Tag Archives: Transparency

Transparency Made Simple!

This is a post by Sarah Phillimore

I was asked if I could re-state the law about confidentiality in family proceedings for the benefit of parents who want to talk about their proceedings publicly. What follows is an attempt to simplify the main post on this site about transparency. The usual warning applies – this cannot be used as particular legal advice for a particular case. If you are worried about the consequences of anything you do, you need to get advice from someone in real life who knows what is going on in your particular case. But I hope it can be a useful condensed guide to the general principles. 

Contempt of court is a really serious thing and can lead to you going to prison. But what the courts really don’t like are people who deliberately break the law in an attempt to show how much they dislike the court system. If you can show that you tried your best to stay on the right side of the law I think its unlikely any court would want to give you serious punishment. 

 

Golden rules

  • Don’t identify any children – by name or by providing information that would make it easy for others to work out who the child is for example, names of older siblings or school the child goes to.  This is called ‘jigsaw identification’
  • Don’t publish any evidence or talk about in detail what happened in court unless you have the permission of the Judge
  • Generally to ‘publish’ means ‘making information known to the general public’ so would include putting information on the Internet, such as a Facebook profile.

 

Why is it so complicated?

Because the law in this area has developed over a long time and in a variety of different ways. If you find it hard to understand – don’t worry. So do the Judges and the lawyers.

 

Why can’t I just talk about my case?

Because children do not get a choice about whether or not they are part of care proceedings and it is very unfair to publicise information they might find very embarrassing or shameful.

 

Important laws you need to know

Section 97 of the Children Act 1989

Section 97(2) says no person shall publish anything which is intended or likely to identify any child as being involved in any proceedings under the Children Act 1989 or the Adoption Act 2002, including the child’s address or school.

If you do this it can be a criminal offence but you have a defence if  you didn’t know or suspect that the published material was intended or likely to identify the child.

Section 12 Administration of Justice Act 1960.

It is a contempt of court under this section to publish information about ‘private proceedings’ UNLESS you are telling a professional something they need to know to protect a child.

You can publish information about ‘the nature of the dispute’ but you can’t refer to the actual evidence, not even in summary. This is quite a tricky distinction.  There is no time limit to this section so you are caught by it even when the care proceedings are over.

This doesn’t cover the identify of witnesses in care proceedings so they can be named unless the Judge makes a different order.

In Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam) [2004] 2 FLR 142 at para [82](v)-(vii); Munby J tried to shed some light on what section 12 covers:

  • section 12 protects is the privacy and confidentiality:
    • (i) of the documents on the court file; and
    • (ii) of what has gone on in front of the judge in his courtroom. …
  • section 12 does not prevent publication
    • of the fact that proceedings are happening, or
    • identification of the parties
    • or the comings and goings of the parties and witnesses,
    • or incidents taking place outside the court or indeed within the precincts of the court but outside the room in which the judge is conducting the proceedings.

I want to talk about my case at a conference or to a  journalist

So how does section 12 stop you talking about the details of the case?  This is a difficult area and causes problems for the lawyers to understand.

Sir James Munby looked at one example;

“Says a friend of [the mother]: “She has been portrayed as a bad mother who is unfit to look after her children. Nothing could be further from the truth. She is wonderful to [them] and they love her. She wants custody of [them] and we will see what happens in court”.”

The Judge dealing with the case found that WAS a breach of section 12 as it went ‘far beyond a description of the nature of the dispute and reached deeply into the substance of the matters’

However, it is clear that every case turns on its own facts, which makes it difficult to provide clear advice about what would or would not be acceptable to talk about. If you are worried, then ideally you need to ask the Judge who heard your case for permission to raise certain issues.

As a general point you are probably ok if you

  • talk about the fact that there were care proceedings
  • talk about what happened after the care proceedings and how it made you feel

How does the court approach applications for publicity?

The High Court has the power, due to section 6 of the Human Rights Act 1998 and its own ‘inherent jurisdiction’ to make orders outside of the statutory provisions about people coming into court or being able to talk about what happens in court.

If the High Court wants to make such an order, the court must examine any competing rights under Articles 8 and 10 of the European Convention and undertake the ‘balancing exercise’ as set out in Re S (A Child) (Indentification: Restrictions on publication) [2004] UKHL 47

The case of Re Webster: Norfolk County Council v Webster and Ors [2007] 1 FLR 1146 identified 4 important factors for the court when it considered whether or not to allow information about a case to be publicised:

  • The case was alleged to involve a miscarriage of justice
  • The parents wanted publicity
  • The case had already been extensively publicized
  • There was a need for the full facts to emerge in a way which would improve public confidence in the judicial system.

In Re J [2013] where the Local Authority wanted an order ‘contra mundum’ (against everyone in the world), preventing the identification of a child in care proceedings, to last until the child was 18. The court didn’t agree.

This case involved J, one of the parents’ four children (all of whom went on to be adopted). J’s father posted on the internet various pictures and film of J being removed from the parents’ care, describing what he had published in these kind of terms:

“Waiting in the corner, in the shadows lurks a vampire-ish creature, a wicked, predatory social worker who is about to steal the child from the loving parents. Caught on camera – [name] of Staffordshire social services creeps in the corner like a ghoul, like a dirty secret, like a stain on the wall … You are a wicked, wicked woman [name] – God knows exactly what you have done, you must be very afraid, now! You WILL suffer for this.

Here is an interesting article about this case, in particular the ironic consequence that in attempting to restrain the father from posting his videos on the internet, the LA ensured that he received a great deal of publicity and probably more people saw the videos than would have done if they had not applied for the order.

Sir James Munby said this about Re J

26. The first matter relates to what it has become conventional to call transparency. There is a pressing need for more transparency, indeed for much more transparency, in the family justice system. There are a number of aspects to this.

27. One is the right of the public to know, the need for the public to be confronted with, what is being done in its name. Nowhere is this more necessary than in relation to care and adoption cases. Such cases, by definition, involve interference, intrusion, by the state, by local authorities and by the court, into family life. In this context the arguments in favour of publicity – in favour of openness, public scrutiny and public accountability – are particularly compelling […]

28. I have said this many times in the past but it must never be forgotten that, with the state’s abandonment of the right to impose capital sentences, orders of the kind which family judges are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. When a family judge makes a placement order or an adoption order in relation to a twenty-year old mother’s baby, the mother will have to live with the consequences of that decision for what may be upwards of 60 or even 70 years, and the baby for what may be upwards of 80 or even 90 years. We must be vigilant to guard against the risks.

29. This takes me on to the next point. We strive to avoid miscarriages of justice, but human justice is inevitably fallible. The Oldham and Webster cases stand as terrible warning to everyone involved in the family justice system, the latter as stark illustration of the fact that a miscarriage of justice which comes to light only after the child has been adopted will very probably be irremediable. […] We must have the humility to recognise – and to acknowledge – that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.

 Rule 12.73 of the Family Procedure Rules 2010

You won’t be in contempt of court if you discuss information about care proceedings so long as you are talking to a person named on this list.

  • a party to the proceedings;
  • the legal representative of a party;
  • a professional legal adviser;
  • Cafcass
  • the Legal Services Commission;
  • an expert whose instruction by a party has been authorised by the court for the purposes of the proceedings;
  • a professional acting in furtherance of the protection of children;
  • an independent reviewing officer appointed in respect of a child who is, or has been, subject to proceedings to which this rule applies;

 

Further reading

 

 

Why I no longer support opening up the family courts

This is a post by Sarah Phillimore

Yesterday I was told that a published judgment in a family case had been the subject of an article in a tabloid newspaper. I am not going to link to either the case or the article for reasons which I hope will become very clear. But if anyone doubts the veracity of what I am saying, contact me and I will share the links with you privately.

The article was the usual tabloid fodder. No discussion of the wider issues examined by the judgment, no recognition of the work done by parents, the social workers, or the court. It read to me simply as an exercise in slut shaming. Given the level of detail about the services the parents had been offered it was apparently easy for people in their locality to know who they are. The parents, I am told and understandably – are distraught.

I had an email discussion with a journalist about this. I haven’t asked their permission to repeat their emails so I don’t. But you will get a flavour of the conversation from mine:

This is why transparency will stall as journalists are so irresponsible….

Really? You didn’t notice even a whiff of slut shaming in their approach? It is this kind of thing that will slam door shut on transparency. Journalists have to step up…

OK but the door to transparency remains firmly shut – this is why. Again the excuse that journalists only hold mirror up to society, rarely any recognition of or responsibility taken for how your profession feeds that. A great shame. The mother is distraught. That is a whole group of lawyers who won’t be supporting the next publication of a judgment and I too am wavering.

The damage done by journalists over the death of Peter Connelly is with us still. They continue to compound this damage as for example we see with the reporting of Andrew Norfolk over the ‘Muslim Foster carers’ case. Time and time again I see gleeful reporting of women who have had children removed as just some kind of shameful baby making machines. But these are real people – with real children.

It is just not good enough to say that journalists are ‘just giving the public what they want’. Journalists need to accept that they are also responsible for encouraging and feeding this – going to ever more lurid extremes in their reporting to secure readership and comment.

I have always been wary about whether or not we have the journalists we need to report on sensitive family matters. I have decided now that we do not. I remain very grateful for the efforts of Tortoise media to provide more detailed coverage of these important issues but my fear is that they will always be overshadowed and overwhelmed by the tsunami of nasty, prurient baiting that comes from the majority of the press.

I am still glad I played a small part in Louise Tickle’s victory in the Court of Appeal to challenge an unlawful Reporting Restrictions Order, and that it will lead to a greater discussion about transparency. What she revealed about the nature and extent to which lawyers either understood or applied the law was frightening – the expensive administrative labyrinth she entered into merely to make an appeal, even more so. I will continue to admire and pay tribute to the courage and tenacity she showed to do the right thing.

But should anyone care to ask for my views in the forthcoming Transparency Review then they will be as set out above. I sadly don’t think the majority of our journalists have the will or the ability to report on family matters in any other way than sensationalised click bait. And this hurts people. It doesn’t ‘shine a light’ on the system or increase public understanding. Its just the 2019 equivalent of the stocks or the ducking stool.

I will not support further opening up of the family courts. I will no longer support the pain and misery of my parent clients being offered up for public entertainment. I will no longer agree to the publication of any judgment in a case where I act, unless and until I can see some recognition from our Fourth Estate of the power they wield, and the harm they do.

Why its time to open up the Family Courts

On Saturday 3rd November I attended a workshop at UWE organised by journalist Louise Tickle as part of her project to investigate opening up the family courts and recalibrate the balance between privacy and scrutiny. Disclaimer: both Louise and I are members of  The Transparency Project, so our interest in and commitment to further openness of the family courts is obvious and I make no secret of my bias in favour of this happening as soon as possible.

I have undergone an evolution in my views since 2011, when I first took up any kind of campaigning role. Whilst I initially parroted the phrase ‘private not secret’ and worried about the impact on children of increased scrutiny, my exposure over the years to obvious examples of where the system was failing has changed my views.

This blog post is an attempt to outline what I think are the most important reasons for opening up the family courts and what we can do about the real and serious fears of many that we are simply encouraging a salacious and irresponsible Press to make free with a family’s misery.

Have a look at the Twitter hashtag #openfamilycourt for some contemporaneous tweeting about what happened at the workshop.

Justice must be seen to be done

This is the simple, basic and big one.  As David Burrows has pointed out (see ‘Further Reading’ below), family lawyers look through the wrong end of the telescope, assuming that family cases must be held in private from the outset when in fact it is the ‘open court principle’ that is the default position.  Issues of permissible privacy and statutory limitation, especially regarding children can be discussed from that starting point.

As far as is possible we should strive to make sure that the public can access the courts and understand the system of justice that operates in their name.  It is the fundamental principle underpinning our entire system of justice and for too long the family court system has been allowed to develop along tracks which lead it far away.

 

Lack of scrutiny can have terrible consequences.

It is very clear to me – not just from this workshop, but from attempts to engage with a wide range of people over many years – that most of us are just stuck on broadcast when it comes to issues that cause us particular pain. Our view of the situation narrows to encompass only that which has hurt us. This is entirely understandable and I don’t criticise anyone for it unless and until they demonstrate to me that their minds are closed to any possibility that their views may sensibly be challenged.

This single issue focus is often a massive block to any sensible discussion about how we move forward and it is made far worse by the obstacles the current family justice system puts in the way of understanding and scrutiny. I don’t pretend that opening the courts would be a miracle cure for the single issue campaigner – but it would allow me more authority when I say that their perception or their understanding is wrong; THIS is what happened.

I have often wondered why the lawyers are so absent from the parents’ narratives on social media. I am now beginning to understand exactly why. What was telling from many of the parents at the workshop was that the lack of public scrutiny meant that no one really understood the system they were entering, they felt powerless to engage with or even challenge their own lawyer and the power imbalance was thus magnified.  A system of parent advocates could be a way forward. 

 

Lack of scrutiny allows stale cliche to become unchallenged truth

There are stock phrases and belief systems that influence the family justice system. Many – in my view – are based on imperfect understanding of existing research, wishful thinking or used as a quick get away from any attempt to actually think and worry about a situation that may actually be incapable of resolution, so lets just get rid of it quickly. Lack of scrutiny or outside challenge means they have been allowed to harden over the years into inescapable ‘truth’.

We are doing this in the child’s best interests, which are paramount.

The most stale and dangerous of them all. It needs unpicking. First how do we find out what is in the child’s best interests and what does ‘paramountcy’ actually mean in the context of the family and wider community?

Children in my cases roughly fall into two camps. They are very young and they can’t speak. We thus find their ‘wishes and feelings’ reported as ‘If Baby X could speak I am sure he would say he would like a warm loving home!’. Or they are frightened and angry teenagers who are desperate for an adult to take control and keep them safe, but find instead that the adults tip toe around them ‘respecting’ their autonomy – until of course the teenager says or does something the adult doesn’t like, in which case all that Gillick competence dries up and blows away.

I am fed up of being involved in cases where children are separately represented but who won’t meet with their lawyers and give instructions. Not only is this a massive drain on the public purse but it also means we aren’t listening to what these children are telling us loud and clear. Be the adult. Make decisions to keep me safe.  There is a limit to the extent that children’s views can inform us of their best interests.  They lack perspective and understanding about how their choices today can impact their lives down the line. And most of them, on some level, understand that – and crave an adult who cares enough to take that burden of responsibility away.

What is in a ‘child’s best interests’ is then perhaps more accurately rendered as ‘what do I the adult, with my preconceptions, bias, or dangerously high workload, think I can get away with recommending on the basis that its in the child’s best interests?’

Even more perniciously, is the fact that a child’s ‘best interests’ has become narrowed to seeing that child entire and alone in the universe – divorced from family, friends, community etc. The fact that it might be in a the child’s long term best interests to remain links with his family is overshadowed by the immediate ‘best interests’ to be removed from a potentially harmful situation. We see this in the cry of the social worker ‘I am not here for you! I am here for YOUR CHILD’. We see this in the words of the court – Lord Kerr in B (A Child) [2009]

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

i think this is wrong, is going too far, is using section 1 of the CA as a vehicle to drive us far away from what is actually in the best interests of children – to have a safe, permanent home and good relationships with those who love them and who share their identity. Children are not born as a blank slate to be easily picked up and dropped into a new adopted family.

I could be entirely wrong about all of this. But we are not able to talk about it, openly and honestly.  It is worth noting that all those at the workshop echoed the concerns expressed by the (now) President of the Family Division in 2017 – that there is no feedback loop in the system. Judges aren’t routinely told about outcomes for children. Greater scrutiny and openness can only improve this dire state of affairs.

 

But what about the risks to children of increased openness?

I accept that this is a real and serious fear and was certainly recognised by those at the workshop. What I don’t accept however is that debate stops at mere recitation of this risk. If reliance is placed on any assumption that open family courts will harm children then I am going to need to see a lot more research that goes beyond a small and self selecting group. The 2014 report from NYAS/ALC involved only 11 children, for example. Earlier research in 2010 asked only 51 children.

I am going to demand actual analysis of the harm that will befall a child if family proceedings are reported but the name of the child is kept out of it.

It seems to me that the reality is that those in the child’s locality will already be well aware that there have been some sort of legal proceedings; those outside the child’s locality won’t care. So long as the child’s name is kept out of it, so no digital footprint is created that might lead to unpleasant shocks in years to come, what actually is the harm that is caused? If the only harm that is identified is some degree of embarrassment, can that always and automatically be enough to over turn the fundamental principle of open justice?

Maybe I am wrong about this too. But whatever your interpretation of current research, there is never any excuse for Judges and lawyers then to fail to apply the relevant law and to carry out the necessary balancing act between Articles 8 and 10. The recent difficulties faced by Louise Tickle in attempting to persuade a Judge to relax a reporting restrictions order is a clear example of this.

 

Conclusions

So what do I think the next steps should be? If my pious arguments about legal principle and open justice don’t move you, maybe this will. The practical reality is – now that every one is a micro publisher, with an audience of potentially millions around the world – that the genie is already out of the bottle with regard to information circulating on social media and we either take control of this or we let it drown us. What do I think the next steps should be?

  • Louise continues with her investigations
  • Some one commissions fresh research into the likely impact of open courts on children, with a sample size greater than 11.
  • Proper analysis and investigation of what other jurisidictions are doing and how they protect children – see article below in Further Reading where I set out what is being done in some US states
  • Proper backing and funding to a system for parent advocates – to help parents bridge the gap of understanding and enable them to engage better with their lawyers.
  • A form of accreditation for journalists who wish to report on family cases so we reduce the risk of the current salacious and irresponsible ‘cherry picking’ only the ‘sexy’ information to report,  which causes such justifiable distrust in journalism as a profession.

 

Further Reading

The recent debate about opening up the Family Courts Sarah Phillimore December 2014 (includes discussion of what happens in some US States).

Transparency: What can I talk about? Who can I talk to? Sarah Phillimore 2014

Family proceedings: ‘the open court principle’ David Burrows December 2014

Opening up a closed system; the second Bridget Lindley Memorial Lecture Louise Tickle March 2018

Legal Blogging: a dry run in the Court of Protection Lucy Reed Pink Tape August 2018

Are you sitting comfortably? The Art of Story Telling

As a species we appear to be primed to impose a narrative on our experiences. We love stories and we need them. As Adam Gopnik commented in 2012, looking at the science behind storytelling:

Gottschall’s encouraging thesis is that human beings are natural storytellers—that they can’t help telling stories, and that they turn things that aren’t really stories into stories because they like narratives so much. Everything—faith, science, love—needs a story for people to find it plausible. No story, no sale.

The book ‘The Seven Basic Plots: Why we tell stories’ is described thus:

This remarkable and monumental book at last provides a comprehensive answer to the age-old riddle of whether there are only a small number of ‘basic stories’ in the world. Using a wealth of examples, from ancient myths and folk tales via the plays and novels of great literature to the popular movies and TV soap operas of today, it shows that there are seven archetypal themes which recur throughout every kind of storytelling.

It is of course a bitter irony that its author is Christopher Booker, one of the chief proponents over many years of the narrative of the ‘evil and secret’ family courts that do untold harm to ‘innocent’ families for no reason other than caprice and cruelty. See this post for how he wrote about the case of Marie Black, a convicted paedophile in the criminal courts but to Booker simply another in a long line of victims of the family courts.

So I can conclude that stories are important to our psychological make up as a species and that there are only a limited number of ‘basic stories’ . I can also conclude that the family justice system has not been able to grapple with this narrative drive for some very obvious reasons. Predominantly this is the operation of section 12 of the Administration of Justice Act which prohibits publication of details of proceedings held in private – as most proceedings under the Children Act are.

This insistence on privacy is to protect the identity of the children involved becoming widely known – a perfectly proper endeavour. Children did not ask to be born and they certainly did not ask to become involved in public airing of the family’s dirty secrets.

But this has lead to silence from those who know best about how cases are argued, how judges make decisions, why and how families are separated and children adopted. Into that silence, over the years, has come the noise and chatter of many groups and individuals who for a variety of reasons have a strong and appealing narrative about the family justice system. Many of these narratives bear no resemblance to reality but to counter them is next to impossible because of course responsible commentators cannot refer to the details of actual court proceedings involving children.

This has all come to a head recently with the death of Alfie Evans on 28th April 2018. The ‘compassionate’ judgments in this case have been published. But how many are reading them?

 

Its always interesting to apply a Dunning Fog index test to published text.This is

a weighted average of the number of words per sentence, and the number of long words per word. An interpretation is that the text can be understood by someone who left full-time education at a later age than the index.

To be ‘universally accessible’ the text needs to score no more than 8. To be ‘widely accessible’ no more than 12. Looking at the first judgment in Alfie Evan’s case in February 2018, a random paragraph scores 18.61. The Church Militant article, pictured above, scored 13.29 and of course was accompanied by heart wrending photographs of a little boy and a far more instantly accessible and emotional narrative than that provided by the court judgments.

Many lawyers commented on social media that they could not understand why so many appeared to be by-passing the compassion and legal wisdom of the published judgments and preferring instead to share the more lurid and fantastical stories playing out around Alfie’s life and death. Perhaps this discussion may give them a clue.

Why does this matter? The difference between ‘active’ and ‘passive’ transparency

It matters because those who peddle the strong but wrong narratives have a reach and influence far beyond comments on a screen. No sadder and clearer example can be found than in the Alfie Evans case where hundreds of people marched on a children’s hospital to shout abuse at doctors and nurses. The comments of the Court of Appeal in the final court judgment in April 2018 make for troubling reading:

  1. We were reminded that in the past leading counsel, Mr Stephen Knafler QC, acting then on behalf of both of the parents, deprecated the involvement of legally qualified but not practising lawyers who introduced (to use Mr Knafler’s phrase) a “darker side” to what was otherwise valuable support. It has become apparent to this court, and we referred to it in the postscript to the judgment that we gave on 6 March 2018 in relation to the first appeal, that there was some coordinated organisation of potential medical experts in relation to more than one of these vulnerable families, the same expert being covertly introduced to Kings College Hospital to examine secretly one child in the paediatric intensive care unit there and the next day to go to Alder Hey, again covertly and secretly, to purport to examine Alfie there.

  2. It is not the function of this court now to embark upon an investigation of these matters, but it has become apparent, in particular in terms of the information we have been given about the instruction of the new legal team for the mother today and the drafting of the grounds of appeal upon which Mr Coppel purported to rely at the start of his submissions, (with its unhappy emphasis on prospective criminal proceedings against the staff at Alder Hey) that the representation of the parents may have been infiltrated or compromised by others who purport to act on their behalf. I say no more, but I have in mind the tenuous nature of the direct contact that Mr Coppel and his instructing solicitors had with the mother and yet the clear grounds of appeal that he was instructed to put forward on her behalf, which were, it now transpires, drafted by a lawyer who is not before the court. It may be that some investigation of whether, in this country, at this time, parents who find themselves in these awful circumstances, and are therefore desperate for help and vulnerable to engaging with people whose interests may not in fact assist the parents’ case, needs some wider investigation, but I do no more than draw attention to the concern that this court has at what seems to be an unhelpful development which may, in reality, be contrary to the interests of such parents.

There are many other examples of this kind of attack on the rule of law and the erosion of public trust and confidence in the family justice system. The same names crop up over and over again – Sabine McNeil, John Hemming, Ian Josephs and Christopher Booker for example. They all promote the narrative that parents would be better off leaving the jurisdiction than facing the UK family court system. Josephs and Hemming provide money and accommodation for mothers they persuade to ‘flee’. For many, this proves a disastrous decision.

Sabine McNeil was one of those ‘campaigners’ responsible for promoting the ‘Hampstead Hoax’ which even now continues to cause anxiety to local parents who find themselves branded satanic abusers. The judgment in the fact finding hearing sets out the truth but that judgment can make no inroads into the deluded certainties of those who are convinced that a primary school in Hampstead routinely organised the murder of babies and the wearing of their skin as shoes.

Although Sabine McNeil is now in prison, it is sobering to remember that only in 2014 she was presenting a petition to the European Parliament about the UK family courts, which lead to a visit to London by a European delegation in November of that year.

Also in 2014 the President of the Family Division Sir James Munby made it clear that things had to change, saying:

I am determined to take steps to improve access to and reporting of family proceedings. I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice.’

The President issued guidelines for the publication of judgments and the last four years have seen a significant increase in the number published – however, there appears no clear or coherent strategy behind this. Some judges publish a lot, some none at all. Publishing a judgment, as I have commented, doesn’t mean that anyone will read it or that it can stand up to a much more immediate and ‘sexy’ narrative.

So what’s the solution?

Family lawyers and the family justice system need to understand the difference between ‘active’ and ‘passive’ transparency and need to be more willing to promote the first. ‘Transparency’ is about so much more than just allowing passive public scrutiny of processes and outcomes: we must generate a far greater understanding amongst the public about what is behind the decisions made. This becomes an increasingly urgent project as distrust between parents and professionals apparently hardens and increases. For example, in 2017 McFarlane LJ noted with disquiet in the first Bridget Lindley Memorial Lecture:

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

This worrying evidence of growing distrust between parents and professionals was also highlighted by the journalist and Transparency Project member Louise Tickle who delivered the second BLM lecture on March 13th in Birmingham. Louise is an example of the benefits of a particular type of ‘active’ transparency – encouraging intelligent outsiders to examine our current closed systems and highlight where practice and procedure that to family lawyers seems normal, may appear bizarre and even frightening to those on the outside. Her clear conclusion was that the secrecy of the family courts was a disgrace and led to bad practice escaping scrutiny and censure. When writing about family cases her inbox became ‘one long scream of pain’.

Little wonder then that the narratives about the ‘evil secret family courts’ take such firm grasp and no doubt at all about the damage they do – not just to individuals who find themselves taking some very bad advice, but to society as a whole, for respect for the rule of law.

All of us involved in the family justice system have to start getting better at telling our story.

 

Further Reading

 

  • Note in particular this article Science vs Conspiracy: Collective Narratives in the Age of Misinformation: ‘the World Wide Web has changed the dynamics of information transmission as well as the agenda-setting process [1]. Relevance of facts, in particular when related to social relevant issues, mingle with half-truths and untruths to create informational blends [2, 3]. In such a scenario, as pointed out by [4], individuals can be uninformed or misinformed and the role of corrections in the diffusion and formation of biased beliefs are not effective. In particular, in [5] online debunking campaigns have been shown to create a reinforcement effect in usual consumers of conspiracy stories.’

 

Opening up a closed system: The Second Bridget Lindley Memorial Lecture.

EDIT March 29th – you can now read a transcript and listen to the podcast here.

I was very pleased to be in the audience for Louise Tickle’s lecture on March 13th in Birmingham, organised by the Family Justice Council and with an impressive panel of Andrew Pack (AKA Suesspiciousminds), Dr John Simmonds of Coram/BAAF, Mr Justice Keehan and of course the President. The FJC will publish a transcript of the debate and to follow discussions on  Twitter, see #fjcdebate.

Since I first met Louise at CPConf2015 she has been an enthusiastic and tireless campaigner for prizing open the closed doors of the family court to shine some light on what goes on, in all our names. This has had an interesting impact – it does seem that more and more, those in the family justice system are realising that intelligent outsiders can actually help us do better, by showing us how practices and procedures that have become solidified and ‘the norm’ for us, appear bizarre and even frightening to those on the outside.

Louise was examining the game changer that is social media – no longer a niche hobby for ‘sad losers’ but something that is changing not just the way we communicate but the things we communicate about – personal, raw stories of human grief can be published by anyone, travel anywhere and be accessed at anytime. Louise began with a powerful story from her own childhood, where she was forced to confront at the age of 8 the ‘implacable authority’ of the adults around her to impose their choices. This left her feeling anguished and powerless. She has never forgot this feeling and it has driven her professional work.

What Louise has noticed is the rise in the number of people who contact her about their perceived experiences of injustice in the system. She cannot comment on whether or not these are based in ‘truth’ but to any journalist, this sounds as a warning bell – something is wrong if so many people feel so strongly about it.

We have to recognise this and we have to deal with it. There are enormous positives to social media – it allows people to communicate with others that they might never have met and find support. Louise was very appreciative of ‘legal Twitter’ – which was ‘awesome’ and commented about how useful it had been to allow journalists to ‘live tweet’ various proceedings.

Letting the light shine into proceedings will increase understanding and hopefully trust, which all appeared to agree was currently at dangerously low levels. The particular issue of recording interactions with professionals was raised and Louise was curt – ‘get over yourselves’. Parents want to record because they don’t trust professionals and they don’t have any power. It hurts not to be trusted but we need to be more open to considering the benefits that could flow from recorded transactions – particularly when there ARE examples of professionals behaving deplorably and making stuff up.

Louise also considered the impact on relationships of trust between parents and professionals by what appears to be the promotion of increased ‘surveillance’ of social media output as a way to gather evidence for assessments. Of course we don’t want to miss information that would inform us that a child is in danger, but given that we have finite resources of both time and emotional energy, do we really want to be directing both to increased surveillance, rather than building up relationships of trust? Perhaps the saddest comment of the night, for me, came from Dr Simmonds who remarked sadly that what underpinned his training as a social worker – the creation of relationships with others – seemed now so difficult to achieve.

Louise concluded by considering the ambit of Article 10. It appears that lawyers often overlook its essential component – freedom of expression includes the freedom to complain! She was horrified by the ‘arrogance’ of some local authorities who appeared to think that their work in child protection gave them immunity from scrutiny. Reporting on family cases was the hardest work she had ever done, as the fears of being held in contempt of court were very real. It was only with pro bono help from lawyers such as Lucy Reed of The Transparency Project that she was able to get permission from the court to tell ‘Annie’s’ story.

Louise was stark in her assessment. No other kind of proceedings, save those involved in issues of national security, permitted the kind of lack of scrutiny that is seen day in, day out in the family courts. It is an outrage.

We then turned to the Panel for comment. All agreed with Louise’s assessment that the State should be held to account – but how to do it? That’s the problem. The discussion ranged from worry about identification of children and the stigma that might then follow, the problems in expecting an overworked judiciary to anonymise and publish judgments and whether or not we should consider further accreditation for journalists who wish to report on family proceedings.

As Lucy Reed commented, there are enormous benefits to letting people in – to allow us to benefit from their fresh insights. The President agreed.

 

So, as ever, more questions than answers were raised. But without asking the questions, we will never find the answers and for too long the family justice system has been allowed to proceed on a secretive and inside track which has allowed bad practice to harden unchallenged. I was impressed by the quality of the conversation and its refreshing openness and honesty.  That we are even having this discussion is testament not just to the hard work of journalists like Louise but also the lawyers and legal bloggers who take the time to communicate their unease. And at the helm of course is the President.

I was very sad to be told I could not live tweet the location of the lecture due to security concerns for the President.  I struggle to understand how anyone would wish to interfere with his central and now long repeated message – we need to shine a light on bad practice and we do that by talking more, not less.  It will be interesting to see where our new President takes us, once Sir James Munby steps down in April.

I leave you with the words of one tweeter

 

Happy Families – The conversations we are not having about adoption – Feedback from London Event

 

On Saturday October 28th 2017 we gathered again, this time in London, for the ‘oral installation performance’ about adoption and the problems caused by lack of honest and open conversation about its meaning and consequences.

The main questions Pamela and I hoped to pose were these:

  • Can we make happy families?
  • Can we impose identity on a child?
  • Do we need to ‘rescue’ children or should we be trying to support unhappy families?
  • What is really at the heart of our child protection system and adoption and why aren’t we talking about this?

Again, I was really pleased that the audience seemed keen to talk and the conversation was lively and wide ranging. It was also great to finally meet in person some of those I have been ‘talking’ to on line for some time now. 

I hope that the conversations we started in Bristol on September 23rd and in London on October 28th can carry on elsewhere. If anyone reading this would like us to come and perform in your area, let me or Pamela know!

Themes emerging

A member of the audience recorded the following as those issues which attracted her attention:

  • Is there another side to the issue? The talk seemed to imply that adoption is negative, but if so, what’s the alternative?
  • Who is going to do the research into outcomes? How is it to be funded?
  • Adoption seems to involve ideological judgement and even social engineering, and is used as a solution to problems within the care system generally. Why isn’t there conversation about all the possible consequences, good and bad, short and long-term, for everyone involved?
  • Why isn’t there legal and financial help for, say, the parents of split siblings, to enable a sense of family to persist?
  • Social media has raised the profile and voice of adopters, but again, it is usually the articulate middle classes who benefit. How can this be made more of a level platform?
  • How successful is the assessment process at preparing adopters to be parents?
  • Are support services adequate in the era of austerity, particularly in view of the needs that may arise in adopted children from different backgrounds?
  • What qualifies a parent for serious intervention such as psychotherapy? There is no clinical criteria, and the distribution of these resources seems to depend on how wealthy and/or how vocal you are.
  • Is the problem that research may be carried out but is unheeded by policy makers? If so, is it because of (lack of) money? Or prevailing ideology? Or lack of belief in public discourse by the general public?
  • The UK concept of ‘childhood’ is adult-led, which is behind the times compared to much European thinking. Should the UK widen its perspective?I]
  • Is it worth saying that you can’t prevent the death of every child deemed to be at risk, regardless of any external circumstances? There would and will always be cases like Baby P, leading to knee-jerk reactions by the media, and potentially causing as much harm as good.
  • How do you counteract false narratives that are propagated by sections of the media for political ends?
  • Should there be a set timeline for adoption or not? If yes, what should it be? If no, how do you set parameters?
  • Is there a wider question about the way society undervalues diversity and views disadvantage?
  • How can we stop money being wasted by the government on high-profile, ‘scattergun’ interventions which are often shown to have achieved nothing when they are evaluated by practitioners?
  • How big a problem is trafficking of children? Can we believe the narratives in the media?

Comments from the audience

I have just started my MA in Social Work and this has made me aware of some disturbing elephants in the room and what sort of actions I need to think about supporting.

I found the method of presentation simple, powerful, effective. I thought Your performance Sarah was excellent. It was gripping. I think you didn’t need to try and answer the q’s ( except the first that was framed firmly as a q to you).

It didn’t make me think afresh about adoption as i already do but it was good to be able to ‘come out’ on those views in a public debate. My sense is that there has been a big shift in recent years to voices accepted as credible (rather than othered as disgruntled or extremists – some of course, being actually so) being able to question current adoption policy & practice.

I think you could have done even more to engage w evidence in support of adoption & eg the idea that it was precisely because Jobs was removed & adopted that he developed capacity & opportunity to have such an impact. Tho u said u had no views the choices about what material used & ansa’s given suggested u had strong views that much is broken & dysfunctional, just not on how to achieve change & what good wld like.

Social Workers Speaking Out – What Should they Say?

This is a post from a social worker who wishes to remain anonymous. She discusses her frustration about the constraints on social workers speaking out about who they are and what they do and her particular concerns at the way ‘Social Work Tutor’ recently chose to frame the narrative, in terms of ‘monster parents’. 

Over the last couple of years I have been involved in various real world and online discussions about social workers speaking out, mainly why they don’t as individuals. As a general rule, if you are independent or in academia you can talk about social work, in an LA you can’t without representation or approval from the directorate (and usually under the auspices of the comms team). As far as social networking is concerned, most employment policies are restrictive enough for social workers to be anonymous if they work for an LA. I’ve felt my share of frustration with the barriers to communicating about social work as well as with the voices who claim to represent me at times. There are several aspects to this for me. On a personal level I feel silenced, and in a field active with anti oppressive practice, that feels a bit oppressive. For families who encounter social workers, not knowing about social work limits their understanding of what we do and creates a barrier of fear, barriers can be ameliorated, but it’s a shame there is one there in the first place. More widely it contributes to the air of secrecy that surrounds social work and the family justice system and I would like more transparency.

 

It won’t be a surprise to know that I was therefore interested to the Facebook page of a social worker who has a large “fanbase” (their words) and who also contributes to Community Care. I haven’t read all of the Community Care articles but this is someone with who I agreed completely when they wrote recently about feeling like social worker’s voices have been heard for the first time since Munro. There were almost 20,000 followers on the Facebook page and, from what I read, SWT appeared proud of their high profile. Reading further, some of the posts gave me pause for thought. I really didn’t like the way social work was ramped up, I didn’t like the notions expressed that social workers are heroes, or working on a frontline. I also didn’t like some of the memes, because although they might be funny in another context, they read as being jokes made at the expense of the people we work with. I also strongly objected to a very emotive post about the Ellie Butler case. Others have written very fluently about the case and I don’t intend to repeat that here, I will though tell you why I minded about it so much and thought you might wish to read the original post first. It has now been taken down, this was copied before it was, and screen shots were taken.

 

Social Work Tutor

21 June at 19:38 ·

Ben Butler is the kind of violent monster that Social Workers fight to protect children from on a daily basis…

Ben Butler is a man who used violence, control, intimidation and fear to rule those around him. He has a history of robbery, intimidation, assaults, carrying offensive weapons and domestic violence.

He admitted that he “hoped situations might present themselves where he could engage in violence” and believed that “violence used to help him improve his mood when he was upset”.

When his daughter Ellie was just seven weeks old, she suffered a “triad” of brain and retinal injuries associated with shaken baby syndrome. Ben Butler was convicted of grevious bodily harm and child cruelty, and sentenced to prison as a result.

Using his controlling and dominant personality, he used a legal technicality to quash that conviction then proceeded to engage in a media tour to campaign for the return of Ellie to his care. Supported by the convicted sex offender Max Clifford, Ben Butler did the media rounds and portrayed himself as the doting father who simply wanted to care for his daughter.

He convinced The Sun, he convinced The Daily Mail, he convinced This Morning. Most sadly of all he managed to convince Mrs Justice Hogg who commented of her ‘joy’ at seeing a ‘happy end’ when she returned Ellie to the care of the man who would go on to murder her.

Justice Hogg dismissed his violent past.

Justice Hogg dismissed the doctor who raised concerns about aggression and bullying.

Justice Hogg dismissed the burns Ellie experienced to her head and hand at only seven weeks old.

Justice Hogg dismissed the concerns of the Local Authority who did everything they could to prevent Ellie’s murder and fought all the way to save her from her father.

Justice Hogg dismissed the heart-felt plea from Ellie’s grandfather, who warned her she would have “blood on her hands” if Ben Butler regained custody.

Eleven months later, Ellie was murdered in a fit of violent rage.

This vile creature subjected his six-year old daughter to a fit of murderous rage and then attempted a cover up with his partner and Ellie’s younger sibling; staging a scene so that the sibling would find Ellie’s limp and lifeless body.

Those last eleven months of Ellie’s life must have been hell.

She was blocked from having the support of her local Social Workers.

The independent service brought in stopped engaging seven months before she was killed.

She was living with a man she told her Grandfather she was terrified of.

She was referred to as a c**t by her own father.

Neighbours reported her as being so scared of him she wet herself.

In the weeks before her death she experienced a broken shoulder.

I could go on but even writing these words brings tears to my eyes; I can’t even begin to imagine what it was like for Ellie to be subjected to such a life.

And yet these are the monsters that Social Workers save children from on a daily basis. These are the vile creatures we fight to protect these vulnerable little souls from.

People so dangerous that they will kill their own children.

People so controlling they can convince the media and judges to bend to their will.

People so evil they will attempt to portray death and injury as accidental; using their other children to hide their heinous deeds.

We will keep fighting to save children from harm, just as the unheralded heroes of Sutton tried to do for Ellie.

We will be there for children who have nobody else.

The sad truth is that Ben Butler is not an isolated figure. There are parents like this up and down our country that Social Workers are having to deal with every day.

These are the terrors that we are trying to save the world from.

These are the parents who will tell the media that Social Workers are ‘stealing their children’ at the same time as living with the awful harm they have caused.

These are the monsters that we keep from children’s doors at night.

SWT”

 

So, I minded all that because I am horrified that anyone in my profession can imply that the people we work with on a daily basis are monsters or that Ben Butler is the face of social work. I would always say that most of the people I work with are sad rather than bad, their stories are often ‘there but for the grace of God’ and the Ben Butlers of this world exist but are thankfully few and far between. I minded that a view was being expressed that social workers work daily to save children from monsters, as a child protection social worker I think I’m working with families because they need help to look after their children safely and with the need to ensure those children live elsewhere when that isn’t possible. The rescue narrative which can describe vile creatures and protecting vulnerable little souls is not mine, neither is the battle motif. I am not saving the world from terrors or keeping monsters from anyone’s door. If there really is anyone who could be described as a monster who might be in need of restraint, that’s a job for law enforcement not me.

 

So, then I minded the legal stuff because social workers work within the law. Ben Butler didn’t use a legal technicality to quash his conviction. The court considered evidence and, however terrible anything might now seem, there was no other decision that could be made based on that evidence. It is also wrong to say that Mr Butler convinced a judge, the evidence was used by the judge to do what judges do, make a judgment. This was no act of control or anyone bending anyone else to anyone’s will. It is indeed true that this returned Ellie to the care of the man who murdered her and this is very sad indeed, nobody can think otherwise. The Judge also did not exonerate Ben Butler of all of the issues, she exonerated him of the crime the evidence supported he did not commit, if you read the SCR, the LA seem to have taken this further. I suspect this is not the only time that a judge has been warned they will have blood on their hands, I have no evidence to support this but cries from the public gallery are not unheard of.

 

So why does this matter? It matters because this person is representing social workers, not just in a publication that only social workers read, but also on a public Facebook page and they are crowdsourcing £15k to publish a book that will tell people about social work much more widely. My view is that any narrative including monsters and rescuing children demonizes the people with whom social workers work, and that narrative marginalizes social justice in the context of a time of austerity and savage cuts and with a government in power whose rhetoric about adoption is akin to social engineering. I am not the only social worker who thinks this and I would always want families to know that a large following on Facebook is not representative of any social worker I have encountered in real life or online. In the meantime, having spoken for myself, I am going to have a bit of a rethink about who represents social workers, I’ve been quite critical of BASW at times, but they are doing sterling work at the moment.

 

Transparency, debate and Satanists: A Plea to the Family Courts

I think it is important to challenge people who ‘are wrong on the internet’. Not because I am naive enough to think I will have much of an impact on individuals who are driven by something other than reason and logic. I will continue to crusade in defence of the general principle that evil will triumph if we just sit back and do nothing.

Further, I think challenge is important as many of those who obsessively campaign in aggressive and intimidatory ways on social media appear to rely on official indifference to their activities and the ease with which they can threaten others with apparent impunity.

There is a view often expressed that one should not give ‘the oxygen of publicity’ to such people and that attempting to tackle them is counter-productive. I understand and often agree with that view. But there is a significant subset of these campaigners who should be challenged as they have serious reach and influence. And they will not stop.

The Hampstead Hoaxers have the dubious accolade of being among the nastiest and most persistent of the obsessive conspiracy theorists which are abundant on the internet. If you don’t know what I mean by ‘Hampstead Hoaxers’ – I think you should. I commend the entirety of the Hoaxtead Research web site to your attention, and Anna Raccoon has provided a useful summary here.

In short, in 2014 allegations were made against individuals in Hampstead that they participated in organised satanic ritual abuse involving about 20 children. These children were routinely buggered at school and made to eat babies, who were turned into burgers at the  local MacDonalds. These allegations were obviously insane and found to be so at a fact finding hearing in the High Court. Mrs Justice Pauffley issued injunctions against named individuals to prevent them further publishing their false allegations – in particular to refrain from continuing to publish on line videos of two of the children. As is obvious, such activities were very harmful to the children, given the high probability that a good proportion of the millions who have so far seen the videos were deriving sexual pleasure from them.

Those injunctions were never enforced – apparently on the basis that to cause any further fuss would just encourage the conspirators to keep on going. That may have seemed a reasonable decision at the time. But with hindsight, it was a grave error. The conspirators kept on going.

An attempt was made to bring to book two of the most virulent and prolific campaigners in July by charging them with witness intimidation. That failed as although intimidation was the inevitable by product of their campaigning, this wasn’t sufficient to establish the necessary criminal element of intention. But happily, the Judge made indefinite restraining orders against both, to prevent any further publication of allegations which at the outset of the trial all lawyers accepted were false. Details about the hearing and the astonishing behaviour of their lawyer Aseem Taj can be found at Hoaxtead Research.

News of this seemed to reanimate the Hoaxers on line who popped up on my Twitter timeline to make all kinds of astonishing allegations, including the apparently popular assertion that I (or anyone who challenges them) is actually one of the Satanists masquerading under a false identity.

I can laugh this off. Although it really isn’t funny. And it represents just a tiny fragment of what the residents of Hampstead have had to face for over two years now.  In the face of an apparently indifferent and/or toothless Family Court that cannot or will not see its own injunctions enforced. I appreciate there are enormous difficulties in dealing with those who operate outside the jurisdiction – but many don’t. Many are right here, right now.

This is a personal tragedy for the individuals in Hampstead whose lives have been blighted and whose children’s safety has been compromised. But it is also a more general tragedy – for the robustness of our legal system, and the respect we are encouraged to have for it,

An issue of particular interest to me are the potentially damaging ramifications for the debate over transparency in the family courts. The Transparency Project – of which I am a member – has been commenting with increasing concern about the apparent stalling of the President of the Family Division’s ‘transparency agenda’, first announced in 2014. Apart from an increase in ad hoc publication of judgments from some individual judges, we seem no further forward in 2016. My worry is that this is due to the concentrated resistance to any increased transparency in family proceedings from certain groups of lawyers and social workers.

They fear that children will be the ones to suffer if there is any move to more openness in the way family court hearings are conducted and/or reported. Of course I understand that – it is a real and serious concern. But other jurisdictions are more open in what they will allow to be discussed and publicly available about family cases and we need to think more carefully about how they make it work and what we could be doing.

But it should not be allowed to stifle the debate to the extent that I am afraid it has. Because look what is rushing in to fill the gap we leave by our unwillingness to bring our practice and procedure out into the disinfecting sunlight. Look, and be worried.

We simply cannot go on ignoring these people and pretending this doesn’t matter.

What do children think about opening up the family courts?

There is serious concern that opening up the family courts, for increased media access for example, is going to harm children and is not what they want.

The Children’s Commissioner investigated this issue in 2010 and said:

For our research, we spoke to more than 50 children and young people, and what they said raises a number of serious concerns. The overwhelming view was that reporters should not be allowed into family court proceedings because the hearings address matters that are intensely private. The events discussed are painful, embarrassing and humiliating and the children and young people said their deeply personal details were the business of neither newspapers, nor the general public.

They did not trust the press to get the facts right and felt strongly that articles would be sensationalised. They were worried about being identified and fear being bullied as a result.

It is of great concern that the children and young people said that if a reporter was in court to hear the evidence, they would not speak freely to professionals charged with undertaking assessments. This could seriously impact on a judge’s ability to make difficult and often life changing decisions in the child’s best interests.

You can download the report here.

 

There has been a further report by the ALC and NYAS in 2014 which you can read here.

The children interviewed were not happy with the idea of information about their cases being widely accessed and did not think that was a solution to dealing with criticisms of the family court system.

  • In the context of early discussions young people said they are not always informed about what is happening in their case – before or during proceedings. They said out dated paternalistic approaches by professionals are not in children’s interests: they need honesty and accurate information about processes and decisions about their care and at a time when they can make informed choices.

Further reading

The not-so-secret life of five-year-olds: legal and ethical issues relating to disclosure of information and the depiction of children on broadcast and social media

Marion Oswald, Helen James & Emma Nottingham

Abstract

Widespread concerns around the privacy impact of online technologies have corresponded with the rise of fly-on-the-wall television documentaries and public-by-default social media forums allowing parallel commentary. Although information about children has traditionally been regarded by society, law and regulation as deserving of particular protection, popular documentaries such as Channel 4′s ‘The Secret Life of 4, 5 and 6 year olds’ raise questions as to whether such protections are being deliberately or inadvertently eroded in this technological ‘always-on’ online age. The article first describes the documentary series and the results of an analysis of related Twitter interaction. It considers responses to freedom of information requests sent to the public bodies involved in the series with the aim of establishing the ethical considerations given to the involvement of the children. The paper goes on to explore the privacy law context; the wider child law issues, the position of parents/carers and the impact of broadcast codes. It considers if lessons can be learned from how decisions in the medical context have dealt with issues of best interests in decision-making and in disclosure of information concerning the child. The paper concludes that additional legal and ethical safeguards are needed to ensure that the best interests of children are properly considered when images and information are exposed on broadcast and social media.

 

What the internet can teach us about communication – and being better professionals

The two words ‘information’ and ‘communication’ are often used interchangeably, but they signify quite different things. Information is giving out; communication is getting through.

Sydney J. Harris

This is an article by Sarah Phillimore of St Johns Chambers in Bristol who has been a family law barrister since 1999 and worked in courts all over London and the South West.

In this article Sarah discusses the impact of the Internet on professional debate and the new drive for openness and transparency in the family law system and how it is hoped this can have positive outcomes for all involved in the area of child protection law.

I write from the perspective of a family law barrister who has been in practice for nearly 15 years. The bulk of my work is in care proceedings and most of the time I represent parents, although I am also instructed to represent Local Authorities and Guardians.

I am also someone who spends a lot of the time on the Internet, discussing things that interest me. I now have an ipad and often many hours in the day spent travelling or sitting and waiting outside court, so I have been able to indulge this hobby pretty regularly.

What I have found depressing over the years is the increasing number of those commentating on issues of child protection who firmly believe that the entire system is corrupt and broken. They argue, inter alia, that children are taken from loving homes, for no good or for ‘silly’ reasons in order for Local Authorities to fulfill their government sanctioned ‘adoption targets’. Given that their belief is of a malign State which deliberately sets out to ruin families for some obscure and unexplained financial benefit arising from each ‘forced adoption’, it is not difficult to understand why their views of family lawyers are equally stark and unflattering.

I am variously told that I am ‘a legal aid loser’, that I am ‘in the pockets of the LA’ and do what I am told or I won’t get paid. I am told that my clients don’t get to see the evidence against them and/or are not allowed to challenge it and if I haven’t noticed that I am swimming in a sea of corruption, it is because I am too stupid.

I consider myself a relatively robust individual and can weather the insults directed at me on line. But it isn’t the impact on my psyche that is the issue here. It is what these Internet debates have more widely revealed as the general corrosion of general public trust in the entire system of child protection. I think there is now an urgent need for more professionals not only to recognize this but also to engage with it. The protection of children is far too important an issue to be hijacked by just one agenda.

 

Lack of public trust and confidence in the system.

One of the reasons I am so concerned is that in the last few years, I have noticed an increasing and worrying trend for the Internet debate to spill out into my practice. I have had a number of clients who tell me that they understand why their child is being removed – because it will make the LA money. I have been quoted £30,000 per child, never mind that this is more likely a figure to represent the cost of keeping a child in foster care for a year. When I ask them to tell me WHY a cash strapped LA will spend large amounts of money on expensive care proceedings, of course, they cannot explain. I really do doubt there is an international conspiracy to steal children, headed by the United Nations – as some have asserted to me in all seriousness.

All this represents is a sad waste and diversion of some parents’ energies away from what really matters – dealing with their issues with drugs, with alcohol, with violence, which are standing in the way of their ability to translate the love they undoubtedly feel for their children into action which will ensure their children are reliably fed, clothed and taken to school.

The saddest example of this for me to date was the client who had made some dramatic and impressive changes to a life previously blighted by alcohol misuse and denial of the same. She had achieved the previously unprecedented stability of her own accommodation and had stopped drinking for a number of months. But on her application to discharge a placement order, she stood up to address the Judge on the basis that her child had been ‘stolen’ to make money for the LA. There was little I could do in closing submissions to repair the damage that had done to her credibility in the court’s eyes and an application which that morning had seemed promising, by lunch time had collapsed.

The point I am trying to make is that these Internet debates and the constant round of conspiracy theorizing have real and serious consequences when people take them out into the real world. In addition, whilst our energies are focusing on either maintaining or detracting from these theories, they are not focusing on what really matters – how do we improve the child protection system, how do we ensure that Victoria Climbie, Peter Connolley, Daniel Pelka and many other children did not die in vain, while at the same time not being too quick to remove children on an imperfect understanding of their family or medicial history?

The case of Allessandra Pacchieri  and the ‘forced caesarean’ in December 2013 was a stark example of all that worried the conspiracy theorists about the reach and malign motives of the State: the narrative of John Hemming MP together with Christopher Booker in the Telegraph being the targeting of a vulnerable foreign national who suffered a ‘panic attack’ and then found herself detained in a psychiatric hospital and forced to have a C section so that her baby could be ‘taken’ for adoption.

It was also a clear example of how frustrating it is for energies to be so misdirected. I agree there are interesting questions to be asked about the degree to which Alessandra Pacchieri was or could have been consulted prior to the court deciding that medical intervention was in her best interests. And I share the concerns of some commentators about why the original application was made on an urgent basis, when by that time she had been sectioned for a number of weeks and her advancing pregnancy was hardly a mystery.

However, a case involving a woman who was seriously mentally ill at the time of the application, to the extent that she lacked capacity to engage in legal proceedings and was represented by the Official Solicitor, whose two elder children did not live with her due to her inability to care for them, and who had both been delivered by C-section leading to doctors to have legitimate concerns about a subsequent attempt at a natural birth, made this a rather more complicated scenario than some would wish and certainly much less of a clear cut example of a ‘corrupt’ or ‘evil’ system.

However, reasonable and sensible debate about what could have been done better in this case quickly became buried under a mass of assertion and counter assertion about the systemic corruption of the family law system as a whole.

 

Positive changes to the way we debate

The first good thing

However, not all was lost. Some good has come out of what at first glance seemed to be yet another rehash of the same wild and unsupported allegations about ‘baby snatching’, lies and collusion.

The first good thing is a move towards greater transparency in the reporting of court judgments. If we have confidence in the decisions our judges make – as I do – we should not be afraid to let as much sunlight in as possible.

In the court ruling concerning reporting restrictions relating to Ms. Pacchieri’s baby, the President of the Family Division himself noted that:  [2013] EWCH 4048

This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published. And, as this case so very clearly demonstrates, that applies not merely to the judgments of High Court Judges; it applies also to the judgments of Circuit Judges.

The President was true to his word and on January 14th 2014 issued a Practice Direction relating to Transparency in the Family Courts and the Publication of Judgments that hopefully will lead to judgments routinely being transcribed and widely published. The cost of such endeavor must surely be worth it when balanced against the harm and damage done by loss of confidence in an entire system.

As the President also said in his 2013 judgment

… How can the family justice system blame the media for inaccuracy in the reporting of family cases if for whatever reason none of the relevant information has been put before the public?

I am glad that the debate is moving forward with regard to transparency but hope also that proper regard is going to be given to the need for maintaining privacy in some cases – particularly when the children don’t want details of their family lives exposed to greater scrutiny. There is a good blog post by Pink Tape on this very point.

You may also be interested in The Transparency Project -the aim of the project is to shed some light on the workings of the Family Courts, to make the process and the cases understandable for people without law degrees. 

The second good thing

Along with this judicial recognition of the need for greater transparency which has been explicitly recognized goes hand in hand with increased pubic discussion of such cases, came the possibly belated recognition that those of us who did have faith in the family justice system needed to also use the power of the internet to share information and hopefully encourage more positive debate.

A number of contributors to the various Internet discussion threads pointed out that there did not currently seem to be any clearly signposted resource offering advice and information without an agenda to all the people who might be involved in care proceedings. There were many excellent sources of information on the Internet but they appeared to be directed to particular groups of people only and it was not always easy to find unless you knew what you were looking for.

So a number of us from a variety of backgrounds and experiences decided to get together and create a resource that would help to inform all of those who might be involved in child protection issues be they, parents, lawyers, social workers or doctors. You will find us at www.childprotectionresource.org.uk

We hope that this site will be useful and interesting to a wide range of people. We always welcome contributions or comments, as long as they are reasonably polite and you don’t make serious assertions about corruption or conspiracies without some kind of proof in support.

 

How the internet can make us better professionals

I also expect and hope to learn from the site. The emotional perspectives from parents and children who have experienced the system are invaluable and sadly can sometimes get overlooked by a busy practitioner who is focusing on the forensic task of ‘winning’ a case.

I ask my clients to trust me; to trust that I am going to do the best job I can for them, that I am not a ‘legal aid loser’, here to appease the LA or simply worrying about paying my mortgage but that I chose to be a family lawyer because this area of law deals in vital and necessary issues about the very foundations of our society, our treatment of the vulnerable and our respect for difference.

But quite apart from my commitment to family law, equally my clients need to trust me to always recognize their humanity – that I won’t be blasé or cynical about their case, one of many to me but the only case that will ever matter to them. We all need to remember and understand that sometimes the conspiracy theories are promoted by many who have suffered real pain from the removal of their children and who sadly met along the way professionals who were rude, hostile or dismissive.

I do accept that mistakes have been made and miscarriages of justice have occurred. Mistakes in this field are particularly regrettable given their often profound and life long consequences for the children and families concerned – both for those children removed too soon and those removed too late, or sadly not at all.

What I don’t accept it that such mistakes represent a deliberate and planned attempt to ruin families and ‘snatch’ children. The more time we waste on that debate, the less time and energy we have to devote to ways to improve the system. For example, see the excellent Kids Company campaign ‘See the Child’.

 

Conclusion

We need to remove as many of the barriers that stand between trust and good working relationships as possible.  While professionals must remain ‘professional’, there is a danger this can slip into aloofness, imposition of unnecessary barriers to communication, and/or unwillingness to enter a legitimate arena of debate. This area of law and of life is too important to be dominated by those with narrow and possibly dangerous agendas, be they professional or parent.

The time is long overdue for greater transparency, co-operation and debate. We all want the same thing. To protect children, the most vulnerable members of society, and to do the least harm possible in the pursuit of that essential aim.