Author Archives: Sarah Phillimore

Medical transition of children – where now?

This is a post by Sarah Phillimore. I look at the implications of the determination on the facts in the medical disciplinary proceedings bought against Dr Helen Webberley and consider the implications for professionals with statutory obligations to safeguard children. I hope the social work members of EBSWA will respond to this post and offer their insight into how social workers should respond, and hopefully we can organise a webinar to share our joint thoughts.

DETERMINATION ON THE FACTS – 22/04/2022 

Dr Webberley has been a long standing and enthusiastic proponent of medical transition for children, and has prescribed female children under the age of 16 with testosterone via a variety of online services such as ‘Gender GP’. On 5 October 2018 she was convicted of two counts in relation to the carrying on or managing of an independent medical agency without being registered under the Care Standards Act 2000, and was fined £12,000. The General Medical Council challenged her continuing fitness to practice around allegations from her care and treatment of ‘transgender children’ in 2016/7.

The Tribunal found Dr Webberley competent to provide hormones to children, but she kept inadequate records, had failed to record or properly consider consent or provide adequate follow up care, leaving one child in a ‘state of anguish’. 

The Tribunal will meet again in June 2022 to decide what penalty should follow these findings. I set out a precis of the background and the Tribunal’s reasoning below; for the full discussion please refer to the determination on the facts.

This determination has caused me significant concern. It makes four particular assertions which I do not think are supported by the available evidence and which have potentially harmful ramifications for children. 

  • ‘gender dysphoria’ is a product of something innate and physical. It is therefore wrong to label it a ‘mental illness’ and wrong to insist on ‘gate keeping’ via mental health screening. ‘Transgenderism’ has been ‘reclassified’ as a physical condition related to sexual health. 
  • Gender dysphoria manifesting before puberty is often self-remitting, whereas gender dysphoria persisting into puberty or manifesting itself during puberty is far more likely to require gender-affirming therapy.
  • Those who object to the medical transition of young children are ‘unenlightened’ and their objections akin to homophobia. 
  • The Tribunal rejected the assertion that a child’s gender identity develops over time as ‘unevidenced’ despite the research over many decades of expert child development psychologists which supports this.

The Tribunal recognised that while hormones had been prescribed for transgender patients over many years, what was different now is the age of transgender patients to whom these hormones were being administered. However, it appeared to ignore or skate over the following issues: 

  • As the Divisional Court commented in Bell v Tavistock, there was a risk that the affirmation path ‘locked in’ children to escalating medical and surgical interventions
  • The risk of social contagion, seen in the incredible surge in adolescent female patients at the Tavistock around the relevant time, many of whom were also diagnosed with autism
  • The increasing narratives of those now in their early 20s who ‘destransitioned’ and feel profound regret
  • The apparent internalised homophobia which appears to be motivating some parents
  • The interim report of the Cass Review, that sets out the lack of any clear evidence base to support the assertion that puberty blockers and cross sex hormones are ‘harmless’ or ‘reversible’
  • Reliance on assertion that children deprived of treatment may kill themselves; it is not clear from the determination what is the evidence base for this assertion. 

Given that it the Tribunal did not restrict itself to simply making comment on the state of play in 2016/7 but were clear to criticise people as bigots if they didn’t support medical transition, in my view it was incumbent on them to at least consider the wider landscape and the rejection by the Cass Review interim report of their assertions that it is possible on the current state of the evidence to opine about the safety of prescribing testosterone to 11 year old girls. This report was in February 2022 so was available to the Tribunal prior to the handing down of their determination.

I am particularly concerned by the apparent lip service paid by the Tribunal to the fundamental importance of informed consent from children who are contemplating irreversible and life long medical or surgical intervention. This for example was Patient C’s level of thinking

I would like to not have boobs;

I’d like my boobs cut off – they wobble now and get on my nerves;

I want to have hormone blockers to stop my boobs growing because they are getting too big now. I know the boobs won’t go away;

Patient A was dismissive of the importance of any other intervention – note an email from patient A to Dr Webberley I find going to the Tavistock pointless, because James askes non related and personal questions for an hour, and not only is it boring, it doesn’t help me at all. I know we had to do it to get blockers, because we didn’t know about you at the time but I don’t want to go back as it is a waste of time

However the Tribunal did find that Dr Webberley failed to properly deal with issues around fertility with regard to Patient C – given that this child was aged 11 at the time, its very difficult for me to understand how informed consent to possible sterilisation could ever be given. 

I think the implications of this for those professionals who work directly with children and have statutory obligations to secure their welfare – such as social workers – are very serious. I am not competent to unpick the medical evidence which informed the Tribunal’s determination but it is clear that the views asserted as ‘fact’ are, to say the least, controversial. Even if what they find is true – that ‘gender identity’ is something innate and identifiable in the physical structures of the body – what is the prevalence of such a condition? How is it identified? We appear to have no reliable way of identifying which children are genuinely gender dysphoric and which children have been told that ‘changing sex’ is the answer to the confusion they feel about possibly a multiplicity of other traumas or challenges in their lives. 

To the man with a hammer, everything is a nail. I am worried that what is happening is that ideology is becoming baked into medical practice – as per Mermaids promotion that  ‘a child of any age who says they are trans, are trans’. It is no reassurance that Dr Webberley’s bespoke ‘multi disciplinary team’ compromised of Dr Pasterski and her husband; both having demonstrating very clear allegiance to an ideology of gender identity expression. Dr Webberley has clearly worked closely with Mermaids and the emotional responses she gives in emails to the parents of her child patients sounds an alarm bell to the extent to which her professional clinical judgment is overshadowed by ideological zeal. Providing cross sex hormones to children is not a ‘civil rights issue’ – as Mermaids would have it. It’s a profoundly serious intervention in a child’s life with potential irreversible consequences and requires objective clinical assessment.

What appears to be motivating the ever decreasing age at which cross sex hormones are prescribed is concern by adults that the child will ‘not pass’ if allowed to go through puberty and develop secondary sex characteristics. But of course the alternative, as we see in the desperately sad case of Jazz Jennings, early administration of puberty blockers and cross sex hormones left the child with insufficient penile tissue to perform a successful penile inversion and construct a neo vagina – colon tissue had to be used. 

This determination, if relied upon by professionals or parents as authoritative comment, puts social workers and lawyers in a very difficult position if they are attempting to advocate for ‘gender diverse’ children, effectively condemning them as ‘bigots’ if they express any concern about what is motivating a young child’s wish to medically transition.  It is a very stark indication of just how urgently we need clear and definitive guidance. I have no doubt that ‘transition’ is being promoted to some very vulnerable and unhappy children as the ‘fix’ for all their problems. They are highly unlikely to be capable of understanding the ramifications of medical transition and its life long consequences. It is not ‘enlightened’ to subject children to a treatment they cannot understand and most will never need. To say that the view I express here is akin to ‘homophobia’ is insulting and ridiculous. I reject it. No gay child ever needed to deny their own physical body to be gay. When it comes to medicating children, I assert there are zero useful comparisons between ‘transgenderism’ – a belief in a ‘gender identity’ and homosexuality – a same sex attraction. 

Suggested way forward

I offer the following guidance to lawyers and social workers who may now understandably be reeling in confusion from the starkly contradictory messages from this increasingly polarised issue. This is how I will approach such cases, on the basis of the knowledge and understanding I now have. I hope that social work members of EBSWA will now respond to this post with their suggestions for how we should approach the issue of ‘transgenderism’ in children under 16. 

  • Pre school children should not be encouraged to socially transition. There is no need for rigid gender stereotyping to be promoted at this age. Children ought to be allowed to wear what they like within reason and play with whatever toys they like 
  • If primary school children are expressing a wish to transition, then careful and holistic examination of their environment is required. What are the views of the parents? What other mental health/social challenges is the child facing? How do they impact upon issues of gender dysphoria? In my view it is highly unlikely that any primary school child would be Gillick competent to consent to even social transition and the child’s parents must be involved in any such decisions. 
  • Secondary school children are likely to be Gillick competent in many areas. However, the ramifications of medical and surgical transition are so serious I think it is likely the majority of children under 16 simply cannot given informed consent. The same careful analysis of their social environments is required. What support is available for them in terms of talking therapies? The issue of parental involvement is more complex if a Gillick competent child objects, but I suggest that schools should be slow to exclude a parent from information about a child’s claimed gender identity expression. 
  • Experts with an ideological bent or an overly emotional response to the issue of childhood medical transition should be avoided.
  • Parents who claim that children have expressed ‘revulsion’ for their birth sex from a very early age should be treated with caution and their assertions not simply taken at face value.

Given the current state of the evidence and the worrying indications that many practitioners in this field are driven by ideological commitment to ‘gender identity expression’ I would favour a hard ban on any medical intervention for children under 14 and on any surgical intervention for any child under 18. I would prefer it if there was a professional obligation on doctors for a genuinely ‘multi disciplinary’ team to review any decision for cross sex hormones for a child under 16.

I call for continued rational and responsible discussion about what evidence we need to justify another approach and I hope the final Cass Report will assist us here.  It is very difficult for me to reconcile the comments made by this Tribunal and the interim Cass Report.

Background 

The allegations against Dr Webberley were extensive but can be briefly summarised; between March 2016 and May 2017, she failed to provide good clinical care and treatment to three transgender adolescents, appeared to be ignorant of safeguarding policy and had been dishonest about a variety of matters. The full details of the allegations are set out in the determination on the facts. The patients were aged 11 years and 10 months, 16 years and 3 months and 10 years and 7 months respectively, when they and/or their parent first contacted Dr Webberley.

The GMC case against Dr Webberley was essentially:

…the care of transgender adolescents is complex and that, in consequence, the care of Patients A, B and C could only be delivered within a multidisciplinary team with input from specialists, particularly those from the disciplines of psychology/psychiatry and paediatric endocrinology. The GMC alleged that Dr Webberley, a GP, was not competent to deliver the care in question and that it was not delivered within a multidisciplinary team setting.”

Dr Webberley’s barrister made closing submissions in the following vein

‘This is the oddest of cases. No one has suggested that each of the patients did not suffer from gender dysphoria. No one has suggested that the treatment for gender dysphoria in this case is not puberty blockers and/or testosterone. None of the patients has complained about the care they received from Dr Webberley. Quite the contrary, the mother of Patient A and the mother of patient C were asked to provide statements to the GMC and the GMC obtained statements from them. Each is glowing in their support of Dr Webberley and each views the care that she provided to their son as life-saving.’

Patient A wished to transition from female to male; concerns were raised about the care and treatment provided by Dr Webberly in 2016 by Professor Peter Hindmarsh, the Clinical Director of Paediatrics at the University College London Hospitals. Patient A’s family had contacted Dr Webberley via one of her websites, and she prescribed ‘gender-affirmation hormone (‘GAH’) therapy – i.e. testosterone. Professor Hindmarsh was concerned this was not appropriate for a child under 16, the dose prescribed was too high and no attempts were made for patient A to undergo any psychological assessment or be manged by a multi disciplinary team (MDT). 

Concern was raised over Patient B by Dr Roger Walters, consultant child and adolescent psychiatrist with the Buxton Child and Adolescent Mental Health Service (CAMHS). Patient B was a female who identified as male and was also receiving testosterone from Dr Webberley, which had been obtained by her internet website. Dr Walters was worried about the impact on Bs mental health and if this prescribing of testosterone was in line with standard practice. He attempted to liaise with B’s GP and Dr Webberley, who did not engage. 

Patient C, another female wishing to transition to male, came to Dr Webberley aged 11 due to the long waiting lists for treatment at GIDs. Dr Webberley wrote to C’s GP, explaining that she wished to prescribe puberty blockers for C, having assessed C alongside a psychologist and explained possible issues re fertility. The GP surgery eventually sought advice from Professor Gary Butler at the UCLH, who raised concern that Patient C had been prescribed puberty blockers without the appropriate assessments, including any psychological assessments. Further, Professor Butler was also concerned that Dr Webberley’s clinical practice was restricted by the GMC, and that he had reported his concerns to the GMC.

The Tribunal received evidence on behalf of the GMC from a wide variety of witnesses, and on behalf of Dr Webberley from the following expert witnesses

  • Dr Valerie Pasterski, Chartered Psychologist and Gender Specialist, report dated 19 August 2021;
  • Dr Daniel Shumer, Paediatric Endocrinologist, reports dated 22 August 2021 and 25 August 2021 
  • Dr Walter Bouman, Consultant in Transgender Health, reports dated 23 August 2021 and 5 September 2021.

Its worth noting that Dr Pasterski was the expert who persuaded Mr Justice Williams to the ‘enlightened’ thinking that there was nothing remotely odd in two unrelated foster children aged 4 and 7, in the same family, expressing a wish to transition.

The GMC case relied on two clinical practice guidelines, namely 7th edition of the World Professional Association for Transgender Health’s Standards of Care (2012) (WPATHSOC7) and the Endocrine Society’s Clinical Practice Guidelines (2009) as benchmarks in transgender healthcare at the material time. The Tribunal agreed that WPATHSOC7 has the status of peer-reviewed expert guidance and that ‘transgender healthcare’ was an evolving discipline during the material time. 

Transgender healthcare services for children and adolescents should, according to WPATHSOC7, be provided by a multidisciplinary team that includes, inter alia, mental health professionals and paediatric endocrinologists. Mental health professionals are central to the WPATHSOC7 vision of how transgender healthcare services should operate, the Tribunal noting the importance of mental health screening:

Clients presenting with gender dysphoria may struggle with a range of mental health concerns whether related or unrelated to what is often a long history of gender dysphoria and/or chronic minority stress. Possible concerns include anxiety, depression, self-harm, a history of abuse and neglect, compulsivity, substance abuse, sexual concerns, personality disorders, eating disorders, psychotic disorders, and autistic spectrum disorders. Mental health professionals should screen for these and other mental health concerns and incorporate the identified concerns into the overall treatment plan.’

The Endocrine Society Guidelines 2009 endorsed the then prevailing WPATH guidelines (WPATH-SOC6) regarding the gate-keeper role of the mental health professional but, surprisingly for a document written by endocrinologists, it contained no guidance concerning the training or competencies required of a hormone-prescribing physician. The Tribunal found it difficult to reconcile the roles of hormone prescriber and diagnostician if the former is an endocrinologist and the diagnosis is a mental illness. 

The Guidelines suggest that to receive ‘gender-affirming hormones’ an adolescent should be over 16 but this was a ‘suggestion’ not a ‘recommendation’. The Tribunal found this suggestion was based on the legal position that children aged 16 are generally considered as adults for medical decision making; it did not have a medical or biomedical basis. 

Both WPATHSOC7 and Endocrine Society Guidelines 2009 advocate a staged approach to physical interventions in transgender healthcare. Stage-1 involves the arresting of endogenous puberty through the administration of medications such as GnRHa. Stage-2, the administration of gender-affirming hormones to induce transgender puberty. Stage-3 is the surgical remodelling of the body. Stage-1 interventions are regarded as fully reversible, although concerns have been raised that protracted use of GnRHa may impact adversely on skeletal health; stage-2 as partially reversible and stage-3 as irreversible.

The Tribunal noted that there were no NICE guidelines specifically relating to the treatment of gender dysphoria at the material time, nor have any been developed to date and therefore while GIDS is contractually obliged to deliver its service in line with emerging evidence for best practice, it is in reality tethered to WPATHSOC7 and Endocrine Society Guidelines 2009.

To access endocrine interventions, GIDS service users must undergo multiple stepwise or concomitant assessments by multiple mental health professionals over a period of many months to establish a psychiatric diagnosis of gender dysphoria and to confirm persistence of gender dysphoria. This is based in part on evidence that gender dysphoria in pre-pubertal children is often self-remitting. However, the Tribunal found it was crucial to distinguish between children and adolescents, relying on guidance in WPATHSOC7 and concluded:  Gender dysphoria manifesting before puberty (i.e. in children) is often self-remitting, whereas gender dysphoria persisting into puberty or manifesting itself during puberty is far more likely to require gender-affirming therapy.

The Tribunal referred to Bell v Tavistock [2020] EWHC 3274 (Admin) but made no mention of the concerns expressed by the Divisional Court that the ‘affirmation’ path of puberty blockers followed by cross sex hormones may be a difficult one for a child to leave. Instead the Tribunal concluded that :

In summary, adolescents that consent to puberty blockers do not need ‘time to think about their gender identity’: they are already settled in their mind and almost invariably seek gender-affirming (stage-2) hormone therapy.

On this rather unusual understanding of adolescent decision making prowress, it is not hard to see why the Tribunal were then critical of GIDs, having

 “an unyielding protocol-driven approach to its psychological assessment phase. Far from being tailored to the needs of individual service users, it evidently imposes a one-size-fits-all diagnostic/assessment protocol. Access to hormone therapy via GIDS is, moreover, dependent upon service users meeting DSM-5 criteria for gender dysphoria and thereby accepting that they have a mental illness. 

The Tribunal found this particularly pertinent when considering the ‘evidence’ at the material time that gender dysphoria is not, in fact, a mental illness and concluded that opinion was and still is divided amongst experts as to the optimal approach. 

The Tribunal found that a shift in terminology to ‘gender incongruence’ reflects a fundamental shift in medical and societal attitudes to transgenderism and gender dysphoria is no longer to be regarded as a mental illness but rather a physical state of being, not a state of mind. This is based on ‘evidence’ that gender identity is innate, rather than learned. This evidence includes ‘post-mortem evidence that the structural neurobiology of the brain is involved in the establishment of gender identity.’

The Tribunal called this ‘enlightened thinking’ and rejected the Endocrine Society guidelines which states that one’s self awareness as male or female evolves gradually during infant life and childhood’. 

The most astonishing assertion of the Tribunal is at para 111

The Tribunal finds that the reluctance of the Endocrine Society and others to embrace enlightened views of transgenderism is symptomatic of the tendency in all professions to be slow to move with the times. This inertia in respect to medical attitudes to transgenderism mirrors past attitudes to homosexuality, which was classified by the APA as a mental illness until the 1973 edition of their DMS.

The Tribnal asserted that the ‘de-psychopathologisation’ of gender dysphoria and view in 2016/17 that transgenderism was no longer to be regarded as mental illness, was highly relevant. 

The reclassification of transgenderism as a somatic state related to sexual health, as opposed to a mental illness, had clear implications for the competencies necessary to deliver safe and effective care to those presenting with gender dysphoria. 

The Tribunal therefore supported Dr Webberley’s case that, as an experienced GP and a doctor with a longstanding professional interest in sexual health, in the healthcare needs of minorities, such as gender-variant persons, and in the administration of hormone therapies, she was competent to provide safe and effective care to Patients A, B and C. The Tribunal found that Dr Webberley was hampered by the lack of formal training opportunities in transgender health at the material time and that her lack of validated qualifications in transgender healthcare cannot, therefore, be held against her. 

The Tribunal further found that that GPs are competent to recognise and treat, or refer onwards for specialist treatment, persons with mental ill health arising as a reaction to minority stress. Dr Webberley, as an experienced GP and as a doctor with a special interest in transgender healthcare, was most certainly competent in those respects.

The Tribunal did note that ASD is overrepresented in the gender dysphoric population. For example, WPATHSOC7 states that ‘The prevalence of autism spectrum disorders seems to be higher in clinically referred, gender dysphoric children than in the general population.’ Published estimates of the prevalence of ASD in those referred to gender identity clinics vary from 9% to 26% and that valid consent was a ‘profoundly important issue in transgender health care’ given the potentially irreversible effects of gender-affirming hormones. Hormone ‘therapy’ was already a long established treatment in transgender healthcare – what was different now however was the much younger ages at which such intervention was sought. 

The Tribunal concluded that it was safe to give testosterone to girls under 16 – or at least there was no evidence to say it was unsafe. It relied in part on a study that included a mere thirteen patients below the age of sixteen and reported no adverse outcomes. This has led to a ‘stage-not-age’ view of when administration of sex steroids is clinically indicated: some experts, such as Dr Shumer, now deem that it is the pubertal stage of the patient that matters, not their chronological age.

The Tribunal then considered if Dr Webberley was competent to prescribe hormones. It found Dr Webberley an ‘impressive witness’ with a ‘depth and breadth’ of knowledge of endocrinology and hormone therapies and she was competent. 

The Tribunal stressed that a wish to reduce waiting times or ‘give in to insistent demands from patients for immediate treatment’ can never allow a doctor to compromise patient safety and care – but when an established facility is unable to cope with the demand for its services, it is incumbent on other practitioners in the sector to seek out alternative ways to help those patients in pressing need of attention but facing inordinately long waiting lists. That some patients with gender dysphoria are so desperate they are driven to suicide gives considerable impetus to this need for alternative approaches. No evidence is given to support this suggestion that depriving hormones will lead to suicide. 

The Tribunal found that in 2016/7 there was immense pressure on GIDS and that some aspirant service users were, as a result, left in a state of desperation and the ‘rigid and protocol- driven approach’ at GIDs did not meet their needs. 

The Tribunal found as a matter of fact Dr Webberley did adopt a multi disciplinary approach to her practice, by developing professional links with psychologists and counsellors and offered a ‘bespoke approach’ to her care of patients. The Tribunal went so far as to comment that Dr Webberley’s approach might be regarded as being at the vanguard of this evolving approach to transgender care.  This is despite the various findings about Dr Webberley’s failure to provide adequate standards of care. She failed to provide adequate follow up care to patient A. There was no communication from Dr Webberley and A’s mother between July 2016 and February 2017. She had a duty to communicate with GIDs who were also treating A and she did not, knowing that if she did the Tavistock would withdraw treatment. She failed to ensure adequate records were kept, particularly about issues around consent. Her reliance on sending emails as a substitute for proper record keeping was ‘lazy’. 

It is also deeply alarming to see reliance placed by the Tribunal on Dr Webberley’s ability to rely on her husband Dr Michael Webberley, described as ‘a general physician who had experience in endocrinology’. There is no reference to Dr M Webberley’s on going fitness to practice tribunal hearing which has seen highly critical evidence from a number of expert witnesses. 

An email from A’s mother makes for particularly sad reading

‘Hi,

I attempted to contact you and Katie numerous times regarding the next prescription of testosterone, the blood tests that you stated were a necessity, and to let you know that without the authorisation of NHS professionals, my GP would not assist with this.

However, I received no response for two whole months. You claimed that they had not been received, and that I should instead send messages to your personal email address, but I had already done this, in addition to sending messages to the email address of the secretary. While one or two could perhaps have slipped through the net, it didn’t seem feasible that they all had gone wayward.

It was obviously hugely concerning that we had apparently been left devoid of guidance, advice, support, prescriptions or ability to get any tests performed, or even any correspondence. So, after the Tavistock had phoned me a few times, I had to admit that we had already been receiving treatment from elsewhere, though the details were not discussed. Dr Gary Butler, [Patient A’s] endocrinologist, personally rang me to ask what dosage of testosterone [Patient A] was receiving, and when I divulged the figure, he was exceptionally concerned, and dedared it was the dosage only an adult should take. He elucidated that a child of [Patient A’s} age should only be taking a small fraction of the dosage, which would allow him to progress through puberty at the same rate as his peers, and mentioned that the breaking of the voice should take a few years -which I recognised to be true from when my older son’s voice broke. The fact that [Patient A’s] broke within two weeks, including other developments, was alarming to say the least. This new information, coupled with the fact that we felt so abandoned, assisted with the decision to continue seeking assistance from the NHS, as at that particular juncture we felt we had no other option! It wasn’t until quite some time later that I received an email from you asking for an update, to which t responded, and then you replied that you hadn’t received any of my messages. So, basically we are now back in the hands of the NHS, and left to wait the painful three years until [Patient A] is 16! However, travelling abroad for treatment is still an option being considered, as [Patient A] doesn’t want to wait until then.

I wish you all the best, but do think that procedures should be thorough, and from what I have been told, you are not an endocrinologist, nor an expert with hormones, and that treating adults in this field Is fine, but treating children is a different kettle of fish entirely. This is obviously not from me – I just want what is best for my son, and feel like I’m in a horrendously tricky situation, and am rather depressed knowing that following the NHS guidelines will mean my son has to wait until he is 16, whereas other countries can prescribe from 14, and have prescribed, cross-sex hormones to children of 12 with great success!’

It is also extremely concerning to read about how A was now behaving, with episodes of violence and suffering chronic depression.

It is alarming to read that A’s mother believed her daughter to have been displaying repulsion at anything conveying their biological gender, going back to when they were just 9 months old (which is as early as they were able to display it) What exactly it was that this baby displayed which could be interpreted as such repulsion, is not explained but it raises interesting and worrying questions about the environment in which A was raised and the degree of parental influence on how ‘repulsion’ was perceived and interpreted

With regard to Patient B, Dr Webberley had not carried out sufficient assessment of her mental health state which meant she had not been able to properly consider if some of B’s disturbing behaviours required treatment for something other than gender dysphoria. With regard to Patient C, although Dr Webberley had sought assistance from Dr Pasterski, she had not considered when assessing C other possible alternative diagnoses that may provide an alternative explanation for the dysphoric feelings or complicate them.

So the determination gives some useful indication of where Dr Webberley fell short, which hopefully can be of assistance to other GPs. But its explicit assertions that medical transition of the under 16s is ‘safe’ and objections to it are some kind of bigotry should profoundly worry all of us charged with the protection of children.

Further reading

And an excellent point in this substack from Dave Hewitt which I missed – despite criticising Dr Webberley for not being sufficiently conscientious in recording the child’s consent, the Tribunal concluded at para 25 it didn’t matter because the parent could consent on their behalf. This in spite of the Tavistock confirming in Bell that they would never dream of treating a child who did not or could not consent.

Regarding consent, the tribunal – having previously decided that children’s self-knowledge is paramount – went on to declare that parents can consent for children who lack comprehension, so all questions as to Webberley having effectively established consent were moot. Not only that, if a child disagrees with the treatment, but is not Gillick competent, the parent can consent anyway:

Abuse and findings of fact

But if coercive control involves ‘patterns of behaviour’ – how are those patterns to be discerned?

The case of K v K [2022] EWCA Civ 468 (08 April 2022) re-emphasises the general guidance on the court’s approach to fact- finding hearings in private family proceedings following the Court of Appeal’s decision  Re H-N [2021] EWCA Civ 448 (Re H-N). I have written about that decision and its guidance here. It also provides a fresh emphasis on methods of ‘non-court’ dispute resolution and when they should be considered.

The case was about whether or not the findings of fact made by the District Judge should be over turned. On the first appeal, the findings were upheld but the Court of Appeal gave permission for the father to re-argue his grounds. 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.

Non- court dispute resolution

The Court of Appeal examined the various ways of reaching resolution in a case where the the initial difficulties between the parties appeared to be ‘entirely logistical’ rather than an objection to contact with the father in principle. These needed to be considered at the FHDRA – the First Hearing and Dispute Resolution Appointment which has as its ‘essential purpose’ an opportunity for judicially led dispute resolution. The Court of Appeal were concerned that the father avoided the MIAM simply by stating the case was urgent. Such assertions should have been checked at or before the FHDRA under rule 3.10(1) FPR. See further Practice Direction 12B.

As well as attendance at a MIAM the court noted the Family Mediation Voucher Scheme; eligible parties can apply for a voucher during the MIAM process and receive up to £500 towards the costs of mediation. The Court of Appeal said at para 36:

We would urge all parties to private law proceedings to make use of this valuable resource. This case provides an example of a situation in which mediation would have been particularly appropriate, because there was at the start, no issue between the parents as to whether unsupervised contact was appropriate.

What issues of child welfare are relevant to the finding of fact?

The Judge has to consider this question carefully. The Court of Appeal relied on the ‘key guidance’ from Re H-N, including 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.

It is clear that a decision to hold a fact-finding hearing is a ‘major judicial determination’ – it will inevitably introduce delay and increase the negative impact on the parents’ on going relationship and ability to co-operate with each other as parents. The District Judge had made a ‘premature’ decision to hold a finding of fact and he should have first identified the issues between the parents as to the children’s welfare and given the mother time to decide what factual findings she wanted the court to decide, always bearing closely in mind that she was not seeking to prevent contact between the children and their father.

The Court of Appeal were crystal clear 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.

The Court of Appeal were concerned that the guidance in Re H-N at para 53 may have been misunderstood. This warned judges against a failure to properly consider issues of coercive control as this might make their judgments vulnerable to appeal. But that requirement to consider the overarching issue of coercive of controlling behaviour was when it was necessary to determine a dispute relating to a child’s welfare. It is not a requirement for the court to determine every single subsidiary factual allegation that may also be raised.

Concluding remarks

This is a useful reminder of the need to consider the justification for finding of fact hearings, given their inevitable negative impact on both the speed of resolution of a conflict and the further polarisation of the parties in adversarial proceedings. It’s also clear to see the focus on ‘non-court’ dispute resolution, which was the focus of the recent Family Justice Council conference.

However, one thing I do not understand. Coercive and controlling behaviour involves a ‘pattern’ of behaviour. Judges are criticised for focusing too much on individual events rather than stepping back and asking what is the prevailing ‘weather’ of this relationship. But how do we discern a pattern if we do not identify its individual elements? Surely no finding of overall coercive and controlling behaviour can be made without findings as to individual events? This case is of limited use in helping me square this circle, as it was an appeal from a decision which had been made without the benefit of the judgment in Re H-N and the Judge could not be criticised for that. What we need now is an appeal from a decision which has tried very hard to stick with the Re H-N guidance.

Time for Climate Change in the Family Justice System

The Family Justice Council held its annual Bridget Lindley Memorial Lecture and conference in Bristol on April 6th 2022. Helen Adam gave the keynote address. She is a mediator and Chair of the Family Solutions Working Group who published in October 2020 ‘What about Me? Reframing Support for Families following Parental Separation, capturing a range of interventions for separating parents in one coherent document, in recognition that many cases would be better served outside the court arena. Helen expanded on that theme in her presentation – ‘Time for Climate Change in the Family Justice System’.

She set out her vision for a more humane system that supports families. She recognised that for most, ‘conscious uncoupling’ is unrealistic and the law can’t make people discard emotions. Helen drew a comparison between the Family Justice System and the climate change movement, where there were similar tensions between long established systems and a growing body of evidence that challenges these systems. The message is simple – we cannot go on as we are – but it is also unwelcome as changes will be hard and cost money. But evidence is real and growing that the adversarial system is harmful and is has become impossible to ignore

The Ministry of Justice Risk of Harm Report in June 2020 found that adversarial process often worsened conflict between parents and had damaging impacts on victims of abuse and children. Under conditions of extreme stress even ordinarily robust people can project intense emotions and feel the the other side to be malicious, even dangerous. Family separation is always stressful for children but what drives long term negative impacts is the level of conflict witnessed before, during and after. Reducing parenting conflict is associated with long term positive outcomes.  

Ultimately this is harmful to all society and we need a different, gentler, more humane approach. But the problem seems too huge and difficult to overcome and we end up in state of depressed helplessness. Helen identified possible solutions

  • political support that crosses party lines and co-ordination.
  • 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.

Helen considers that a real benefit of mediation is in allowing a person to explain their situation, gather information about options and have an opportunity to ‘reframe’ family separation and see though the lens of the future. There are many resources out there, such as the Separated Parents Information Plan, but we need a national body of such programmes that meet high standards.

Lawyers have vital role to play in a ‘precourt’ space but parental separation is not primarily a legal issue, as it encompasses issues of safety, emotional states, child consultation, parenting and financial considerations. Parents need models that are supportive and problem solving and judges need training about issues that go beyond law. Without co-ordination what we have currently is just a ‘hotch potch’. But no change can be brought into effect without political intervention.

Language is critical part of any reframing. Helen queried the use of ‘Family Justice System’ – If that is what is said on the tin, that is what people expect, to play out rights and wrongs, 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. 

Family law is completely different to all other forms of law which is retrospective, correcting past wrongs. We should be forward looking and wanting best outcomes, not just one parent’s concept of justice. Kate Stanley explained that where a system exists with a power dynamic, everyone embraces the language of the most powerful. Change has to come from the top – judges, magistrates and lawyers. We need the paradigm shift that the climate change movement has seen. We are 30 years on from the Children Act. Are we leaving green footprint in lives of families we work with? How is our work impacting families?

Then Ellen Lefley of JUSTICE spoke about improving access to justice for Separting/ed Parents – the full report is due out in July 2022. Access to justice needs understanding as broad concept, about just procedures and just outcomes. There are many barriers to access to justice – institutional, physical, mental, financial. For private family law, its not about increasing access to courts but to the most appropriate resources to resolve problems. The financial vulnerabilities of parents in such cases often means they can’t pay for more creative solutions. We have to ask – what is going on? What intervention is most suitable? How will they access it? Other jurisdictions show that the family court can be at forefront of initial non adversarial triage system which can have encouraging outcomes  – less delay, people weren’t trying and failing. However, high conflict situations were better off going straight to court. This triage resulted in higher settlements and lower rates of return to court.

Then we heard about recent research regarding ‘Profile of parents within the Family Court’ from Dr Linda Cusworth and Jude Eyre, Associate Director of the Nuffield Family Justice Observatory. The research indicated the heightened vulnerability of adults in private law proceedings in the year preceding the court action, i.e. it was not going to court that initiated the problems. 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.

What does this mean? And what can we do next? The research confirms domestic abuse is a mainstream not minority issue for the FJS. We need to think of the ‘mental model’ of the person for whom we are designing systems. whatever we do, in or out of court, these circumstances of vulnerability are present and real. All services need to be alive and actively screening and thinking about routes though. If parents are vulnerable rather than vexed, how do we engage to minimise anxiety? How can we bring learning about power dynamics into the court hearing? Can we address information gaps for litigants? How can we widen range of services the court can signpost to? Much lies beyond court and legal responsibilities, we need to look outwards to local safeguarding partnerships, clinical commissioning groups and third sector with rich experience. 

We then heard about the experiences of parents and children in the FJS. One parent had benefitted from mediation but another could not, because of safety issues. She made a very strong point that she and her children needed the protection of the family court, which had ‘saved her life’. The voices of children have been gathered together ‘In Our Shoes’ –  contact FJYPB@CAFCASS.GOV.UK to get free copy, the President confirming that this should be compulsory reading for everyone in the system. 

Some comments

It’s impossible to disagree with anything that was said by the speakers. The adversarial system is clearly the last place any stressed and anxious parents need to be. Cases that drag on for years – as many do – are clearly going to cause children life long 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.

All the speakers appeared to have arrived at the same solution – we must identify better solutions for families than simply funnelling them through an adversarial system which appears to achieve little and does it very slowly. But equally, all noted that the barriers to such triage are significant. To be blunt, there is often very little on offer or it requires significant financial resources to obtain. The money wasted on a bloated 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 within 30 years, that crossed political lines and united everyone.

We may now have reached a similar crisis point but the political landscape now appears to be have shifted; politicians work with sound bites, quick fixes and policies that will play well with the electorate. Reforming the FJS isn’t ‘sexy’ – but it is essential.

But what is also essential is recognising the powerful statement of the women who said the family courts saved her life. The elephant in the room is the 10% of estimated cases that will be impervious to mediation, support or ‘re-framing’ – those 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 welcome the proposals for more effective triage – just so long as we do retain the option for judicial control over those cases which need it.

Further Reading

See Practice Direction 36Z which establishes a pilot scheme running until February 2024 to allow certain applications, and stages in proceedings relating to such applications, to follow a procedure different to that specified in the Family Procedure Rules 2010 (“the FPR”) and supporting Practice Directions. These courts are at Bournemouth; Caernarfon; Mold; Prestatyn; Weymouth and Wrexham. It will be interesting to see the results.

The purpose of the pilot is set out at 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.

Transparency as a way to correct a false narrative

Mohammed bin Rashid al-Maktoum v Princess Haya [2022] EWFC 16

This is an interesting case. Although it is clearly ‘highly unusual’ for the family courts to find themselves dealing with foreign princes this case represents further exploration of how an individual’s wish to correct a false narrative can be used to argue against the default position that publicity is the exception in family cases. It also demonstrates that although the legal context for determining ‘family publication’ cases is now settled and uncontroversial, the specific facts of each case are going to continue to require detailed examination.

On 9th March the President of the Family Division handed down judgment in this case. The question for the court was whether the final welfare judgment of December 2021 should be published. This concerned the conclusion of long running wardships proceedings involving the parties two children aged 14 and 10. A total of 15 substantive judgments had already been published, with great media attention given that this case was ‘highly unusual’, involving the children of internationally known parents, one of whom is the Head of Government of a ‘prominent and powerful State’.

The President decided that the full judgment should be published, with some redaction. The key issue here was the publication of a welfare judgment concerning two clearly identified and publicly known children. Therefore the principles and themes developed in the recent Transparency Review did not have any direct resonance to the present unusual circumstances. The court had to find a ’bespoke’ solution by considering the particular facts and the individual needs of the two children balanced against the now firmly – and rightly – entrenched position in favour of anonymity for children in family proceedings.

Initially, the mother argued that the welfare judgment, in common with each preceeding judgment, should be published in full. The father and Children’s Guardian preferred publication to be restricted to a summary of the key elements of the decision. All agreed that in light of the degree of publicity already given to these proceedings, at least some form of summary of the welfare decision should be published. 

Following submissions in February 2022 the Children’s Guardian changed her position in light of a further statement from the mother and meeting with the children. The father did not actively oppose the Guardian’s revised position to publish a full judgment with redactions but did urge the court to consider that both the children’s and the public interest was better served by the publication of a ‘coherent and accessible summary’. 

The President found this a difficult decision. He had not written the welfare judgment with a view to future publication but rather to reflect the need to express his concluded views frankly and in detail so that the parents and in due course the children, could understand the court’s reasoning.  He noted that it was ‘highly unusual’ for the court to publish a welfare judgment when the identity of the children was fully and widely known and that none of the legal teams had been able to identify any such previous publication in such circumstances. This issue took on even greater significance knowing that the family are public figures in their own right in Dubai and elsewhere. 

The parties sought to rely upon the recent transparency review ‘Confidence and Confidentiality: Transparency in the Family Courts’ 29th October 2021 but the President was clear that this Report was ‘wholly irrelevant’ to the issue that currently fell for determination. The Report was clear that greater openness in Family Court Proceedings is not to be at the expense of the children and family concerned. In the unusual circumstances of the present case, the President was required to provide a ‘bespoke’ solution, informed by the specific facts of the case and the needs of the children. 

The overall legal context to determine publication of judgments in family cases was held to now be well settled and not controversial, relying on the need to strike a balance between competing ECHR rights and the statutory limits on identifying children. This case did not fit the ‘paradigm’ of a publicity application which usually focuses on Article 10 rights to free expression. Here the arguments in support of publication were geared towards the rights of the children and their mother to have their ‘story’ accurately available for public scrutiny to avoid the father being able to promote a false narrative. In particular, as the father was not being afforded direct contact with the children and his exercise of parental responsibility had been limited, it was important that third parties knew not to share information with him about the children that might put them at risk. The mother noted that the father had already been attempting to push a false narrative via social media that he had been reunited with his son. 

The President noted that the Court of Appeal had recently in Griffiths v Tickle [2021] EWCA Civ 1882 upheld a decision to publish findings of fact against Mr Griffiths, in part upon the established right of an individual to ‘tell their story’.  The Children’s Guardian in this case had also concluded that publication was in the welfare interests of the child. 

In the present case the Children’s Guardian found the decision was ‘finely balanced’ but had decided in favour of publication on the basis of the wishes and feelings of the children and the mother’s own views. The court gave considerable weight to the mother’s statement, which was not challenged. This had to be balanced against the firmly entrenched default position in favour of confidentiality. Little weight was placed on the fact that previous judgments had been published; the welfare judgment was in a separate category and requires a bespoke evaluation.  

Cases involving Domestic Abuse – how should the court handle this?

This is the text of a presentation given at the Bristol Civil Justice Centre on 19th January 2022, considering how the Court of Appeal’s guidance in Re H-N has been working out ‘on the ground’ We are left with the distinct impression that its not possible to resolve the tension between two competing principles – undertake a sensitive and detailed analysis of patterns of behaviour in a relationship AND take up less of the court’s time. But the need for early and robust findings of fact is clear.

We first met to discuss this in May 2021 and we thought it would be helpful to meet again to see how the guidance was working on the ground. I am going to remind you of the Court of Appeal guidance and consider how it was applied in the case of A Child (Application of PD12J : No.2 – Findings of Fact) [2022] EWFC 2 (12 January 2022)

Re H-N and Others (children) (domestic abuse: finding of fact hearings)

Neutral Citation Number: [2021] EWCA Civ 448

In March 2021 the Court of Appeal handed down its judgment in four conjoined appeals. A number of intervenors were involved, including the Association of Lawyers for Children and Families Need Fathers. The Court of Appeal was clear that PD12J was ‘fit for purpose’ – the issue was how it was being implemented in proceedings. 

The first 77 paragraphs deal with some general guidance. The fundamental issue was, where domestic abuse is alleged in children cases, should the focus be on patterns of behaviour rather than specific incidents?

Summary of guidance

The Court of Appeal will expect to see recognition of the following issues in cases involving allegations of domestic abuse. 

Do we need a finding of fact hearing?

  • At the earliest stage, consider the detailed guidance in PD12J about the need for a finding of fact. 
  • Remember that PD12J is focused on child arrangement orders – it does not establish a free-standing jurisdiction to determine domestic abuse allegations that are not relevant to child welfare issues.
  • Fact finding hearings are to provide a factual basis for assessments or orders/interventions
  • Only allegations that are necessary for assessment purposes or particular orders should be considered
  • Does the fact finding need to be a separate hearing, or can it be bundled up with the final hearing?

CAFCASS made the very sensible suggestion that it would help to have more input from their officers at an earlier stage to help answer these questions and the Court of Appeal agreed this was a good idea worthy of more consideration – I am not sure how this is playing out on the ground. 

Awareness of ‘patterns of behaviour’ means we have to consider the limitations of a Scott Schedule as a means of pleading a case

  • In every case where domestic abuse is alleged, both parents should be asked to describe in short terms (either in a written statement or orally at a preliminary hearing) the overall experience of being in a relationship with each other 
  • Where one or both parents assert that a pattern of coercive and/or controlling behaviour existed, and a fact-finding is necessary, that assertion should be the primary issue for determination at the fact- finding hearing. 
  • Any other, more specific, factual allegations should be selected for trial because of their potential probative relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour (a likely example being an allegation of rape). 

BUT how do we square the circle between increased focus on pattens of behaviour and a need to save court time and scarce resources? 

In essence, decisions about fact findings must be made at an early stage and any interim arrangements for contact must be safe for the child. The key words are ‘proportionality’ and ‘necessity’. We have to keep in mind the ‘overriding objective’ to deal with cases efficiently and recognise that resources are finite and need to be allocated to other cases than just our own. 

As the President’s Guidance ‘The Road Ahead’ (June 2020) set out:

‘if the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the court affords to each hearing. 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 or oral submissions to be cut down only to that which it is necessary for the court to hear.’

But the Court of Appeal at para 54 were alert to the immediate tension that exists, between dealing with matters efficiently and doing justice to allegations of ‘patterns of behaviour’. I have certainly never experienced two week finding of fact in a private law case – I consider myself very lucky if I can get a day within a reasonable timescale. 

In promoting the need for courts to prioritise consideration of whether a pattern of coercive and/or controlling behaviour is established over and above the determination of any specific factual allegations, there is the potential that this additional layer of evaluation may add to an already lengthy forensic evaluative process. By example, the fact-finding hearing that had been listed in Re B-B (one of the four appeal cases before the court) was planned to last five days (that is 25 court hours) in order to consider five factual allegations.

How to meet the need to evaluate the existence, or otherwise, of a pattern of coercive and/or controlling behaviour without significantly increasing the scale and length of private law proceedings is therefore a most important, and not altogether straight- forward, question. 

A number of suggestions were made by the parties in submissions including; 

  • a ‘threshold’ type document, similar to that used in public law proceedings,
  •  formal pleadings by way of particulars of claim as seen in civil proceedings and 
  • a narrative statement in prescribed form. 

A recent case is a useful illustration of the difficulties of trying to ‘square the circle’ 

A Child (Application of PD12J) [2021] EWFC B59 (6 October 2021) sets out the tension so often apparent in private law cases – either one party is a victim of domestic abuse, including sexual abuse and controlling and coercive behaviour, with the children being exposed to this abuse or one party has laid a trail of false and/or exaggerated allegations to justify removal of the children from their family home or refusal to permit contact with the other party. 

On 30th September 2021 HHJ Dancey gave permission to appeal to the mother of three children, aged 10, 8 and 5 from an order made by a district judge three days earlier that she return the children from the North of England to Dorset and for shared time with their father.  In default of return the district judge had made a transfer of ‘residence’ order. The mother alleged significant abusive behaviour from the father, including that he had lied about being HIV positive and had repeatedly raped her. 

One ground of appeal was that the judge failed to address PD12J at any point in his judgment and failed therefore to consider the harm the mother and/or the children would suffer if he made the orders sought, the level of supervision required, the risk to the children and the impact domestic abuse could have on their emotional well-being and the safety of the mother. He treated it effectively as a summary return in a relocation case. 

The Judge found the district judge was entitled to take a critical view of the mother’s position and weigh that in the balance. He was also entitled to expect a rational explanation for a move of such distance and to consider the proportionality of the mother’s decision-making.   But he was not entitled to dismiss the mother’s allegations summarily, ignore CAFCASS recommendations and fail to properly consider PD12J. 

It’s worth reading the submissions in full as they set out the huge difficulties of these kind of cases. 

Judge commented at para 120 

The acutely difficult question the present appeal poses is the balance to be struck by the court between (a) the potential harm identified by PD12J of making orders that may place children at risk of the consequences of domestic abuse and (b) the emotional harm and potential relationship damage that may be caused by unilateral removal a considerable distance away from the family home and cessation of contact.  

These are decisions that have to be made on an urgent basis, often with limited and untested information.    Get it wrong and the court risks placing children at risk of harm either way.   This is a welfare analysis that requires caution, balance and proportionality – often not easy to achieve at an interim stage.

Para 122 he endorses the framework of analysis proposed by Peter Jackson LJ in the different context of public law care and placement orders in Re F (A Child) (Placement Order: Proportionality) [2018] EWCA Civ 2761 :

a)         What is the type of harm that might arise (for present purposes, putting the mother’s case at its highest)?   

b)        What is the likelihood of it arising?

c)         What would be the consequences in terms of severity of harm if it happened?

d)        Can the risks of harm happening be reduced or mitigated so that they are manageable (including in this case by the making of protective measures)?

e)         What does a comparative evaluation of the advantages and disadvantages of each option (here, return or not, contact or not) say about the best interests of the children, having regard also to the need to protect a parent vulnerable to abuse?

f)         Is the outcome proposed proportionate?

At para 124 the judge comments that the court is not bound to simply accept whatever a party says without some kind of critical analysis but at an interim stage is required to consider the circumstances around the allegations, including:

a)             the seriousness of the allegations and the harm that might result;

b)             whether there is already evidence from other sources which supports or undermines the allegations;

c)             the consistency or otherwise of the allegations (making allowance for the fact that it is in the nature of domestic abuse that accounts are often given piecemeal and incrementally, especially in relation to allegations of sexual abuse which may be delayed because of embarrassment, shame or simply thinking ‘I won’t be believed’);

d)             possible motivations for making allegations;

e)             how the children are presenting and what they are saying.

His last comment at para 139 is interesting 

I should add that the current practice, driven by resource demands, of Cafcass not interviewing both parents for the purpose of preparation of the safeguarding letter has contributed to the sense that the Cafcass recommendations were based solely on what the mother told them. At the moment Cafcass are leaving it until the FHDRA before speaking to the parties at court.   I am concerned that interviewing parents in this pressured environment rather than independently away from court risks safety issues being missed.  In this case of course the hearings were on non-Cafcass days and there was no opportunity to speak to both parents even at court.   The father was not spoken to by Cafcass at all until after the decision under appeal.  

The finding of fact was then heard in December, court reminding itself that Section 63 of the Domestic Abuse Act 2021, which came into force on 1 October 2021, requires amendment of the Family Procedure Rules to ensure that, where a person is, or is at risk of being, a victim of domestic abuse carried out by another party, or relative of another party or witness, it is to be assumed that the quality of their evidence and, where they are a party, their participation in the proceedings, are likely to be diminished by reason of vulnerability.

The following special measures were therefore put in place

a) separate waiting areas were arranged for the mother;

b) in court the father was screened from sight by the mother and arrangements were made when going in and out of court and during adjournments to ensure she would not see the father;

c) the mother was screened from the father while giving her evidence from the witness box;

d) breaks were taken during the mother’s evidence which spanned the afternoon of the first day of the hearing and the morning of the second and took some 5 hours;

e) additional opportunities for breaks were offered to the mother at points when she appeared to find questions about intimate matters particularly difficult, although in fact the mother opted to carry on;

f) given that there were some long pauses before the mother was able to answer some questions, I ensured that adequate time was given to the mother to answer questions fully before moving on to the next.

The difficulty for the court was that one of the parties had to be lying. Their starkly different accounts could not be resolved. The Judge was clearly alive to the difficulties In assessing the evidence of victims of trauma – at para 180 he said

This has been a troubling and difficult case. Experience shows that victims of domestic abuse, who are by definition vulnerable witnesses, sometimes find it difficult to talk about intimate and highly personal information, particularly allegations of sexual abuse. Because victims live in a state of fear, with patterns of abusively controlling behaviour, it is not uncommon for dates and incidents to become confused. Lived experiences are revealed over sometimes lengthy periods, including during court proceedings and, in my recent experience, in the course of giving evidence. Sometimes this iterative process is a matter of victims gaining the independence and courage to talk about their experience. Sometimes something is said which triggers a victim to be able to speak.

However on a careful analysis of the evidence he found that the mother had fabricated allegations against the father to justify her departure from an unhappy marriage. Although the father’s failure to disclose his HIV status was ‘abhorrent and abusive’ it did not create a risk to mother or children and therefore was not a matter to be relied upon to restrict contact. 

What this case clearly underscores is the need for careful analysis of all the factors set out in PD12J at an interim stage, followed by swift and robust findings of fact. The only way to do this is I am afraid by taking up court time. I can’t see any other way to square the circle. 

Further reading

Another useful example of how to apply the Court of Appeal guidance B-B, Re (Domestic Abuse: Fact-Finding) (Rev1) [2022] EWHC 108 (Fam) (20 January 2022) – in this case the father was found to have behaved abusively.

Transparency – where now?

This is a post by Sarah Phillimore. TL:DR – there is clearly a need for a shift in culture and an attempt to better balance the need for children’s privacy against the need for public trust and confidence in the system. This shift will only occur however if is properly resourced – simple exhortations to do better will achieve nothing. We will also need to keep an eye out for the operation of the Law of Unintended Consequences, and the likely satellite litigation that will follow attempts to withhold certain documents from journalists.

On 28th October 2021 the President of the Family Division released the review of progress of increased transparency in the family justice system; Confidence and Confidentiality: Transparency in the Family Courts in the Family Courts, noting that the pace of change to date had been ‘glacial’, owing in part to the tensions between two fundamental principles

…the need to enhance public confidence in the Family Court and, on the other, the need to maintain confidentiality by safeguarding the privacy of those who turn to the court for protection or for the resolution of intimate disputes.

A quick google of the title brings the first result, depressingly, a very similar named Government paper from 2006 which supports the President’s disappointment with the pace of change. We seem to have all been agreeing for decades that our current methods of wrangling the tension between these two principles are failing, and that this risks a serious impact on public trust and confidence in the system. So what now? Is anything actually going to change this time?

The President is clear that things must change and he will take responsibility for making this change. He sets out at para 5 why this is an important issue – the caseload of the FJS is immense – 224,902 cases in 2020 alone. So a lot of people have a direct interest in knowing how judges exercise their discretion in these cases. ‘Open Justice’ is also ‘a fundamental constitutional imperative’. Without public scrutiny, how are judges held to account for the decisions they make?

But of course the arguments against increased publicity are also strong and well known; primarily the impact on children who may not want the intimate and distressing details of their family life to be public knowledge.

A current stumbling block is section 12 the Administration of Justice Act 1960, which I have written about here. This is poorly understood legislation which has undoubtedly had a chilling impact on what may or may not be discussed about cases in the family courts. So even though the rules were changed to allow accredited media representatives and legal bloggers to attend private Family Court hearing as of right (r 27.11), they are still covered by AJA 1960, s 12 which prevents publication of information relating to proceedings if they concern children – thus removing much of the point of being there at all.

The reporting that IS done is often based on ‘anonymous accounts of negative experiences’ to which the system cannot respond, leading to (para 27):

thoroughly unsatisfactory state of affairs, with the drip-drip of concerning stories, that are neither answered nor explained by publication of a judgment, inevitably eroding public confidence in the Family justice system.

The President states that the way of reconciling two potentially competing needs of open justice and protecting children, is not to fall into the trap of thinking this is a simple binary – open the courts, yes/no. The President comments that the work of National Family Justice Observatory, The Transparency Project and the success of the CoP Open Justice Project, run by Professor Celia Kitzinger, has shown that it is possible to produce commentary and information about the system, without compromising privacy. So how do we move this work forward to a larger stage?

A major shift is required in culture and process to increase transparency

The President notes that previous efforts to effect this shift have not worked. Journalists don’t attend court hearings – and why would they! They are worried about being found in contempt of court. Judges are not publishing enough judgments – unsurprisingly when they do not have the time to prepare anonymised judgments.

The suggestions to achieve the shift are as follows. This will start with a trial run or ‘pilot’ in two local authority areas (one urban and one rural) to ensure that the changes work in an effective way and to deal with any unforeseen issues and problems that may arise before it is rolled out nationally. Some are simple, practical and effective and hopefully can be ‘rolled out’ without too much trouble – others however are going to present more significant challenges, and in particular will need money to make them work.

  • accredited media representatives and legal bloggers to be able, not only to attend and observe Family Court hearings, but also to report publicly on what they see and hear.
  • Reporting must be subject to very clear rules to maintain both the anonymity of the children and family members who are before the court, and confidentiality with respect to intimate details of their private lives.
  • to establish a Transparency Implementation Group [‘TIG’] to support implementation of changes
  • urgent consideration of Parliament to consider section 12 of the AJA – and while waiting, amend the Family Procedure Rules as far as possible to mitigate its impact
  • to monitor journalists, both locally and nationally, and, where clear misreporting occurs, for it to be taken up with the relevant editors.
  • establish links at a national level between the PFD and the Society of Editors, and at a local level between DFJ’s and their local media.
  • establish a Media Liaison Committee comprised of journalists, media lawyers and judiciary (together with others who may include individuals who are wholly from outside the spheres of Family Justice or the media).establish a forum for discussion between the local and national family judiciary
  • Further consideration of what documents should be disclosed, giving the judge an over arching discretion to withhold documentation if necessary.
  • Accredited media representatives and legal bloggers should be added to the list of those to whom a party may communicate information relating to children proceedings under FPR, r 12.75(1), PD12G and PD14E. 
  • In order to ensure that a larger number of judgments are published, all judges to publish anonymised versions of at least 10% of their judgments each year – this may sound low but will be a significant improvement on what is happening now.
  • press for the establishment of an Anonymisation Unit within HMCTS which, through a combination of human input and/or software, will undertake the task of anonymisation. 
  • DFJ’s to invite local MP’s to the court so that a fuller understanding of the work and approach of the Family Court can, over time, develop.
  • a scheme of compulsory data collection at the end of each case. 
  • court lists should be made available in advance to journalists/bloggers which identify the general nature of the proceedings, the category of hearing and the time estimate.
  • a modern online hub to access which will explain the work of the Family Court, how cases are dealt with, what other options exist for dispute resolution and how to make an application. The website could signpost visitors to other potential sources of support or information. It should be the go-to first point of reference for anyone who has a need to engage with the Family Court.
  • the public to have access to an annual report, which would include data setting out case numbers, categories of proceedings and outcomes. The report would also include an annual audit on the progress of the various initiatives that are now to be launched under the overall umbrella of ‘transparency’.

My comments

I agree that something has to change. I echo all that is said about the dangers of allowing anonymous reports made to partisan journalists being the only public source of information that many have. But I do wonder how simple declarations of intent such as “openness and confidentiality are not irreconcilable and each is achievable. The aim is to enhance public confidence significantly, whilst at the same time firmly protecting continued confidentiality” are really are going to play out in practice.

I have commented about my own ‘journey’ with regard to transparency – from my initial and in hindsight embarrassingly naive world view that all we needed was to embrace open discussion and all would be well – to what I think is a much bleaker, but more realistic view of human nature, our love of stories and our resistance to accepting facts which challenge our narratives. I am afraid I no longer have confidence in journalists to reliably report facts, rather than cherry pick those facts to suit a narrative. The depressing reality is that most journalists only appear to care about the ‘sexy’ stories – the vast and mundane bulk of family cases will not attract their attention. It is not simply fear of contempt of court that has seen them stay away from court rooms. It is rather than 99% of family cases are of absolutely no interest to other than the people directly involved.

I am particularly concerned about the proposals regarding what documentation is to be released. At para 43 the President says:

My preliminary view is that those attending should be allowed to read position statements and witness statements but not medical reports or primary documents such as police disclosure. However, in all cases the judge will have a discretion to withhold documentation if that is necessary on the facts of the case.

This is going to need very careful thought. My own experience of journalists attempting to see documents which provide the ‘meat’ of a case – namely highly sensitive and personally distressing details about mental health conditions etc – has been entirely negative, leading to a raft of ‘satellite litigation’ over what could or couldn’t be disclosed, wasting the time of the courts and causing considerable distress to the lay parties. I am afraid that it is medical and police reports that journalists will want to see, as they are likely to contain the kind of intimate detail to make reporting ‘worthwhile’. I think it is this issue where the simple declaration ‘we can do this!’ is likely to founder and likely to bog down the family courts in further litigation that it simply does not have the capacity to deal with.

Further, it is good to see that the President is clearly alive to the difficulties of asking judges to produce ‘publication ready judgments’ – anonymisation is not simply a matter of stripping out names and replacing with initials. Care must be taken to avoid details that lead to ‘jigsaw identification’. Great detail about the nature and type of abuse suffered by a child is also not appropriate for wider publication. The suggestion is that a dedicated unit is set up to help judges – this would be ideal, but I suggest highly unlikely to ever be achieved, when our daily mantra is ‘there are no resources’ .

Almost as an aside at para 32, the President comments about the importance of data collection, which I think is key. There is a ‘data black hole’ over much of the FJS, and most obviously regarding outcomes; we rarely have feedback about whether or not a ‘final order’ actually brought any longstanding peace to a family. There is work being done by HMCTS across the justice system on collecting and using data, following the report and recommendations of Dr Natalie Byrom “HMCTS: Making the most of HMCTS data October 2020” and I would be very interested to know more about this. Better understanding of who is coming to court, why and what are the outcomes would, in my view, go a long way to improving public confidence in the system without requiring knowledge of intimate details about individual families.

I would also like to see more creative thinking. Judge Wildblood QC the Designated Family Judge for Bristol, has been experimenting for some time with efforts to bring the family justice system to the public with a variety of seminars and plays – his most recent ‘The Shake’ was held on line and about 630 people joined the remote link. There is clearly an enormous appetite for discussion and information and we need to think of other ways we can provide this, rather than simply holding up individual families for scrutiny in the actual court process. For example, I have recently volunteered to be a mentor to school students holding mock Trials, through the ‘Young Citizens’ project – we can think more about how education can be provided via schools to help people grow up to understand their country’s legal systems better.

In essence, what is necessary to achieve confidence in any legal system is quick and affordable access to robust decision making. I have significant doubts that this fundamental aim is going to be helped by encouraging more legal blogging or arguing over whether or not a journalist gets to see a psychiatric report. But, as ever, we will see. I can only hope that this Transparency Review does not join its 2006 iteration in the digital graveyard of lost causes.

Guidance on witness statements in family proceedings

President’s Memorandum: Witness Statements 10 November 2021

1. Too many witness statements are prepared in breach of proper professional standards.

2. It is clear that this problem is not confined to proceedings in the Family Court. It has become so acute in the Business and Property Courts that it has been necessary to pass a highly prescriptive Practice Direction – CPR PD 57AC – to seek to deal with the problem.

3. I do not consider that the Family Court needs an equivalent Practice Direction, at least not at the present time. However, the Family Procedure Rule Committee will have to consider introducing such a measure if the principles in this memorandum are not observed.

The fundamental requirements

5. Witness statements must only contain evidence from the maker of the statement.

4. Witness statements tell the parties and the court what evidence a party intends to rely on at a final hearing. Their use has the key added benefit of promoting the overriding objective by helping the court to deal with cases justly and proportionately, including by helping to put parties on an equal footing, saving time at the final hearing and promoting settlement in advance of the final hearing.

6. The statement must be expressed in the first person using the witness’s own words (PD 22A para 4.1).

7. A witness statement must not: a. quote at any length from any document; b. seek to argue the case; c. take the court through the documents in the case; d. set out a narrative derived from the documents; e. express the opinions of the witness; or f. use rhetoric.

Facts, information and belief

8. A witness statement may only set out matters of fact and matters of information and belief (para 4.3).

9. Matters of fact include past facts (i.e. events which have happened) and future facts (i.e. events which are expected to happen). A statement may state only those matters of fact of which the witness has personal knowledge and which are relevant to the case. The statement must indicate the source of any matters of information and belief. Evidence about proposed child arrangements or, in a financial remedy case, about needs, will be matters of information and belief. Therefore, where such evidence of such information and belief is given, the source or basis for that belief must be stated.

Documents

11 a. The statement must identify in a list appended to it what documents, if any, the witness has referred to, or been referred to, for the purpose of providing the evidence set out in the statement. b. The statement should identify or describe the documents in such a way that they may be located easily at the final hearing. c. Documents disclosed in the proceedings should be listed by disclosure reference (e.g. “reply to questionnaire bundle at page 75”). Such documents must not be annexed to the statement. d. The requirement to identify documents the witness has referred to, or been referred to, does not affect any privilege that may exist in relation to any of those documents. Privileged documents may be identified by category or general description. e. Documents in the list which are not privileged and have not been previously disclosed must be disclosed at the same time that the witness statement is filed and served.

Memory

12. A person involved in preparing the statement of a witness must not, subject to the next paragraph, in any way seek to alter or influence the recollection of the witness. This is a rule of fundamental importance, breach of which will be serious professional misconduct.

13. However, the memory of witnesses may be refreshed by showing them a document which they created, or which they saw while the facts stated in the document were still fresh in their mind. Any such document must be listed under para 11.

14. Parties should understand that the court’s approach to witness evidence based on human memory will be in accordance with CPR PD 57AC, Appendix para 1.3. This states that human memory: a. is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but b. is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore c. is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration. A person involved in preparing a witness statement should keep this very clearly in mind and, therefore, be wary of categorical statements about past events unless those events are corroborated by contemporaneous documents.

Length of the statement

15. A witness statement must be as concise as possible without omitting anything of significance.

16. As a general standard, a witness statement should not exceed 15 pages in length (excluding exhibits). This page limit is a statement of best practice and does not derogate from the limit of 25 pages in PD 27A para 5.2A.1, which should be regarded as a maximum.

Sanctions

17. The court has a power under FPR 22.1(2) to exclude evidence that would otherwise be admissible. The court will consider excluding under this rule a witness statement which materially fails to comply with the standards in this memorandum. The court also has power under CPR 44.11(1)(b) to disallow the costs incurred in preparation of a non-compliant witness statement.

Template for LIPs in non-complex private law welfare cases

18. A useful template for use by Litigants in Person in non-complex private law welfare cases is attached to this memorandum. Its use in such cases is optional, but is strongly encouraged.

19. It should be noted that a guide for LIPs litigating in the Family Court will be prepared in due course.

The silence of the Children’s Commissioners: Part II

This is a post by Sarah Phillimore

In May 2021 I wrote about the strange silence of the Children’s Commissioners about the issues of child safeguarding and welfare, which attracted international attention in the wake of the High Court ruling in Bell v Tavistock.

I could find nothing on the websites of any of the four Commissioners to suggest that this was an issue they were even aware of, let alone discussing. I was contacted by a person who made a FOI request on 7th January 2021 to the Children and Young People’s Commissioner Scotland for information held on the Keira Bell High Court judgment of 1st December 2020. This request was refused, went through an appeal process and the refusal was upheld.

I commented back in May that the reasons for refusal were concerning:

I have some sympathy with the need to exempt from disclosure material which represents the necessary ‘to and fro’ as people raise, discuss and refine issues of importance. I also understand the importance of maintaining confidentiality around legal advice. But it is very concerning that an organistion with the status of a Children’s Commissoner is clearly concerned that the nature of the discussion within its organisation and with the other offices may risk contributing to the ‘toxic nature’ of the debate. How could this be possible given that all who work there must be alive to the need ‘to keep the discussion focused on the issues and on the law rather than personalising them’?

I suspect there are two problems here. Given the nature and extent of institutional capture in the UK, individual staff members may have gone way beyond a focus on the law and engaged in moral castigation of those ‘hateful bigots’ who would seek to impede a child’s identification of their ‘authentic selves’. OR there is a realistion that simply commenting on the relevant law will be seen and seized upon by many as a ‘hateful’ ‘bigoted’ attack on the rights of an ‘exceptionally vulnerable’ minority. 

I have now had the benefit of reading more fully the reasons for upholding the refusal in ‘Decision Notice 171/2021’

The analysis notes that the withheld information comprises an email chain that originated from a member of staff of one UK Children’s Commissioner to their Commissioner, which was forwarded on. The Scottish Children’s Commissioner refused to disclose that email under sections 30(c) and 36(2) of The Freedom of Information (Scotland) Act [FOISA]. There was also an email from its in-house legal officer which it refused to disclose, citing section 36(1) of FOISA, which exempts disclosure of information which is confidential due to legal privilege.

The applicant argued that the public interest favoured disclosure as it pertained to a significant issue of child safeguarding and the views of the office charged with safeguarding those interests.

The Commissioner recognised the tension between two competing interests; public interest in such a significant area of child safeguarding, but also the interest of the Scottish Children’s Commissioner to receive full and unhindered legal advice to enable it to come to fully formed decisions. It decided that legal privilege outweighed the public interest in this regard.

With regard to the emails, 36(2) of FOISA provides that information is exempt from disclosure if it obtained from another person and disclosure would constitute a breach of confidence. However, it is generally accepted in common law that an obligation of confidence will not be enforced to restrain disclosure of information which is necessary in the public interest.

There are three main requirements to establish if information is given in confidence

  • the information must have the necessary quality of confidence
  • the public authority must have received the information in circumstances which imposed on it an obligation to maintain confidentiality
  • unauthorised disclosure must not be to the detriment of the person who communicated the information.

The Commissioner found that the first two requirements were met as the Children’s Commissioners were sharing information with each other ‘in confidence’ to promote their working relations.

But what about the third? The test of detriment does not require substantial damage, and could follow from mere fact of unauthorised disclosure. And this is where, in my view, it gets very interesting. The Scottish Children’s Commissioner stated that it did not have consent for wider disclosure from the individual who shared the information.

It explained that the issue under discussion was and remained highly contentious, with public opinion being very polarised. In its view, disclosure would cause significant emotional distress to this individual, with a real risk of them being exposed to online harassment and abuse for the opinions they expressed

The Commissioner accepted that the risk of online harassment is credible (but no where do I see any discussion of how it would be possible to disclose the contents of the email and keep the emailer’s identity private) and went on to consider the public interest in disclosing in any event. The Commissioner agreed with the reasons put forward by the Commissioner:

  • there was no attempt here to cover up any wrongdoing
  • there was a significant amount of information and commentary already in the public domain
  • at the time the information was withheld this was a live case still before the Court of Appeal
  • sharing information between Commissioners was to be encouraged

So what next?

The applicant has a right to appeal, I do not know if she will exercise that right but she has 42 days from the date of the decision. As an analysis of the relevant law it seems unremarkable – but what it throws up about the nature and the quality of discussion around medical transition is very remarkable indeed.

I can only speculate as to the contents of the relevant email and the language used which led to a credible fear of ‘on line harassment’ if it were revealed. The continuing silence of the Children’s Commissioners in expressing any kind of view about the advisability or efficacy of medical transition makes me ponder that the email was supportive of those who claim that any challenge to or discussion of these issues is ‘transphobia’ or other unacceptable bigotry.

But it doesn’t really matter which ‘side’ of the polarised debate the author fell. What is truly shocking is that we have reached a position in 2021, in a secular democracy, where particular views must be shielded from public gaze lest they attract abuse, intimidation and other threats. This is particularly worrying when the organisations who feel they have no choice but to be silent are those charged with statutory obligations to safeguard our children.

I am not aware that any of the Children’s Commissioners have since expressed any public view at all about medical transition. Perhaps they are awaiting the Cass Review? But at some point, and soon, they are going to have to fulfil their statutory obligations and the silence must end.

EDIT

Thanks to a Twitter user who reminded me that it was Anne Longfield as England Children’s Commissioner who remained completely silent (despite many parents and whistleblowers contacting her) right up until the judicial review proceedings.

However, she then she ordered the Care Quality Commission inspection which reported in January 2021 and found the Tavistock to be ‘inadequate’. Longfield was then replaced by Dame Rachel de Souza as Commissioner. I wonder if there is anything interesting in that timing. I guess we will never be allowed to know.

So useful to be reminded that the Children’s Commissioners do have some role to play. But makes it more worrying that we do not know now what they think of it all. To say ‘but there is lots of information in the public domain!’ is no answer at all. Many of us want to know what those with particular statutory obligations, funded by public money, have to say about one of the most serious medical scandals involving treatment of children in recent decades.

‘Interesting Times’

The Speech of Sir Andrew McFarlane President of the Family Division

FLBA National Conference: Manchester 16th October 2021

This is a post by Sarah Phillimore.

It is of course an ancient Chinese curse ‘may you live in interesting times’ and thus an intriguing title for this address, which you can read in full here. I propose to consider some selected highlights of what our President sees for the future of the Family Justice System.

First the President sets out what he wants to achieve over the remaining few years of his term. The following items will always be on his ‘to do list’.

  • Delivering the implementation of the long-running Digital Reform Programme for Civil, Family and Tribunals
  • Ensure everyone abides by the recommendations of the Public Law Working Groups.
  • Move the Family Court out of its silo and work effectively with other jurisdictions.
  • Protect and enhance the well being of everyone involved in the delivery of family justice.

Two topics however will demand additional time, focus and resources

  • resolution of private law disputes between parents about caring for their children post separation – this was covered in a previous Key Note address ‘Supporting Families in Conflict: There is a better way’
  • Transparency – the processes by which the Family Court may be made more open so that the wider public may gain a greater understanding of the work done here. I have undergone a sea change in my own approach to transparency – from actively campaigning for more openness, to now grave concerns about many journalists and parents will seek to use information made publicly available. The President will shortly publish the conclusions of the ‘‘Transparency Review’ that has been undertaken during the past year. Unfortunately this delay in publication meant the President felt it would be premature to consider it now.

Therefore the President turned to consider other matters.

The Future of Remote Hearings.

No national guidance will be issued but each local court centre will be trusted to exercise their discretion on a case by case basis and within broad parameters. The President made some comment about these parameters. It is clear that we will not return to the working practices of February 2020. The courts have now become used to remote working and it should be the formal of choice in appropriate hearings. The central theme is that parties and their lawyers should normally be physically present when an important decision is being taken. A clear negative about remote hearings is the absence of that time ‘at the door of the court’ to focus on issues and possibly settlement. But its clear that remote hearings – ‘for the right case’ – are here to stay.

Well Being

The system is currently running ‘hot’ and at a level above its normal capacity. The backlog of work remains high and is increasing. The President is clear that this level of working is not sustainable in the long run. Judges also need downtime and sympathy for late filing of position statements etc is going to be in short supply. He is concerned that orders are now taking days to draft after hearings and containing an over abundance of recitals – a new and ‘unwelcome’ development. Hopefully a Practice Direction will be issued early next year.

Public Law

The recommendations contained in the main report of the Public Law Working Group under the chairmanship of Mr Justice Keehan were launched in April 2021 with the firm expectation that they should be taken up by every local authority in England and Wales by now. The aim is to ensure that cases only come to court when they need to do so and when they are ready to do so in terms of assessments and all other necessary evidence. The big question of whether there is a case for the abolition, or replacement, of supervision orders has been referred to the Law Commission. The sub-group’s deliberations are focussed upon making supervision orders more robust and effective. A final report on this topic, which is expected by April 2022, will include draft Best Practice Guidance. Another sub-group on Adoption has started work with a final report expected later in 2022.

Family Public Law digital programme

The FPL digital programme is now fully operational in 10 of the 43 care centres. Between 10 and 12 further centres will become fully operational next week and it is envisaged that all other centres will join them before the end of the year. Taking up and implementing a substantial new software programme has not been without difficulties, which have been made no easier by doing so during the pandemic when all involved are working beyond their ordinary capacity.

Reform Programme

Looking at the Reform programme more generally, five reformed digital services have now been fully delivered: – Divorce – Financial Remedy Consent – Financial Remedy Contested – Probate – Family Public Law. In addition some 60% of all private law applications are now made online. Over ½ million digital applications have now been made using these services and the level of performance has been transferred: 9 – Divorce now takes 20 weeks from start to finish – Financial remedy consents are dealt with in 3 weeks – C100 applications are going to gatekeeping teams within 2 days of receipt – The FPL provides fully digital files for the judiciary.

Conclusion

The President concluded with words of praise

May I conclude by saying what I have now said on very many occasions. The record of achievement of the Family Court from the very first day of the first Lockdown has been profoundly impressive. Every single individual, be they lawyers, court staff, social workers or judges and magistrates, did their utmost to keep the system going and available for those who turn to us for protection or the resolution of intractable disputes. What has been achieved makes me proud to be part of the Family justice system and one of your number.

It certainly looks as if great strides have been made to embrace new technology and move away from a paper based service which hopefully will not only increase efficiency and but reduce costs. I am certainly pleased that remote hearings are here to stay when it comes to the shorter more administrative hearings. The joys of leaving the house at 5.30am to attend a 20 minutes directions hearing in Plymouth certainly diminished over the years – if those days are gone, I am very glad.

But of most interest to me is what the President wasn’t able to speak about – the Transparency Review and what it will mean for not only how we work in the Family Courts, but how others will be able to discuss how we work. I wish I could say I was filled with delighted anticipation for the forthcoming Review and how it will usher in a new golden dawn of shared information and understanding. Sadly, events of the last few years – most notably the woefully imbalanced ‘Dispatches’ report that could apparently find not a single father to interview – have made me much more pessimistic.

But as ever, I am always happy to be proved wrong. It is clear to me that trust and confidence in the system will not come from simply improved ease of access and IT improvements, but rather that people can be helped to understand the nature of the work that is done and most importantly the inevitable limitations of any system of law to mend broken relationships and emotional dysfunction.

‘The Shake’

On Thursday 4th November 2021 at 7 p.m. we will be presenting by Microsoft Teams a play about a young baby who gets shaken and badly injured whilst in the care of her parents. The family portrayed in the play are involved in care proceedings. The play shows the social circumstances, so frequently encountered in criminal and Family proceedings, which lead to this sort of injury.

The play is graphic, and some may find it distressing. It lasts for about 40 minutes. We show it as an acted play-reading. It has been written be HHJ Wildblood QC. There is no charge for attendance.

After the play, there will be a short talk by Dr Imelda Bennett, Consultant Paediatrician explaining the nature of injuries that are often encountered when a baby is shaken. That will be followed by a short talk by DCI Kristina Windsor about the criminal procedures that may arise and the charging options that may need to be considered. Finally, HHJ Wildblood QC will speak about Family Court procedures and the need for communication between the Family and Criminal proceedings. There will be a chance to send in questions using the Team’s ‘chat’ function.

We estimate that the event will last a total of about 1 ½ – 2 hours. The intention is to improve our understanding of how these distressing injuries can occur and the consequences that may arise for everyone involved. Those attending are asked to turn off their microphones and cameras when joining the Teams link.

The Teams link is here. If you have difficulty joining on the night, please email HHJ Wildblood QC on his email address: stephenwildbloodqc@gmail.com

If you are attending, please could you send a brief email to Stephen on the above email address so that we have some idea of numbers.

Microsoft Teams meeting

Join on your computer or mobile app

Click here to join the meeting

Join with a video conferencing device

494469532@t.plcm.vc

Video Conference ID: 124 901 523 8 

Alternate VTC instructions

Or call in (audio only)

+44 20 3443 8791,,967692441#   United Kingdom, London 

Phone Conference ID: 967 692 441# 

Find a local number | Reset PIN

Learn More | Meeting options