Author Archives: Sarah Phillimore

Consent to medical transition at 16 – where are we now?

As evidence of just how ubiquitous the issue of child medical transition has become, we had the benefit of two reported cases very shortly after the publication of the Cass Review final report in April 2024. These were Re J (Transgender: Puberty Blocker and Hormone Replacement Therapy) [2024] EWHC 922 (Fam) and O v P and Q [2024] EWHC 1077 (Fam) where I represented the applicant mother.

I will consider each case in turn and then offer some thoughts on how matters are likely to develop.

The Facts

The facts of each case were broadly similar – both involved a female child aged 16 at the time of the hearing, who wished to continue or begin taking testosterone as part of a ‘transition’ to being perceived as male. Both involved one parent who agreed with the treatment and one who resisted. Both cases were concerned with what should happen when a child over 16 wanted to get private treatment, recognising the impact of NHS waiting lists and serious concerns about private providers such as Gender GP.

The law applied to both cases was uncontroversial. Children who are under 16 can consent to medical treatment without their parents if they are assessed to be ‘Gillick competent’ and understand the nature of the treatment proposed and its risks and benefits – see Gillick v West Norfolk and Wisbech AHA [1986] AC 112. If a child isn’t Gillick competent then the parent provides consent.

Children who are over 16 benefit from a statutory presumption of capacity to consent as if an adult, pursuant to section 8 of the Family Law Reform Act 1969

The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian.

Two factors can operate to override that capacity. First, if s 2(1) of the Mental Capacity Act 2005 applies and the child is found to lack capacity to make a decision because of an impairment of or disturbance in functioning of the mind or brain.

Second, the court retains an ‘inherent jurisdiction’ to override the wishes of any child up until the age of 18, if to do so is in the child’s best interests and will prevent significant harm. As was noted by Judd J in O v P the cases where the courts have acted to override a child’s consent have involved a child refusing treatment which was considered life saving, such as blood transfusions. There is no reported case of a court intervening to stop a child having treatment that was offered by a doctor and wanted by the child.

It is a matter of significance to ask the court to put medical transition into a ‘special category’ of treatment which required continued court oversight. The courts have, rightly, to be very wary of ‘treading on the toes’ of either clinicians or Parliament and many previous authorities have given stern warnings about the court dealing only with decisions that were necessary, and not straying into broader ethical dilemmas or medical issues which were better left to MPs or clinicians. Neither court was willing to make decisions confirming that medical transition should be a ‘special category’ of treatment that required continued court oversight. But both contain some helpful – and alarming – commentary on the state of childhood medical transition.

The decision in re J

In January 2023 when only 15, J started taking testosterone to ‘transition’ from female to male. This stopped in August 2023 when the matter came to court, J’s father being very concerned at the implications of this treatment, which was provided by ‘Gender GP’. This outfit was, until the registration of Gender Plus in January 2024, the only private provider of hormones in the UK.

All parties then agreed that she could undergo a six month assessment with Gender Plus and the court therefore did not need to make any decisions on the substantive issues around capacity and consent, but would rather ‘take stock of the issues and evidence to date (para 4) and provide some guidance arising out of what had been learned during these proceedings. The court explicitly did NOT consider the Cass Review as it had not been available at the time of the court hearing in February 2024.

The position regarding J was complicated by her diagnoses of autism and anorexia, and detention under the Mental Health Act 1983 for 9 months in 2021. J was then ‘appraised’ by Gender GP over 2 months in October 2022 but this involved direct communication with only an unregistered counsellor (para 12). J’s father was so concerned he made application to the court in April 2023 to ask the court to examine the propriety of treatment that was being given to J by an unregulated internet provider, which thus operates without the protections of care offered through specially commissioned NHS services.

The father did not believe J was able to consent to this and it could not be in her best interests, having regard to the serious, lifelong and irreversible nature of the treatment and J’s underlying mental health difficulties.

The father also wanted general declarations that if any one disputed the child’s capacity, diagnosis of gender dysphoria or the proposed treatment, the matter had to come back to court, even if the child was over 16. Further that no medical treatment for transition should be permitted outside the NHS unless approved by the court.

The court did not however need to determine this, as the parties had all agreed that J would no longer be seen by Gender GP.

What the court noted about Gender GP is horrifying. The court notes at para 33 that J’s only interaction with a ‘professional’ before being prescribed testosterone at 15 was with a person who has a diploma in counselling. There was no medical examination or blood testing. The court was unable to find a endocrinologist in the UK willing to assist the court as an expert witness but Dr Hewitt from Melbourne was eventually instructed. She was extremely critical of Gender GP (para 37) noting there was no skeletal bone age X ray and bone densitometry investigation, the psychological assessment was of ‘extremely poor quality’ and there is no record of counselling regarding the known risks of hormone treatment. But the most serious criticism related to the dose of testosterone provided = 100mg/4ml every 6 weeks (para 38). This was the level that would be administered to an adult only after a course of treatment starting at a much lower level.

Dr Hewitt advised ‘with confidence’ that ‘there is no professional society of paediatric endocrinologists internationally who would consider this anything other than a highly abnormal and frankly negligent approach’. She stated that ‘in Australia, the treatment provided by Gender GP would be unlawful’.

Dr Hewitt was concerned that J was at risk of ‘sudden death’ due to thromboembolic disease, a thickening of the blood. A haematologist Dr Keenan advised that J’s blood test results were ‘effectively normal’ – but he compared her to an adult male, rather than considering her as a teenage girl. Dr Hewitt considered the dose of testosterone given the J as ‘massive’ and it could impact on the development of J’s bones and cause her to stop growing.

Dr Eyre a child and adolescent psychiatrist, diagnosed J with gender dysphoria and did not find that J lacked the ability to consent to the treatment and the testosterone treatment had had a positive impact in building J’s confidence and reducing anxiety.

The reality, as accepted by the court is that there is no realistic prospect of treatment on the NHS for J, given the long waiting lists. The parties therefore agreed that J should begin a six month assessment with Gender Plus.

At para 53 the court set out its approach

The approach that I propose to take, which is in line with that taken at all earlier stages in these proceedings, is to limit the court’s involvement in terms of decision making to that which is currently necessary. The law, and the approach of the courts, with respect to issues arising in cases of gender dysphoria is still very much in the process of development. In the absence of intervention by Parliament, the court should be careful to move forward on a case by case, decision by decision, basis so that the approach under the common law is developed incrementally as may be required, rather than by judicial diktat.

The court wished to go no further, particularly given the need to consider the Cass Review but was careful to note that if any approach was made to Gender GP this would raise ‘significant concern’ and the court would expect a detailed account of its proposed course of assessment and treatment. The court concluded at para 58 by saying Whilst further evidence may, of course, alleviate the concerns that I have described, on the experience in these proceedings thus far, I would urge any other court faced with a case involving Gender GP to proceed with extreme caution before exercising any power to approve or endorse treatment that that clinic may prescribe

The Case of Q

This involved a female child, ‘Q’ who had socially transitioned to be perceived as male. Her father supported medical transition, the mother objected and applied to court. Only a few days before the hearing started, the final report of the Cass Review was published. This set out the need for ‘extreme caution’ before prescribing hormones to any child and recommended that a separate multi disciplinary team review any decision made to prescribe. The NHS immediately adopted this recommendation. It was clear that no private provider would be able to meet this requirement.

Gender Plus was registered by the CQC to provide hormones in January 2024, prior to the Cass Review. The mother’s case therefore shifted to asking the court to look carefully at the protection offered to children in general seeking private provision of hormones and to consider making a general declaration that any hormone treatment outside the NHS should be subject to court oversight as a ‘special category’ of treatment. The mother asserted that it was simply not possible for Q to give informed consent to a treatment which was confirmed by the Cass Review to have no compelling evidence base for either its safety or efficacy, but offered potential long term serious and irreversible consequences.

The court declined the mother’s request, echoing the concerns set out by the President in re J that the court must be particularly cautious in such a novel and sensitive area such as this not to lay down the law beyond which is necessary to determine any current dispute. To do so would to risk impermissible trespassing on the role of Parliament. As the mother did not object to a six month assessment by Gender Plus, the court decided that the proceedings must come to an end and declined to offer any further oversight, in the event that Q was prescribed hormones by Gender Plus. Q was noted to be ‘well informed’ and willing to undergo the Gender Plus assessment process.

However, it is notable that the court found the mother’s concerns about medical transition ‘well founded’ and she was not to be criticised for objecting and bringing the matter to court – indeed that her efforts had ensured that her daughter had not been prescribed puberty blockers, which might well be something Q was grateful for in the future.

The mother asked permission to appeal and this was refused. The mother will seek permission from the Court of Appeal, to raise concerns that the court did not properly consider how section 8 of the FLRA 1969 should be interpreted given what we now know about the maturation of the adolescent brain.

Commentary

It is disappointing to note that ‘assigned at birth’ now seems firmly embedded in the vocabulary of the courts as we can see in the ‘definitions’ offered in re J at para 14. Those with more sex realist views will note that sex is observed and recorded and nobody is assigning any ‘gender’ to a new born baby. Re J does at least refer to ‘cross sex hormones’ which it appears is not the approved nomenclature, being ‘gender affirming hormones’ – a bit like ‘top surgery’, an affirming and hence obfuscatory term.

It is very alarming that in both cases not a single UK expert endocrinologist could be found to assist the court; underscoring the extreme toxicity and polarity of the ‘debate’ around childhood medical transition which found Dr Cass advised not to travel on public transport after the final review came out.

In both cases, both judges firmly rejected any suggestion that the court should treat medical transition as a ‘special category ‘ of treatment which would require continued court oversight if treatment was sought outside NHS protocols. It is right that courts must tread carefully if entering an arena more suited to Parliamentary or regulatory control – but the court retains an ancient jurisdiction to protect children and at the moment it appears to me there is a risk that in the current situation, children are left without sufficient protection. But the sad reality is that NHS treatment with its more secure safeguards as recommended by Cass, is unlikely to be a viable option for those children who are likely to spend many years on a waiting list.

But how confident can we be that a child going to Gender Plus will receive an effective assessment, knowing as we do that Gender Plus is staffed entirely by those previously employed by the Tavistock whose commitment to ‘affirmation’ is not in doubt?  Regardless of the robustness of its assessments, Gender Plus cannot (as was recognised by the court in O v P) offer the additional layer of protection required by Cass though a separate multi disciplinary review of any decision to prescribe.

However, both cases made it very clear that Gender GP are not safe, and it seems to be very likely that a court would be willing to exercise the inherent jurisdiction to protect a child from their interventions.

It will be interesting to see what happens with the mother’s attempt to appeal in O v P, along with the proposed judicial review of the decision to register Gender Plus by the CQC – if that succeeds there will be no private provider available for children in the UK. This may well lead to children being driven to even more dangerous black market providers and undergoing ‘DIY’ transition.

We do urgently need the Government to make good, as soon as possible on its proposals to deal firmly with those who profit at the expense of childhood distress and to ensure that resources are directed to enable the NHS to help those children who need it. The tension between paternalism and autonomy which exists in almost all cases about children, has potentially very significant consequences in this area.

Findings of Fact in Domestic Abuse Cases

Where are we now?

General principles for all finding of fact hearings

  1. The burden of proof rests with the party making the allegations.
  2. The facts must be proved on the balance of probabilities. Common-sense, not law, requires that in deciding this question, regard should be had to whatever extent is appropriate to inherent probabilities – Re B [2008] UKHL 35.
  3. Findings of fact must be based on evidence, which can include inferences that can properly be drawn from the evidence, but not on suspicion or speculation  – Re A (A Child) (Fact-finding hearing: Speculation) [2011] EWCA Civ 12.
  4. FPR 22.1 The court may control the evidence by giving directions as to – (a) the issues on which it requires evidence; (b) the nature of the evidence which it requires to decide those issues; and (c) the way in which the evidence is to be placed before the court.
  5. Any evidence to be admissible must be relevant, i.e. if it is logically probative or disapprobative of some matter which requires proof. The Judge must then decide, if relevant, should the evidence be admitted. The strength of the argument for admittance will always depend on the Judge’s assessment of its significance – O’Brien v Chief Constable of South Wales Police [2005] UKHL 26, cited with approval in F v M [2021].
  6. Hearsay evidence is admissible in proceedings relating to children – Re A (A Child) [2015] EWFC 11). When estimating the weight to be given to hearsay evidence, the court must have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence. In addition, the court has to consider hearsay evidence anxiously and carefully –  R v B County Council, ex parte P [1991] 2 All ER 65.
  7. The court is not bound by the cases put forward by the parties but may adopt an alternative solution of its own – Re S (A Child) [2015] UKSC 20. The court must ensure that any additional or different findings made are securely founded in the evidence: and that the fairness of the fact-finding process is not compromised – Re G and B (Fact finding Hearing) [2009] EWCA Civ 10).

Particular issues in cases of domestic abuse

  1. The need to identify and decide upon issues of domestic abuse is important in family proceedings. The court must consider the impact of the abuse on both the child and parent and determine what orders are to be made for the future protection and welfare of both. – Re H-N and Others (children) (domestic abuse: findings of fact hearings) [2012] EWCA Civ 448 para 4.
  2. It is accepted by the Court of Appeal in Re H-N, that greater prominence needs to be given to consideration of abusive behaviour in the family courts. Judges should consider para 60 of Statutory Guidance published by the Home Officer pursuant to section 77(1) of the Serious Crime Act 2015 which identified paradigm behaviours of controlling and coercive behaviour. –see further F v M [2021] EWFC 4.
  3. Domestic abuse is not restricted to physical violence and visible injuries or consideration of separate incidents. PD12 J recognises coercive and controlling behaviour, defined as follows:
    • Coercive behaviour is defined as ‘an act or a pattern of acts of assaults, threats, humiliation and intimidation or other abuse that is used to harm, punish or frighten the victim. (note comment in F v M that reference to ‘an act’ is misleading; what is required is a pattern of behaviour
    • Controlling behaviour is defined as an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour’.
  5. Key to both behaviours is an appreciation of a ‘pattern’ or a ‘series of acts’ F v M [2021] EWFC 4 para 4. Such behaviour is dangerous as it seeks to undermine the autonomy of the victim.
  6. Examples of the ‘paradigm strategies’ referred to above were set out in F v M from para 60. This is not an exhaustive list but rather a ‘check list’ to prompt questioning and inquiry about ‘that which might, in isolation, appear innocuous or insignificant may in the context of a wider evidential picture be more accurately understood’ – para 61.
    • Isolation from friends and family
    • Deprivation of basic needs
    • Monitoring time
    • Monitoring via online communication tools/spyware
    • Taking control over aspects of everyday life
    • Depriving access to support
    • Denigration
    • Enforcing activities that humiliate, degrade or dehumanise.
    • Forcing participation in criminal activity
    • Financial abuse
    • Controlling access to school/study
    • Taking wages, benefits or allowances
    • Threats to hurt or kill.
    • Threats to harm a child.
    • Threats to reveal or publish private information.
    • Assault
  8. F v M [2021] also referred to section 76 Serious Crime Act 2015, to assist a broader understanding of the behaviours. – para 105. It must be repeated, have a serious effect on the victim and the perpetrator knows or ought to know the behaviour will have this effect.
  9. The Court of Appeal in re H-N identified the ways in which an abusive pattern of behaviour can harm a child – para 31.
    • Is directed against or witnessed by the child.Causes the victim of abuse to be so frightened of provoking an outburst or reaction from the perpetrator that she/he is unable to give priority to the needs of her/his child.Creates an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child
    • Risks inculcating, particularly in boys, a set of values which involve treating women as inferior to men.
  11. Even if there is no longer any future risk of assault, does not mean that a pattern of coercive and controlling behaviour will not manifest itself in some other albeit more subtle manner to cause further harm – re H-N para 52.

The approach of the court

  1. PD12J does not establish a ‘free standing jurisdiction’ to determine domestic abuse allegations which are not relevant to the determination of the child welfare issues that are before the court – Re H-N para 58a). The court must focus on the over-arching issue of coercive and controlling behaviour in the context only that it is relevant and necessary to determine issues as to a child’s future welfare – Re K [2022] EWCA Civ 468 para 63.
  2. Therefore, a fact finding hearing should be considered ‘necessary’ to provide a factual basis for a welfare report or assessment, a basis for an accurate assessment of risk and/or the making of child arrangement orders or to consider the need for a domestic abuse related activity.
  3. A finding of fact hearing is a ‘major judicial determination’ which will inevitably introduce delay – Re K [2022] para 42 and the court should consider the possibility of non-court dispute resolution at the FHDRA – Re K para-40
  4. The real evil of coercive and controlling behaviour is its corrosive impact on the victim’s autonomy. Not all ‘directive, assertive, stubborn or selfish’ behaviour will qualify. Where the behaviour does not have the character of being degrading or dehumanising. or ‘designed to make a person subordinate’ it is likely to be ‘unnecessary and disproportionate’ for detailed findings of fact to be made. ‘It will not be in the interests of the child or of justice for the court to allow itself to become another battle ground for adult conflict’ – Re L (Relocation: Second Appeal) 2017 EWCA Civ 2121 para 61 (endorsed by Re H-N para 32).
  5. It is therefore of critical importance to identify at an early stage the real issue in the case in particular with regard to the welfare of the child [PD12J 14] before a court is able to assess if a fact-finding hearing is necessary and what form it should take – Re H-N para 8.
  6. Where coercive or controlling behaviour is alleged, that assertion should be the primary issue for determination. Any other specific factual allegations should be pursued because of their potential probative value to the alleged behaviour, unless the factual allegation is so serious that it justifies determination regardless – a likely example being an allegation of rape – Re H-N para-59
  7. PD 12 J sets out a step-by-step template that courts must follow in these cases and underpins that the court should in many cases focus on a pattern of behaviour, rather than individual incidents – Re H-N para 25.  PD12 J remains ‘fit for purpose’ and properly reflects modern understanding of domestic abuse – Re H-N para 28.
  8. The Court of Appeal in re H-N para 37 summarised the proper approach of the court as follows:
    1. Consider the nature of the allegations and the extent they are likely to be relevant in deciding to make a CAO.
    1. Have in mind PD12J.16, to provide a basis of assessment of risk and therefore the impact of the alleged abuse on the child.
    1. PD12J.17 the court must consider if a separate fact finding is necessary and proportionate, considering the overriding objective FPR 1.1 and the President’s Guidance of June 2020 – ‘Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence and oral submissions to be cut down only to that which it is necessary for the court to hear’. Is there other evidence available to provide a sufficient factual basis to proceed?
  9. The court must isolate what ‘may sometimes seem to be relatively innocuous incidents and locating them in a context which illuminates their greater significance’ F v M [2021] para 100.
  10. It would benefit the court and parties for Cafcass to be involved prior to any decision as to whether a finding of fact is necessary – Re H-N para 38 and consideration ought to be given to more substantive Cafcass work beyond the safeguarding letter.
  11. Judicial continuity is important, to enhance the efficient and sympathetic management of the process – para 6 vi Re B-B (Domestic Abuse: Fact Finding) [2022]

How are allegations to be presented to and considered by the court?

Presentation of the evidence

  • Evidence needs to be organised and structured so that everyone understands its significance – Re H-N para 41. This is important in terms of procedural fairness and simple efficiency. The Court of Appeal in Re H-N found force in the criticisms of limited ‘Scott schedules’, as this may reduce the focus of the court and deny the proper assessment of the alleged perpetrator’s behaviour as a whole and to what extent this forms a ‘pattern’.
  • However, the Court of Appeal was unable to offer a clear alternative to the use of schedules, suggesting that it may assist to adopt a ‘threshold document’ akin to public law proceedings which is supported by more detailed narrative statements. The Judge in F v M [2021] considered it inappropriate to attempt prescriptive guidance, but commented that this insidious type of abuse ‘may not easily be captured by the more formulaic discipline of a Scott Schedule’ – para 113. It will be for the court in each individual case to determine if such schedules are useful.
  • The court in Re B-B (Domestic Abuse: Fact Finding) [2022] EWHC 108 found it useful to consider the evidence relevant to each different kind of alleged domestic abuse in ‘clusters’. There was inevitably some overlap between the different ‘clusters’, but this built up a picture of the nature of the relationship under scrutiny and it was easier to see if patterns of behaviour emerged – para 6 i.
  • The court will be assisted by the parents being asked to describe in short terms (either in a written statement or orally at a preliminary hearing) the overall experienced of being in a relationship with each other (Re H-N para 58d).
  • The vulnerability of witnesses must be considered prior to the hearing in a ‘ground rules’ hearing and special measures considered as necessary. See Part 3A FPR – Vulnerable persons: participation in proceedings and giving evidence. A vulnerable person may not act in the same way as someone more independent and confident if they are abused or exploited in the relationship – M (A Child) [2021] EWHC 3225.

Weighing the evidence

  • The court must take into account all the evidence, considering each piece of evidence in the context of the other evidence, surveying a wide landscape, and must avoid compartmentalising evidence. The court must exercise an overview of the totality of the evidence in order to conclude whether the case put forward has been made out to the appropriate standard of proof  – see Re U, Re B (Serious Injury: Standard of Proof) [2004] EWCA Civ 567, W and F (Children) [2015] EWCA Civ 1300, Re E (A Child) [2016] EWCA Civ 473 and AS v TH [2016] EWHC 532 (Fam) MacDonald J).
  • In Re BR (Proof of Facts) [2015] EWFC 41 Peter Jackson J (as he then was) stated (paragraph 8): ‘Each piece of evidence must be considered in the context of the whole. The medical evidence is important, and the court must assess it carefully, but it is not the only evidence. The evidence of the parents is of the utmost importance and the court must form a clear view of their reliability and credibility’.
  • . It is essential that the court forms a clear assessment of their credibility and reliability of the parents’ evidence. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them – Re W and another (non-accidental injury) [2003] FCR 346).
  • Any judge appraising witnesses in the emotionally charged atmosphere of a contested family dispute should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box and to expressly indicate that they have done so Re M (Children) [2013] EWCA Civ 1147. In cases of alleged sexual assault, since July 2020 Family Court judges who hear such cases must undertake training on the ‘serious sexual assault’ programme, which includes elements in respect to psychological reactions to sexual assault and trauma – re H-N para 67.
  • In private law cases, the court needs to be vigilant to the possibility that one or other parent may be seeking to gain an advantage in the battle against the other. This does not mean allegations are false, but it does increase the risk of misinterpretation, exaggeration or fabrication – Re B-B (Domestic Abuse: Fact Finding) [2022] para 26 ii.
  • Memory becomes fainter with every passing day and imagination becomes correspondingly more active. Therefore, contemporaneous documents are always of the utmost importance – A County Council v M and F [2012] 2 FLR 939.
  • A witness may tell lies during an investigation and the hearing for many reasons, such as shame, misplaced loyalty, panic, fear and distress. The fact that a witness has lied about some matters does not mean that he or she has lied about everything – R v Lucas [1982] QB 720, applied in family proceedings in Re H-C (Children) [2016] EWCA Civ 136)). 5 B116 23.
  • If the court determines that the Lucas direction is called for, or is invited to proceed on that basis, submissions should be made to identify (i) the deliberate lie(s) relied upon; (ii) the significant issue to which it/they relate(s); and (iii) on what basis it can be determined that the only explanation for the lie(s) is guilt – Re A, B, C (Children) [2021] EWCA Civ 451, Macur LJ.
  • The court in Re B-B (Domestic Abuse: Fact Finding) [2022] suggested the following approach at para 33:
    • First review the general credibility of the parties and their supporting witnesses
    • Then review the history of the relationship.
    • Look at broad categories of coercive/controlling behaviour.
    • Identify those individual allegations which require discrete determination.

Reliance on criminal law concepts

  • When considering domestic abuse, the alleged behaviour may be capable of prosecution in a criminal court, which has as its aim the punishment of offenders by the state and operates to a different and higher standard of proof. It is wrong for the Family Court to be drawn into analysis of factual evidence in proceedings relating to children which is based on criminal law principles and concepts – Re R (Children) (Care Proceedings: Fact-finding Hearing) [2018] EWCA 198 para 62, approved by Re H-N para 66.
  • The Family Court need not shy away from the use of the word ‘rape’ however is not required to decide if an offence has been proved to the criminal standard; the focus is on the abusive nature of the behaviour and the borderline between ‘consent’ and ‘submission’ is less significant –Re H-N para 71.
  • The court was asked to give further guidance in Re A and Another v B and Others [2022] and affirmed the position set on in Re H-N.
  • The court in Re A did however offer some further guidance.
    • The courts must consider carefully as to how a hearing is conducted regarding allegations of rape, in particular the scope of cross examination of an alleged victim with regards to their sexual history – Re H-N para 74.
    • There is no automatic bar on the admission of evidence about a party’s sexual history with third parties, but the court is likely to be slow to find it relevant and it will require a specific application.
    • However, evidence about the parties’ sexual relationships with one another is likely to be relevant; the court must be mindful of its obligation to consider the wide canvas of evidence and patterns of behaviour.
    • There is no need to make a specific application to the court in such circumstances, unless reliance is placed on intimate images.
  • With regard to the question as to how family court judges ought to deal with ‘rape myths/stereotypes’ the court in Re A was referred to the CPS Guidance Annex A ‘tackling rape myths and stereotypes’. The court agreed that it could assist a judge to have regard to such materials, including Chapter 6 of the Equal Treatment Bench Book July 2022. But the court declined to attempt a list of common myths/stereotypes, which risked creating a rigid framework.

 After the hearing

The court must produce a schedule of findings made or endorse that presented by counsel. See para 29 PD12J. This represents good practice and will help to illuminate a judge’s evaluation of the evidence and inform their ultimate findings

Useful authority discussing the correct approach to appealing a finding of fact T (Fact-Finding: Second Appeal) [2023] EWCA Civ 475 (05 May 2023) (bailii.org)

Further resources

Some useful commentary on the recent CAFCASS guidance of October 2024 for cases involving allegations of domestic abuse New Cafcass Domestic Abuse Policy – lots of starting points, but where will we end up? / Pink Tape

Judicial guidance as to the operation of the Pathfinder pilot scheme in private law cases Child A and B, Re [2024] EWFC 284 (B) (11 October 2024) (bailii.org)

Parents seek an injunction to prevent child having gender affirming treatment

The court dismissed the parents’ applications, finding there was no evidence that EE at age 17 lacked capacity and no evidence that she sought imminent treatment. There was no ‘matter’ before the court to undertake an assessment of capacity. This case has provoked controversy about the extent to which any person who wants to remove healthy parts of their body can be said to have ‘capacity’ but the parents’ legal action appeared doomed at the outset on the basis of the evidence they presented and their obvious hostility to ‘LGBT’.

I use she/her pronouns for EE as she is female.

Judgment was handed down by Mr Justice MacDonald in September 2023 in the case of GK and LK v EE (formerly RK).

The facts

EE’s parents applied to court in June 2023 under the inherent jurisdiction and via the Court of Protection under the Mental Capacity Act 2005 (MCA) with regard to their 17 year old daughter, who turned 18 shortly after the judgment. EE self identifies as a non binary lesbian and at the time was in the care of the local authority via section 20 accommodation. The parents wanted to instruct experts to assess her capacity and asked for an injunction preventing EE from having any kind of gender affirming medical treatment, arguing that she lacked capacity to make decisions about this.

EE and the local authority told the court that the parents were driven by prejudice against EE’s gender identity and pointed out that EE had no current plans for any medical treatment. Therefore, the court had no ‘matter’ under the MCA to make any decision.

Further, there was no sufficient evidence to rebut the presumption that EE had capacity under section 1(2) of the MCA. EE’s GP records contained no diagnosis of mental illness. The parents claimed EE had been diagnosed with ‘schizoptypal disorder’ by a psychiatrist in country X, from which the family originated, moving to the UK when EE was three.

EE could not recall speaking to any foreign psychiatrist and had received no medication. She alleged that her parents had been physically and emotionally abusive to her, which they denied. But there were police records that in July 2022 EE was assaulted by her parents who ‘did not like’ that she was ‘LGBT’. She asserted that she had tried to talk to her parents about this since she was 11, but they were very hostile and she gave up aged around 13/14.

There was a child protection medical and EE was found to have non accidental injuries, but there was no mention of any mental health issue or personality disorder in any of the reports at the time. A child protection conference followed, the parents now asserted that EE was undergoing a psychotic episode. EE returned home in August on the basis that there would be no further physical or emotional abuse from her parents.

But EE then discussed with her parents the desire to have ‘top surgery’ i.e. a double mastectomy to remove her breasts. The parents asked her to postpone any decision until she was 25 and EE asserts that they became increasingly controlling, insisted she undergo online therapy and persistently made homophobic/transphobic comments. The local authority undertook a Child and Family Assessment, with no concerns for EE’s mental health. By November 2022 matters had seriously degenerated to the point that EE’s father attempted to restrain her and she hit him. EE then agreed to be accommodated by the local authority.

The parents were very unhappy with this situation and asserted that the local authority had referred EE to Mermaids and was encouraging her to take testosterone. EE had a further medical assessment in February 2023 which raised no concerns and recorded a significant improvement in EE’s mood and outlook since leaving home. She expressed gender dysphoria, but had no current plans to engage in medical treatment.

The parents argued that EE lacked capacity to make decisions about any such treatment and relied upon the Cass Review that social transition should not be seen as ‘neutral’. The parents asserted that the wider paternal family had a history of mental health issues, EE had self harmed, used a binder, abused alcohol and drugs and these issues along with others showed that EE was unable to retain, use and weigh relevant information relating to gender affirming treatment. Therefore experts were needed to assess her.

The law

EE was 17 at the relevant time but was very close to 18, when the court would cease to have jurisdiction under the inherent jurisdiction. Therefore, the judgment focused on the legal principles under the MCA. This Act allows the court to make decisions in the best interests of those aged over 16 years, if they are found to lack capacity to make their own decisions. Section 1 of the MCA sets out its key principles – a person is assumed to have capacity, and cannot lack capacity just because he makes an unwise decision.

EE could only lack capacity if her inability to make decisions was due to ‘an impairment of, or a disturbance in the functioning of, the mind or brain‘ and due to this she could not understand information relevant to the decision, retain the information, use or weigh the information, or communicate her decision. Capacity is assessed in relation to the specific decision at the time the decision needs to be made.

Therefore the court couldn’t make any decisions under the MCA as there was no ‘matter’ to be decided; EE had no current plans for any gender affirming treatment. Even if there had been a ‘matter’ before the court, not only does the MCA presume capacity, EE had ‘legal capacity’ under section 8 of the Family Law Reform Act 1969 which sets up a rebuttal presumption that 16 year olds can consent to medical treatment.

The court examined the interplay between the MCA, FLRA and ‘Gillick competence’ in para 48, approving the position that a child under 16 must be found ‘Gillick competent’ to provide consent to medical treatment. Once the child is 16, their legal capacity is assumed and their mental capacity is examined under the MCA. Thus, absent any evidence that EE lacked capacity, she could at 17 make a decision to have gender affirming treatment. There was no need for any expert evidence.

The court noted at para 60 the kind of evidence it would need to engage with the applications made by the parents

In the absence of any gender affirming treatment being proposed at
this time, the court does not have before it any evidence as to what such treatment involves, what the potential dangers and side effects of such treatment are, the nature and extent of the preparatory counselling with respect to the decision to have, and the consequences of, gender affirming medical treatment and any assessment of the treating clinicians of EE’s capacity to consent to such treatment.

Comment

The court did not make a finding that the parents considered EE mentally ill simply because of her stated sexuality and identification as ‘non binary’ but did comment at para 67 that the court was left with the ‘distinct impression’ that this was the case.

I agree that the evidence is sparse to suggest that gender affirming care has long term positive benefits. I agree it is sad to see EE assert (para 36)

I have thought about gender reassignment for many years, and it is
something that has always been on my mind. I feel quite strongly about this, and I am of the view that my real life would begin once I undergo Bilateral mastectomy, also known as top surgery.

If in fact her ‘real life’ does not begin after the removal of her breasts then of course it is too late to reverse the surgery. It does not seem likely that EE is able at 18 to confidently foresee how she would feel about the amputation of her breasts when she is 30, alongside her possible infertility if she begins taking testosterone.

Many who objected to this decision on social media appeared to share the parents’ views that simply to claim a ‘non binary’ identity or want to remove healthy breasts, was in and off itself evidence of ‘profound mental illness’ that rendered EE incapable of making any decisions about gender affirming care.

But it is not the court’s place to prohibit an entire regime of medical or surgical treatment without compelling evidence. The courts have to place trust and reliance in the medical profession to stick to its own code of conduct. If EE has capacity, and can find a willing surgeon, she has the freedom to make unwise choices. I do not see how the court could have made any other decision on the evidence and the law before it.

I understand that many people were unhappy with this decision, but any changes to the culture around ‘gender identity’ and affirmative treatment will have to come from Parliament and the medical profession. My hope is that the final report of the Cass Review will continue to support therapeutic interventions as first call. If parents do wish to assert that their children lack capacity to make decisions about gender affirming care, then they are going to need to bring hard evidence to the court proceedings, which these parents could not.

While I personally think it is very sad that a young woman would ever contemplate drastic and irreversible surgery so that her ‘real life’ could begin, the simple response is that it is not my life, nor my breasts. EE may well regret such surgery when she is older, but the MCA exists to protect the freedom to make unwise choices. If asked to choose between ‘freedom to’ and ‘freedom from’, I choose the first, every time. And I must extend that freedom to all others with capacity.

Getting information from foreign countries in care proceedings

Resources

The information set out here, is a summary from the three documents below.

The President’s Guidance from 2014 The International Child Abduction and Contact Unit (ICACU) (judiciary.uk)

The ICACU’s guidance on completing the request form icacu_request-for-co-operation-guide.docx (live.com)

Protecting Children and Families Across Boarders [CFAB] Kinship assessment guidance CFAB | International Kinship Care Guide. This guidance deals with

  • The steps which should be taken whilst identifying, assessing and preparing potential carers overseas for an international kinship care placement when the child is in local authority care.
  • The complexities in ensuring that orders are mirrored and/or recognised in the receiving country.
  • Recommendations for the ongoing relationship between the relevant authorities in each country to ensure that responsibilities are clear and are mutually agreed.
  • Barriers to permanency which would need to be considered before placement, or which would need additional support for the child and carer to ensure that the child has a successful and permanent placement.

This post is primarily concerned with cases where a local authority is looking to assess a family member who lives in another country. If you are considering transferring the proceedings themselves to another country, then see this Guidance from the President from 2016.

Care proceedings with an international element – how do you get information about family members? How do you assess them?

  1. An increasing number of cases have an international element. This brings with it almost inevitably great potential for delay and costs, in making inquiries and getting documents translated. It’s imperative that we do not add to these problems so we need to be alert when a case is likely to require consideration of the practices and procedures of another country, so we do not cause additional delay and we make sure that assessments or placement plans will be recognised by a foreign country.
  • As the introduction to the CFAB Kinship Care assessment guide sets out:

Both the Children Act 1989 and the UN Convention on the Rights of the Child place an emphasis on children remaining with family. The practicalities of supporting this across international borders are delicate and complex, requiring specialist guidance to ensure they are carried out properly and with the best interests of the child at the forefront. There is otherwise the risk of vulnerable children being placed with inappropriate carers, of children being returned to the originating local authority due to faulty legal procedures and of family breakdown because the right support measures were not proactively identified….Despite the risks, the scale of the problem for these vulnerable children is unknown. The charity Children and Families Across Borders (CFAB) estimates that there are 18,000 Looked After Children in England and Wales who may have family members abroad that could – and should – be explored as options for their long term care.

What is the 1996 Hague Convention?

  • The HCCH (Hague Conference on Private International Law  Conférence de La Haye de droit international privé) is an intergovernmental organisation which aims to secure the “the progressive unification of the rules of private international law”
  • The HCCH’s mission is …[to provide]  internationally agreed solutions, developed through the negotiation, adoption, and operation of international treaties, the HCCH Conventions, to which States may become Contracting Parties, and soft law instruments, which may guide States in developing their own legislative solutions.
  • Since the inception of the HCCH, it has created over 40 Conventions and instruments. One of its ‘core’ Conventions is The 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children [the 1996 Hague Convention].  HCCH | About HCCH
  • The Hague Conference website[1] has helpful information and documents about each Hague Convention and explains which countries are party to that Convention and whether the Convention is in force between the UK and another country.
  • As of October 2022 the 1996 Hague Convention has 54 contracting states. HCCH | #34 – Status table and a broad scope. It aims to avoid conflicts between legal systems in respect of jurisdiction, applicable law, recognition and enforcement of measures for the protection of children and emphasises the importance of international co-operation. It provides the basic framework for exchange of information and collaboration by setting up ‘Central Authorities’ in each contracting state.
  • Article 3 sets out the issues within its scope HCCH | #34 – Full text which includes guardianship and analogous institutions, the placement of a child in a foster family or institutional care, and the supervision by a public authority of the care of a child – therefore if you want to carry out an assessment of a family member in a Hague Convention State you will be within scope.
  • If you want information from a country outside the 1996 Hague Convention then I am afraid we seem to be limited to the Working with foreign authorities: Child Protection cases and care orders. Advice template (publishing.service.gov.uk) This is not very informative and essentially tells you to contact the Embassy or CFAB.

What is the ICACU?

  1. The ICACU is the operational Central Authority for England for the 1996 Hague Convention. It’s a small administrative unit and its staff are not lawyers or social workers. It is set up to make requests for co-operation to another country, for the collection and exchange of information if the other country is a State Party to the 1996 Hague Convention; and the request for co-operation is within scope of the Convention.
  2. The ICACU is also the operational Central Authority for the 1980 Hague Convention on the Civil Aspects of International Child Abduction and the 1980 Hague European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and Restoration of Custody of Children.
  3. The ICACU does not become directly involved in the court proceedings. Central authorities are not under any obligation to engage in proceedings and do not require a court order before discharging their duties and responsibilities under 1996 Hague Convention
  4. If you want to place a child in another country, this is a matter for the requested country – a placement which we may think is a private law placement, may be regarded as a public law placement by the requested country.
  5. A request for co-operation can be made to establish if, in principle, the consent of the other country would be required for placement even if the care plan for the child is not yet fully informed.
  6. For requests for co-operation under the 1996 Hague Convention to or from Wales, you should contact the Welsh Government. Scotland and Northern Ireland have their own Central Authorities.

What is within the scope of the ICACU?

  1. You need information from the other country to help you formulate a care plan, for example:
    1.  identifying and/or assessing potential kinship carers
    1. Confirmation if you need the other country’s consent to place children there
    1. the other country’s procedure for progressing a request to transfer jurisdiction under Articles 8 and 9 of the 1996 Hague Convention, because its considered that another country is best placed to make decisions about the child’s future.

What is outside the scope of the ICACU?

17. Article 4 of the 1996 Hague Convention explains what is not in scope of the Convention.  This includes adoption, measures preparatory to adoption, or the annulment or revocation of adoption.

  1. If your request is not in scope of the 1996 Hague Convention, it may be in scope of another European Regulation or international Convention and another central authority or body may be able to assist.
  2. With regard to serving documents abroad, or taking evidence abroad, the Senior Master is the central authority under Article 3 of the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (‘the 1965 Hague Convention’) and Article 2 of the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (‘the 1970 Hague Convention’). If dealing with these matters you need to contact the Foreign Process Section based in the Royal Courts of Justice. [[email protected]].
  3. A request for copies of foreign court papers is more likely to be in scope of the 1970 Hague Convention.
  4. If you wish to get information on someone’s criminal record outside the jurisdiction, contact the UK Central Authority for the Exchange of Criminal Records International Criminal Conviction Exchange Department ACRO Criminal Records [email protected]
  5. If you need to let a foreign jurisdiction know that one of its citizens is involved in care proceedings, following Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] EWHC 6 (Fam), [2014] 2 FLR 151, you must contact the relevant consular authorities. This applies also to inquiries about passports or other travel documents. A ‘Consular authority’ refers to an official appointed by a sovereign state to protect its commercial interests and help its citizens . It can refer to a High Commission, Embassy or Consulate.
  6. A request for an opinion on how a foreign country might recognise an order of the English court is not a question for central authorities. You will need to think about getting permission for expert advice on the law in the relevant jurisdiction.
  7. If you want someone to give oral evidence in the English court while they are physically present in a foreign state, for e.g. via video link or phone, you have to get permission from the foreign state. This is done via the Foreign Commonwealth and Development Office [FCDO] “Taking of Evidence Unit” [“ToE”]. HMCTS will contact the ToE on behalf of any party who notifies the tribunal that they want to rely on oral evidence from a person abroad, so all that that party needs to do is notify the tribunal of: a. the name of that person and case number; b. the country the person would be giving evidence from; c. if it is not the appellant what the evidence would be about; d. the date of any listed hearing This must be done as soon as it is known that a person wishes to give evidence from abroad, to avoid the risk of delaying any hearing.

How do I contact the ICAU?

  • The ICACU’s general office telephone number is 0203 681 2608 and can be used by parties seeking “in principle” advice based on the ICACU’s experience of the other country but email contact is much preferred: [email protected].  
  • In public law children cases the ICACU prefers that the local authority contact the ICACU about a request for co-operation It is administratively more efficient and less likely to give rise to miscommunication if the ICACU is in contact with one party only.

Making a request for co-operation and timescales

  • The form is on line – see above. If as a social worker you are not sure if your request falls under the 1996 Hague Convention, you must get advice from your legal department as the ICACU does not give legal advice. The form requires you to identity the relevant Articles of the Hague Convention that inform your request.
  • But you can make a preliminary inquiry to the ICACU prior to a formal request if your legal team aren’t sure. Identify in the subject line of the email that this is a ‘general inquiry’ and set out your identity and country you are asking about. Make it clear if your request is urgent.
  • The ICACU does not open a case file in response to a general enquiry; it only does so when it receives a formal request for co-operation.
  • Article 37 of the 1996 Hague Convention says that the ICACU shall not request or transmit any information if to do so would be likely to place the child’s person or property in danger or constitute a serious threat to the liberty or life of a member of the child’s family. You will be asked to confirm that the request does not engage Article 37.
  • The ICACU cannot compel the requested central authority or foreign competent authorities to respond within a specific timetable and different countries have differing views as to what information or assistance can be provided. It is therefore difficult to predict how long it will take for you to get any useful information. Therefore, it is really important to do all you can at your end to keep things moving. You need to make a relevant and focused request as early as possible in the proceedings.
  • Do not simply send the court bundle – that is likely to slow things down. The following information is key:
    • The court timetable and when hearings are listed – and remember when fixing the timetable in the English court, to build in realistic timescales for a reply from the ICACU
    • The ICACU does not require a court order to act but if the court has ordered the local authority to make a request, include a copy of the sealed order – but remember that orders should not be made against foreign authorities.
    • A clear background case summary, agreed by all parties if possible. If it is not agreed, make this clear.
    • The full names and dates of birth of the children and relevant adults with explanation of family relationships – if complex, a genogram can help
    • Explain ‘technical language’. What do you mean by ‘section 20’? What do you mean by ‘kinship care’?
    • Avoid acronyms – the other country is unlikely to understand what is meant by ‘IRH’ for e.g.
    • If you are trying to identify potential kinship carers, provide as much information as possible to assist the other country to trace the individuals concerned; if current contact details are not known, provide as much information as possible about last known addresses etc.
    • Explain what you would find helpful for a kinship assessment to cover – but  you cannot require the foreign authorities to carry out an assessment in a particular way.
  • A rough timeline of an approach to the ICACU can look like this. You can see how each step of the process carries with it potential for delay.
    • The local authority decides to make a request for co-operation
    • The ICACU receives the request
    • The ICACU requests translation of necessary documents
    • The request is sent by the ICACU to the other country
    • The other country makes inquiries.
    • Arrangements are made to translate documents
    • The ICACU responds to the local authority or makes requests for further information
    • the ICACU sends the response to the local authority
  • Translation can be a big problem – the ICACU has a limited budget. It will translate the initial request but you will have to decide at your end who is preparing and paying for translation of any supporting documents. If you are able to arrange for translation of your initial request, that can help speed things up.

Central Authority contact details

Scotland and Northern Ireland have different legal systems from England and Wales and the law in Scotland and Northern Ireland also differs in some respects. England and Wales, Scotland, and Northern Ireland each have their own Central Authority for the Regulation.  Wales has its own Central Authority for the 1996 Hague Convention.  

  Central Authority for England (for the 1996 Hague Convention)   The International Child Abduction and Contact Unit The Official Solicitor & Public Trustee Office Post Point 0.53 102 Petty France London SW1H 9AJ   DX: Post Point 0.53 Official Solicitor & Public Trustee DX 152384 Westminster 8   tel: +44 (0)20 3681 2756 www.gov.uk   e-mail for new requests and general enquiries only: [email protected]  The International Child Abduction and Contact Unit (ICACU) is open Monday to Friday.  In an emergency outside these hours you should contact the Reunite International Child Abduction Centre on tel 0116 2556 234.   Please note that the office of the ICACU is not open to the public.   Emails received after 2.00pm will not be considered until the next working day except in cases of extreme urgency (please indicate in the subject heading whether flight risk / abduction in transit / imminent risk of harm)
  Central Authority for Northern Ireland   Central Business Unit
Northern Ireland Courts & Tribunals Service
3rd Floor Laganside House
23-27 Oxford Street
BELFAST BT1 3LA
Northern Ireland
United Kingdom
tel: +44 (0)28 9072 8808
fax: +44 (0)28 9072 8945

Internet: http://www.courtsni.gov.uk/
                                                                                                                                             email: [email protected] is used for applications under 1980 & 1996 Hague conventions along with Brussels II requests		   
  Central Authority for Scotland   Scottish Government
Central Authority and International Law Branch GW15 St. Andrew’s House EDINBURGH EH1 3DG Scotland United Kingdom   tel: +44 (0)131 244 4827 fax: +44 (0)131 244 4848 e-mail: [email protected]		 
  Central Authority for Wales   Welsh Government
Social Services and Integration
Cathays Park
CARDIFF CF10 3NQ
United Kingdom
tel.: +44 (29) 2082 1518
fax: +44 (29) 2082 3142
email: [email protected]    		      The Welsh Government is the Central Authority for Wales for the 1996 Hague Convention only. 

Other useful resources

  The Foreign Process Section Room E16 Royal Courts of Justice Strand London WC2A 2LL United Kingdom   tel.: +44 (0)20 7947 6691 +44 (0)20 7947 7786 +44 (0)20 7947 6488 +44 (0)20 7947 6327 +44 (0)20 7947 1741 fax: +44 870 324 0025 email: [email protected]    The Senior Master is the transmitting agency under Article 3 of the 1965 Hague Convention and the central authority under Article 2 of the 1970 Hague Convention.   The Foreign Process Section is the administrative unit which supports the Senior Master.     
  The Hague Conference on Private International Law Permanent Bureau
Hague Conference on Private International Law
Churchillplein 6b
2517 JW THE HAGUE
The Netherlands
Fax: +31 (0)70 360 4867  www.hcch.net		  The Hague Conference does not provide legal advice but their website has copies of all the Conventions, Explanatory Reports, a status table for each Convention and other useful documents.

 

[1]https://www.hcch.net: At Homepage scroll down to Sitemap, at Sitemap use the dropdown menu for ‘Instruments’ and go to ‘Conventions, Protocols and Principles’ for an interactive list of all the Conventions.

Fact finding in private law proceedings – where are we now?

This is the text of a presentation at the St Johns Private Law conference on 14th June 2023

To have or not to have a finding of fact hearing is a key decision in proceedings. Relationships that are ending up in court have ended badly. The adversarial process is undoubtedly harmful to parties and finding of fact hearings cause enormous delay. It can be very necessary to establish what happened, in order to make sensible decisions about the way forward, but the courts are not there to validate either party’s perspective as to why the relationship broke down or how horrible the other one was. The guidance is now very clear – Unless it will be relevant to, and necessary for, your decision regarding the welfare of the child, do not allow the court to be used to litigate such allegations.

These cases can be very difficult to run in practice, given how high emotions can run and how relatively unobjectionable behaviour during a relationship can be seen in a very different light once that relationship has soured. The gulf between the expectations of the client and what the court can deliver is often very wide indeed. The guidance with regard to decisions about findings of fact will be your shield against unreasonable client expectations. 

I will examine the following 

  • Some historical context
  • Summary of the May 2022 guidance
  • Case law – when it goes wrong

Some historical context 

The family justice system is caught between two very polarised views; those who assert it is a tool of misogynistic oppression, with a ‘pro contact culture’ that routinely hands over children to violent men and those who assert it is absurdly pro women and happy to cut men out of their children’s lives. Those of us who work in the family justice system know that both positions are false. We are however very much alive to the problems caused by a system which lacks resources and judicial continuity. It’s fair to say that men and women feel equally traumatised and let down in the majority of proceedings. 

Of recent years however, the campaigning groups who characterise the family courts as tools of misogynistic oppression have gained the ascendancy and the ear of the Ministry of Justice. This explains the renewed focus over the last few years on issues of domestic abuse in family proceedings. 

We begin with the Victoria Derbyshire show in May 2019, whose eviscerating exploration of the family justice system, prompted the Ministry of Justice on 21st May to announce that a ‘panel of experts’ would review how the family courts protect children and parents in cases of domestic abuse, and that this would be completed in only three months. I laughed at this remarkably optimistic time scale and I was right to do so – we didn’t see the finished ‘Harm Report’ until June 2020 [Assessing risk of harm to children and parents in private law cases https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/895173/assessing-risk-harm-children-parents-pl-childrens-cases-report_.pdf]

I have been critical of this report as it relies primarily on self selecting accounts from those who felt badly done by the family justice system, with obviously no ability to fact check assertions they made. It was clearly written from the perspective of the ‘misogynistic oppression’ camp, identifying a ‘pro contact culture’ which resulted in ‘systemic minimisation of allegations of domestic abuse’. From my own experiences in practice over 20 years now, I think that is overstating it. 

However, it identified other issues with which I can’t argue: resource constraints, working in silos and lack of communication and crucially the adversarial system itself, with parents placed in opposition on what is often not a level playing field in cases involving domestic abuse, child sexual abuse and self representation, with little or no involvement of the child. 

The stage was the set for the Court of Appeal decision Re H-N [2021] EWCA Civ 448  where it was argued that the family justice system’s understanding of domestic abuse was not fit for purpose. 

The Court of Appeal considered the development of the family courts’ approach to issues of abuse. The definition of ‘abuse’ was expanded in 2017. PD12J paragraph 3 reflects the need to move away from characterising domestic abuse as separate incidents of violence, but looking more to patterns of acts and incidents, including incidents of controlling, coercive or threatening behaviour which can be demonstrated by psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment. 

We have come a long way from the 1970s and the focus on ‘violence’ only. No one argued before the court that this definition of ‘abuse’ should change and the Court of Appeal concluded therefore that it was fit for purpose. Although the structure of the definition of ‘domestic abuse’ in clause 1 of the Domestic Abuse Bill [‘DAB’] currently before Parliament differs from that in PD12J, the content is substantially the same.

The Court of Appeal therefore concluded:

We are therefore of the view that PD12J is and remains, fit for the purpose for which it was designed namely to provide the courts with a structure enabling the court first to recognise all forms of domestic abuse and thereafter on how to approach such allegations when made in private law proceedings. As was also recognised by The Harm Panel, we are satisfied that the structure properly reflects modern concepts and understanding of domestic abuse

The key guidance is at para 139:  

Domestic abuse is often rightly described as pernicious. In recent years, the greatly improved understanding both of the various forms of abuse, and also of the devastating impact it has upon the victims and any children of the family, described in the main section of this judgment, have been most significant and positive developments. The modern approach and understanding is reflected in the ‘General principles’ section of PD12J(4). As discussed at paragraphs 36–41 above that does not, however, mean that in every case where there is an allegation of, even very serious, domestic abuse it will be either appropriate or necessary for there to be a finding of fact hearing, so much is clear from the detailed guidance set out in paragraphs 16–20 of PD12J and, in particular, at paragraph 17.

Summary of May 2022 Guidance from Lady Justice Macur for Judges and magistrates. 

  • Make every hearing count. 
  • Judges must remain in control. 
  • Delay is inimical to child welfare. 
  • It is for the judge to determine the need for a finding of fact. ‘

At the FHDRA / first directions appointment/ to be considered at gatekeeping

If a MIAM hasn’t taken place, ask why not – duty to consider non-court dispute resolution: FPR r3.3.

TRIAGE – what are the real issues in the case. Are they safeguarding concerns? 

What is being alleged in terms of domestic abuse – look at definitions at FPR PD 12J [2A] and [3] in addition to PD 12J [14].

Has Form C1A been completed? Is there a response? If so, are there admissions? Can you see a possible way forward? 

Have you got enough information to avoid seeking further evidence? If not, consider what is needed in the fact specific circumstances of the case.

The judgment in Re H-N [2021] EWCA Civ 448 (paras 41-49) cautioned against allowing a Scott Schedule to distort the fact finding process (by becoming the sole focus of a hearing), but did not rule out the use of a schedule as a structure to assist in analysing specific allegations. Specific allegations of physical abuse fit well with a schedule, other allegations that require the court to look at a pattern of coercive and controlling behaviour will require a statement. Probably most cases will benefit from both. 

Is a fact-finding hearing required?

RELEVANCE, PURPOSE, PROPORTIONALITY AND MITIGATION

Consider: 

  • the nature of the allegations and the extent to which those allegations are likely to be relevant to the making of a child arrangements order;
  • that the purpose of a fact finding is to allow assessment of the future risk to the child and the impact of any abuse on the child;
  • whether fact-finding is necessary or whether other evidence suffices; and,
  • whether fact-finding is proportionate. Do the allegations at their highest go to safeguarding in general or could they be mitigated by supervision of contact or other measures? 

If the decision is made to have a finding of fact hearing, then robust case management is required. 

The court controls the evidence in the case. FPR r1.1, r1.4, r.4.1 and that the court controls the evidence in the case: FPR r.22.1.

No case should be timetabled to a fact-finding hearing without a properly completed witness template. This will assist the parties and manage their expectations.

Participation directions. 

Section 63 Domestic Abuse Act 2021 established a presumption that where a party or witness is or at risk of being a victim of domestic abuse from a party to the proceedings, the quality of their evidence and/or their participation as a party is likely to be diminished by reason of vulnerability and this requires some thought. 

Part 3A FPR deals with vulnerable witnesses and their participation in proceedings.. PD3AA para 5.2 requires a ground rules hearing (or ground rules component of a hearing) before the vulnerable person gives evidence. Participation directions are a general case management direction made for the purpose of assisting a witness or party to give evidence or participate in proceedings; 

Consideration of FPR r.3A and PD 3AA are mandatory and the obligation to consider vulnerability is the court’s, regardless of whether a party is represented or if participation directions are sought. 

Under sections 65 and 66 of the Domestic Abuse Act, the court will appoint a qualified legal representative (QLR) to cross-examine relevant witnesses if parties:

  • do not have their own legal representative
  • are prohibited by the court from cross-examining, due to allegations of domestic abuse

Lucy Reed KC has blogged about her frustrations with this scheme, noting in March 2023 that the QLR scheme was only introduced for cases issued after 21st July 2022 and court listing is backed up, very few eligible cases have reached the finding of fact stage so far. But many more will be coming. And its not at all clear that enough people have signed up to the scheme to enable it to operate effectively. I will say no more, because I am not touching it with a bargepole. The removal of legal aid for private law family cases will risk the collapse of many hearings; where there will be no QLR and guidance for Judges is that they may not cross examine – which must be right. 

Re-visiting a decision not to have a fact-finding hearing

The court must, at all stages in the proceedings, consider whether domestic abuse is raised as an issue: FPR PD 12J [5]. However, guard against attempts to re-argue the question once a decision has been made. What is said to have changed to undermine the original analysis? Proceedings should have judicial continuity, wherever possible, and a consistent approach.

If ‘new’ evidence relating to past events is presented, ask why it was not available or disclosed before. If no good reason is advanced, then you may refuse to admit it. The more significant the evidence is said to be, the more compelling the explanation needs to be for its late receipt.

Case Law – when it goes wrong. 

B v P [2022] EWFC B18 (31 March 2022) 

Parents made cross allegations against each other. The district judge found most of the mother’s allegations not proved, and the mother appealed.  

The district judge was not referred to the need for a ground rules hearing, Part 3A of the FPR, practice directions 3AA or 12J; she was not referred to the definition of domestic abuse and she was not reminded of the decision in Re H-N. 

At para 40 of the appeal judgment it is noted:

The judge does not set out a history of the relationship or a chronology of the events relied upon. She sets out each of the allegations made by either of the parents and considers whether it is proved or not proved. It appears to me that she did not follow the approach endorsed in Re H-N, of stepping back from the precise allegations and considering the behaviour as a whole. She did not rule on whether the father’s behaviour was coercive or controlling.

The judge also got some of the facts wrong – for example, finding that the respondent had not entered the appellant’s bedroom, when in both his oral and written evidence he admitted that he had, in order to gather up her clothes and throw them outside. 

The court expressed sympathy for the district judge, who had to deal with a remote hearing, a litigant in person and an interpreter but regardless, the findings could not stand. 

 K v K [2022] EWCA Civ 468 (08 April 2022)

This case re-emphasised the general Re H-N guidance  and provided a fresh emphasis on methods of ‘non-court’ dispute resolution and when they should be considered. 

Briefly, the father submitted that the district judge had not considered his case that the mother had alienated the children and the findings made of rape, coercive and controlling behaviour and physical abuse of the children are unsound. The mother argued that there was a high threshold needed to over turn findings of fact, and it had not been reached in this case. 

The Court of Appeal found that there had not been proper consideration of the need for a finding of fact, and the findings made were unsafe. The case would therefore be sent back to a circuit judge to decide if a fresh finding of fact is needed, following the guidance set out in Re H-N.  In brief: 

  • The parties had not taken advantage of a MIAM – Mediation Intake and Assessment Meeting and this might have resolved logistical issues about the father’s contact. The mother had initially agreed to unsupervised contact and had not seen the allegation of rape or generalised controlling behaviour as central to the resolution of the issues between them. . 
  • Any judge considering a finding of fact must identify at an early stage the real issues in the case, as relate to the welfare of the child. A finding of fact is only necessary if the alleged abuse is relevant to what the court is being asked to decide relating to the children’s welfare. 
  • The finding of rape was unsafe as the Judge did not consider all the available evidence, including the mother’s untrue assertion that she had reported this to the family doctor.

The key quote can be found at para 65: 

A fact-finding hearing is not free-standing litigation. It always takes place within proceedings to protect a child from abuse or regarding the child’s future welfare. It is not to be allowed to become an opportunity for the parties to air their grievances. Nor is it a chance for parents to seek the court’s validation of their perception of what went wrong in their relationship. If fact-finding is to be justified in the first place or continued thereafter, the court must be able to identify how any alleged abusive behaviour is, or may be, relevant to the determination of the issues between the parties as to the future arrangements for the children.

So where next?

The family justice system puts proof of facts at its heart. An allegation which is not proved and which is not admitted is not a fact. I think there is a real risk to the fairness and integrity of court proceedings if a presumption is made at any stage that one party is more likely to be telling the truth. 

In May 2023 the Ministry of Justice produced its implementation plan – a progress report of what’s happened since the Harm Report. Of particular note is the Domestic Abuse Act, automatic eligibility for special measures, right to be supported in court by an IDVA, the pilot scheme in courts in Devon and North Wales launched in February 2022. The November 2020 review of the presumption of parental involvement remains ongoing!

But the language of this report is interesting. It speaks only of ‘victims’ and ‘perpetrators’ – no room for ‘alleged’ or ‘assertions’. This speaks very much to the FJS as ‘tool of misogynistic oppression’ and I do not think this is helpful. 

There remains considerable dissatisfaction from campaigning groups. Women’s Aid issued a statement in May 2023 about its view of progress since the Harm Report

Almost three years on from the Harm Panel report, we have not seen evidence of ‘cultural changes’ to improve safety for women and children experiencing abuse. This was a landmark report and we had high hopes for the change which was promised – but we continue to hear day in, day out from survivors that they are still experiencing disbelief, danger and trauma within the family courts. 

….. We remain unclear what ‘compulsory’ training on domestic abuse for judges includes, and in our experience women who allege domestic abuse continue to face discrimination and victim-blaming attitudes when trying to secure safe child contact arrangements for their children. 

“We urge the government, judiciary and family court professionals to work together with specialist domestic abuse organisations and survivors to deliver the system wide reform which is still so desperately needed to ensure children are put first in the family courts.” 

The tensions will of course always remain between those who see cases primarily through the eyes of a ‘victim’ who ought not to have to prove herself and be re-traumatised and those who must apply and obey fundamental legal principles in articles 8 and 6 of the ECHR. The likely collapse of the QLR scheme does not bode well for anyone. 

But all we can do is try and manage those tensions as best we can and in the framework set by law. And resist unilateral attempts by single issue campaigning groups to influence law and policy. 

Further reading

Report to the UN re ‘parental alientation’ as a ‘pseudo concept’ which leads to courts ignoring domestic abuse https://documents-dds-ny.un.org/doc/UNDOC/GEN/G23/070/18/PDF/G2307018.pdf?OpenElement

Complaint against the report from Gender Parity UK https://drive.google.com/file/d/1FWv2JnDVLXbyjC-LEMShk4KqqQYC7Enl/view

Gulf between the Victims Commissioner and practice in the family courts grows wider – see July 2023 report – The Family Court and domestic abuse: achieving cultural change.

CAFCASS Guidance on working with Children and Gender Identity

The CAFCASS Guidance Working with Children and Gender Identity January 2023 is guidance for children who are not in care. It links to guidance for children who are in care – Trans Youth in Care; a Toolkit for Caring Professionals – but this is dated 2017 and refers to Mermaids and the often ridiculed ‘Genderbread Person’. It’s clearly out of date and requires urgent revision.

A document written in 2017 of course cannot comment on the NHS guidelines, the Cass Review, Bell v Tavistock, revised guidance for schools or the recent decisions of various jurisdictions to move away from the ‘affirmative path’ of transgender care for children advocated by WPATH.

But a document with its final draft in January 2023 has no excuse to skate over or simply ignore all that we have learned in the last five years. This is very poor guidance. In essence, it adopts contested political narratives as if they were truth and is going to risk not only the welfare of children but also the professional reputations of those who rely on it.

I was sent a copy of this guidance by a very concerned practitioner. I cannot link to it as apparently CAFCASS will not be publishing it on their website in case it is ‘taken out of context’. This is not acceptable. Parents, lawyers and judges need to know the content of guidance that CAFCASS is requiring its practitioners to follow, particularly in an area so complex and so contested as this.

I will discuss it here, and raise my concerns with the President of the Family Division.

EDIT – thanks to Gender Parity UK for publishing a link to the guidance

Assumption of contested narrative as truth

The introduction makes the following comment

Transgender/gender expansive people (as well as LGB people) have existed since time immemorial. Therefore, any perception that being transgender/ gender expansive is a social construct or a new phenomenon is factually incorrect. Gender expansive children have existed in all times and all cultures of which records remain.

The Guidance relies on the following resources to make this claim – Trans Historical: Gender Plurality before the Modern – Greta LaFleur, Masha Raskolnikov, Anna Kłosowska and – Histories of the Transgender Child Paperback –2018 by Julian Gill-Peterson  

This is highly controversial and immediately calls into question the asserted aim of the Guidance being to ‘support’ children rather than “specifically not to direct the child down any particular path”. It is not a claim that should responsibly by made in professional guidance, without at least some attempt to comment upon the recent and rapid surge in children seeking referrals to the Tavistock. This points to social contagion, rather than a diagnosis of gender dysphoria. Referrals to the Gender Identity Development Service (GIDS) at the Tavistock have shown a staggering increase in recent years; from just 97 in 2009/10 to 2,519 in 2017/18.

From 2014/15 to 2015/16, referrals increased by over 100% and from 2015/16 to 2016/17 they increased by 41%. Ages at referral seen by the service ranged from 3 to 17 years old. As Transgender Trend commented, the majority of the children were registered female at birth. This is an unexplained ‘flip’ from earlier years, where the majority of children registered were male.

The stark figures about the increase in female referrals have been explained by two experienced clinicians in this way:

We posit that there are multiple, interweaving factors bearing down on girls and young women that have collided at this particular time causing a distress seemingly related to gender and their sex. These factors comprise both the external world (i.e. the social, political and cultural sphere) and the internal (i.e. the emotional, psychological and subjective). The external and internal interact and feed each other.

Ignoring current evidence

You will search in vain for any discussion about ‘detransitioners’ (those who regret having undergone medical or surgical transition and revert to a gender identity which is in line with their sex observed and recorded at birth) or the phenomenon of ‘rapid onset gender dysphoria’ which points to the likelihood that social contagion is driving much of the ‘gender expansiveness’ of in particular teenage girls.

Of the many shocking aspects of Hannah Barnes’ forensic dissection of what went wrong at the Tavistock in her book ‘Time to Think’, the most concerning for me were the bleak statistics about the children treated there – 70% of the children had more than 5 associated co-morbidities such as abuse, depression, self-harm, suicide attempts, anxiety, eating disorders, ADHD or bullying. 35% of referrals involved children with Austic Spectrum Disorders – experienced by less than 2% of children in the general population. 25% of referrals involved children who had spent time in state care – compared to 0.67% of the general population. Children referred were 10 times more likely to have a parent registered as a sex offender than the general population.

You will search the guidance in vain for any discussion about this. There is simply a short comment that practitioners need to ‘acknowledge and assess the additional complexity and vulnerability a transgender child may present.’ 

Poor analysis of safeguarding

The Guidance identifies the main issues around ‘safeguarding’ as

  1. Parental responses 
  2. Parental disputes and differing views 
  3. Homelessness
  4. Discrimination  
  5. Lack of health and social care support and progression through the care pathway 
  6. Lack of CAMHS provision  
  7. Suicidality and self – harming behaviors  
  8. Hate crime 
  9. Bullying/ difficulty with peers 
  10. Disruption or cessation of formal education 
  11. Conversion therapy- direct or indirect 
  12. Online safety 

This again underscores that this guidance operates from a presumption that transition for children should be affirmed. It makes no reference to the risks that flow from working with a cohort of children who are likely to have a significant number of co-morbidities or may be victims of homophobia. We already have a clear example of the dangers of such a blinkered approach in the case of Sonia Appleby, the Named Professional for Safeguarding Children and the Safeguarding Children Lead at the Tavistock. She raised a complaint at an employment tribunal, that Tavistock management directed that safeguarding concerns should not be brought to her attention and clinicians were discouraged from reporting safeguarding concerns to her, over allegations around Ms Appleby’s ‘transphobia’. In September 2021 Ms Appleby was awarded £20K as damages for “significant” injury to her feelings. The tribunal concluded that the trust’s handling of the matter “prevented her from proper work on safeguarding”.

In line with the Guidance’s presumption of affirmation, it is noted that

The majority of parents and families will want to do all that they can to support and act in the best interests of their child when they discover their child is transgender or needs to explore their gender identity

Which raises an interesting question about how CAFCASS intends to treat those parents who are less than delighted that their child is being put on a pathway to medical and surgical transition. The Guidance makes the claim that ‘Evidence shows that young people who have parents/wider family who are supportive of their transgender identity are more likely to have good mental health, including improved outcomes’ but provides no citation for this assertion.  

The Guidance notes, ominously

It may be necessary to use public law to safeguard and protect the child and transgender children are no less at risk of abuse than any other child. In fact, their transgender status often makes them at a higher risk where a parent/carer is not a protective factor. 

There is reference to ‘conversion therapy’ as ‘morally wrong’ but with no countervailing discussion of the recognition by the Cass Review that there was a need for ‘talking therapies’ as a first resort, rather than affirmation of a medical pathway. This makes me concerned that parents who do not immediately ‘affirm’ their child as ‘truly transgender’ risk finding themselves viewed by CAFCASS as abusive parents

Signposting to outdated, unreliable and dubious sources

The introduction at page 3 signposts the practitioner to Professor Spack’s Ted Talk. Professor Spack is a Consultant Paediatric Endocrinologist explaining his work helping transgender children and described as ‘one of the world leaders in this field… ran the multi-disciplinary Gender Identity Service at Boston’s Paediatric Hospital in the USA.’ The first thing that jumps out is that this Ted Talk dates from November 2013, nearly ten years ago. The notion promoted by Professor Spack that puberty blockers are wholly reversible and simply give a child to think is not supported by the Cass Review interim report. Various judges have commented on the concern that rather than give children ‘time to think’, puberty blockers almost inevitably sets them on a path to cross sex hormones, with the consequent risks to fertility and adult sexual function.

The majority of children who are permitted to go through a natural puberty, will desist from any desire to ‘change sex’. Anyone who is making recommendations about the welfare of ‘gender expansive’ children needs to know and understand this. They also might benefit from understanding a little more about the Boston Children’s Hospital and the recent unease about it’s practices, not least double mastectomies carried out on girls as young as 12.

As Professor Levine noted in 2020:

A 2017 study from the Boston Children’s Hospital Gender Management Service program – 23 – reported that: “Consistent with the data reported from other sites, this investigation documented that 43.3% of patients presenting for services had significant psychiatric history, with 37.1% having been prescribed psychotropic medications, 20.6% with a history of self-injurious behavior, 9.3% with a prior psychiatric hospitalization, and 9.3% with a history of suicide attempts.

Mermaids and Stonewall are listed as useful resources. It is difficult to see how this guidance can in good faith signpost its practitioners in this way. The concerns about Stonewall are now exhaustively documented and very well known and yet CAFCASS remains a Stonewall ‘Diversity Champion’. Mermaids is currently under investigation by the Charity Commission. The inquiry opened in November 2022 and will seek to determine ‘whether the charity’s governance is appropriate in relation to the activities the charity carries out, which involve vulnerable children and young people, as well as their families.’

It is astonishing that CAFCASS would direct its practitioners to an organisation under investigation in this way. But regardless, It is clear that Mermaids heavily promotes ‘affirmation’ and the medical transition of children at ever younger ages. Its views about capacity and consent was expressed in this way in 2019, attempting to erase any distinction between those children who are Gillick competent and those who are not:

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

.

The guidance offers some discussion on the thorny issues of of capacity and consent but any benefit in this discussion is significantly compromised when signposting practitioners to those organisations who do not accept there is any question mark over the transitioning of children – or worse, that any attempt to discuss concerns is unacceptable bigotry

Conclusion

I am not demanding that CAFCASS adopt a particular political view/narrative. I am not denying that there are now and always have been, a small percentage of people who are very unhappy with their bodies and seek relief by being seen as the opposite sex. These people should not face abuse or discrimination. I agree that rigid conformity to sex based stereotypes is often harmful and that children who reject those stereotypes should be protected.

But I also know that we all have only one body and there are clear limits to what can be achieved to change it via medication and surgery. It is simply not possible to ‘change sex’. I hope very much that I am wrong regarding my fears about the welfare of children who undergo irreversible and unevidenced medical treatment. I hope that the research set in motion by the Cass Review will show that these children were not simply part of an unregulated medical experiment in pursuit of an adult agenda. I hope that the coming years do not usher in litigation from those children who were not protected by adults who should have known better. I hope that the lives of a generation of children have not been blighted.

But we are still some time away from any reliable evidence regarding childhood transition. While we wait, we are all entitled to ask that agencies such as CAFCASS, whose reports are highly influential in both private and public law children cases, provides guidance which is based on evidence and which acknowledges where the evidence is shaky – and which accepts that issues of ‘gender incongruence’ or ‘gender expansivity’ in children may involve safeguarding issues, such as promoting homophobia or putting a child on a medical pathway which is potentially irreversible and lacking any compelling evidence base.

This Guidance is not fit for purpose and puts both children and practitioners at risk of harm and reputational damage. I hope it will be withdrawn and significantly revised. Unless and until it is, then I will treat all recommendations by CAFCASS in this area in any case where I am instructed, with significant scepticism.

Further reading

For practitioners who centre the welfare of the child at the heart of their work, rather than allegiance to any adult narrative or ideology, I recommend the guidance co-authored by by Transgender Trend and the Evidence Based Social Work Alliance in 2021 – When can a child consent to medical transition?

An Examination of Gender and Safeguarding in schools – Policy Exchange report 2023

CAFCASS – what went wrong – blog from New Approaches to Contact

Systemic Failings in the Family Justice System

Everyone knows it isn’t working – what can we do about it? And what should we STOP doing?

This is the presentation I gave to Families Need Fathers on 18th March 2023

The focus of my talk will be on the private law children system – care proceedings also face significant barriers to effective and efficient resolution but the pressures there are different and much more closely tied to the vulnerabilities of many of the parents and children and the lack of easily identifiable and obtainable resources for those with significant mental health and substance abuse issues. 

I have been to some interesting conferences and heard some interesting talks over the years, and I will try now to briefly distil what everyone seems to agree is the problem.  Because if we are clear about why family law is difficult, we are better directed to how we can attempt to fix it. 

It seems that we have all been talking for a long time about the problems inherent in the family justice system. It’s costing the Government an enormous amount of money, even after removing legal aid from private children work. In 2007/08, there were around 35,000 applications. This rose to around 48,000 in 2012/13 and 2013/14. Numbers then fell significantly after legal aid changes were introduced in 2013. However, the number of applications has now almost recovered to previous levels, with 46,500 applications made in 2019/20. Since 1 April 2022 to February this year Cafcass has received 36,487 new private law children’s cases. These cases involved 55,627 children.

Unsurprisingly, there is clearly significant political will to reduce the number and costs of cases coming into the family justice system. What we haven’t yet agreed is how we do this and how we can best distinguish between cases where there are significant safeguarding issues and cases where there are not. And this would appear to be the crucial distinction. 

What makes family law so difficult? Other forms of law are generally designed to correct past wrongs. Family law however is directed to identify the best outcome for children when relationships break down, or the fairest re-allocation of matrimonial assets after divorce. Relationship breakdown is not exclusively or primarily a legal issue – it involves often deeply unsettling emotional distress.

Emma Sutcliffe, a contributor to The Child Protection Resource put it this way in 2019.

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

Under conditions of extreme stress even usually robust people can experience intense emotions and project negative feelings onto former partners. Family separation is always stressful for children but there is no doubt that children who are exposed to acrimonious conflict, suffer long term negative impacts. Research from the Nuffield Family Justice Observatory has shown that even before starting court proceedings, parents were vulnerable. Parents in private law proceedings had higher rates of mental health distress, including anxiety and depression when compared to the general population. There were higher rates of self-harm and exposure to domestic abuse as either victim or perpetrator. 

The Family Justice Council organised a conference in April 2022.  The keynote address was given by Helen Adam who is the Chair of the Family Solutions Working Group. This was set up by High Court Judge Sir Stephen Cobb in 2020 as a multi -disciplinary group of professionals who work with parents and children from separated families to consider what can be done to improve the experience of children and families before any application is made to the family court.  

The over-arching theme of Helen’s address was that the adversarial system is harmful, and we need to think about how to get cases outside the court arena.  The aim is to reduce parental conflict. 

This echoes findings of the Family Court Reform Coalition Report in July 2022, which identified three reasons why the problems have developed.

  1. a vicious cycle of ‘perverse incentives’ which drives the process in the opposite direction to the one intended.
  2. a lack of standardised practice, combined with an approach which is unnecessarily adversarial, creates delay, drives up costs and damages children. 
  3. a lack of systemic research into the effectiveness of outcomes so the system cannot learn and improve. 

The adversarial system is identified repeatedly as a big part of the problem. It is clearly the last place any stressed and anxious parents need to be. What we have currently is a just a hotch potch of efforts at intervention and support. Cases that drag on for years – as many do – are clearly going to cause children lifelong emotional damage. We can all see how easily and quickly situations become polarised and how the children suffer the most when caught in the middle.

Helen rightly queried calling this the ‘Family Justice System’ – If that is what is said on the tin, that is what people expect – they want to ‘win’ or to exact retribution. David Norgrove said our system is about ‘least worst outcomes’. If we renamed the FJS as ‘least worst outcome system’ would so many people want to go through it?

 If we don’t want families to go to war, we need to offer them something else. 

But what exactly is this something else? 

Throw psychological distress, worry about financial security or the safety of your children into the mix, the lack of judicial continuity, lack of access to help with legal costs and serious delay, there is little wonder that the ‘Family Justice System’ is dysfunctional and overwhelmed. As Helen noted, the problem seems too huge and difficult to overcome and we end up in state of depressed helplessness. Hopefully discussions like we are having today can help cut through that fog. 

She identified some possible solutions. 

  • political support that crosses party lines.
  • public education programme to correct wrong language and wrong attitudes which are outdated. 
  • authoritative website – a go to place with clear information for parents and children.
  • Resourcing ‘touchpoints’ – GPs, schools – to provide information and signposting about separation. 
  • direct support for children – voice of child is key component but giving a child a ‘right’ to be heard doesn’t help if it can’t be exercised. 
  • Mediation – but this needs triaging as some cases involving abuse just aren’t suitable.

I certainly wouldn’t say ‘no’ to any of this if by some miracle the money could be found to pay for it, but I do not think the focus on ‘more information’ is what will do the most help, given what we know about the emotional states of many parents in proceedings. Mediation is often touted as the ‘cure all’ but it doesn’t seem that the introduction of compulsory Mediation Information and Assessment Meetings (MIAM) since 2014 has had any impact. Those who don’t want to mediate, won’t. Where there are serious issues of violence or alienation, these will not be resolved by ‘mediation’ or a leaflet. 

I estimate that about 10% of cases involving separated parents will be impervious to mediation, support, or ‘re-framing’ – these are cases which involve men and women who are truly damaged and dangerous and who require a robust court structure to minimise the harm they do. 

I think it is vital that we recognise this so that all of us ‘in the system’ can best direct our efforts. 

The pilot scheme. 

So, what about the new pilot scheme? This is now running until February 2024 in some courts in Dorset and Wales. See Practice Direction 36Z para 2.1

The revised process has been designed for all court users, but with a particular focus on improving the experience of the family court and outcomes for survivors of domestic abuse, including children and litigants in person. The pilot seeks to test a more investigative approach, featuring earlier gatekeeping and information gathering to enable earlier triaging decisions and to front-load engagement with parties rather than engaging through multiple hearings. The court will also seek to hear the voice of the child more clearly through each case in this pilot, with the aim that appropriate engagement and communication are considered throughout proceedings. A more holistic, multi-agency approach is planned, with the court engaging and developing positive working relationships with key local partners such as mediators and local authorities. A review stage during the pilot process will aim to ensure that court orders meet the welfare needs of the child and reduce the number of cases which come back to court.

Those involved at the outset hoped to see the development of ‘three tracks’ – safeguarding for cases where domestic abuse is an issue, a co-parenting approach in cases where safeguarding is not an issue and returning cases. This means triaging cases with good early social work intervention and managing the case flexibly in the way best suited to the individual case. Cases where contact has broken down completely should be prioritised as urgent. 

The non-urgent cases could have a built in ‘pause’ to consider SPIPS, mediation, parenting programmes. No one should make assumptions about what families need but there should be more listening to and understanding issues, anxieties, stresses, and emotional resilience, what is working and what is not and how they think they could be supported. 

And discussion of costs consequences for parties who fail to engage without good reason – now, costs orders in family cases are seen as the exception and not the rule. 

Sadly, I do not usually go to the Devon or Welsh courts, so I have no direct experience of how this pilot is working. I did however speak to a barrister who does a lot of work in Bournemouth only a few days ago and she was pessimistic, saying what was needed was more focus on allocating private law cases to judges with experience and allowing judges greater control over the timetabling of cases. 

I will be very interested to know how the pilot has been working and whether there is any political will to roll it out nationally and commit to the additional resources that will no doubt be required. 

What can we do right now?

But what do we do while we wait? we all know it isn’t working – is there anything we can do to make things better right now?

Speed it up

A quick and obvious fix would be to insist on strict time limits as we have with public law proceedings. Although there is concern that the time limits are often exceeded, I think the statutory requirement for 6 months from start to finish has had a positive impact on cases which otherwise limped on for a year or more when I first started out in 1998. 

Triage

I think a key intervention and reform is more effective triage of cases – to better and more quickly distinguish between the ‘vulnerable’ and the ‘vexed’. Time is of the essence! A year in the life of a young child is a very long time. The majority of my ‘intractable cases’ ended only when the child had aged out of the system – we are talking about cases running for five years or more. 

Effective triage is something that we don’t necessarily need huge amounts of additional resources to do, but it means we do need time and space to be able to think about the cases before us and what they need. We need to firmly discourage interventions that are based on political campaigning or assumptions. This has done considerable harm and wastes our time.

Examine other jurisdictions

We can investigate what is being done well in other jurisdictions which show that the family court can be at forefront of initial non adversarial triage system which can have encouraging outcomes including less delay. The Family Law Reform Coalition note that the family Courts in Israel appear to be doing well, with a ‘one family one Judge’ policy and mandatory pre-filing information and alternative dispute resolution sessions for litigants, alongside immediate and swift procedures when abuse and maltreatment are alleged.  Many jurisdictions have introduced a presumption of shared care and that seems to have positive outcomes. 

What do we need to stop?

However, I know that our chances of success at reforming the family justice system are even slimmer while it is left as a plaything for various lobby groups or we are diverted by a disproportionate focus on ‘increased transparency’ as the solution.

The Ministry of Justice Harm Report in 2020 came into being after critical reporting about family cases on the Victoria Derbyshire show. It initially promised a 3-month turn around, appeared to rely uncritically on the approximately 1, 200 reports of  ‘lived experiences’ without any assessment of the truth or otherwise of their assertions. 

I wrote about my concerns in 2019.

there is a problem what I shall call the ‘DV Sector’, for want of a better title. There are a number of individual women and organisations who garner a lot of media attention, who have books and talks to promote and apparently the ear of credible and influential law and policy makers, including serving MPs. The narrative that some of them promote I think is actively harmful to reasonable debate and the rule of law. Their reaction when challenged is alarming. More people in the sector need to have the courage to speak up about this. 

I commented that this observation from the Harm Report was ‘powerfully naïve’.

Nor can we tell how representative the submissions are of all court users and professionals. As with all inquiries, the individual and organisational submissions and engagement in the data gathering process were voluntary. There is therefore likely to be some selection bias. Individuals who are largely satisfied with the process and outcomes in the family courts may have less incentive to provide evidence. Similarly, professionals who work in the system may have more incentive to defend how the system operates.
Nor can we test the accuracy and completeness of the accounts given. It is not possible to have an ‘objective’ account of what occurred in each case. Qualitative evidence presents the perceptions and views of individuals and organisations that respond. These views will be influenced by the attitudes, cultural context, organisational culture, specific role in the proceedings and individual biases of those providing evidence. They can also be subject to recall bias. The panel was well aware that submissions can be based on misunderstandings, misapprehensions or deliberate distortion as well as wishful thinking.
Despite these inherent limitations, we are persuaded that the evidence gathered does identify systemic problems with how family courts deal with domestic abuse cases and cases raising other risks of harm in private law children cases. It is unlikely that the panel has managed to uncover only isolated mistakes or rare events. The evidence does point to issues affecting multiple cases across the system and with potentially serious effects, although we were also able to identify instances of good practice.

Hopefully my arithmetic is accurate. The report claimed ‘over 1,200’ responses. If I generously assume 1,300 negative reports and take the 46,500 applications in 2019/20 as representative of the likely numbers of applications in the year preceeding the Harm Report, then the negative and unverifiable accounts represent about 3% of all applications in one year. It is ludicrous to base policies on such poor data and it is alarming how many in positions of power and influence seem to embrace this. 

It seemed to me clear where all this was supposed to be leading – to a landmark Court of Appeal case that would finally declare the Family Justice System as unable to even identify, let alone tackle, issues of abuse and violence. 

That decision of re HN and others in 2021 https://childprotectionresource.online/guidance-from-the-court-of-appeal-about-domestic-abuse-cases/ appears ironically to have had rather the opposite impact to that hoped for by those who predicted it would be the final expose of the failures of the FJS to deal with domestic violence. My experience on the ground is that it has has re-iterated the need for courts to look very closely at PD12J. The courts have risen to that challenge and in many cases following Re HN rejected the need for any finding of fact about alleged violence (a very useful case for further consideration of all the relevant principles is A & Anor v B & Ors [2022] EWHC 3089 (Fam) (02 December 2022). 

The consequences of being led by campaigners who assert that the biggest problem in the FJS is violent men and a court system that props them up, is shown by the prohibition of direct cross examination of an allegedvictim of abuse by an alleged perpetrator, introduced by section 65 of the Domestic Abuse Act 2021. 

Rather than have a judge attempt cross examination on behalf of a litigant in person, which would clearly be inappropriate, the gap is supposed to be plugged by the ‘Qualified Legal Representative’ scheme. However, recent feedback has been concerning – It seems as if only a few 100 barristers have signed up for the scheme which isn’t anything like enough, and this is going to lead to more cases being adjourned and delayed. Lucy Reed crunched some numbers in her recent blog – very few lawyers are likely to be willing to work at a loss. 

We have all noted the constant back and forth regarding parental alienation and domestic violence. The family justice system is denigrated by various campaigners and lobbyists as either a tool of misogynistic oppression or deliberately designed to freeze out fathers. Of course, both cannot be true at the same time. There are certainly violent men in the family courts, alongside emotionally abusive women. Adherence to one or the other of these extremes and calling for the FJS to ‘respond’ guarantees that cases cannot be properly assessed and triaged. All the energy wasted on arguing about whether parents do actively attempt to alienate their children from the other parent – they do – and what label we should put on this behaviour, is energy diverted from finding solutions.

Will increased transparency about what goes on in the courts help any of this? Sadly, I don’t think so. There are some notable exceptions, but many journalists do not wish to report about the family courts, but act rather to promote lobbyists. Investigative journalism is expensive and we can no longer rely on journalists as a profession to be willing and able to report – rather they offer us opinion pieces, reflecting their own bias about what is driving the family court system. Despite the fanfare of the recent transparency pilot, I will eat my wig and gown without condiments if I ever see a journalist at any of my cases. The work I do is simply not ‘sexy’ enough to warrant their attention – but it is of vital importance of course to the individuals involved. 

Conclusions

I gave up my work as activist in the FJS as it was based on the dangerous naïve premise that all we must do is talk honestly and openly and we can sort everything out. This ignores the reality that many are simply unable to see beyond their own fixed narratives; research has apparently shown that the more ‘facts’ you give a conspiracy theorist, the harder in fact they dig down. 

The barriers to a more humane and effective system remain high. There is often very little on offer by way of intervention or support or it requires significant financial resources to obtain. The money wasted on an adversarial court system could be redirected to provide more focused and effective interventions – but it’s going to require a political will and co-ordination that I frankly do not think I will see in my lifetime. The Children Act 1989 was the last great piece of legislation to reform a fragmented system that crossed political lines and united everyone. 

One thing that really stuck in my mind following the FJC conference last year was the mother who said that the FJS had saved her and her children. Child protection is all our business. I think there is a continuing role and a societal need for a family justice system – but it must be committed to identifying which families need state intervention, and which families are harmed, and it must resist the interference and unevidenced demands of single-issue lobbyists. 

Our current system does not triage effectively – or at all – and this causes great misery and wastes huge amounts of money. I hope we are going to see some changes in my lifetime, and I hope I have been able to plant some further seeds of thought and discussion here today. 

Further reading

Why does everyone hate the Family Court? And what if anything can we do about it? Child Protection Resource January 2019 https://childprotectionresource.online/why-does-everyone-hate-the-family-courts-and-what-if-anything-can-we-do-about-it/

Why does everyone hate the Family Court Part 2 Child Protection Resource February 2019 https://childprotectionresource.online/why-does-everyone-hate-the-family-court-part-ii/

Why does everyone hate the Family Court Part 3 – what narrative is gaining ground and why should this concern us? Child Protection Resource April 2019 https://childprotectionresource.online/why-does-every-one-hate-the-family-court-part-iii-what-narrative-is-gaining-traction-and-why-should-this-concern-us/

Why does everyone hate the Family Court Part 4 May 2019 https://childprotectionresource.online/why-does-everyone-hate-the-family-court-part-four/

Ministry of Justice Harm Report 2020 https://consult.justice.gov.uk/digital-communications/assessing-harm-private-family-law-proceedings/results/assessing-risk-harm-children-parents-pl-childrens-cases-report.pdf

Assessing risk of harm in private law cases Child Protection Resource June 2020 https://childprotectionresource.online/assessing-risk-of-harm-to-children-and-parents-in-private-law-cases/

Private Law Working Group Second Report March 2020 https://www.judiciary.uk/wp-content/uploads/2020/04/PRIVATE-LAW-WORKING-GROUP-REPORT-1.pdf

Uncovering children private law – who is coming to court in England? Report by the Nuffield Family Justice Observatory https://www.nuffieldfjo.org.uk/wp-content/uploads/2021/05/nfjo_whos_coming_to_court_England_full_report_FINAL-1-.pdf

Time for Climate Change in the Family Justice System Child Protection Resource April 2022 https://childprotectionresource.online/time-for-climate-change-in-the-family-justice-system/

Family Court Reform Coalition Report July 2022 https://fcrc.uk/final-report/

Governement Guidance re Qualified Legal Representatives July 2022 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1101848/final-statutory-guidance-role-of-the-qualified-legal-representative.pdf

Summary of the law to be applied in a finding of fact about suspected injury to a child

Burden and standard of proof

The burden of proof lies with the local authority. The inherent probability or improbability of an event remains a matter to be taken into account when weighing probabilities and deciding whether, on balance, the event occurred (Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35 at paragraph 15].  There is no room for a finding by the court that something might have happened. The court may decide that it did or that it did not happen [Re B at paragraph 2]. The standard of proof does not shift according to the seriousness of the allegation, nor the inherent probability or improbability of an event occurring.  See Baroness Hale in Re B (Children)(Fc) [2008] UKHL 35:

The standard of proof is the balance of probabilities (Re B [2008] UKHL 35).

Do not speculate and do not reverse the burden of proof

Findings of fact must be based on evidence. As Munby LJ, as he then was, observed in Re A (A Child) (Fact-finding hearing: Speculation)[2011] EWCA Civ 12:

“It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation.”

Findings of fact must not be based on hypothesis. The Court must avoid speculation, particularly in situations where there is a gap in the evidence. As stated by Munby LJ in Re A (Fact finding hearing: Speculation) [2011] EWCA Civ 12 at (26)

It is for the Local Authority to satisfy the court, on the balance of probabilities, that it has made out its case in relation to disputed facts. The parents have to prove nothing and the court must be careful to ensure that it does not reverse the burden of proof.  

Lancashire v R [2013] EWHC 3064 (Fam), ‘there is no pseudo-burden upon a parent to come up with alternative explanations’ [paragraph 8(vi)].  Having heard all the evidence it is open to the court to conclude that the evidence leaves it unsure whether it is more probable than not that the event occurred and accordingly, that party who has the burden of proving that event has occurred has failed to discharge the burden – The Popi M, Rhesa Shipping Co SA v Edmunds, Rhesa Shiping Co SA v Fenton Insurance Co Ltd [1985] 1 WLR 948.  The fact that  the local authority relies on the lack of a satisfactory explanation for the injuries does not amount to a reversal of the burden of proof – Re M-B (Children) 2015 EWCA Civ 1027, [2015] All ER (D) 135.

Consider all the evidence

When considering cases of suspected child abuse the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss P observed in Re T [2004] EWCA Civ 558, [2004] 2 FLR 838 at 33:

“Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.”

Reliance on expert evidence

Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the expert are distinct. It is the court that is in the position to weigh up expert evidence against the other evidence (see A County Council & K, D, & L [2005] EWHC 144 (Fam); [2005] 1 FLR 851 per Charles J). Thus there may be cases, if the medical opinion evidence is that there is nothing diagnostic of non-accidental injury, where a judge, having considered all the evidence, reaches the conclusion that is at variance from that reached by the medical experts.

The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others (see observations of King J in Re S[2009] EWHC 2115 Fam)

In Re U (Serious Injury: Standard of Proof): Re B [2004] 2 FLR 263 at paragraph 23. Butler-Sloss P –

The cause of an injury or an episode that cannot be explained scientifically remains equivocal.

  • Recurrence is not in itself probative.
  • caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause.
  • The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice.’
  • The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark.’

As observed by Hedley J in Re R (Care Proceedings: Causation)[2011] EWHC 1715 Fam:

“There has to be factored into every case which concerns a disputed aetiology giving rise to significant harm a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities.”

Evidence of the parents/carers and the impact of lies.

The evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them (see Re W and another (Non-accidental injury) [2003] FCR 346).   

As observed by Mostyn J in Lancashire County Council v R [2013] EWHC 3064 (Fam) (citing Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403, per Lord Pearce and A County Council v M and F [2011] EWHC 1804 (Fam) [2012] 2 FLR 939 at paras [29] and [30]) ‘The assessment of credibility generally involves wider problems than mere “demeanour” which is mostly concerned with whether the       witness appears to be telling the truth as he now believes it to be. With every day that passes the memory becomes fainter and the imagination becomes more active. The human capacity for honestly believing something which bears no relation to what actuallyhappened is unlimited. Therefore, contemporary documents are always of the utmost importance’.

It is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981] QB 720). In Re A-B-C (Children ) [2021] EWCA 451 Macur LJ provided updated guidance on the assessment of credibility.

That a witness’s dishonesty may be irrelevant in determining an issue of fact is commonly acknowledged in judgments, and with respect to the Recorder as we see in her judgment at [40], in formulaic terms:

“that people lie for all sorts of reasons, including shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure and the fact that somebody lies about one thing does not mean it actually did or did not happen and / or that they have lied about everything”. 

But this formulation leaves open the question: how and when is a witness’s lack of credibility to be factored into the equation of determining an issue of fact? In my view, the answer is provided by the terms of the entire ‘Lucas’ direction as given, when necessary, in criminal trials. 

Chapter 16-3, paragraphs 1 and 2 of the December 2020 Crown Court Compendium, provides a useful legal summary:

“1. A defendant’s lie, whether made before the trial or in the course of evidence or both, may be probative of guilt. A lie is only capable of supporting other evidence against D if the jury are sure that: (1) it is shown, by other evidence in the case, to be a deliberate untruth; i.e. it did not arise from confusion or mistake; (2) it relates to a significant issue; (3) it was not told for a reason advanced by or on behalf of D, or for some other reason arising from the evidence, which does not point to D’s guilt. 

The direction should be tailored to the circumstances of the case, but the jury must be directed that only if they are sure that these criteria are satisfied can D’s lie be used as some support for the prosecution case, but that the lie itself cannot prove guilt. …”

56. In Re H-C (Children) [2016] EWCA Civ 136 @ [99], McFarlane LJ, as he then was said: “99 In the Family Court in an appropriate case a judge will not infrequently directly refer to the authority of Lucas in giving a judicial self-direction as to the approach to be taken to an apparent lie. Where the “lie” has a prominent or central relevance to the case such a self-direction is plainly sensible and good practice. 100 … In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should therefore take care to ensure that they do not rely upon a conclusion

57. To be clear, and as I indicate above, a ‘Lucas direction’ will not be called for in every family case in which a party or intervenor is challenging the factual case alleged against them and, in my opinion, should not be included in the judgment as a tick box exercise. If the issue for the tribunal to decide is whether to believe A or B on the central issue/s, and the evidence is clearly one way then there will be no need to address credibility in general. However, if the tribunal looks to find support for their view, it must caution itself against treating what it finds to be an established propensity to dishonesty as determinative of guilt for the reasons the Recorder gave in [40]. Conversely, an established propensity to honesty will not always equate with the witness’s reliability of recall on a particular issue.

58. That a tribunal’s Lucas self-direction is formulaic, and incomplete is unlikely to determine an appeal, but the danger lies in its potential to distract from the proper application of its principles. In these circumstances, I venture to suggest that it would be good practice when the tribunal is invited to proceed on the basis , or itself determines, that such a direction is called for, to seek Counsel’s submissions to identify: (i) the deliberate lie(s) upon which they seek to rely; (ii) the significant issue to which it/they relate(s), and (iii) on what basis it can be determined that the only explanation for the lie(s) is guilt. The principles of the direction will remain the same, but they must be tailored to the facts and circumstances of the witness before the court.

Pool of perpetrators

When seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator (see North Yorkshire County Council v SA[2003] 2 FLR 849. In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool. (see Re D (Children) [2009] 2 FLR 668, Re SB (Children) [2010] 1 FLR 1161)

The further point, made in Re D (Children) 2009 2FLR 668 above and endorsed by the Supreme Court in Re SB (Children) 2010 1FLR 1161 above that, in circumstances where it is impossible for a judge to find on the balance of probabilities that Parent A rather than Parent B caused the injury and neither can be excluded from the pool, that ‘the judge should not strain to do so’ was expressly rejected by the Court of Appeal in Re A (Children) (Pool of Perpetrators) 2022 EWCA Civ (decided on 17 October 22).

In Re A (Children) (Pool of Perpetrators) above, at pr. 34, King LJ says as follows:

‘I suggest, therefore, that in future cases judges should no longer direct themselves on the necessity of avoiding “straining to identify a perpetrator”. The unvarnished test is clear: following a consideration of all the available evidence and applying the simple balance of probabilities, a judge either can, or cannot, identify a perpetrator. If he or she cannot do so, then, in accordance with Re B (2019), he or she should consider whether there is a real possibility that each individual on the list inflicted the injury in question.’

In Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575 the correct approach to the concept of the ‘pool of perpetrators’ was reiterated. Jackson LJ says: 

48. The concept of the pool of perpetrators should therefore, as was said in Lancashire, encroach only to the minimum extent necessary upon the general principles underpinning s.31(2).  Centrally, it does not alter the general rule on the burden of proof.  Where there are a number of people who might have caused the harm, it is for the local authority to show that in relation to each of them there is a real possibility that they did.  No one can be placed into the pool unless that has been shown.  This is why it is always misleading to refer to ‘exclusion from the pool’: see Re S-B at [43].  Approaching matters in that way risks, as Baroness Hale said, reversing the burden of proof. 

49. To guard against that risk, I would suggest that a change of language may be helpful.  The court should first consider whether there is a ‘list’ of people who had the opportunity to cause the injury.  It should then consider whether it can identify the actual perpetrator on the balance of probability and should seek, but not strain, to do so: Re D (Children) [2009] EWCA Civ 472 at [12].  Only if it cannot identify the perpetrator to the civil standard of proof should it go on to ask in respect of those on the list:  “Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?”  Only if there is should A or B or C be placed into the ‘pool’.

Finally, when the court is considering failure to protect there must be a connection between the facts found and the risk alleged in the form of evidence that the parents knew or ought to 

Further reading

W (A Child) (inflicted injury) [2024] – court fell into a number of errors in principle when assessing who was responsible for a child’s fractures.

Leeds City Council v A 2024] EWFC 242 (B) -a useful and comprehensive overview of the legal principles governing findings of fact in cases of injury and sexual abuse of a child

Taking a child abroad for a double mastectomy

Judgment in the case of Re S (Inherent Jurisdiction: Transgender Surgery Abroad)[2023] EWHC 347 (Fam) was handed down in February 2023.

Sam aged 15 at the time of the application, wanted to travel to Country X to undergo a double mastectomy. Sam had been born a girl but wished to be live as the male sex. Sam and her family had all been born in Country X but had been living in England for some years at the time. On 20th July 2022, the local authority applied for permission to invoke the inherent jurisdiction of the High Court, to prevent Sam travelling for surgery on 24th July. Sam’s identity and any of the ‘granular’ facts of this case have been obscured by the court, Sam having found this whole process, unsurprisingly, ‘excruciating’.

The Children Act 1989 section 100 puts a number of restrictions on the ability of a local authority to invoke the inherent jurisdiction or ‘wardship’ jurisdiction. I have written more generally about the nature and extent of the court’s powers in wardship here. This is a very ancient jurisdiction and allows the High Court to make orders to protect children from significant harm, even if there is no statutory provision to do so.

The local authority cannot use the inherent/wardship jurisdiction to have a child put in its care under its supervision or otherwise accommodated; nor to give it power to determine any question arising around parental responsibility for a child. The court must give permission for such an application to be made.

The run up to the final hearing

At the hearing on 24th July, the judge ordered that Sam was not to undergo any gender reassignment surgery without the permission of the court and was not to leave, or be removed from, the jurisdiction for the purpose of undergoing any surgery until further order.

An attempt by Sam and the family to get the proceedings dismissed in October 2022 failed By that time the court had received a substantial body of medical records tracking the various consultations and other interventions that the family had sought in the preceding months and years. The local authority moved its focus from the potential for ‘serious harm to [Sam’s] physical and emotional welfare and wellbeing’ to the question of whether full and valid consent to the planned surgery had been given by Sam and/or his parents. The court wanted further investigation.

The final hearing – application to withdraw

The case was listed for final hearing before the President of the Family Division. 5 days before the hearing, the local authority was putting its case on (i) legality of the operation in Country X and (ii) the validity of consent. However, on the morning of the first day of the final hearing, after the President’s clerk had contacted the parties and asked them to consider a number of issues around the validity of the application, the local authority applied to withdraw its application on the basis that it could not discharge the burden of proving its case. Sam and her parents were very relieved and there was no opposition from the Children’s Guardian. Those representing the family members then made application for costs against the local authority.

So what went wrong?

To trigger use of the inherent/wardship jurisdiction the local authority must show that there are reasonable grounds to believe that the child will otherwise suffer significant harm. Its initial statement did not go into great detail, simply saying it was worried about Sam’s emotional and physical welfare, the NHS had not been engaged and there were no proposals for Sam’s after care. However, Sam’s father produced a letter from an expert in Country X who asserted that such surgery was not unlawful in this country and was ‘tolerated’ for those under 18 who were undergoing gender ‘transition’ or ‘confirmation’.

The court considered at an early stage if the local authority should make an application for a care order but the local authority said it did not intend to:

The risk of significant harm that we were concerned about has currently been substantially reduced by our involvement, namely through the existing court order to prevent [Sam] having the operation. Currently the parents are engaging with us and have agreed to a Child in Need process which is positive. It is considered that applying for any further orders at this current time is unnecessary and to do [so] could be oppressive. The local authority does not feel that it is in [Sam’s] best interests at this time and could cause more distress for [Sam] and his family.’

The President found this position ‘legally incoherent’ – as explained above, the inherent jurisdiction cannot be invoked by a local authority if it could achieve its aims by either a care or a supervision order. Whether it wants to or not is irrelevant and to proceed in this way was to ‘distort’ the existing legal structure which ought to be well known to all family lawyers.

The President further noted that the local authority position focused on whether or not the surgery was permitted in Country X and whether proper consent had been given. There was very little reference to any ‘harm’ that would be suffered by Sam, but in an application of this nature the court would expect discussion of possible harm to be of prime importance. Nor was there much reference to Sam’s welfare and the need for the court to make this its paramount concern.

With regard to permission to withdraw proceedings, the court noted that the local authority required permission under Family Procedure Rules 2010, r 29.4(2)21 and the most recent authority is GC v A County Council and Others [2020] EWCA Civ 848, [2020] 2 FLR 1151 in which the court described the approach to be taken. The local authority maintained that it had been right to bring the application and that much detailed evidence had emerged only very recently that allowed it to reconsider its position on legality and consent.

The other parties did not accept this, saying that the evidence had been well known to the local authority for some time. The President noted:

The making of this application and its prosecution over a period of in excess of 6 months has caused harm to Sam and to each of his parents. The impact on him has been ‘excruciating’ and has, in particular, detrimentally affected his schooling. The father’s description of the effect that the local authority’s intervention has had on Sam is one of devastation. The parents have described the court process as very frightening. The mother has been particularly focussed on the possibility that she might be sent to prison if court orders are disobeyed. Both parents are now on medication to help them cope with the consequences of the litigation. The impact of these proceedings on this small family is likely to last into the long-term.

The key issue was whether the local authority had acted unreasonably. The court considered the judgment of Lady Black in Re T [2021] UKSC 35 which focusses on CA 1989, s 100 at paragraphs 118 and 119. The President made costs orders, concluding that the local authority had acted unreasonably in focusing on the legality of the operation and issues around consent where ‘there is no evidence to establish a likelihood of significant harm or that to undertake the operation as planned is contrary to Sam’s welfare…’

Comment – no evidence of significant harm?

As the application before the court was for permission for the local authority to withdraw its application, that was the only substantive issue before the court (apart from also the issue of costs). Therefore the court made some comment on matters of general importance but accepted they were no more than ‘observations’. These points may need to be taken up and fully argued in future contested litigation.

What is of particular interest are the President’s comments about the issue of ‘significant harm’ to Sam and how there was ‘no evidence’ to support a finding that she was at risk of suffering this.

The decision taken by Sam and his parents in favour of surgery was a complex one involving consideration of a range of sophisticated factors. In the circumstances of this case I would have needed a good deal of persuasion before holding that the plan for Sam to go abroad for chest surgery was likely to cause him significant harm, or that to do so was not in his best interests. Further, as is now accepted by the local authority, in a case of two parents who are conspicuously well intentioned, law abiding, loving and child focussed, and in a case where Sam is plainly an intelligent and thoughtful individual who is so well settled in his life as a young man, the prospect of the court concluding that there was some defect in their approach to consent was remote.

Of course, I have not been able to read any of the evidence presented in this case. I do not know the precise nature of the ‘range’ of ‘sophisticated factors’ that were considered. But what is inescapable is that this case involved a child – aged 15 at the date of the proposed surgery – who had to travel abroad for a procedure which it is unlawful to carry out in the UK.

One might suppose that the issue of ‘significant harm’ is encapsulated in the unlawfulness of carrying out such irreversible surgery on a minor in the UK. But the President of the Family Division did not agree.

And in all the genuine and reasonable concern about ‘access’ to ‘gender affirming care’ we now see a very stark two tier system opening up. If your parents are wealthy enough, then they can fly you to a country that does consider it lawful to remove the healthy breasts of a child in order to ‘affirm’ that child’s gender. But a double mastectomy does not make a female a male. There is simply insufficient evidence for the President – or indeed anyone – to conclude that a child will remain ‘well settled’ in their life as the opposite sex, when there is no medical or surgical route that can establish a change of sex.

I suspect a case will be coming and soon where these fundamental issues will need to be grappled with. If children can routinely be transported out of the UK for surgery that is unlawful here, how soon will it be before pressure is applied on the NHS to carry such surgeries?

Procedures on Bruises in Pre-Mobile children

Notes from presentation ‘Procedures on Bruises in Pre-Mobile Children – why we need improved standards for policy making’ by Andy Bilson, Emeritus Professor of Social Work, University of Central Lancashire. 

AB requests that all local authorities review their policies and don’t make automatic section 47 referrals. Looking at bruising to a 4 week old baby. 2, 2cm bruises. What can have caused them? 

In this case, parent could offer no explanation. But these bruises were caused by baby suckling on his arm when hungry. Full child protection review, then baby was witnessed suckling his arm. This is not uncommon. 

Automatic investigation of any bruise under section 47, AB says is ‘not technically legal’. 

AB is going to

  • review the evidence base on accidental bruising,
  • review the procedures for pre-mobile children and
  • consider the impact of procedures. 

Impact on parent whose children was removed. Assumption that one bruise was good enough evidence to suggest child at risk of significant harm. ‘All I did was cry. I didn’t sleep’. 

Evidence base in RCPCH review – Pierce 2016. Under 6 months, 1.3% had a bruise (18/1395) – children seen at hospital. only one occasion of observation. Problems with research. Rates of bruising massively different between the 3 hospitals. 

Kemp 2015 – in Wales. Recruited people to report on weekly basis 1-12 weeks if their child had a bruise. Nurses visited to ensure accuracy.5.3% (7/133) had bruise. didn’t find any NA bruises. 

This was as high as 10.9% if baby rolling, 1.3% if not rolling. Longitudinal data. Over 7-8 weeks, 27% of babies had a non accidental bruise. Therefore 1 in 4 babies had a bruise over a period. 

Sugar 1999 – large study ‘children who don’t cruise, rarely bruise’. This has been disseminated widely. Pre-cruisers 2.2% (11/511). 0.6% ‘no upright ambulation’. Excluded abuse. African American children 3 times less likely to be bruised than white children. 

Carpenter 1999 – less than 6 months 4% 4/101. looked at a small number of children but over many occasions. Relies on parents reporting from local community. 

Challenge myths – accidental bruising in babies is NOT rare. Children can crawl from 4 months. ratio of accidental bruises to those leading to child protection plans is at least 1900 to 1. NO studies show bruising is ‘sentinel injury’. 

if ‘sentinel injury’ would expect Welsh study to show a higher number of children going on to be serious harmed. We orient to see bruises in a particular way. Expectation that parents will notice bruises. 

Causes in Welsh study – lying on dummy, children hit themselves in face with something. Toy dropped by sibling. 

Review of procedures – concern is that the wrong kind of policies and procedures will make parents more wary about seeking help. 

Since Dec 2010 AB has examined 147 Safeguarding Children Partnerships policies – 35 didn’t have ANY definition of ‘pre-mobile’. 12 treated rolling children as mobile, 25 did not! 74 included all children under 6 months. Big difference in Kemp study between rolling and not rolling. 

impact of getting this wrong in both directions is a problem – must avoid over and under reaction. 

Tendency to exaggerate – 20 LA procedures say any bruise is ‘highly predictive’ of child abuse. Almost all say that accidental bruises are ‘very rare’ – this is misunderstanding of statistics. 2% is not ‘rare’. 

Many procedures say ‘a small percentage of bruising in children not independently mobile will have innocent explanation or medical cause’ – they are trying not to miss anything but AB doesn’t think this is the right thing to do. 

18 LA ignore research and claim that infants do NOT bruise themselves by lying on dummy or banging themselves with rattles etc. and say that a self inflicted explanation should be rejected. 

Moving straight to section 47 investigation is therefore unlawful, as no reasonable cause. 

Almost all procedures require referral to CSC and a paediatrician. 27 LA required strategy meeting in all cases. That isn’t following national guidelines. 8 LA require immediate section 47 for bruises on any pre-mobile children. 

Bedford Borough – following 3 Serious Case Reviews, automatic section 47 for any child under 6 months who has any kind of physical injury. e.g. bruise, thermal injury, clinical or radiological evidence of fracture. 

Only challenge to section 47 is by judicial review and only one reported case – Judge commented on how significant a process this is