior authority in any event and court agreed this was sensible.

The hourly rates of the expert in Re J

19. The excess requested by the expert was £432. Dividing this between the LA and the guardian means that the guardian would have to pay £216 more than could be claimed by the LAA. Even if the guardian was only paying 25% that represents £108 more than could be claimed back. The court agreed that the guardian must seek prior authority to instruct the expert at an hourly rate in excess of the standard rates.
20. The application for prior authority should be made without delay and the LAA, if it refused the application should give reasons for its decision as fairness dictates that the parties are able to understand why it has refused to allow what the court has considered necessary – and if appropriate, challenge can be made speedily.

The conversations we are not having about adoption – and how we could have them

On 23rd September 2017 with curiosity and trepidation, I will become a ‘performer’ in a ‘unique live oral communication performance’ created by the artist Pamela Neil (www.pamelaneil.co.uk), looking at some of the issues around child protection and adoption.

In this performance piece I want to explore important questions that are not being raised publicly, such as – can we ‘make’ happy families? Do we need to ‘rescue’ children or should we be trying to keep unhappy families together?

And probably most fundamentally of all – can we impose identity on a child? What IS our identity? And what does it do to us – as individuals and as a society – to see the identity attached to our birth family be destroyed or altered by the state? When does the price to pay for child protection simply become too high?

I was attracted to this unique art form, creating a live oral communication performance about adoption, because it’s become very clear to me over the years that the necessary public debate about these issues keeps stalling and stagnating around the polarised positions of those who feel very strongly that their experiences and understanding represent the only truth.

Attempts to broaden debate and understanding often falter because when the debate pushes so many emotional buttons, attempts to make a particular argument often seem to end up being a barrier to communication rather than opening a door to greater understanding and awareness – its not so much the FACTS that win hearts and minds but the FEELINGS they create.
Is it possible therefore to come at this from another angle? Not the dry legal approach which has informed my training and professional life – but trying to shine a light on the issues in another way?

One of the most important benefits of any performance or work of art must be how powerfully complex thoughts and ideas can be communicated to an audience; straight to the heart, rather than draining our interest in a dull legal lecture and PowerPoint.

 

Where and when

I have no idea if this will work, but whatever happens I am sure it will be interesting and I am really excited about the venue!

I hope you can join me at ‘happy families, the conversations we’re not having about adoption’, 18:30 – 20:30

Saturday 23 September 2017 Arnolfini Gallery Bristol UK.

Tickets are free and you can register here via EventBrite 

Ignorance is no defence: The dangerous activism of Justice for Families

This post is my formal complaint about the activities of the organisation Justice for Families, which I made to its Chairman John Hemming on 8th January 2017. My name is Sarah Phillimore and I am a barrister specialising in child protection law. My concerns about Mr Hemming and his organisation are long standing. You can read more here and here.

I gave Mr Hemming an extension of time until 4pm on 21st February 2017 to respond to this complaint. He replied, via Twitter, that he would not. I thought six weeks was more than enough time to respond to such serious concerns and I made it clear that, in the absence of any substantive response from him,  I would publish the complaint today.  

 

Why am I doing this? What’s the point? Who cares?

Because I don’t see what other choice I have. I cannot ‘unknow’ what I know about this group. It’s probably pointless, I concede because no one seems to care. I can speculate about why that is. When I have tried to get journalists interested in this, they respond sadly ‘it’s too complicated’ (if I’m lucky. If I’m not, they simply ignore me).

I suspect ‘it’s too complicated’ is convenient shorthand for something like this “John Hemming is wealthy and litigious. I don’t want the trouble. Plus, I can’t really get too worked up about the kind of people who get mixed up in this. They seem quite unappealing; poor, drunk, mentally ill, can’t look after their kids. Why bother with them? “.

I appreciate that I cannot make people take an interest in or care about what JFF get up to or the people they hurt. I really don’t understand why so many don’t seem to care,  why many more people are not angry about the exploitation of the vulnerable and the children put at risk of harm.

I also appreciate that the existence of such groups and the fact that so many parents are desperate enough to turn to them, says nothing good about the current state of the child protection system. It is a tragedy that vulnerable parents believe they have no where else to turn; they are between the rock and the very hard place. The blight of the unscrupulous McKenzie Friend is serious and real, as seen in the recent Victoria Derbyshire programme.

All I can do is all I can to spread awareness about the nature and the extent of the problem we face. If, with that knowledge, you chose to do nothing then that is a matter for your conscience.  Mine is clear.

If JFF attempt to involve themselves in any case where I am instructed, I will object. And I will explain very clearly why.

 

Letter of complaint sent January 8th 2017

Parts of this letter of complaint have been removed prior to publication to ensure compliance with section 12 of the Administration of Justice Act 1960 which prohibits publication of matters relating to care proceedings, without permission being obtained first from the court. 

Dear Mr Hemming,
1. On 2nd January 2017I asked you via the public electronic communications network Twitter (hereafter Twitter) where I could direct a formal complaint about the activities of the organisation Justice For Families (hereafter JFF) , you as its Chairman and its advisers Tim and Julie Haines. At 22:58 on 2nd January 2017 you replied to say ‘me’. On 5th January 2017 I replied to say that I would make a formal complaint, if time permitted by 6pm on Sunday 8th January 2017. You replied to say that you would respond to that complaint but you could not promise a timescale.

2. The link to the JFF website is no longer valid and I assume therefore this website has been taken down. However I note the Facebook Group ‘Stop Forced Adoption’ is described as the official Facebook Group of Justice for Families Ltd  Registered Company No. 06645051.

3. Information from Companies House shows that JFF company was incorporated as a private limited company on Monday 14th July 2008.  Its registration status is ‘active’ and the company engages in activities of patent and copyright agents and other legal activities not elsewhere classified. The registered address is Osmond House 78 Alecester Road Birmingham B13 8BB, which is the address to which I will send this complaint. I will also send a copy to you via email to john@hemming.email, which is the email address you provide on your blog 

4. Your confirmation that I should send a formal complaint about the activities of JFF and its members/advisers supports my assumption that you remain the Chairman of this company and the frequent public denouncements you make of the family justice system represent the position adopted by JFF, its advisers and members.

5. I am also sending a copy of this complaint to the Designated Family Judge at the Bristol Civil Justice Centre, being HHJ Wildblood QC. [REDACTED]

6. I shall set out below:
a. The time by which I request a response;
b. My proposed actions if your response is not forthcoming or is inadequate;
c. How I would like you to respond to this complaint;
d. a summary of my complaint and
e. more detailed description of the evidence upon which I rely to support that summary. Any reference I make to a publication made on any public electronic communications network can be supported by a screen shot of that publication, if required.

I request a response to my complaint by 6/2/17.
7. If you do not respond by that date, or I consider that your response is inadequate, I will consider:
a. Making formal complaint about serious misconduct relating to the activities of a private limited company;
b. Make formal complaint to providers of the public electronic communications networks such as Twitter and Facebook and request that the JFF Facebook group is removed or suspended. I note in particular that the JFF Facebook group is currently soliciting copies of court judgments from parents without any reference to permission from the President of the Family Division to conduct such ‘research’

How I would like you to respond to this complaint.
8. The remedy that I seek is that you or any person purporting to operate with the approval of JFF;
a. refrain from further publication of unevidenced, inflammatory or demonstrably false denigration of the family justice system; and
b. refrain from any further publication of any suggestion that parents facing care proceedings should leave the jurisdiction because they cannot secure a fair hearing and
c. remove Tim and Julie Haines forthwith as having any official connection or remuneration from JFF; and
d. take down the ‘Stop Forced Adoption’ Facebook Group.

Summary of my complaint

9. I make this complaint as a family law barrister who for many years has been seriously concerned by the activities of you and your organisation. It is clear to me that the activities of JFF can be criticised under two broad headings
a. Having a serious and detrimental impact on the proper working of the family justice system; and
b. Putting numerous vulnerable parents at risk of or suffering actual financial or emotional exploitation.

10. There are a variety of activities I could cite in support of these contentions. To provide an exhaustive list would make this complaint disproportionately and unhelpfully lengthy. I therefore propose to restrict the substance of this complaint to the following 3 examples to support the broad headings of complaint set out above. However, I must stress that what follows is not intended to be an exhaustive list of reasonable complaints that could be raised against the activities of JFF and I reserve the right to refer to further and better particulars, should this become necessary at any future stage.

JFF consistently, inaccurately and unfairly denigrates the competence and integrity of those working within the family justice system.

This risks undermining the rule of law and the Article 6 ECHR rights of parents in care proceedings. JFF promotes the message that parents will not get a fair hearing in care proceedings in England and Wales: You have stated since at least 2014 on a variety of platforms, that parents should not to engage with their lawyers in care proceedings. You have stated that publicly funded family lawyers are not independent and that it is not possible to get a fair hearing in this country.

JFF facilitates or encourages vulnerable parents to leave the jurisdiction and thus puts them and their children at serious risk of harm.

As a corollary to your frequently stated position that it is not possible for parents to have a fair hearing in care proceedings, JFF has directly facilitated parents leaving the jurisdiction by providing accommodation in the form of a caravan or several caravans at the property in France where Gena Jones lives, despite taking no or no reasonable care to ascertain if Gena Jones is able to provide a safe environment. You know or ought to know that her current partner was responsible for putting Gena Jones in hospital by beating her as she confirmed this in a newspaper interview in 2015.

The JFF ‘Advisers’ Tim and Julie Haines are not fit or proper people to offer advice or assistance to vulnerable parents in care proceedings.

Both have been either abusive or threatening on social media, are prepared to publish false statements about the working of the family courts, encourage parents to make unmeritorious appeals and to share confidential documents. They have wholly failed to be transparent about the amounts they charge parents – there is no published information I can find to confirm what JFF charges parents for any assistance they give.

Evidence in support of the assertions set out above.

11. With regard to the public denigration of the family justice system in general and family lawyers in particular your behaviour in this regard has been longstanding. The examples listed below of your public pronouncements when Chairman of JFF are certainly not intended to be exhaustive. I can provide examples of many more from 2008 to date if required.

12. In 2013 you made an allegation in Parliament about the collusion of family lawyers in a particular case. It was reported here in the Express newspaper :

In a highly unusual accusation, John Hemming said lawyers for Jacque Courtnage colluded with Derbyshire County Council to prevent her analysing a document he believes would have cleared her of abuse allegations.

13. You continue to assert that lawyers who represent local authorities cannot also represent parents as by representing local authorities they have lost their independence and are in breach of their professional duties. A solicitor, Giles Peake,  attempted to explain to you in 2016 why this was not so, and he commented in the following terms:

Why is this important? Why pay attention to the ramblings of a former MP whose credibility has been demolished by the Courts? Because a lot of desperate and unhappy people do pay attention to him. His advice, including recommending to parents fleeing abroad to frustrate care proceedings, has been acted upon by people. If Mr Hemming now suggests trying to challenge lawyers on the erroneous basis of conflict of interest, or worse, that people should consider a prospective lawyer to be tainted with conflict of interest if they have ever acted for the other side, he is damaging people’s interests, stupidly and unnecessarily.

14. The article in the Independent on 12th January 2014 states with regard to yourself:

 “An MP has advised parents suspected of abusing or neglecting their children to leave the country if they fear being denied a fair hearing in the family courts”. It is written with reference to your appearance on the BBC Panorama Programme ‘I want my baby back’ which aired on 13th January 2014.

You are quoted on the BBC News website on 13th January 2014 in this way:

He said the process was so unfair that parents should leave the country to avoid social services and the courts. “All the cards are held by the local authority. It has large resources to fight the cases – it does all the assessments,” he said. “My advice to people – if they can afford it – is just to go abroad. You can’t get a fair trial here, because you can’t rely on the evidence being fair.

15. I have commented about your activities in encouraging parents to leave the jurisdiction and go to Gena Jones house in the following post, published on my website www.childprotectionresource.online on September 17th 2016.  I have repeatedly asked you to explain the circumstances in which women are sent to Gena Jones; you have repeatedly failed to reply.

16. The comments on this post are interesting. Gena herself confirms:

“John hemmings have put families in my direction for advice” and “John hemming helped pay towards a caravan that is in my garden that some parents stay but often they moan that they want to stay in my home and get to sleep in a real bed. He’s put about 4 or families I think for advice and it’s advice about the laws in France i.e. Social services rights how to look for a place to rent every day living stuff”. Gena confirms that many of those who come to her are vulnerable, having substance abuse issues and mental health difficulties: “Many of the parents who came to mind could not cope with the culture shock the isolation as there’s no shop or towns for miles and many have issues i.e. Drug drink and mental health !”

17. I have been sent extremely worrying information via Facebook from a number of mothers who say they stayed at Gena’s. This includes allegations of serious verbal abuse and money and possessions being taken from them. I am told the French police have been involved. I have been sent pictures of Gena’s partner posing with what looks like an assault rifle. I have been sent copies of various messages posted by Gena on social media sites in aggressive terms and using extremely foul language.

18. Tim Haines seems confused about whether or not JFF have given advice to people about staying or not staying with Gena. He confirmed on 19th September 2016 there had been a JFF meeting to discuss Gena because they were aware that a JFF client had gone to Gena’s ‘expressly against JFF advice’. However, he then claimed that JFF did not give such advice to any parent.

19. Tim Haines has made further abusive and threatening comments online following my publication of the blog post referred to above.
a. On the blog post itself he commented: “The only other comment I intend to make is that the rest of this article is stuffed with inaccuracies and half-truths, and a barrister ought to be ashamed of themselves for concocting such a stack of bollocks – unless, of course, they are so used to doing that for a living that they didn’t even notice!”
b. I have been sent copies of messages Tim Haines sent to one of the women who alerted me to the situation at Gena’s. I consider his message to be abusive and threatening and it confirms that JFF had serious concerns about the situation at Gena’s. He says: ‘I sent you a private message and you passed it to Sarah Phillimore? How fucking dare you! You just did yourself big damage’; further
c. ‘Because Phillimore has posted a whole page of bullshit blog attacking JH. YOU are doing more harm than good. Contacting Phiullimore (sic) is NOT the way to get Gena shut down’

20. With regard to how the Haines are paid for what they do; Tim Haines claims that he and Julie Haines claim only ‘out of pocket expenses’ but refuses to elaborate on what this means or how much is usually claimed (see Tweet 19/9/16 09:19).However I received a message from one parent via Facebook complaining that Tim Haines ‘has slated me for £1,500’ (tweet 20/09/16 23.03). Tim’s reply is ‘bollocks’ (Tweet 20/09/16 23.22). Tim Haines states ‘I’m paid a small wage which covers the work for JFF clients. At least I have goodness in my heart’ (Tweet 19/09/16 12.26) but refuses to elaborate on how much he is paid or by whom. He calls me ‘twisted’ and ‘an idiot’ (19/09/16 12.52/19/01/16 12.57) then ‘stupid, deaf, illiterate’ (19/09/16 13.03) and someone who made a career out of ‘wrecking families’ (Tweet 19/09/16 10.46).

21. Worryingly, he states that JFF is a small organisation ‘and can only assist a small fraction of the thousands of parents who approach us’. (Tweet 19/09/16 14.07).

22. Julie Haines [REDACTED]

28. I further noted the following examples of how Mrs Haines choses to express herself on a Facebook page that is open to all:
a. 25.12.16 ‘To all social wankers hope you enjoyed having a day off child stealing Happy Christmas!
b. ‘Sunday’ ‘from us three here to all of you. Let’s keep getting the bastards. Make 2017 count. We’ll still be here with you. ‘
c. ‘Saturday’ ‘Forced Adoption is ‘not exceptional in law’ I believe this is the key to getting the child stealing Nazi’s/Marxists stopped’.

29. In light of this kind of behaviour from Mr and Mrs Haines, it is very alarming to note that the JFF Facebook is publishing the following statement urging parents to send copies of court judgments to them:

JFF is asking all parents who have a Placement Order Judgement from within the last six years, if they could kindly send copies by email to (pennylilac@yahoo.co.uk). We want to reassure you that it is completely confidential and that these can be sent in confidence. The purpose of this request is to accurately assess whether or not children are forcibly adopted legally e.g: if dispensation to parental consent has been dispensed correctly. The stats and information we get from this will be given to John Hemming to use in Parliament and possibly for a media campaign regarding numbers of children illegally kept under a Placement Order and or Adopted’.

30. I consider that it is highly inappropriate to encourage parents to send to the Haines such documents. Not only is this a potential contempt of court, I raise serious doubts about the Haines’ abilities to fairly assess the quality of decision making, on such limited information and with such a clear pre-stated bias towards an assumption that children are ‘illegally kept’.

31. It does not appear that JFF have sought any necessary permission from the President of the Family Division to conduct any legitimate ‘research’ in this way and therefore such solicitation of such sensitive documents must cease immediately.

32. I shall await your response with interest.

 

Is it the end of the road for HRA claims for misuse of section 20 accommodation?

Not in principle – but in practice, maybe.

This post is the opinion of Sarah Phillimore about the impact of London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26 (26 January 2017) upon claims for damages for breach of human rights in cases where children have been accommodated under section 20 of the Children Act 1989. This case has provoked significant comment from a number of lawyers and social workers – see here from Suesspcious Minds and here from Celtic Knot.

Sarah does not agree that this case means that lawyers can endorse any radical departure from existing good practice guidance – it will still be important to establish that parents have the capacity to understand what is being proposed by section 20 accommodation. Failure to do will continue to put local authorities at risk of acting disproportionately in breach of a family’s Article 8 ECHR rights. However, the Court of Appeal sound an interesting warning about the likely quantum of damages in such cases. For legally aided claimants, who will find the statutory charge bites upon any award of damages, this may well indicate the beginning of the end for viable HRA claims for the publicly funded.

FACTS

The 8 children of Mr and Mrs Williams went into foster care for 2 months in 2007 after the eldest child said he had been beaten and the police found the family home in a very bad condition. Initially, the children were taken into police protection. This is lawful for no more than 72 hours. On expiry of that period, the LA removed the children into foster care as the parents were subject to bail conditions that they could not have unsupervised contact with the children.

The Williams initially signed an agreement for the children to be accommodated under section 20 of the Children Act 1989. Thus, they retained parental responsibility and it should have been made clear to them that under section 20(8) they could remove their children from foster care at any time. If the LA did not think it was safe for the children to be removed, their only lawful option would be to apply to the court for either an emergency protection order or an interim care order.

It is possible that their full legal rights, including this right of immediate removal, were not fully explained at the time. However, the parents quickly obtained legal advice and there was no doubt that Mr Williams’ lawyer at least understood the relevant legal framework. The lawyer wrote to the LA saying that Mr Williams would consent to accommodation until the 23rd July 2007. The LA agreed that the children should go home but noted the bail conditions were still in place that prevented the parents from offering their children accommodation. The Williams had the right to apply at any time to vary these bail conditions, and it was clear that their lawyers knew this, as they referred to it in correspondence. However, the Court of Appeal felt it important to note that it was likely that the Williams wished to work co-operatively with both the police and the LA and not get involved in contentious proceedings.

The police did not vary the bail conditions until the 6th September and the children returned home five days later.

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

Why did the Court of Appeal overturn the first instance decision?

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

At first instance, the parents had argued that their consent to section 20 accommodation had been unfairly obtained and was not thus ‘true consent’. The Court of Appeal examined this claim from para 43 of their judgment, by looking at the guidance provided in both Coventry City Council v C [2013] EWHC 2190 (Fam) per Hedley J. and by Munby J in the earlier case of R (G) v Nottingham City Council and Nottingham University Hospitals NHS Trust [2008] EWHC 400 (Admin).
In the Nottingham case, the LA were held to have acted unlawfully; their argument that they were justified in removing a baby without a court order because the mother knew of their plan and ‘did not object’ was rejected in the strongest terms as an unacceptable and dangerous conflation of ‘absence of objection’ with ‘actual consent’.

The Coventry case considered the issue of the capacity of a mother to give informed consent to the removal of her new born baby and offered general guidance to ensure that social workers had properly considered that the consent offered is real. However, as the Court of Appeal note at para 48 – good practice guidance does not have the force of law. Further, the circumstances of the Williams were markedly different to those of the mothers in the cited cases; in particular the fact that the bail conditions imposed by the police, over which the local authority had no control, prevented the children from living with them..

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

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

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

The Court of Appeal commented that the case law they had considered set out good practice guidance which had been offered prior to the Williams’s children going into foster care It was therefore necessary to examine what the law said (see para 62 onwards). The key consideration was section 20(7):
‘(7) A local authority may not provide accommodation under this section for any child if any person who:
(a) has parental responsibility for him; and
(b) is willing and able to:
(i) provide accommodation for him; or
(ii) arrange for accommodation to be provided for him,
objects.’

The Court of Appeal commented at para 68:

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

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

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

ANALYSIS

I do not think that this case has any significant impact on the principle of HRA claims. The Court of Appeal are quite right to re-direct our attention back to the explicit words of the statute, where the word ‘consent’ is indeed not mentioned. However, this does not mean that the general good practice guidance offered in other cases becomes irrelevant, and the Court of Appeal expressly recognise this.

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

In such a situation I agree with the Court of Appeal that it is plainly wrong to hold the local authority to blame for a breach of its statutory duty. However, these are quite distinct and particular facts which acted to deprive the parents of the reality of any ability to object. Sadly I am sure there are bound to be further cases where misuse of section 20 involves vulnerable parents, who did not understand or did not have explained to them what section 20 means. Those kind of cases are often coupled with a ‘drift’ for the child in foster care of many months before care proceedings are issued. In such circumstances there is likely to be a reasonable argument for a disproportionate and hence unlawful breach of Article 8. The existence of ‘good practice’ guidance about such issues of course does not have the force of law but can provide a useful benchmark against which to measure if the local authority have acted proportionally.

However, the brief dismissal of £10,000 as an appropriate level of damages sounds an interesting warning for future cases which may well go to render HRA claims pretty hopeless in practice, given the impact of the statutory charge on damages awarded to a legally aided complainant. I agree that the amount of damages awarded in such cases does appear to be creeping ever upwards – see this post for further discussion of damages awarded – and this is not in keeping with the European jurisprudence which makes it clear that damages for human rights breaches are awarded to provide ‘just satisfaction’, not punishment for the wrongdoer. ‘Just satisfaction’ can be provided by a simple declaration of wrongdoing.

Therefore I think its an interesting case with some useful discussion of the distinction between ‘active objection’ and ‘passive consent’ – but I do not agree it is the radical ‘game changer’ that some other commentators suggest.

This post first appeared on the Transparency Project website. The Transparency Project will revise its Section 20 Guidance in light of some of the discussions in this case.

Non molestation orders made without the other party present

This is Practice Guidance issued by the President of the Family Division on 18 January 2017

Family Court – Duration of Ex Parte (Without Notice) Orders

This Guidance was originally issued on 13 October 2014. This revised Guidance, issued on 18 January 2017, supersedes the previous Guidance.

1 The Magistrates’ Association and the National Bench Chairs’ Forum have raised with me the question of whether it is proper to grant an ex parte non-molestation injunction for an unlimited period. They suggest that practice varies. They express the view that to grant such an order for an unlimited time is wrong in principle.

2 In expressing that view, the Magistrates’ Association and the National Bench Chairs’ Forum are entirely correct. To grant an ex parte (without notice) injunction for an unlimited time is wrong in principle. The practice of granting such orders for an unlimited time, if this is still occurring, must stop.

3 Subject only to paragraph 8, the same principles, as set out below, apply to all ex parte (without notice) injunctive orders made by the Family Court or by the Family Division, irrespective of the subject matter of the proceedings or the terms of the order.
4 The law is to be found in Horgan v Horgan [2002] EWCA Civ 1371, paras 5–6 (Ward LJ), R (Casey) v Restormel Borough Council [2007] EWHC 2554 (Admin), paras 37–41 (Munby J), In re C (A Child) (Family Proceedings: Practice) [2013] EWCA Civ 1412, [2014] 1 WLR 2182, [2014] 1 FLR 1239, para 15 (Ryder LJ) and Re A (A Child) [2016] EWCA Civ 572, [2016] 4 WLR 111, paras 49-61, esp paras 59-61 (Munby P).

5 The relevant principles, compliance with which is essential, are as follows:
(i) An ex parte (without notice) injunctive order must never be made without limit of time. There must be a fixed end date. It is not sufficient merely to specify a return day. The order must specify on its face and in clear terms precisely when it expires (eg, 12 noon on 20 March 2017).
(ii) The order must also fix a return day. The order must specify the date, time and place of the hearing on the return day. The return day should normally be no more than 14 days after the date when the order was made. How long the hearing on the return day should be listed for must be a matter for the discretion of the judge. However, having regard to paragraph 6, often a very short listing may well be appropriate.
(iii) Careful consideration needs to be given to the duration of any order made ex parte (without notice). Many orders will be of short duration, typically no more than 14 days. But in appropriate cases involving personal protection, such as non-molestation injunctions granted in accordance with Part IV of the Family Law Act 1996, the order itself can be for a longer period, such as 6 or even 12 months, provided that the order specifies a return day within no more than 14 days. This must be a matter for the discretion of the judge, but a period longer than 6 months is likely to be appropriate only where the allegation is of long term abuse or where some other good reason is shown. Conversely, a period shorter than 6 months may be appropriate in a case where there appears to be a one-off problem that may subside in weeks rather than months.
(iv) The order must make it clear that (a) it was made in the absence of the respondent and that the court has considered only the evidence of the applicant and (b) the court has made no finding of fact. Where the evidence is written, it must be identified in the order. Where, exceptionally, the court has received oral or other evidence (eg, a photograph) that evidence should be recorded on the face of the order or reduced to writing and served with the order.
(v) Where the order has been made in accordance with Part IV of the Family Law Act 1996 it must recite that the court has had regard to sections 45(1) and (2) of the Act.
(vi) The order (see FPR 18.10(3)) ‘must contain a statement of the right to make an application to set aside or vary the order under rule 18.11.’ The phrase ‘liberty to apply’ is not sufficient for this purpose. The order must spell out that the respondent is entitled, without waiting for the return day, to apply to set aside or vary the order.
(vii) If the respondent does apply to set aside or vary the order the court must list the application as a matter of urgency, within a matter of days at most.

6 Experience suggests that in certain types of case, for example, non-molestation or other orders granted in accordance with Part IV of the Family Law Act 1996, the respondent frequently neither applies to set aside or vary the order nor attends the hearing on the return day.
(i) When, in such cases, there is no attendance by the respondent and the order, having been served, does not require amendment there is no need for re-service. The order made on the return should however record that the respondent, although afforded the opportunity to be heard, has neither attended nor sought to be heard.
(ii) If, however, variation of the original order is sought by the applicant (eg by extending the ambit or the duration of the order) then:
(a) Paragraphs 5(i), (iii)-(v) must be complied with in relation to the new order and the new order will need to be served.
(b) Unless, before the return day, the respondent was given proper notice of the proposed amendments, either in the application or in the initial order, (a) the new order must specify a new return day, and (b) paragraph 5(ii) must be complied with in relation to the new order.

7 I remind all practitioners and judges of the principle, which applies to all ex parte (without notice) injunctive orders made by the Family Court or by the Family Division, irrespective of the subject matter of the proceedings or the terms of the order, that a without notice application will normally be appropriate only if:
(a) there is an emergency or other great urgency, so that it is impossible to give any notice, however short or informal, or
(b) there is a real risk that, if alerted to what is proposed, if ‘tipped off’, the respondent will take steps in advance of the hearing to thwart the court’s order or otherwise to defeat the ends of justice. In an appropriate case this can justify the grant of a non-molestation injunction without notice, lest the respondent, having been served with an application, further molests his (or her) victim or exerts pressure on her (him) to abandon the proceedings.

8 Nothing in this Guidance derogates from, or otherwise modifies, the principles and safeguards to be observed on an application for an ex parte (without notice) freezing or search order: see L v K (Freezing Orders: Principles and Safeguards) [2013] EWHC 1735 (Fam), [2014] Fam 35.

Sir James Munby
President of the Family Division

John Hemming: An apology

In the matter of CB (A Child)

This post arises out of discussions on Twitter on New Year’s Day regarding the ‘Latvian case’ and the extent to which John Hemming is able or willing to accept the findings of various courts about the harm suffered by the child CB. I will set out a summary of my response and then a more detailed chronology of the case to support that summary.

On January 1st 2017 I published a tweet to which Mr Hemming objected.  This was part of a discussion with other Twitter users about the nature and extent of Mr Hemming’s misrepresentations about the case of CB (A child) – ‘the Latvian case’

I said, in the context of a question about what the mother had done to make necessary changes to her parenting:

Mr Hemming denied that he had said the mother hadn’t done anything wrong and asked me to retract this statement and apologise. He referred me again to this blog post from 2015. I have already commented on Mr Hemming’s involvement in the Latvian case in this post and again in this post.

I concede that I owe Mr Hemming an apology. I don’t know when he first made direct contact with the mother in this case so I cannot imply that he was ‘advising’ her during the care proceedings in 2011. However, it is clear that by the time of her appeal to the Court of Appeal in April 2013 she had dispensed with her lawyers and was represented by ‘Mr H’ – who I shall assume is Tim Haines, one of Mr Hemming’s trusted advisers with his Justice For Families organisation. This assumption is bolstered by the fact that it was Mrs Julie Haines who was representing her in 2015.

It is also clear that Mr Hemming did concede on his blog that going out and leaving your 20 month old alone before the babysitter had turned up, was not great parenting. So I accept, it is misleading for me to suggest that Mr Hemming thought ‘nothing’ wrong had happened here.

However, what is abundantly clear, from his blog and his discussions via Twitter, he certainly didn’t think anything had happened to justify the removal of CB from her mother’s care and her eventual adoption. According to Mr Hemming, this was a case of a child adopted ‘because of nappy rash and a missed babysitter’.

So here is what I should have said

I don’t know when Mr Hemming first spoke directly to the mother. But he was clearly involved with her by 2013. He persistently and consistently asserts that this case was about no more than ‘nappy rash’ or a ‘late babysitter’ . This is utter, unmitigated hogwash and displays a chilling lack of concern for CB or recognition of the danger in which she was placed. The facts of this case – which I summarise below – show the clear and cogent reasons by which various courts have accepted that CB had suffered significant harm in her mother’s care and would be at risk of suffering more harm in the future if not removed. Mr Hemming’s continued misrepresentations about this case are wrong, ridiculous and dangerous. He should apologise for making them and agree never to repeat them.

But don’t just take my word for it. Have a look at the Court of Appeal judgment from 2013, from where I take the summary of facts and chronology set out below.

CB was born on 30th April 2008. On the 4th April 2009 the mother accepted a caution for the offence of being drunk in charge of a child under 7 when she was found at 1am with CB in a buggy, drunk and barefoot in the middle of the road.  On 18th January 2010 a social work assessment concluded that this was not the mother’s usual behaviour and CB would be ok in her care. However in February 2010 the local authority received complaints that CB was screaming and running about ‘almost every night’ until about 2am. On 5th March 2010 the mother’s landlord called the police who arrived and found CB, aged about 20 months, alone and in a pitiful state.

What did the court accept about CB’s circumstances? From para 8 of the 2013 judgment:

  • the room had a strong and overpowering smell of urine and faeces
  • CB’s clothes were wet and she was shivering
  • It was clear she had not been changed or cleaned ‘all day’
  • She had only an empty bottle within reach
  • Her nappy was so swollen she couldn’t walk properly
  • Her skin was soaked in urine to extent that a rash was noted when she was examined in hospital

Para 11 of the judgment confirms that by 3rd August 2010 CB, who had been taken into police protection and then into foster care, had been assessed as having significant delay in ALL aspects of her development.

Para 17 confirms the finding that the mother had maladapted personality traits which made her prone to denial and repression and reliance on ‘avoidance strategies’ such as alcohol.

On 26th October 2010 the  mother was again detained by the police on suspicion of being drunk.  On 15th June 2011 care proceedings were issued and on 10th July 2012 a placement order was made by DJ Mc Phee. The mother appealed against this to HHJ Cryan who dismissed that appeal on 8th October 2012 which is how she ended up in the Court of Appeal in April 2013, where her second appeal was also dismissed.

So how does Hemming deal with this?

By minimisation, denial and apparent lack of any regard for the welfare of CB. His blog post refers to the case ‘starting with two incidents’. The first becomes simply a mother crossing the road after a night out with a friend, having slipped off her shoes because they were hurting her. No mention of fact it was 1am and the mother accepted a caution for a criminal offence.

The second incident he admits ‘was more serious’. CB had been ‘found home alone and with a full nappy’. But, he asserts, the mother had actually arranged a babysitter and her only mistake was to leave CB before the babysitter arrived.  Mr Hemming goes on to quote the police report from the time  which simply underscores how ridiculous his analysis is.

The report notes that the police arrived at the scene at 18.50. We know they were called by the landlord so presumably CB had been alone for some time by now. Shortly after the police arrived a female also turns up and tells the police that she was the babysitter and she had just popped out for 10 minutes ‘and had been looking after the child all day long’. The ‘babysitter’ was promptly arrested. At 19.08 a decision was made to take CB to the hospital as she was very cold and possibly dehydrated. At 20.10 CB’s older sister arrives. The mother does not turn up until 21.30.

Mr Hemming states that the mother ‘accepts and I agree that she should not have left home before the babysitter arrived’.

And that appears to be the full extent to which Mr Hemming or the mother would accept any wrongdoing here.

This ignores entirely:

  • the fact the mother accepted a caution and therefore admitted guilt for being in charge of CB whilst intoxicated at 1am in April 2009;
  • the disgusting state in which CB was found in March 2010, cold, wet, whimpering and clearly having been left in a filthy nappy ‘all day’;
  • The ‘babysitter’ and the  mother clearly giving conflicting accounts of when this ‘babysitter’ was due to arrive – the babysitter maintaining she had been there ‘all day’. If the babysitter had indeed been there ‘all day’ then given the state in which CB was found, the mother’s judgement in choosing this person to care for her daughter is seriously in question;
  • That by August 2010 CB was found to be delayed in ALL aspects of her development, which points to significant neglect in her mother’s care.

The conduct of this case by the local authority does not escape criticism and nor should it. I note that earlier assessments of the mother which were positive are described as ‘naive’. I have to accept it must have been hard for the mother to process why initial positive reports about her parenting did not then translate into her daughter’s return to her care .Nor do I understand why it took so long to make an application for a care order given the findings about global developmental delay for CB in 2010.

But nothing in any failings or delay by the local authority can justify Mr Hemming’s persistent and deliberate mischaracterisation of this very sad case, as one where a baby was adopted for having a nappy rash. The impact on the mother has been obvious. She has been encouraged by Hemming and his entourage to see her conduct as attracting very little criticism, her child ‘stolen’ to meet adoption targets and the last 5 years of her life wasted in an utterly futile fight.

I’m not an idiot

I’m not an idiot. I realise that nothing I say here or anywhere else is going to stop Hemming. His distortions and misrepresentations about the family justice system are now part of his DNA. A great deal of his activities and his identity is tied up now with this crusading role. Presumably quite a lot of money too – I keep asking how much the Haines charge to take parents to the Court of Appeal and I have never got an answer, but I hear from some disgruntled parents that its about £1,500 a time.

But I hope that my activities in attempting to call him to account might give some others pause for thought about how much they take him seriously or how much they think it wise to engage with him.

As I have taken the time to deal with his blog post, perhaps he could return the favour and deal with mine? I’ve only been asking since September 2016.

‘Mums on the Run’ – Where do they go? How safe are they?

Match Mothers

Match Mothers  is a charity, run by volunteers, which supports mothers apart from their children, for whatever reason:

  • You have been through divorce and family breakdown
  • Your child has been fostered, taken into care or adopted
  • You are a mother in prison
  • Personal reasons or choice
  • Religious and cultural
  • Your child has been abducted

 

What it offers

It offers uncritical support, from other mothers who are in similar situations. There is an annual membership fee , but there are concessions for those on low incomes. The first line of support is online, via the website where there are various sources of information available including about family courts and links to resources. Members can also contact each other via the forum, either in a public post or a private message. There is also a private Face book group, which is strictly available for members only. In addition there are a number of local support groups where members can meet face to face and a pen friend matching service. There are two get together’s a year, free to attend, one in the South and one in the North of England, which are very social able meetings with fantastic raffles.

Why it helps?

It can be very isolating being a mother apart from your children. There is still significant stigma, mothers apart being judged far more harshly than their male counterparts. Just realising that you are not the only one is a relief. More experienced members can offer their personal experience in trying to either maintain contact or offer you hope for the future.
A monthly newsletter, offers members a chance to tell their stories and shares relevant topics that may be of interest to members on subjects such as parental alienation .
Members have also taken part in research and shared their stories with journalists who have contacted Match Mothers which has increased awareness.

How to contact ?

enquiries@matchmothers.org

Mothers in Re-current Care Proceedings – how do we break the cycle?

On 20th October a group of about 100 lawyers, social workers, local authority professionals and others interested in child protection issues, met at the Bristol Civil Justice Centre to discuss how we can break the cycle for those mother who have child after child removed from their care.

This is a post by Sarah Phillimore. 

The timetable and speakers for the event

16.30 Introductory remarks by Judi Evans, Barrister, St John’s Chambers.

16.35 Professor Karen Broadhurst of Lancaster University explained why some mothers are so vulnerable to repeated care proceedings and removal of successive children.

16.45 Georgina Perry, Co-Founder of Pause, discussed the Pause project.

16.55 Sally-Ann Jenkins, Head of Children & Young Peoples Services, Newport City Council discussed the development of their recent programme of help and support for vulnerable mothers.

17.05 Dr Freda Gardner, Chartered Clinical Psychologist and Deputy Clinical Director of Orchard House assessment and intervention centre, discussed a pre-proceedings intervention model for parents with children.

17.15 Written contribution from Surviving Safeguarding, a parent and campaigner outlining her concerns about the types of intervention proposed for mothers (read out by Sarah Phillimore as sadly Annie couldn’t make the event).

17.20 Questions from audience

18.00 Close

Presentations from the Speakers

Professor Broadhurst kicked off discussions by presenting some ‘short, sharp’ findings from her research into recurrent care proceedings. If the rate of ‘recidivism’ for mothers in care proceedings was repeated in the criminal justice system it would be a huge concern. Research in 2015 showed 1 in 4 of mothers would return to the family courts. The data she presented showed powerful argument for intervention – not merely to save money but to recognise the significant and harmful emotional cost upon mothers who have successive children removed from their care.

 

Women facing recurrent care proceedings are often very vulnerable and there is a real risk of injustice that many cannot access the interventions that the family court say they need. There was clear argument for earlier intervention – if we continue to do nothing, as care proceedings rise, we are simply creating more mothers for the family justice system.

We then heard from Georgina Perry of Pause, who gave brief overview of how the organisation started and what it wanted to achieve.  They had been ‘astounded’ to identify 205 women who had 49 children removed between them. Something had to be done to break the cycle. The group of women they met were very vulnerable – issues of violence in relationship, drug use and mental health challenges. Their vulnerability was compounded by the alien environment of the family court and the language used. They did not understand what was being demanded and they could not access the services the courts ordered them to use.

Pause requires the women they support to use Long Acting Reversible Contraception for 18 months – they appreciate that this is a controversial topic but point out that the adversarial atmosphere of the family courts gets in the way of supporting women and allowing them time and space to reflect and benefit from that support.

The wording of this tweet caused some concern from Surviving Safeguarding, which I shall discuss below.

Sally Ann Jenkins then spoke. She is Head of Children’s Services in Newport. She spoke of working in the area as a social worker in the 1980s and on her return meeting a mother she had worked with and one of her children had children in Newport’s care. This was a stark reminder of the cycle that needs to be broken.

Inspired by attending a seminar and hearing from Professor Broadhurst, Ms Jenkins became part of a local initiative to use existing funding and resources to help parents break the cycle. They work in close collaboration with Barbados. It was early days for the Newport project and it was important to manage expectations – but key message for the audience was that we are going to have to do this by better use of existing resources; unlikely to be any extra funding.

They ask parents – what do you need? What can we do to help you access our services? Work with Swansea on the ‘cost/benefit’ analysis of this approach shows clear

Dr Freda Gardner of Orchard House then spoke about some initiatives that she was piloting. She pointed out that it was often simply a waste of resources to carry on ‘assessing’ parents who had not been able to access the therapy/intervention proposed in previous proceedings by the family courts. She suggested instead a new model – use the funds to provide some therapeutic intervention.

Not all parents could or would respond to intervention. But for some, a short period of focused intervention could bring about real change – for example, helping parents understand the need to be emotionally atuned to their child. This can be taught.

Then a powerful written piece from Surviving Safeguarding. She supported the need for intervention and preventative work but was very concerned by the requirement of Pause that women agree to take LARC as condition of getting access to services. She felt strongly that for vulnerable women who had faced control all their lives, this was simply another aspect of control and she was concerned at the implications this raised around State control of women’s bodies.

She was also concerned about the language used by some professionals – there was a risk that it would continue the ‘othering’ of such mothers and treating them as less than human.

 

Discussion with the audience

There was then discussion with the audience about the various issues raised by the speakers. There was exploration about the reasons why women had successive pregnancies – clearly an important driver for some would be the desperate wish to have a child they were allowed to keep.

Pause emphasised that the requirement for women to use LARC was not seen as some form of ‘control’ but to give women freedom from continuing adversarial care proceedings and to empower and educate them so that they could be able to parent in the future. However, judging from subsequent conversations on Twitter, this is clearly an issue which raises strong emotion, along with the need to use language with care in case it simply built up further barriers to engagement and communication.

There were some useful discussions about better support for parents who were often very hostile to and alienated by the court process. A suggestion was made that it would probably be cheaper in the long run to provide parents with their own social worker – the social worker for the child was unlikely to effectively advocate for and support parents.

The Designated Family Judge for Bristol, HHJ Wildblood QC raised three questions: Why has a Pause type model not been introduced in Bristol? Who will introduce it? And when? Bristol City Council confirmed that they were in the process of developing such a service and they would persist.

All recognised the importance of systemic work and recognising the networks around the parents.

It was a useful and though provoking evening and I am grateful for the energy and innovation of our DFJ to encourage these meetings and for use of the Bristol CJC.