Tag Archives: abuse

Screaming “Corruption” won’t address the real changes that need to be made.

This is a post by Conference on Coercive Control, an individual who wishes to remain anonymous. I am grateful for the time they have taken to write this post, in an attempt to move forward the debate about the family justice system to a more constructive arena. There are things we can do to improve matters; we should not be doomed to simply shout at each other from our different sides of the divide. Rather than continue to put the focus on a ‘corrupt’ or broken system, we need to be looking at what we could practically do, to make things better. 

It has become almost commonplace for the words “corrupt”, “secret” and “family courts” to be conjoined in a splenetic invective centring on children snatched from loving parents by conspiratorial social workers pushing a forced adoption agenda or by fathers denied their rights to see children due to alienation or contact denial. A system oft described as ‘broken’ where lawyers become rich on decisions made behind closed doors in “secret” family courts.
‘200 children cruelly lose contact with their fathers every day in secret family courts” claims a fathers rights group, whilst elsewhere, headlines talk of parents fleeing the country to escape local authorities intent on removing children. That the family justice system is callous, corrupt and broken is an oft repeated refrain in certain circles and I imagine many people throwing up their hands in despair and those about to enter the process terrified by what they are about to face.

It is not just angry parents who feel the system is failing. Professionals wade in adding fuel to an already intensely burning flame yet not everyone involved (professionals included) have the full facts to hand so the discourse quickly descends into an embittered exchange of poorly-informed rants instead of becoming a discussion on how effective changes can be made so that a system that is struggling can improve.

Don’t get me wrong. I understand anger. I also understand the mistrust of the local authority. Having been in a situation where I nearly lost my children to adoption due to a false allegation, having been involved with a person so devious, he maintained a campaign of blackmail and control for years, keeping it well below the radar to near-devastating effect and having had my mental health questioned so often even though, to this date, I have never been diagnosed with a psychiatric illness.

Yup, I know all about anger and all about professionals misreading a situation of smoke and mirrors.
But before talking further about these so- called “corrupt” family courts…

My experience of the family court system

a little bit about me…
Without delving into specifics, I have been in the family court for over 30 hearings. For about 20 of them, I did not qualify for legal aid. Although there was proof of domestic violence I did not pass the means test and so represented myself as a Litigant in Person. I can honestly say that the whole experience was one of the most traumatic of my life. It was all-consuming and for nearly 2 years it dominated my life as I learned to become a lay lawyer. Each time the postman came, I held my breath. I waited with dread for yet another court application to drop on the mat. Each time the phone rang I would freeze. Panicking if it showed a withheld number fearful of yet another fictitious allegation made to the police and designed to send me into a tailspin. To this day, I still hold my breath when the post van arrives and keep holding on whilst I walk (slooowly) to the front door. His need to keep making applications is ongoing and so I wait. Old habits die hard.

I learned to represent myself when I was still recovering from his abuse so was often prone to floods of tears. Having to manage my own case file with all the information still raw and searingly painful and against a backdrop of a pending criminal investigation was far from easy. There was literally no escape, no mental escape from the trauma, no escape from the flashbacks, the nightmares. Living on “high alert” with the constant fear that he would return to the house to break in again and this time with more than a crowbar. There was certainly no escape from the ever growing pile of paperwork that was threatening to take over the house and no escape from the reams and reams of paperwork he sent me as part of his statement with information designed to deeply humiliate me in court to deflect from what I was saying. I swear that year my stomach had taken up temporary residency near my tonsils.

I was very, very lucky in that my wonderful SOIT arranged for support to make sure I was ok and so I received extensive counselling, some weeks I had 5 hours and I needed it. It was this support that gave me the strength to carry on. It was a God-send to know that if I couldn’t cope, it was only a day or two until therapy. It helped me focus.

My biggest fear was meeting my abuser in court and not being able to control my bodily functions. I would be so tense that if my stomach lurched hard enough at the sight of him, I would have to run off to vomit or worse. There were several occasions where I incurred the wrath of the judge because I had to run off, at a moment’s notice to the loo to dry retch. I don’t think the judge ever really understood the impact of being in the same room as the man who did what he did. How could he? The man in front of him was charming and softly spoken and said all the right things. How was the judge to know that saying the right thing was easy and meaningless? Putting it into practice, not so much. To the judge, the end of the relationship signalled the end of the abuse. We needed to concentrate on contact. We needed to move forward.

I would try to keep my tears in check by clenching my teeth, aware that it would make me look stern, possibly even angry but I was scared my body would leak so my words would come out distorted in either a barely audible whisper or a robotic monotone. To stop from crying I opened my eyes wide. Thinking of it now, I possibly may have looked a little crazy but I needed to do all I could to not collapse into sobs. Either way, it contrasted greatly with his ability to talk mellifluously, even tell a small joke or two. Yes, judges need training on how people can change their persona and their demeanour. I’m sure some get it but just not enough of them do, sadly.
At some hearings I would sit stock still, not move at all, hardly breathe and just stare ahead determined not to cry even though my eyes were stinging from tears forbidden to fall.

Sometimes I could feel myself shaking from exhaustion. The few days before a hearing would play havoc with my sleep. He sometimes made a joke about me being mentally ill and paranoid and both he and the judge would laugh. I wanted to shout out, why are you falling for this act? I do not have a mental illness. Read the bundle. I wanted to scream that my perceived mental illness was a fiction to explain away the sleep deprivation from being woken up by him 4 or 5 times during the night, lack of sleep, the stress, caring for a baby. All were reasons for my sluggishness and disorientation. But for him it was convenient to say “Look at her, she can’t cope- it’s because she is mentally ill”. It was a distraction that helped to gloss over his abuse, but I stayed silent. I was too worried my stomach would let me down – or worse.

Those were my experiences. Traumatic and deeply distressing and I have heard many others say the same of their experiences. Whatever the reason for finding yourself in the family court, the experience of court is horrific but, even with the misinterpretations, lack of training, some really dubious report writing and certain conclusions that were so way out I suspected the author may have been high, I do not believe the courts are corrupt.

Family courts are not ‘corrupt’ but the Judges NEED training

What I DO believe is that many judges and magistrates are out of touch with what happens, especially where domestic violence is concerned. Their understanding of the dynamics of abuse, perpetrator tactics and victim behaviour does not reflect what happens in real life and that concerns me greatly. I especially believe there is very little understanding of the coercive and controlling behaviour that can reduce a person to a hostage in their own home but without a bruise or fracture to validate their fear. There is an urgent need for training to help identify behaviour that is invisible to the untrained eye so that outcomes reflect the actual situation and not the distorted picture that has been presented. All too often what appears to be a high conflict split has been categorised as ‘toxic’ and whereas this can be the case, often underlying coercive control has not been identified and so the abuser remains able to manipulate and control in the knowledge that it will not be seen as abuse but six of one and half a dozen of the other.

Training-Training-Training

I believe some very poor decisions are being made due to a general lack of understanding. Training should not be confined solely to Judges. Social workers, Cafcass officers, expert witnesses, lawyers as well as court staff need to be aware. There needs to be a shift from looking at isolated incidents to identifying patterns of behaviour and more training across all sectors will help to change the way domestic abuse is investigated by creating better awareness and understanding to identify and evidence abuse that hides in plain sight.

Evidence

Evidence is not always available in the form of an outright confession or CCTV footage and sometimes evidence needs to be gathered in a different way. This could apply to witnesses. Courts are hugely intimidating to most people and often court staff, lawyers and judges forget this. Courts are scary enough for the parties involved in an actual hearing but for witnesses whose only involvement is to provide information, it can be too much and so many are reluctant to go to court thus depriving someone of valuable evidence. By making the process less intimidating for someone to act as a witness, it would be a benefit especially in cases of domestic violence, abuse and child neglect, cruelty where people are reluctant to get involved for fear of getting it wrong or for fear of retribution from the party they have information on.

Court does not make people angry

I also don’t feel the court system is broken. It is in need of a systems upgrade but it is not broken. It is the people coming in to the court who are broken. Court doesn’t make people angry, the come in angry and a high stress environment will only increase the likelihood of volatility. When looking at improving the court process, it is vital that the parties themselves are not excluded. A less traumatic experience can only have long term benefits not just for the parties but also the efficient running of the court.

A Plea for Pre-Hearing Counselling

There is a duty CAFCASS officer in court on family days to help with children. I believe that Litigants in Persons should have someone there for them to help with information and for support. A Pre-Hearing Counselling Session would be a session where a counsellor or similar is on duty to help explain the court process, calculate rough timescales as to length of the matter, what to expect in a hearing, an explanation of what the judge is looking for but more importantly, that person should be a calming influence with good negotiating and people skills and able to engage with people who are emotional and agitated and put them at their ease. They will be able to, at least in part, inform, ease someone’s distress, assuage their fears as well as signpost them on to counsellors or suitable support services they may need. I believe a friendly face in court would allay a great deal of the fear, tension, distress and animosity, especially one who could say. “Look, I understand your anger but for this matter, you have to put it to one side as it won’t help you and it won’t help your child.” then get the parties to see that feelings of anger, hurt and betrayal are natural but using it as a weapon helps no one.

Post – Hearing Counselling

To help parties consolidate and come to terms with what just happened.

Vulnerable People are Easily Exploited

I have lost count of the times I have said to someone who has contacted me, if you want contact, start a dialogue but don’t expect much cooperation if you’ve put their photo on Facebook and are calling for them to be sent to prison for contact denial. In some cases, the hostility started from the word go and has escalated into an entrenched impasse but often, the hostility has come from family or friends and it has dictated the direction of the split and the injured party has been caught up in the conflict. I cannot begin to count the number of times I have heard that someone was hurt, upset and betrayed by the loss of their relationship and they did not know where to turn, who to speak to and they allowed themselves to be convinced by the anger of their friends or family or some action group and are in a situation where everyone feels personally invested. There is a role for family and friends to act as go-betweens but only if they are able to sit on the fence and remain neutral. A huge problem is that people love to feel involved, even interfere and some use the opportunity to wage war.

Many years ago, a male friend told a female friend that if the father of her children did not pay maintenance, she should stop contact. The father had been made redundant and his ex-wife was sympathetic to his plight but I could see the effect her friend’s anger was having on her and at the time I felt his involvement was unhelpful and told him. He responded in two syllables. Often litigants have no idea of the legal process and rely on false information. They are distressed, worried about legal costs, intimidated by the thought of court, suspicious of lawyers and frightened. One thing I have learnt from being with an abuser is that vulnerable people are easily exploited and this is as true of a divorcee coming across a ‘charmer’ as it is of a distraught dad coming across some of the angry and unhelpful ‘advice’ in the form of people who have had bad experiences and lash out at the system. Better signposting for available help in the form of either legal advice or therapy would be hugely beneficial and would help those in distress with no way of knowing where to go to avoid those out to exploit.

Interview your lawyer

For those lucky enough to have legal representation, lawyers can and do offer support and advice and I have known some brilliant lawyers who were able to get a client to maintain focus on a desired outcome and not go over to the Dark Side. I have also known some pretty bad lawyers who have been dismissive, have not taken the trouble to explain things adequately but continued to flummox with legal jargon leaving a client perplexed and excluded at their own hearing. Some are in desperate need of people skills and some hold deeply ingrained beliefs that are contrary to their client’s. It is important to make sure the lawyer you choose is one you can work with. Much the process will be deeply uncomfortable and distressing with sometimes very personal information being discussed so it is important to feel comfortable with the person representing you.

Make sure they ”Get It”

Most lawyers are lovely, though admittedly even the lovely ones don’t’ always understand your experiences and it is important that they do. As an example, the dynamics of domestic violence/coercive control or a deep mistrust of social services are not always understood or acknowledged. I have often heard lawyers dismiss domestic violence as a ‘legal aid matter’ and some hold the view that abuse is only serious if it has been physical. A client needs to make sure their lawyer “gets them” and understands their situation. Don’t be afraid to ask questions of them.

Reactions

Sometimes it gets forgotten that people in a state of high distress are incapable of thinking straight. It’s not that they don’t want to but the hurt, the fear, the anguish sits there and dominates proceedings and they sometimes react unexpectedly. This needs to be remembered. Court staff, lawyers, magistrates, judges need to be aware of this. People in distress don’t always react the way normally expected of them. Abusers can cry, and they do and some actually look as though they mean it. They admit their mistakes and say they have learnt but not all are sincere. Victims don’t always cry. They can come off as more aggressive that the alleged perpetrator. Some have an unfortunate nervous laugh. Often they come across as defensive and brittle. Corner a frightened animal in a cage, they don’t always cower. Adequate training for court staff, magistrates, lawyers, judges, social workers, CAFCASS should be mandatory so that in family cases, both private and public, there will be better insight Having been in hearings where it is obvious the Judge has no idea of who to believe and which direction to take, training would help to make a decision that is appropriate. I will always remember the words of a solicitor who said, of a judge who was fair. “Being fair isn’t always right”.

Self–Defeating Attitude Kills Hope

It is a huge judgement on my part, I know, but some people are just so wrong for the job. I recall a lawyer who, arms folded, towering over my seated position and glowering, hissed at me that if I did not agree to her client’s demands, there would be hearing upon hearing upon hearing until I had no money. She advertised herself as a domestic abuse lawyer and she was representing my abuser. I have to say, I was terrified. Not just by what she said but by her aggressive stance and intimidating body language. There should be no place for bullies in a domestic abuse situation. I have met many people who, at the start of their career, would have had a passion for their work, be it law, statutory services, the volunteer sector but somewhere along the line they have become despondent, disillusioned, bitter, resentful, have given up but not yet left the building. If you are an employer and looking for change, for progress, you need to have people who believe it can happen. Nothing will change if the prevailing view is “What’s the point, nothing will happen, why bother, nobody listens, nothing ever changes” Negative thinking and a self-defeating attitude will 100% guarantee that nothing gets done and, in the case of domestic violence, when you are advising a victim of abuse that there is a way out, there is a chance to start again, you’re not trapped. How will a victim believe that, if they know you don’t? If you no longer believe in what you do, it’s time to get out.

Practical Changes

There are some changes that could be made fairly easily and which would create a less cumbersome system which could potentially go some way towards creating a better experience. One of them is staggered arrival times. I speak for myself and others when they describe the terror of arriving in court with the possibility that they may bump into their ex with a possible entourage. I have been known to hide in bushes because of queues for the security check and I did not want to risk my abuser walking up behind me. I have also known an abuser bring his extended family to wait for him before the court opened. His ex had to force herself to walk past the sneering and name calling. Maybe staggered arrival times aren’t always practical, maybe some courts could put in place separate entrances for applicants and respondents. It seems extravagant to give each a private meeting room and this could be a simple way of reducing the likelihood of an unwanted encounter.

In cases where there is domestic violence where victims of abuse act in person, a coding system could be arranged whereby on arrival, the victim could show a discrete badge or ticket and the security guard could accompany them to a separate waiting room without a huge disruption. Court staff could then inform their arrival to the Usher. It is very common that abusers will chose to sit either right by the Usher, the door to the loo or the water cooler. I have known some that will happily switch between all three, knowing that every time they move position, it creates distress. I have heard many stories of victims transfixed to their seat and unable to go to the loo or the water cooler and have often gone into a hearing parched and bursting for the loo. I feel that often court staff do not get it. An innocent gesture of the perpetrator opening the door for the victim and accidentally brushing their hand is enough to intimidate a victim into silence yet looks harmless to the untrained eye. Keeping applicants and respondents apart would minimise much of the subtle ‘below the radar’ forms of intimidation seen in coercive control.

Maybe creating separate waiting rooms is not feasible so maybe screens could be put up to give at least some semblance of protection from intimidating stares although diehard intimidators will use heavy sighs, coughs and annoying finger clicking to announce their presence, the main purpose of which is to signal “ Yoo hoo, I’m here and I know you can hear me”.

Court staff should be made aware of subtle forms of intimidation so they can report it to the judge. I remember a hearing where the abuser was accompanied by a Mackenzie friend with an exceptionally loud booming voice. Whilst waiting to be called into the hearing, the MKF would stand by the victim and have a conversation, very loudly, in Italian (which I suspect only she and the MKF spoke). The conversation was less than polite about her but how do you prove it? Luckily, he was so loud, the usher asked him to continue out in the stairwell whereupon he stood just outside the ladies lavatory. Classic intimidation but who would have recognised it?
Someone else told me that their abuser would delicately run his index finger down his face, it was a code to her to say he would cut her face. To everyone else it looked like he was brushing off a stray hair. Training and observation. Much better training. That is what is needed.

Feeding the meter

Parking for court hearings is another thorny subject. It never fails to amaze me that conference halls can organise tickets for all day parking yet with hearings, lawyers and their clients often have to dash out to feed a meter which, at an all-day hearing, is not only distracting but adds to the stress levels already at play. I fail to see the difficulty in a system whereby a person due in court can purchase a half day/full day parking permit online when they are listed for a hearing.

Listings

I fail to see the reasoning behind listing a hearing for 10 am and then having to hang around all day waiting to go into court. I understand the bit about not wasting the judge’s time but, in light of legal aid cuts, all this hanging around must be a huge drain on the public purse.

Court Security

I can laugh about it now but I remember the time I arrived at the court with an urgent ex parte application for an occupation order. I arrived and asked the security guard where I could deliver it only for him to shout, “Why are you coming here with an occupation order? We’re not the bloody job centre, you know!”

Finally
In conclusion, some suggestions I would have welcomed as a LiP which would have made the whole process a little less distressing but, if I am completely honest, I would have put up with a hearing in a barn with a mouldy squat loo if it meant the judges, lawyers, court staff et al had received comprehensive training in identifying below the radar non-physical abuse.

Now there’s a thought.

What happens if no one does anything to help?

A true story.

This is a post from one of our contributors who wishes to remain anonymous.

In 1951 an unmarried woman (H) aged 23 had a relationship with a married man. Her parents sent her to a home for unwed mothers. In 1952 she gave birth to a daughter (C). Despite the social mores of that time and that place H decided to keep C. C was 2 years old when H’s parents allowed her to return to their home with C.

When C was 9 years old H returned home from work one day and announced that she had got married that afternoon. She had married a man that neither her parents nor her daughter had ever heard of much less met. The next day H brought her new husband (O) to her parent’s house to meet the family. The first shock was that O was 36 years older than H. He was in fact 12 days older than H’s father. Then the family was told that O was renowned in his artistic field.

Within a week H and C had moved into O’s home. C became increasingly unhappy and uncomfortable. Within 6 months what would now be called grooming began in earnest with H’s encouragement. It was ‘artistic’ for C to be urged to wander around only partially clothed. The female body was something to be celebrated, not hidden. C was nearly 11 when the active sexual abuse started. H was in hospital for a few days and O insisted that C sleep in his bed. The abuse continued covertly after H returned home.

Shortly after C turned 12, O informed H that he was divorcing her so that he could marry C. There were jurisdictions nearby where such a marriage would be legal. O presented C with a diamond solitaire ring. He then divorced H. H and C returned to H’s parents’ home.

A few months later O and H remarried. H and C returned to live in his home. H insisted that the diamond solitaire was merely a birthstone ring, not an engagement ring. C was forced to wear it. The sexual abuse resumed immediately. It continued for a couple of more years until O again divorced H. Once again H and C returned to H’s parents’ home.

A short time later O and H re-married for the third time. However this time C was allowed to remain living with her grandparents.

It should go without saying that by this time C was a deeply disturbed and depressed teenager. Although she was safe with her grandparents, she fantasised about how she could escape her excuse for a life.

C went to university when she was 18. During that academic year she made a ‘cry for help’ suicide attempt. She was admitted to the psychiatric ward at the hospital. For the first time she told someone about the abuse. She confided in her doctors. Somehow H discovered what C had said. The hospital bill was being paid for by H’s insurance. She told the doctors that C was lying and immediately instructed the insurers to stop paying the bill. C was discharged the next morning. C finished that academic year but did not return to university the next year. She found a job and a place to live and never returned to live at home again.

O died that summer. H had 3 months to vacate his home. She moved back in with her mother and filled her mother’s house to overflowing with O’s possessions.

C married at 21. She was 23 when she gave birth to her son (J). She was still disturbed and depressed. She probably also developed severe post natal depression. When J was 10 months old, C made an extremely serious suicide attempt. She was only saved by a miracle. She was again admitted to the psychiatric unit but this time it was her insurance paying for it and she received the help she desperately needed.

A couple of months after she was discharged from hospital she and her husband separated. C and J went to live in subsidised housing. C’s mother H also more or less moved in with them. To be fair the initial help that H provided enabled C to continue working. But soon that help turned into H attempting to take over completely. H also began a relationship with a man that reminded C far too much of O. J’s father had no interest in helping or supporting his son.

C took J and moved to another city. She was unable to find a job and a few months later returned to her home town. She stayed with friends. It was at this point that she had to accept that she could not provide for her son or give him the life he deserved. She had to make the most difficult decision of her life. She therefore took J to live with his father’s brother and his wife. They formally adopted him about 18 months later.

The after effects of all of this have plagued C for 30+ years. The demons are still there. C is beginning to confront them. But they are strong.

This is what can happen when child abuse is not acknowledged. This is what can happen when there is no help available. This hurts. It stabs and slices. C wishes there had been a service whose main aim was to protect children at risk when she was a child.

Be thankful for Social Services.

What do we mean by ‘significant harm’?

 

Your starting point in care proceedings is section 31 of the Children Act 1989. You can find the whole Act here or read what Wikipedia says about it.  For more detail about this issue from the social worker’s perspective, please see this helpful article

Section 31 of the Children Act allows a Local Authority (LA) ‘or authorised person’ to apply to the court for an order which makes it lawful to to put a child in the care of a LA, or under the supervision of a LA. At the moment, the only other ‘authorised person’ is the NSPCC.

It is NOT the social worker who decides whether or not there should be a care or supervision order. This is a decision for the Judge or the magistrates. They are only allowed to make a care or supervision order if :

  • they are  satisfied there is evidence (‘threshold criteria’)
  • which proves on the balance of probabilities, that:
  • the child is suffering OR;
  • is likely to suffer significant harm in the future AND;
  • this significant harm will be a result of either ‘bad’ parenting – likely to be seen as the parents’ fault; OR
  • the child is beyond parental control – which may not necessarily be seen as the parents’ fault.

[For discussion about what is meant by ‘beyond parental control’ see the case of P (permission to withdraw care proceedings) [2016] EWFC B2.]

The ‘significant harm’ has got to relate to what the parents are doing or likely to do when they are caring for their child. The court will consider the standards of a ‘reasonable parent’: see Re A (A Child) [2015] EWFC 11 and  Re J (A Child) [2015] EWCA Civ 222.

The court will look at two different issues:

  • how is the parent looking after the child? Is the kind of care they are giving the kind you would expect from a ‘reasonable parent’? or
  • Is the child out of control? for example, not going to school or running away from the parents and getting into trouble?

There is already quite a lot to unpick here.

  • What does ‘harm’ mean?
  • What does ‘significant’ mean?
  • What happens when the court is worried about risk of future harm?

What do we mean by ‘harm’ ?

Section 31(9) of the Children Act tells us that harm means:

  • ‘ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another’.

This last part about being exposed to someone else being badly treated, was added by the Adoption and Children Act of 2002. It is intended to cover such circumstances as a child who witnesses or hears someone else being hurt, for example if the parents are fighting or shouting at one another at home.

Development means ‘physical, intellectual, emotional, social or behavioural development’

Health means ‘physical or mental health’

Ill-treatment‘ includes sexual abuse and other forms of bad treatment which are not physical. This includes ’emotional harm’. This is the category of harm which probably cases most concern for a lot of people; they are concerned about what kinds of behaviour get put into this category. We will look at the issue of ’emotional harm’ more closely in another post.

 

What do we mean by ‘significant’ ?

Section 31(9) tells us what is meant by ‘harm’. But it doesn’t give a definition of what is meant by ‘significant’. The original guidance to the Children Act 1989, issued by the Department of Health,  stated that:

Minor shortcomings in health care or minor deficits in physical, psychological or social development should not require compulsory intervention unless cumulatively they are  having or are likely to have, serious and lasting effects on the child.

We can get further guidance from looking at Article 8 of the European Convention on Human Rights. Article 8 exists to protect our rights to a family and a private life. Article 8 makes it clear that the State can only interfere in family life when to do so is lawful, necessary and proportionate.

Proportionality is a key concept in family law. A one off incident – unless extremely serious, such as a physical attack or sexual assault – is unlikely to justify the making of a care order as the court would be unlikely to agree that a single incident would have long lasting and serious impact on a child. But the same type of incident, repeated over time may well have very serious consequences for the child.

Read Article 8 here. For further discussion about what is meant by proportionality, see our post here. 

There are some useful law reports where ‘significant harm’ has been discussed. For example, Baroness Hale stated in B (Children) [2008] UKHL 35:

20. Taking a child away from her family is a momentous step, not only for her, but for her whole family, and for the local authority which does so. In a totalitarian society, uniformity and conformity are valued. Hence the totalitarian state tries to separate the child from her family and mould her to its own design. Families in all their subversive variety are the breeding ground of diversity and individuality. In a free and democratic society we value diversity and individuality. Hence the family is given special protection in all the modern human rights instruments including the European Convention on Human Rights (art 8), the International Covenant on Civil and Political Rights (art 23) and throughout the United Nations Convention on the Rights of the Child. As Justice McReynolds famously said in Pierce v Society of Sisters 268 US 510 (1925), at 535, “The child is not the mere creature of the State”.

21. That is why the Review of Child Care Law (Department of Health and Social Security, 1985)) and the white paper, The Law on Child Care and Family Services (Cm 62, 1987), which led up to the Children Act 1989, rejected the suggestion that a child could be taken from her family whenever it would be better for her than not doing so. As the Review put it, “Only where their children are put at unacceptable risk should it be possible compulsorily to intervene. Once such a risk of harm has been shown, however, [the child’s] interests must clearly predominate” (para 2.13).

In 2013 the now Lady Hale stated in Re B (A child) 2013 UKSC 33

Significant harm is harm which is “considerable, noteworthy or important”. The court should identify why and in what respects the harm is significant. Again, this may be particularly important where the harm in question is the impairment of intellectual, emotional, social or behavioural development which has not yet happened.

The harm has to be attributable to a lack, or likely lack, of reasonable parental care, not simply to the characters and personalities of both the child and her parents. So once again, the court should identify the respects in which parental care is falling, or is likely to fall, short of what it would be reasonable to expect.

Sometimes, a lot of time is needed in care cases to argue about whether or not the harm in a particular case is serious enough to meet this statutory requirement. If the Judge decides there is no significant harm either being suffered now or likely to be suffered in the future, then he or she cannot make a care order or supervision order.

If he or she decides that there is enough evidence of significant harm, we move to the second stage of the necessary legal test – whether or not to make a care or supervision order is in the child’s best interests. This is called the ‘welfare stage’ of the test and we will examine this in another post.

 

Different types of abuse which can cause significant harm

In some cases it is very easy to see that a child has already suffered significant harm, for example when a child has been sexually abused or physically attacked. The court is likely to have clear and first hand evidence in the form of reports from doctors or the police who have examined or interviewed the child. The majority of people agree that being attacked or sexually abused is likely to be very harmful to children.

The more difficult cases involve issues of neglect and emotional abuse where it is hard to find one particular incident that makes people worried – rather it is the long term impact on the child of the same kind of harm continuing. These cases are particularly difficult when it is also clear that there are positives for the child in his or her family and the court has to decide whether the positive elements of family life are outweighed by the bad, or whether the family can make necessary changes quickly enough to meet the needs of the child.

For example, if on occasion you get angry with your child and shout at him or smack him it is highly unlikely your child would be considered at risk of significant harm if for the majority of the time you are loving and patient. But imagine a child who is shouted at and hit on a daily basis. It is not difficult to see how living in such an environment is likely to cause that child significant emotional or even physical harm.

See what the House of Commons Education Committee said about the child protection system in 2012.

Table 1: Children and young people subject to a Child Protection Plan, by category of abuse, years ending 31 March

Category of abuse

2006

2007

2008

2009

2010

2011

Neglect

11,800

12,500

13,400

15,800

17,200

18,590

Physical abuse

3,600

3,500

3,400

4,400

4,700

4,820

Sexual abuse

2,300

2,000

2,000

2,000

2,200

2,370

Emotional abuse

6,000

7,100

7,900

9,100

11,400

11,420

Multiple

2,700

2,700

2,500

2,900

3,400

5,490

Total

26,400

27,900

29,200

34,100

39,100

42,690

You can see from the Committee’s figures that the most common cause for concern about children in every year was the issue of neglect – but we can see a significant and consistent rise in number of cases of emotional abuse. The NSPCC confirmed that in 2015:

Neglect is the top reason why people contact the NSPCC Helpline with their concerns about a child’s safety or welfare – and this has been the case since 2006. In 2014–15 there were 17,602 contacts received by the NSPCC Helpline about neglect (3,019 advice calls and 14,583 referrals), an increase on the previous year13.

In 2012, the Education Committee examined the issue of neglect from paragraph 41 in their report and said:

41. Neglect is the most common form of child abuse in England. Yet it can be hard to pin down what is meant by the term. Professor Harriet Ward told us that, based on her research into what was known about neglect and emotional abuse, “we definitely have a problem with what constitutes neglect” and that “we need to know much more about what we actually mean when we say neglect”. Phillip Noyes of the NSPCC agreed that “There is a dilemma with professionals, and indeed the public, about what comprises neglect, what should be done and how we should do it”. He went on to explain his belief that: “at the heart of neglect […] is a lack or loss of empathy between the parent and child”.

42. There are two statutory definitions of neglect: one for criminal and one for civil purposes. Neglect is a criminal offence under the Children and Young Persons Act 1933 where it is defined as failure “to provide adequate food, clothing, medical aid or lodging for [a child], or if, having been unable otherwise to provide such food, clothing, medical aid or lodging, he has failed to take steps to procure it to be provided”. Action for Children has called for a review of this definition, declaring it “not fit for purpose” because of the focus on physical neglect rather than emotional or psychological maltreatment. Action for Children also believe that the definition leaves parents unclear about their responsibilities towards children and seeks only to punish parents after neglect has happened rather than trying to improve parenting.

[….]

The civil definition of neglect which is used in child and family law is set out in the Children Act 1989 as part of the test of ‘significant harm’ to a child. This is expanded upon in the previous Working Together statutory guidance which describes neglect as:

the persistent failure to meet a child’s basic physical and/or psychological needs, likely to result in the serious impairment of the child’s health or development. Neglect may occur during pregnancy as a result of maternal substance abuse. Once a child is born, neglect may involve a parent or carer failing to provide adequate food, clothing and shelter (including exclusion from home or abandonment); protect a child from physical and emotional harm or danger; ensure adequate supervision (including the use of inadequate care-givers); or ensure access to appropriate medical care or treatment. It may also include neglect of, or unresponsiveness to, a child’s basic emotional needs.

  • With regard to violence in the home between adults there is some useful information from the Royal College of Psychiatrists about the impact upon children of domestic violence here.
  • Read what we say about emotional abuse here.
  • Further information about the impact of neglect from research at Harvard University. 

 

Future risk of harm – what do we mean by ‘likely to suffer’ ?

Simply to state that there is a “risk” is not enough. The court has to be satisfied, by relevant and sufficient evidence, that the harm is likely

The most difficult cases of all are where a child hasn’t yet suffered any kind of harm but the court is very worried about the future risk of harm. It is this category which has caused most concern to those who worry about the child protection system as they feel strongly it is not fair to a parent to punish him or her by removing their child for something they haven’t yet done.

As Dr Claire Fenton-Glyn explained in her recent study on the law relating to child protection/adoption in the UK, presented to the European Parliament in June 2015:

A major problem with the law prior to 1989 was that it required proof of existing harm, based on the balance of probabilities. The local authority could not take a pre- emptive step to protect a child from apprehended harm, causing significant difficulties, in particular with newborn babies. As such, the inclusion in the Children Act of the future element of “is likely to suffer” was an important innovation, introduced to provide a remedy where the harm had not occurred but there were considerable future risks to the child. However, this has also been the cause of some controversy, as the answer as to whether a child will suffer harm in the future is necessarily an indeterminate and probabilistic one.

You can read about what the Supreme Court decided in a case like this in re B in 2013 where the court had to grapple with the issue of the risk to the child of future emotional harm.

Lady Hale said from para 193:

I agree entirely that it is the statute and the statute alone that the courts have to apply, and that judicial explanation or expansion is at best an imperfect guide. I agree also that parents, children and families are so infinitely various that the law must be flexible enough to cater for frailties as yet unimagined even by the most experienced family judge. Nevertheless, where the threshold is in dispute, courts might find it helpful to bear the following in mind:


(1) The court’s task is not to improve on nature or even to secure that every child has a happy and fulfilled life, but to be satisfied that the statutory threshold has been crossed.


(2) When deciding whether the threshold is crossed the court should identify, as precisely as possible, the nature of the harm which the child is suffering or is likely to suffer. This is particularly important where the child has not yet suffered any, or any significant, harm and where the harm which is feared is the impairment of intellectual, emotional, social or behavioural development.


(3) Significant harm is harm which is “considerable, noteworthy or important”. The court should identify why and in what respects the harm is significant. Again, this may be particularly important where the harm in question is the impairment of intellectual, emotional, social or behavioural development which has not yet happened.


(4) The harm has to be attributable to a lack, or likely lack, of reasonable parental care, not simply to the characters and personalities of both the child and her parents. So once again, the court should identify the respects in which parental care is falling, or is likely to fall, short of what it would be reasonable to expect.


(5) Finally, where harm has not yet been suffered, the court must consider the degree of likelihood that it will be suffered in the future. This will entail considering the degree of likelihood that the parents’ future behaviour will amount to a lack of reasonable parental care. It will also entail considering the relationship between the significance of the harmed feared and the likelihood that it will occur. Simply to state that there is a “risk” is not enough. The court has to be satisfied, by relevant and sufficient evidence, that the harm is likely: see In re J [2013] 2 WLR 649.

Therefore, if the court is worried about things that happened in the past and wants to use those events as a guide to future risk of harm, it must be clear about what has actually happened in the past – you cannot find a risk of significant harm based on just ‘suspicions’ about what might have happened before.

See further the Supreme Court decision of Re S -B [2009].

Baker J commented in 2013:

In English law, the House of Lords has now concluded definitively that in order to determine whether an event has happened it has to be proved by the person making the allegation on the simple balance of probabilities. Where the law establishes a threshold based on likelihood, for example that a child is likely to suffer significant harm as a result of the care he or she would be likely to receive not being what it would be reasonable for a parent to give, the House of Lords has also concluded that such a likelihood, meaning a real possibility, can only be established on the basis of established facts proved on a balance of probabilities.

 

Please let us know if you think we should add something to this or if anything isn’t clear.

Advice from birth parents

In this post, a number of birth parents share their views on how they made it through the stress of a child protection investigation and offer insights and advice to those in a similar position. Most of the contributors to this section have shared their stories on parenting forums such as www.mumsnet.co.uk

Relationships with Social Workers

It IS hard to see the wood for the trees, and I think one thing that Social Workers don’t seem to realise is that when you add in the stress of a CIN [Child in Need] case, where you are at risk of losing your DC’s, it puts so much added pressure on a parent that is already under pressure and a victim of DV [Domestic Violence] too, and often EA [Emotional Abuse] that they haven’t yet realised, that it becomes almost impossible for the parent to stop being fearful and stressed for ling enough to see the truth of their situation. I DO feel that a gentler approach from SS would actually in the majority of cases like the OP’s resolve the CIN concerns much faster.”

Need for clear communication about what is meant by ‘abuse’ and why it is harmful

Clearly setting out what constitutes EA [Emotional Abuse} and DV  [Domestic Violence] for the parent would open their eyes to things that they have often been minimising. With examples of each thing that can constitute abuse – including financial. Also stating clearly about the long term effects on a child of living in a DV situation, with possible issues it can cause for the children – NOT everyone knows this, it’s NOT taught about in schools.

Ask them to look at the list, and to answer it honestly, while the SW isn’t present, and going back for a second session with them, being clear about what they need done would also help.

It isn’t easy, as a parent who still loves their partner, to truly see an abusive situation for what it is. And it’s even less easy to know without being told, what you are meant to do to fix it.

It’s very easy for me now, as a 30-something adult, who has BEEN in a previous abusive relationship, to see what you are meant to do.

As a teenage parent, or a young parent, who has no experience of this, how in the name of hell are you meant to GUESS what you are meant to do??!!

And this is, I feel, where SS goes wrong, and stops putting the DC’s first. If SS were clear right from the beginning with handouts that explained everything that constitutes abuse, with examples, it would be far easier to spot when you are being abused. If they also gave clear directions on what is expected in that situation to protect the DC’s, many more DC’s would be protected from living in an environment with DV MUCH FASTER.

And parents who are in an abusive relationship would not feel so confused, fearful, and would be far less ‘obstructive’ in many cases, towards the SW’s attempts at helping.

It’s not always possible to find the time for navel gazing personal reflection to attempt to work out that you are in an abusive relationship andthat you need to get out of it pdq when you are actually coping with being in an abusive relationship, dealing with the day-to-day stuff that comes with having DC’s, AND are fearful of losing your children and not knowing why or how to fix it!

I think that a clearer picture from SS would actually PROTECT far more DC’s from living in a situation with abuse present.