This was issued in December 2020. I will be interested to see how this pans out. There are rather too many vague statements of intent:
“to ensure the most vulnerable children and families are prioritised and the future system is designed around their needs”
“All reform in this area must continue to have the best interests of children and families at its heart, and lead to improved outcomes for children”
Which troubles me in light of the concerns I have raised over the focus of the MoJ Expert Panel – to identify and prioritise ‘victimhood’ at the start of the process, with little or no focus on the Article 6 rights to a fair hearing.
It’s all well and good to trumpet ‘best interests’ and ‘good outcomes’ – but who is deciding what each of these terms mean and what they look like?The family justice system exists first and foremost to apply the law. It cannot create law or finance policy decisions. Some of the most difficult care cases involve teenagers in acute mental distress. Access to help and support – even a safe place to stay – is very difficult and unlikely to improve in the near future. I am unsure what the family justice system can do to make that situation any better.
For ‘reforms’ to any legal system to have any benefit, they must be focused on both the limitiations and the demands of a legal system. There must be equality before the law, not assumptions at the outset re ‘victims’ or ‘perpetrators’. There must be recognition that so much of what needs to change to secure better outcomes for children, will rely on services external to the family court which require central government funding to survive.
Particularly with regard to care proceedings, rather than looking on how to make final hearings better, shouldn’t we be thinking more about how we avoid the court process? Why are applications in both private and public law proceedings so relentlessly on the rise? It certainly suggests a failure of any attempt to ‘problem solve’ or mediate. My best guess at why this is happening is because those agencies and services which might have been able to divert a family away from the court are no longer operating or have been greatly reduced. The court becomes the only option.
I know its easy to criticise and difficult to do better. I don’t wish to cast aspersions on the good intentions and hard work of those who have contributed towards this. I am glad to see efforts being put towards increasing the number of available judges. But there remain some pretty big elephants in the room who will, at some point, need feeding.
The family justice system exists to safeguard vulnerable children and adults, and to act in the best interests of the child at all times. Our success depends on effective, timely coordination across a wide range of agencies, an everyday challenge that has been greatly exacerbated by the Covid-19 pandemic.
Increasing numbers of children have experienced delay to the court proceedings in which major decisions will be made about their lives. We are acutely aware of the impact this has on their identity, mental health and wellbeing, on top of the range of additional challenges which led to their involvement in proceedings.
As a Board, we have agreed a programme of prioritised action that will tackle the immediate pressures and deliver the longer-term reforms that are needed to ensure the most vulnerable children and families are prioritised and the future system is designed around their needs and runs smoothly.
This note summarises the priorities that we have identified for attention and have tasked the Family Justice Reform Implementation Group to coordinate and oversee. Details of our specific priorities for public and private family law are outlined within specific reports issued alongside this statement.
Children within outstanding cases are experiencing greater delay as the family justice system has long been struggling with caseloads. The timeliness of care proceedings has deteriorated in recent years, and private law applications have grown by around a quarter since 2014. This has had a lasting impact on vulnerable children who are awaiting decisions that will define their future, and on the wellbeing of staff across the system.
System capacity has been further – and profoundly – challenged by the outbreak of Covid-19. The response within the system has been nothing short of extraordinary – from local authority social workers and Cafcass/Cafcass Cymru officers maintaining family contact through a blend of ‘in person’ and remote visits, to the national implementation of virtual court proceedings by HMCTS, legal professionals and the judiciary. These efforts, and the careful triaging of activity, ensured that work and support continued with the most vulnerable people.
We recognise and pay tribute to the dedication and tireless effort of professionals across the sector. We know that you are dealing with caseloads that are far higher than before, and that your work is made so much more challenging in the current context. We have already taken a number of steps to try to alleviate pressure within the system:
• Since the outbreak of the pandemic, a national cross-sector Covid-19 recovery group has met frequently to coordinate the system response; 2 • HMCTS has recruited approximately 900 additional support staff across all jurisdictions, with currently around 700 further appointments sought; • Approximately £3.5m additional funding has helped Cafcass increase staffing levels to respond to record levels of open cases; • A programme of recruitment to increase judicial capacity is ongoing.
Whilst additional resources are essential to stabilising the system, we know that further measures are needed urgently to address the immediate challenges posed by the pandemic and entrenched, longer term issues. The measures that we are focusing on as priorities to pursue are set out below.
Immediate recovery priorities. In private family law, we need to focus initially on delivering interim measures to increase the efficiency and flexibility with which applications are dealt and progressed. The first priority must be the pursuit of immediate changes to alleviate the backlog of cases growing in ways which ensure risk is identified and the most urgent cases seen first.
These changes include, for example, the courts adopting more collaborative case management planning during gatekeeping, or embedding the temporary flexibilities afforded by Practice Direction 36Q over the management of Child Arrangements applications. There has been significant innovation and learning from the ways in which local courts have responded and these are now being shared through regional networks so that the measures that are easiest to implement and have the greatest impact can be introduced everywhere, tailored to local circumstances.
In public family law cases, the Board recognises that the immediate focus must remain on ensuring that the children, young people and families who are most severely impacted by delay stemming from Covid-19, are prioritised. There is an immediate need to ensure cases with serious child safeguarding risks are taken to court and heard in a timely manner, and collective action is needed to progress permanence decisions and find ways to manage the most complex and contested hearings in a way that is just.
Longer term reform plans Private law – the Family Justice Reform Implementation Group will continue developing a programme of pilot projects to test a revised Child Arrangements Programme, to deliver an earlier gateway to court which offers families a more rounded assessment of the needs of children and their families, and an improved offer for non-adversarial problem solving. Those cases that proceed to court would be offered a differentiated approach to adjudication, dependant on need, with more effective case management and review, in line with the findings of the President’s Private Law Working Group and the Expert Panel on Harm in the Family Courts.
Work to design this reform programme is underway now, and further information will be cascaded in due course. A guiding objective of these longer-term reforms will be to ensure that the system continues to put children and families first.
Public law –the system needs to be ready to support all vulnerable children and adults who depend upon it, and the greatest need is to ensure that those who need support and safeguarding receive it at the right time. Where appropriate, pre-proceedings work and the extended family network should be used. The priority should be to renew existing good practice within the Public Law Outline and implement a system-wide leadership focus on practice improvement.
These recommendations re-state and re-emphasise the statutory and regulatory requirements and good practice. All reform in this area must continue to have the best interests of children and families at its heart, and lead to improved outcomes for children.
Coordinating delivery – a national, regional and local approach The task of addressing the profound challenges facing family justice needs to be a genuinely shared endeavour. The system is complex and multi-faceted, and no single organisation can deliver the changes that are needed in isolation. The Family Justice Reform Implementation Group – comprised of leaders from across the system – will be accountable to the Family Justice Board for overseeing delivery of our priorities.
Pressures and challenges prevalent in one part of the country will be different from those elsewhere – a prescriptive central plan will never recognise and accommodate this regional variation. In recognition of this, the Implementation Group is finalising the regional and local arrangements that it will adopt to ensure the activities of greatest potential impact in different parts of the country are pursued. Local Family Justice Boards are uniquely well positioned to ensure that priority actions respond to the most pressing local and regional challenges and will have an essential role to play.
We will share further information about the national, regional and local delivery arrangements in early January 2021. Issued with the endorsement of Family Justice Board members and observers
Annoyingly, I appear to have lost data from Google analytics for the time prior to August 2020 but from 4th August – 23rd December the CPR site had 148,689 users. Sadly, yet again the two most read posts dealt with domestic violence (26,804) and parents with mental health difficulties (22,733). The discussion about which sex abuses children most continued to be of great interest and was the fourth most read post (14,238) and attracted by far the most comments.
A lot of my focus this year has been on the increasing ferocity and general insanity of the ‘gender ideology’ debate and the impact on young children of treatment via puberty blockers and cross sex hormones. The December decision in Bell v Tavistock was of enormous significance; permission has now been sought to challenge it at the Court of Appeal and I can see I am going to need to keep updating my conference speech for the 8th Family Law and Children’s Rights Conference. Pandemic permitting, I will be speaking there in July 2021.
That focus inevitably meant I had less time to examine issues of particular relevance to the child protection system – but my concerns about the lack of open and honest debate relating to issues around the transition of children are directly relevant to the child protection system and safeguarding in general. The unifying thread for all of my work is the concern about the consequences of allowing single issue campaigners to be the ones to apparently decide the direction of law and policy.
One such concern was the approach of the Ministry of Justice to issues of violence in the family law system. The report Assessing Risk of Harm to Children and Parents in Private Law cases was published in June 2020 and in December 2020 I attended an on line discussion with some of its authors. I was not reassured. The focus appeared to be entirely on identifying women as victims at the outset; there was no discussion about the harm done by exaggerated or false allegations of abuse and how the court system was going to deal with any of this. There are serious implications for Article 6 rights in all of this.
We were told in December that it was accepted that lack of resources was a real problem – most notably for the implications this has on judicial continuity – but at the same time told to reflect on our practice and ‘improve’ our performance. I remain very uneasy at being told the courts operate a ‘pro contact’ culture. That isn’t my experience. That there is such an apparently huge disconnect between my experience and those of others, does require further thought.
A conjoined Court of Appeal case is due to be heard in January 2021, with a variety of interveners. This is apparently to examine appeals from decisions made in the magistrates court around issues of serious sexual violence in relationships between parents. Hopefully this will provide more clarity or at least be an honest airing of the issues.
This clarity is urgently needed because a further schism is opening up between those who recognise parental alienation as a serious problem, involving parents of either sex and those who claim it is rather a smokescreen put up by abusive fathers, to deny women the opportunity to protect themselves and their children. I found myself writing a lot about parental alienation this year. It must surely be possible for the Family Justice System to find better ways to more efficiently manage the tensions inherent in promoting contact but preventing children from harm.
Journalists and the ‘secret family courts’
Journalist Melanie Newman succeeded in getting permission to appeal against the decision to refuse to allow her access to case papers – the appeal should be heard in March. This is likely to be a significant decision relating to issues around the extent of disclosure of information in family cases to journalists. I used to be in favour of greater transparency but have revised my views in light of what appears to be the continuing failure of journalists to report with any degree of accuracy about the family justice system.
Happy New Year?
So there is a lot happening. We have at least appeared to have grappled tolerably well with the challenges of remote hearings during the pandemic, and the work of the Nuffield Family Justice Observatory has been extremely helpful.
But not all of what has been happening is the product of a genuine desire to find the truth and solutions. Much of it, in my view, is the result of single issue campaigners who wish to bend the law to their own vested interests. The courts, at least so far, seem willing to resist.
But the saddest thing of all remains. The CPR site has been running since 2014. In all that time the two most read posts remain constant – concerns about violence in relationships and how parents with mental health difficulties navigate the court system. That suggests strongly to me that we have got no better at dealing with either. I hope by the end of 2021 both no longer dominate the Top Ten, but I am not optimistic.
At least I hope this time next year, to be no longer a police certified hate monger, but that will depend on how my own court action pans out.
A very Merry Christmas to all my readers. And, I hope – a Happy New Year.
This is a guest post by a 15 year old. It is sad to read because I suspect many would agree.
It takes a village to raise a child, yet the current generation seem to think the child will raise itself
Legally a person is an adult at 18. A fact defined by law. So why are the current expectations forcing teens as young as 13 to ‘be mature’ when they are legally a child? The current expectation on our shoulders is crushing, overwhelming and debilitating. We are both expected to grow up and take an onslaught of pressure from every angle while simultaneously enjoy an enriching childhood. This a task I believe the majority of adults could not complete, so it seems to be passed to the teens of today. With so many adults washing their hands of responsibility towards the care of children, we have a generation growing up with no childhood. When was our right to just be a child stripped from us? Every adult seems to have a negative thing to say about how teens act but they are the ones who have created a system where these ‘disruptive’ teens are stripped of their childhood innocence and are shoved into the deep end of maturity before anyone has taught them how to swim. Children are drowning. A statement that once would have sparked action but now is ignored.
Imagine a world where people would take responsibility for what they have created. Shame it is only a dream rather than reality. Teens are a product of this generation, anything this generation has to say about the actions of teens, surly speaks louder of them. The current parenting technique is coddle your child and squash any ideas of own independence, until the child makes a mistake then they are questioned on their lack of maturity. We don’t expect knowledge before its taught so why do we expect maturity when the opportunity to learn it is never given? When you have a child, you have made that decision to feed, house, care for and be part of raising the next generation. However current parents seem to be forgetting they signed on to that deal. They provide their child with necessities to life then abandon them when it comes to teaching them how to live a life. We are referred to as the snowflake generation and hated by our elders, but we are what they made us. Teens are just mirrors reflecting the mistakes of the current adult generation. Its time to point the finger of blame to the real culprits.
Teens of today are having their wings clipped during childhood and then are expected to fly when it comes to their 18th birthday. Adults enforce rules on every aspect of life before soon there is only one option for children. A path of rules, exams, and no individuality. With no time to be a child, no time to develop the mind, no time to learn the skills needed for what the rest of life has to offer. There is a generation of scared and underprepared teens and all the adults have to say in response is grow up. Its like a twisted maze where the only exit is locked, and we don’t have the key. Its very clear to me why there is exponential growth in mental health issues in our generation of teenagers. Its black and white, clear as day; yet adults will close their eyes to it and claim we are just delusional. That every issue we face, they too faced and overcame meaning we are just snowflakes who cannot handle it. But these adults did not have their childhood ripped from them. They had no fear that they wouldn’t fit on the one pathway to success our society has created. They didn’t have numbers on a page that defined their worth in this world. The world is changing, and adults need to stop dragging their feet and support teens of today to face the 21st century before we lose hope of a brighter future.
Role models, a universal way of showing those who are learning what the end goal is. A sports role model would inspire children and help grow the next generation of Olympic athletes. So, when our generation is looking for role models to show them how to be a good person, where do we look? With corrupt governments leading almost every major country, it’s not there. With the education system now based on exam results and Ofsted reports with overworked and underpaid teachers, it’s not there. With parents now so consumed with fighting for survival in an economy where only the top 10% survive, its not their either. Every option there is to consider have all been tainted by the current society’s obsession on money, there is no room for teens of today to simply learn how to be a good person. Climate change ignored. Racial inequality pushed aside. Gender bias dismissed. Our world is run by rich white men who will ignore or even aid in the failings of society to benefit their bank balance. When this is what the teenage generation have to follow no wonder we are considered ‘immature’ because the thought of growing up is met with the knowledge we will have to fight in a world where we won’t win.
Teens of today have been set up to fail not just be those who raised them. Forced through an outdated and overlooked system to only inherit a dying world. Before adults talk about the failings of teenagers the question needs to be asked, why are they failing? It takes a village to raise a child and it’s time for that village to step up.
I have been invited to present a paper at this conference, postponed from July 2020 due to the pandemic. This was a timely postponement as it will enable me to incorporate and discuss what will be a seminal judgment in the Keira Bell case, due to be delivered on December 1st 2020.
The changing legal response to primary school children who are said to wish to transition from one sex to the other. Have legal responses been captured by considerations other than the rule of law and the welfare of children?
Historical context – the birth of the ‘trans child’
Only an understanding of how we got here will enable us to fully understand where we are now. By 2018 it had become firmly established as a UK ‘cultural norm’ that transgender identities were inherent and that any challenge to this was not acceptable, to the extent that those raising questions or unease about how this translated to choices made by even very young children were ‘transphobic’ and ‘hateful’.
This is a pretty dramatic shift from 20 years ago, when the issue of the ‘trans child’ simply was not on the radar of the family justice system. The concept has been successfully normalised in what seems a very short space of time, using both medical and legal routes.
From 1999 – 2019 I encountered not a single case involving a ‘transgender child’ but in 2020 I had two. How has recognition of issues of ‘gender identity’ shifted so dramatically over the past decade?. ‘Queer Theory’ has become more mainstream; this, in essence, re-frames innocence and vulnerability in children as ‘support systems of power’ that enforce heteronormatively and other harmful stereotypes.
As long ago as 1979 the ‘Harry Benjamin International Gender Dysphoria Association’ was established, now known as the World Professional Association for Transgender Health (WPATH). This organisation advocates for ‘trans affirmative’ clinical guidance and training course for health professionals working with transgender people.
By the 1990s in the UK, parents of ‘gender dysphoric’ children began to request hormone suppression at the first signs of puberty. Such ‘puberty blockers ‘ administered at a young age, followed by cross sex hormones, would enable a child to ‘pass’ more effectively as the opposite sex when an adult. By 2009 the Endocrine Society had new clinical practice guidelines for treatment of transgender children which lowered the age for administration of hormones from 16 years to the first onset of puberty. However, the long term consequences of such treatments are not known – and it was not until 2020 that the NHS revised its on line guidance to make that clear.
In the USA in 1995 an International Bill of Gender Rights (IBGR) emerged, setting a legal stage for the development of ‘the transgender child’ including claimed rights for transgender peope to define their own gender identity and to alter their bodies, surgically or medically as they saw fit, coupled with a right not to be subject to ‘involuntary psychiatric diagnosis or treatment’.
In 1997 the European Court stated in X, Y and Z v the UK (1997) 24 EHRR 143 that transexuality “raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the Contracting States”. But over the years that followed, the complexity of those issues were re-considered in the light of growing demands for the recognition of the rights of trans people.
In 2007 the ‘Yogyakarta Principles’ were drafted by a group of academics and transactivists.. Gender identity was defined as:
… each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.
The Yogyakarta Principles have no legal force, they are not incorporated into any UN convention or declaration but over time they have been regularly cited and relied upon. They were redrafted in 2017 to propose ‘no eligibility criteria, such as … minimum or maximum age … shall be a prerequisite to change one’s name, legal sex or gender’
In 2007 in the UK, the Department of Health declared that being trans is ‘not a mental illness’ and by 2012 the British Psychological Society produced guidelines to affirm all sexualities and genders, pointing out their profession’s long and inglorious history of pathologizing individuals who went against traditional norms of sexual expression.
In 2008, Department of Health guidelines advised ‘sex assigned at birth’ and the child’s ‘inner sense of knowing’ their true gender, may not align, and ‘gender variance’ in children can emerge at a very young aged, identified in the ways children behave in their dress or play. Parents were urged to address their child’s gender variance as soon as possible in order to secure their future as a happy adult.
Around this time, referrals to the Gender Identity Development Service (GIDS) at the Tavistock and Portman NHS Foundation Trust showed a staggering increase; from just 97 in 2009/10 to 2,016 in 2016/17.
What had apparently been born out of a desire to confront and tear down harmful stereotypes around regressive gender stereotyping, had instead become affirmation of the same, to the extent that if a boy wished to play with ‘girl’s toys’ or wear ‘girl’s clothes’ he could not actually be a boy but was instead a girl born ‘in the wrong body’.
Since 2015, after the fight for gay marriage was won in the UK, the lobby group Stonewall added a ‘T’ to the LGB, a move that saw its funding increase from £4.33m in 2013, to £7.24m in 2017. The charity Mermaids, saw a similar surge in its funding.
The Human Rights Council established the office of the Independent Expert on Sexual Orientation and Gender Identity (SOGI) in June 2016 and the European Court of Human Rights (EHRC) recognized homophobic and transphobic hate crimes in 2018.
Also in 2018 the Royal College of Psychiatrists (RCPsych) in the UK endorsed the propostion that sex is assigned and gender identity inherent, supported removal of transgender status as a psychological disorder and objected to any kind of ‘conversion therapy’ to make people ‘cis gender’ (i.e. one whose ‘gender identity’ is congruent with their birth sex).
Alongside these declared positions by medical bodies and campaigning groups, frequent reference was made to the dangers of denying children access to treatment to address their gender variance. It has frequently been asserted that as many as 40% of transgender adults have attempted suicide; for example see “Pubertal Suppression for Transgender Youth and Risk of Suicidal Ideation,” (Turban JL, et al. Pediatrics. Jan. 23, 2020” .
One study was conducted by questionnaire using a non-probability sampling method. This means that the questionnaire was promoted within the LGBT community and people chose whether or not to fill it in. In total 2078 questionnaires were analysed, however only 120 of these were transgender people, and only 27 of these were under the age of 26 years old. It is only the results from the 27 young trans people that was reported in relation to suicide. Of these 27 young trans people 13 of them reported having attempted suicide at some point in the past. This is where the 48% of all trans youth attempt suicide stat comes from.
The bulk of reported legal cases around transgender issues reflect the choices made by adults. But when considering a child who declares themselves to be ‘trans’, we must examine more carefully the reality of their informed consent to medical treatment which could leave them infertile or with reduced sexual functioning as adults. There is no ‘test’ for ‘gender variance’ – doctors are expected to prescribe treatment on a self reported diagnosis.
“Gillick competence” refers to the recognition that the capacity of a child to make serious decisions about his or her life will increase as does the age and understanding of that child. It derives from the decision of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority AC 112 where a mother attempted to argue that children under 16 should not be provided any treatment or advice around sexual issues. The court disagreed and said that younger children could access such services, as long as they were able to understand the implications – i.e. were they ‘Gillick competent’?
Although a ‘child’ is defined as a person between the ages of 0-18, Gillick competence is only relevant to children under 16. Once children reach 16, in England and Wales they are held by various statutes as able to make their own decisions across a range of issues.
These are set out in the judgment of Lady Hale at para 26 of D (A Child) (Rev2)  UKSC 42 (26 September 2019). For example Section 8(1) of the Family Law Reform Act 1969 provides that the consent of a child of 16 to any surgical, medical or dental treatment “shall be as effective as it would be if he were of full age.”
The Austrialian case of Imogen (No. 6)  Fam CA 761; (10 September 2020) has some useful discussion about the continuing role of the court, even with a Gillick competent children (Imogen being over 16 at the time of the proceedings). The court identified the two stages of treatment for gender dysphoria as ‘stage 1’, being ‘puberty suppression’ via gonadotrophin releasing hormone analogues (GnRHa) in order to halt progression of physical changes such as breast growth or voice deepening. Stage 2 is ‘gender affirming hormone treatment’.
The court makes a distinction between therapeutic and non-therapeutic treatment, stating that both Stage 1 and Stage 2 were deemed ‘therapeutic’. Non therapeutic treatments were held to involve invasive, irreversible and major surgery, where there was a significant risk of making the wrong decision and where the consequences of that decision are particularly grave. Given that so little is known about the long term impact of puberty blockers and cross sex hormones for children, I suggest there is a question mark about the categorisation of both stages as ‘therapeutic’.
But the distinction is important when considering the limits of the court’s paternalistic powers to rule against the wishes of a Gillick competent child. It is of course possible, but very unusual. For example, In X and Others v The Sydney Children’s Hospital Network  NSWCA 320; (2013) 85 NSWLR 294, the court did not allow a competent 17 year old Jehovah Witness to refuse blood products which were potentially lifesaving. However, this was the only case identified where a court has overruled the views of a Gillick competent child to impose treatment. Other cases involving anorexia nervosa and treatment for drug rehabilitation involved children who were not Gillick competent (Director General, Department of Community Services v Y  NSWSC 644; Director General, Department of Community Services v Thomas NSWSC 217; (2009) 41 Fam LR 220). There was no recorded case where a court had refused a Gillick competent child the opportunity to consent to therapeutic treatment.
Much then seems to turn on how the adults assess the nature of the intervention to which a child seeks to consent. There has been considerable disquiet in England about the apparent ‘affirmation path’ upon which children are placed – in that treatment is not merely seen as ‘therepeutic’ but the only identified option, as opposed to therapeutic intervention.
Marcus Evans, now a psychoanalyst in private practice, formerly served as Consultant Psychotherapist and Associate Clinical Director of Adult and Adolescent Service at the Tavistock and Portman NHS Trust. In 2020 he wrote about why he resigned.
Those who advocate an unquestioning “affirmation”-based approach to trans-identified children often will claim that any delay or hesitation in assisting a child’s desired gender transition may cause irreparable psychological harm, and possibly even lead to suicide. They also typically will cite research purporting to prove that a child who transitions can expect higher levels of psychological health and life satisfaction. None of these claims align substantially with any robust data or studies in this area. Nor do they align with the cases I have encountered over decades as a psychotherapist.
As Heather Brunskell Evans points out, the child’s ‘gender identity distress’ is occurring within this cultural context and the ‘fantasy’ that it is possible to become the opposite sex. This prevents proper or even any discussion of the reality and limitations of surgical and medical interventions – for example, surgery on the female body to simulate a penis cannot create a fully functioning organ. There must be real and serious doubts about whether a child or adolescent can grasp the importance of information about medical or surgical intervention and fully understand the implications. Therefore significant doubts exist about the reality of their consent.
There were futher worrying signs that the intent announced in the Yogyakarta Principles’ – to remove any minimum age based reqirements around gender issues – were being encouraged further into the cultural context. For example, in 2019 the legal adviser to the Mermaids charity, attempted to erase entirely any distinction between very young children and those with ‘Gillick competence’ by commenting
….someone’s gender identity, at any age, must be respected. A child identifying as trans, whether it has been submitted this is as a result of harm or not, is identifying as trans and that must be respected throughout proceedings…More often than not, if a child says they are trans, they will be trans.
Two High Court cases. Re J and Re TP
So it is interesting to see how all of this has impacted on the approach of the courts in England and Wales, when considering the welfare of very young children who were declared by the adults around them to be ‘transgender’.
Both cases examined the issue of preschool children transitioning to the opposite sex. That is probably the only factor each case has in common but I think the different approach in each to the very young ‘trans child’ is an indication of the speed with which attitudes have apparently shifted – from not simply recognising the existence of young children who may have gender dysphoria and offering appropriate support, but to embracing the affirmation principle itself.
J (A Minor), Re  EWHC 2430 (Fam) (21 October 2016) involved a mother who asserted that when her son was 4 years old he wanted to become a girl. She asserted that he ‘disdained his penis’ and was being subjected to bullying at school etc. She could not provide any proof of this and the school denied it was happening. She was supported throughout by the charity Mermaids who played a significant role in the development of a ‘prevailing orthodoxy’ that J wished to be a girl. That view was found by the court to have no bearing in reality and was a product of both ‘naivety and professional arrogance’
Mr Justice Hayden was highly critical of the local authority for getting swept up in this ‘prevailing and false orthodoxy’, commenting at paragraph 20 of the July judgment:
This local authority has consistently failed to take appropriate intervention where there were strong grounds for believing that a child was at risk of serious emotional harm. I propose to invite the Director of Children’s Services to undertake a thorough review of the social work response to this case. Professional deficiencies to this extent cannot go unchecked, if confidence in this Local Authority’s safeguarding structures is to be maintained.
So in 2016 it was clear to see that the court was doing its job to protect children; undertaking a clear and objective appraisal of the available evidence and making a decision in the face of angry opposition from Mermaids – who declared at the time that this decision would be appealed. It was not.
However, the approach of the court seems to have shifted quite dramatically only 3 years later in the case of Lancashire County Council v TP & Ors (Permission to Withdraw Care Proceedings)  EWFC 30. This involved foster carers who had two unrelated children in their care who decided they wanted to transition – the youngest aged 4 years old. The local authority were applying to withdraw care proceedings, so it was a very different situation from re J. But even so, it’s interesting to see how the Judge framed this issue of transitioning pre schoolers:
Notwithstanding even the Guardian’s caution in respect of the openness of [the foster carers] to the possibility of an alteration in the children’s attitude to their gender identity I conclude that Dr Pasterski’s evidence demonstrates that it is obvious that neither of these grounds would meet threshold. Taken together with the panoramic evidence of the child focused approach of [the foster carers] it is overwhelmingly obvious that neither H nor R have suffered or are at risk of suffering significant emotional harm arising from their complete social transition into females occurring at a very young age. The evidence demonstrates to the contrary, this was likely to minimise any harm or risk of harm. The evidence does not support the contention that it was actively encouraged rather than appropriately supported.
This poses two immediate questions: how is it ‘overwhelmingly obvious’ that a 4 year old will experience no harm from a decision to transition from male to female at such a young age (and against the wishes of the school). It seems to be an inescapable fact that the evidence base to support any expert opinion that full social transition for a pre-school child is a ‘positive’ thing, simply cannot exist. 20 years ago, so far as I have been able to discern, this phenomenon was unknown. There is apparently no cohort of children who have been tracked from toddlerdom to adulthood to see if full social transition at a young age was something that helped or hindered their emotional, physical and sexual development. If I am wrong and that evidence does in fact exist, it did not appear to be before the court in either of the two cases I discuss here.
The second question is why the court did not give more critical appraisal to the highly unusual fact that here were two unrelated children in the same family, both apparently expressing a wish to change sex at a very young age. To what extent can the court be confident that this was a genuine expression of their wishes and feelings, rather than a product of environmental and social pressure from the adult care givers? There is considerable and I think reasonable fear expressed by gay people that some parents would rather have a trans child than a gay child as this is more ‘socially acceptable’.
I think there is a real problem here. No one is suggesting – yet – that 4 year olds should face surgery or medical intervention. But how confident are we that a child set on a path aged 4 is going to find it easy to leave that path when older? The ultimate destination is presumably some form of significant medical or surgical intervention and life long consequences. It is troubling to note that we appear to know more about the impact of puberty blockers on sheep than we do on children. I note the comments from the Science Symposium on 18-19 October 2018 at The Tavistock and Portman NHS Foundation Trust:
KIERA BELL CASE TO DISCUSS WHEN JUDGMENT IS OUT
Tide is turning ?
Shortly before the case was heard in court on 7th and 8th October, the NHS announced a review on 22ndSeptember, lead by Dr Hilary Cass OBE, former President of the Royal College of Paediatrics and Child Health, into gender identity services for children and young people. The review will be wide-ranging in scope looking into several aspects of gender identity services, with a focus on how care can be improved for children and young people including key aspects of care such as how and when they are referred to specialist services, and clinical decisions around how doctors and healthcare professionals support and care for patients with gender dysphoria. It will also set out workforce recommendations for specialist healthcare professionals and examine the recent rise in the number of children seeking treatment. Recommendations for children and young people’s gender identity services will be made in 2021.
A ‘fact finding hearing’ does what it says on the tin. It’s the way in which the civil courts attempt to find out what happened when people disagree about the facts. Or, to be more accurate, it ‘finds’ facts on the balance of probabilities, which is the civil standard of proof. So if the Judge reads the court papers and hears people give evidence and be questioned, then thinks that something is 51% more likely to have happened than not, you will get your finding.
There is a curious narrative in the family justice system that this system establishes the ‘truth’ and that children are entitled to it. I agree that children have a right to know what happened to them – who hurt them and why – but I have often argued that we need more realism about the nature and limitations of the fact finding process.
I can find only one mention in the judgment – at para 22 – to the fact that ‘the Truth’ will be determined in any rehearing on the balance of probabilities. The usual civil standard. Meaning more than 51% likely. I apologise if I have missed any further reference to this low civil standard – but certainly by para 27 it has vanished in the mist and what we have now is:
“the re-hearing must proceed so that the truth, whatever it turns out to be, can be ascertained, finally and definitively, in the light of all the evidence now available.”
I am very troubled by this. My concerns about the weight the ‘balance of probabilities’ is often asked to bear was explored in the discussions had by The Transparency Project, regarding the Ellie Butler case. I pointed out that to attempt to ‘exonerate’ someone on such a low standard of proof was unwise. I appreciate that findings must be made and must be considered definitive. But to go further and chase such findings as ‘exoneration’ and ‘the TRUTH’ is asking far, far too much of the balance of probabilities.
The Judgment and some of the arguments have a curious, naive air. That this rehearing will find The Truth, which will be crucial to X as he or she grows. X NEEDS an ‘accurate narrative’ of how his or her adoption came about. Seriously? How many of us have an ‘accurate narrative’ of our formative years. How many different choices, chances, perspectives, denials, hopes, dreams, fantasies and delusions have gone into making us who we are? Who is naive or arrogant enough to think they know The Truth?
I therefore do not accept that a fact finding hearing is a way to unmask the ultimate ‘truth’. However, I accept there must be some way of dealing with disputed allegations and identifying the agreed facts which will inform any decision made about the child’s welfare. Regardless of any unease about the process, you will arrive at something which from then on the court (and everyone else you have dealings with) must accept as objectively true. If you don’t prove your allegations, they are treated as never having happened.
So what happens if people are arguing about the need for a finding of fact? This can be a really serious and important issue in cases involving allegations such as violence or sexual abuse. The police may have decided to take no further action, if they and the CPS think it unlikely to get a conviction in a criminal court – which operates to a much higher standard of proof.
But the adult who is accused wants to be part of the chid’s life. How should the family court approach these cases?
The Family Procedure Rules 2010.
We start here. The ‘over-riding objective’ of the Family Procedure Rules is to deal with cases justly.
Dealing with a case justly includes, so far as is practicable –
(a) ensuring that it is dealt with expeditiously and fairly;
(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
(c) ensuring that the parties are on an equal footing;
(d) saving expense; and
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.
Rule 1.4(a)(c)(i) provides that, in furthering the overriding objective by actively managing cases, the court should decide promptly which issues need full investigation and which do not.
Rule 4.1(2)(l) permits the court, in the exercise of its general powers of management, to exclude an issue from consideration.
It is ultimately a matter for the court’s discretion as to whether a finding of fact is needed. The court decides what facts are necessary to be found and the court may disagree with any party’s perception. You can appeal against such a case management decision but the time limits are shot and strict.
The authorities mirror the overriding objective and the relevant considerations can be summaries as:
The interests of the child (which are relevant but not paramount)
The time that the investigation will take
The likely cost to public funds
The evidential result
The necessity or otherwise of the investigation
The relevance of the potential result of the investigation to the future care plans for the child
The impact of any fact finding process upon the other parties
The fact that the complainant children have made allegations of sexual abuse does not create a rebuttable presumption that the allegations are likely to be true. An allegation is only an allegation, and the burden remains on the local authority to prove that the allegations made by the children are established to the requisite standard of proof
Other relevant cases are:
Re G (A Minor) (Care Proceedings)  2 FLR 69
Stockport Metropolitan BC v D  1 FLR 873
Re B (Agreed Findings of Fact)  2 FLR 968
Re M (Threshold Criteria: Parental Concessions)  2 FLR 728
Re D (A Child) (9 August 2000)
In a case involving allegations of sexual abuse, the court will look carefully at the credibility and reliability of the allegations and in particular if there has been compliance with best practice over interviewing children. There is a good examination of this in Re P above, which notes that allegations of child sex abuse create’ particularly acute forensic difficulties’ for the family courts.
Interventions by well meaning adults can often corrupt a child’s evidence beyond rescue and it is very important to adhere to the good practice around ‘Achieving Best Evidence’. Many children are susceptible and wish to please adults – they may end up saying what the adult wants to hear.
It is essential that clear and contemporaneous records are kept of what a child says, but a child should not be subject to repetitive questioning.
Getting it wrong in a case of child sex abuse has really serious consequences as Re P noted:
The consequences of the court reaching the wrong conclusion in respect of an allegation of child sexual abuse include a child being returned to a position of danger or, conversely, a child being deprived of a family that is, in fact, perfectly safe. In the circumstances, when determining whether sexual abuse has taken place and, if so, who is responsible for perpetrating that abuse, it is vital that the court remain acutely conscious of the forensic difficulties outlined above. As Holman J observed in Leeds City Council v YX & ZX (Assessment of Sexual Abuse) 2008 EWHC 802 (Fam) the task of the court in cases of this nature is not so much akin to putting together a single jigsaw puzzle in which all the pieces are present, but rather:
“If the jigsaw metaphor is helpful at all, then, in my view, it is important to think of a pile of jigsaw pieces in which pieces from more than one jigsaw have been muddled up. There may be pieces which, on examination, do not fit the jigsaw under construction at all, but which require to be discarded or placed on one side.”
He cited with approval Re C (Family Proceedings: Case Management)  EWCA Civ 1489, where Munby LJ (as he then was) distinguished family proceedings from civil proceeding in this way (paras  –):
“ … But these are not ordinary civil proceedings, there they are family proceedings, where it is fundamental that the judge has an essentially inquisitorial role, his duty being to further the welfare of the children which is, by statute, his paramount consideration. It has long been recognised – and authority need not be quoted for this proposition – that for this reason a judge exercising the family jurisdiction has a much broader discretion than he would in the civil jurisdiction to determine the way in which an application of the kind being made by the father should be pursued. In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without the need for oral evidence. He may, as His Honour Judge Cliffe did in the present case, decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of the evidence.
 The judge in such a situation always be concerned to ask himself: is there some solid reason in the interests of the children why I should embark upon, or, having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise. If there is or may be solid advantage to the children in doing so, then the enquiry will proceed, albeit it may be on the basis of submissions rather than oral evidence. But if the judge is satisfied that no advantage to the children is going to be obtained by continuing the investigation further, then it is perfectly within his case management powers and the proper exercises of his discretion so to decide and to determine that the proceedings should go no further.“
As with so much in family law, you need to deal with the case before you. Previous authorities can guide you and provide a useful checklist of what you need to be thinking about, but they cannot make the decision for you. Different people may reasonably hold different views about the importance or need for a finding of fact and it is up to the Judge to decide.
Clearly, the more serious the allegations, the more recently they happened and the greater the kind of involvement in the child’s life the accused adult wants to have, the greater the need for a finding of fact.
And never forget, once those findings are made, you are stuck with them, unless you can successfully appeal or persuade the court to grant a re-hearing.
This is the text of a talk given to Bath Resolution on November 3rd 2020.
It is time to take stock about where we are now with ‘parental alienation’. Sadly, in so many areas of life and law, our ‘public debate’ appears to descend into pushing and shoving between two distinctly opposed groups. I have no doubt this is happening now in the context of parental alienation and – as ever – the people this will hurt most are the children involved.
I could talk for hours about the development of ‘parental alienation’ as a concept. It has generated a huge amount of ‘research’ and discussion. I do not want to get bogged down in arguing about labels – what matters here is the behaviour of some parents, its impact on the children and what we can do to get these very serious cases dealt with as quickly and fairly as possible. Time really is of the essence in such a situation; the more time that passes, the less likely you are to restore any relationship between child and alienated parent.
What follows does no more than scratch the surface but hopefully gives you some suggestions for further reading and research of your own.
I will look at three headings:
The identification of Parental Alienation
The likely response of the courts
Pitfalls to avoid.
The identification of parental alienation
There is currently a battle raging between two camps; those who state that ‘parental alienation’ is no more than another tool of an abusive parent (the father) who makes such allegation to cover up his own violence, and those who assert it is a prevalent and highly damaging form of emotional abuse.
A devastating form of ‘family violence’ with psychological abuse and coercive control at its heart
Of the 1,513 who responded to the survey, parental alienation was a live issue for 79% of respondents who were split 56% male, 44% female. 80% experienced an adverse impact on their mental health, 55% an adverse financial impact. 58% saw court orders breached.
A pattern emerged in the family courts (England & Wales) of parental alienation (PA) raised as a response to domestic abuse claims, as proved in Dr Adrienne Barnett’s research published in January 2020. It resulted in devastating outcomes for mothers and children. The need for a child to maintain contact became a priority as we were subtly influenced to believe in a new stereotype; a hostile, vindictive mother; a woman scorned, one who used her child as a pawn. Domestic abuse was reframed by controlling, abusive fathers who denied their behaviour, lied about it and projected it onto bewildered, abused mothers. Fathers’ rights groups powerfully marketed the new stereotype. They cried from the rooftops;
“Mothers lie about abuse and cut off contact from deserving fathers; we are the true victims; there is a bias against us!”
Judges routinely minimised domestic abuse in the courtroom; mothers were disbelieved, dismissed and punished through the contact arrangements. Welfare reports were often carried out by unsuitable and underqualified assessors.
This kind of assertion cannot be dismissed simply because the language used is overblown and the evidence in support is questionable – these issues have captured the attention of law and policy makers.
The recent report from the Ministry of Justice in June 2020 purports to assess risk of harm to parents and children in private law cases. Concerningly, it talks of a ‘pro contact culture’ where “the courts placed undue priority on ensuring contact with the non-resident parent, which resulted in systemic minimisation of allegations of domestic abuse.”
I have been critical of this report, not least because it makes no sense to recast the domestic and international obligations on the courts to protect the child’s Article 8 rights to a relationship with both parents as a ‘culture’. Further there is heavy reliance on uncorroborated anecdotal accounts to support the Watson/Barnett view.
However, I have to concede that if over a thousand people take the trouble to write in with serious complaints, we can’t ignore that many are very unhappy about the way the family justice system operates and we should be curious about the reasons why.
But I do not think the root of the problems here are with a ‘pro contact’ culture and use of this phase does, in my view, (either consciously or not), minimise the harm that parental alienation does.
If you wish to read further, my comments and a link to the report are here
With no clear accepted definition or agreement on prevalence, it is not surprising that there is variability in the extent of knowledge and acceptance of parental alienation across the legal and mental health professions. The research has however, provided some general agreement in the behaviours and strategies employed in parental alienation. This has led to the emergence of several measures and tests for parental alienation, although more research is needed before reliability and validity can be assured. Many of the emerging interventions focus upon psycho-educational approaches working with children and estranged parents, but more robust evaluation is needed to determine their effectiveness.
Two more recent authorities are;
Transfer of residence of child from mother to father – RH (Parental Alienation)  EWHC 2723 (Fam) (03 October 2019)
Re S (Parental Alienation: Cult)  EWCA Civ 568 – child ordered to live with father if mother continued to refused to give up her adherence to a ‘harmful and sinister’ cult.
The child’s opinion of a parent is unjustifiably one sided, all good or all bad, idealises one parent and devalues the other.
Vilification of rejected parent can amount to a campaign against them.
Trivial, false, weak and/or irrational reasons to justify dislike or hatred.
Reactions and perceptions are unjustified or disproportionate to parent’s behaviours.
Talks openly and without prompting about the rejected parent’s perceived shortcomings.
Revises history to eliminate or diminish the positive memories of the previously beneficial experiences with the rejected parent. May report events that they could not possibly remember.
Extends dislike/hatred to extended family or rejected parent (rejection by association).
No guilt or ambivalence regarding their attitudes towards the rejected parent.
Speech about rejected parent appears scripted, it has an artificial quality, no conviction, uses adult language, has a rehearsed quality.
Claims to be fearful but is aggressive, confrontational, even belligerent.
The likely response of the Courts
So you think you have a case of parental alienation on your hands? Now what?
We must be aware of the elements which are nothing to do with the legal or factual aspects of the case before us, but which all operate to frustrate an efficient or timely resolution. All my cases involving parental alienation have lasted years. The vast majority ended only when the child aged out of the system or the other parent gave up. However, there does seem to be a greater willingness from the courts to transfer residence now, than I saw 10 years ago – I would be interested to know if anyone else shares this view.
The courts are overwhelmed.
The key point is that the courts are overwhelmed and never more so than now. The removal of legal aid for private law applications caused not a rush to mediation as was hoped but instead to a significant increase in litigants in person with consequent obvious additional burdens for Judges.
There is a huge backlog of cases throughout the system and urgent public law cases will get priority. So dire is the current situation that recently HHJ Wildblood QC felt it necessary to publish a judgment warning parents off coming to court to argue about trivial matters ,such as the precise location of pick up and drop off. See: B (A Child) (Unnecessary Private Law Applications), Re  EWFC B44 (25 September 2020).
The problem is that mostly these arguments are not about handovers at all – they are simply a manifestation of many years of emotional pain, frustration or desire to control – all of which can feed into the developing situation that is very serious and risks causing significant harm to the children. .
But it’s always good to remember that the courts are pre-disposed to want you to go away. There may be initial resistance to identifying a case as a serious example of risked emotional harm. You must hit the ground running with a clear case, effectively presented.
Maintain your objectivity
It is rare – I would say impossible – for any case to involve someone who is 100% a victim of another’s behaviour. Clients must be encouraged to look with realism about their own contributions to any breakdown in the adult relationships and do what they can to mitigate this. A key responsibility for us as lawyers is not to engage personally and I know this is often difficult to guard against when we feel instinctive sympathy for a client denied any relationship with his or her children for no good reason that we can see.
However I am often taken aback by the tone of correspondence I see between solicitors. It is clear that anything that operates to increase the emotional tension between the parties is likely to prolong and exacerbate existing difficulties.
Push for finding of fact as soon as possible and consider LA involvement
It seems likely that most cases will require a finding of fact. These are not cases where the alienating parent is likely to ‘let go’ of any allegations and the court will need a firm basis on which to proceed if considering a change of residence.
And do not wait until the outcome of the fact finding to consider the next steps. Some cases will require input from the LA as to whether they will consider care proceedings and provision of foster placement. Be ready to make the request for a section 37 report.
Other ‘structural’ problems
You must be aware of the other structural elements that operate against effective resolution. It is clear that an adversarial court environment is not a good place for angry or frightened people to be. Even the physical environment of many courts operates to reduce the chances of effective negotiation and compromise, with no where private to sit and talk.
Of course, remote hearings don’t make any of that any easier. But on a positive note the findings of the Nuffield Observatory indicate that the perception at least of such hearings is that they are fair most or all of the time.
Lucy Reed wrote recently about the structural problems that make the system ineffective – even positively harmful.
She notes the increasing burden on any lawyer representing the child, who may be the only lawyer in court, particularly if they are asked to take on cross examination of both parents!:
It is a tricky, uncomfortable and exhausting task. Particularly where, as I recently was, counsel for the child is tasked with asking questions sequentially on behalf of both parties of the other, as well as (eventually) her own. The burden on an advocate of asking questions from three metaphorical vantage points in turn is significant.
Common pitfalls if the court decides to transfer residence
What’s the exit plan?
So you have navigated the fact finding process and a court has determined that the child’s residence needs to change. Depending on the length of time a child has been alienated and the degree of opposition expressed, you may need expert help on the ground. This will require careful thought as there are sadly many examples of when attempts to change residence went wrong – one local example is Re A (Children) (Parental alienation) EWFC
There is a serious problem is the shortage of available expert practitioners in this field and risk that those who do operate are partisan. Check CVs carefully! Do not instruct anyone who purports to offer psychological help but who is NOT subject to scrutiny by any external regulator.
In October 2019 I wrote an open letter to the President which was signed by lawyers, parents and experts.
We are writing to request an amendment to Practice Direction 25 B so that no person may be permitted to submit an expert report involving the assessment of any child unless that person meets minimum standards of professional practice, which we assert are as follow. The expert must:
submit to an external regulatory or supervisory body which requires adherence to a Code of Conduct
meet professional obligations as data controllers
provide clear and accessible formal complaints procedure
We are troubled by the number of experts involved in family proceedings who do not appear to meet some or all of these basic requirements.
I received a reply that this was being considered but COVID and the President’s ill health intervened and I haven’t heard back – this reminds me to chase.
But while waiting to see if the rules are amended I strongly urge you to bear this in mind when deciding who to instruct. I advise avoiding any organisation or individual who cannot meet such basic requirements of good practice.
I have only had two cases in my career where costs were ordered against a parent (both mothers) who were found to have deliberately obstructed the court process. I have no evidence to support my feeling that this may become an increasing trend, but be aware of the potential for a costs argument and be ready to make it. And don’t – as I did! – neglect to consider the rate of interest to be attached to a cost order and the time from when it starts running.
Costs orders in children’s cases are exceptional but possible.
The Family Procedure Rules adopt most of the costs rules of the Civil Procedure Rules with one important distinction. FPR r 28.2(1) disapplies r 44.2(2) of the CPR; being the ‘general rule’ that the unsuccessful party will pay the costs of the successful party. There is thus no general assumption in family proceedings that ‘costs follow the event’. The general rule is instead that parties have a ‘clean sheet’ i.e. there is no presumption as to whether or not there will be a costs order.
The Judge retains a general discretion to make a costs order in family proceedings– as set out in primary legislation (see s51(1) SCA 1981) and repeated at r28.1 FPR.
The conduct of the parties is a relevant factor at CPR r44.2(4)(a), which is not disapplied by FPR r 28.3. ‘Conduct’ is further defined at CPR r44.2(5):
conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;
whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
the manner in which a party has pursued or defended its case or a particular allegation or issue;
whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.
See principles derived from Re R(A minor)  EWCA Civ 1120 and In the matter of S (A Child)  UKSC 20 :
The child’s welfare is paramount, the court adopts a quasi-inquisitorial approach and there are many possible outcomes;
The court generally needs to hear from both parents: ‘no one should be deterred by risk of having to pay other sides costs from playing their part in helping the court achieve the right solution’;
The court can assume that the parties are not generally motivated by malice;
The parties need to work together and one should not be stigmatised as ‘the loser’;
Costs orders can reduce funds available to the family.
How does the court identify ‘unreasonable conduct’ which would make it appropriate to order costs?
The Court of Appeal in R (a Minor) considered it in this way:
Of course, the parties should not be deterred by the prospects of having to pay costs, from putting before the court that which they genuinely think to be in the best interests of the child, but there have to be limits. Children should not be put through the strain of being subject to claims that have very little real prospect of success… in other words there was conduct in relation to the litigation which goes way beyond the usual sort of attitude which a concerned parent shows in relation to the future of his child’.
The decision in Re R has been followed and endorsed in a number of cases; for example, see Re F (Family Proceedings: Costs)  EWCA Civ 938 and G (Children)  EWCA Civ 1017.
The court does not need to make a finding that the party acted maliciously or in deliberate bad faith; a party may genuinely believe their actions are reasonable but in reality they are not.
In G(Children) cited above, a costs order was upheld against the father because it had not been necessary for him to ‘launch these proceedings’ and the proceedings had been used as a vehicle for ‘getting at the mother’. There was ‘absolutely no merit’ in the case bought by the father. Thus the father had acted unreasonably both in starting the proceedings but more importantly in the way he had conducted himself throughout the proceedings.
The vast majority of adoptions in England and Wales are ‘non-consensual’ or ‘forced’ i.e. the parents did not agree this was the right thing for their child. Adoption is famously the last resort – ‘when nothing else will do’ and parents are given every opportunity to argue for some other outcome.
There remain however cases where mothers want to give up their babies at birth – a case of ‘relinquishment’. What happens when the mother has not told the baby’s father, and does not wish to? There can be a variety of reasons for this decision and the court will have to think carefully about what to do. It’s often likely that family secrets cannot be kept over time
Adoption is really important and significant for the child and for other family members. Therefore a mother cannot by herself take a unilateral decision to keep the adoption a secret – the court must ask what the child would think later in life if he or she found out the other relatives weren’t told.
The LA should make an application as soon as possible under Part 19 of the Family Procedure Rules for the court to determine if attempts should be made to identify the father or other family members and assess them as prospective carers.
The court must first establish the facts as clearly as possible, which is not always easy when the available information inevitably going to be one sided. Once the facts have been investigated the court has to strike a balance between the various issues. The child’s welfare is important but NOT paramount, as is the case in other decisions about the child’s upbringing.
Para 87 of the judgment sets out agreed ‘best practice’ guidance about the extent and nature of the inquiries the LA should make when a parent wishes to relinquish a baby for adoption.
It isn’t possible to devise a ‘test’ to decide who gets notified but the relevant case law shows that the following factors are likely to be relevant. This list is of course, not exhaustive – every case is different.
If the father has parental responsibility for the child, he is automatically a party to the proceedings and very compelling reasons are needed to say that he can’t be told about the plans for adoption
If the father or other relatives have an established family life with the mother or child then their Article 8 rights are engaged, and again very good reasons will be needed not to tell them.
The court must look at the substance of the relationship between the parents and the significance of the relatives. For example – were the parents in a long relationship? Or more fleeting? Was the child conceived in circumstances where the mother did not give consent?
Is a family placement a realistic alternative to adoption? If a family placement isn’t likely to be worth investigating or notification may cause significant harm, this operates in favour of maintaining confidentiality.
the impact on the mother or others – if the child was conceived as a result of a rape then there could be very serious consequences. But excessive weight shouldn’t be given to short term difficulties of embarrassment or ‘social unpleasantness’.
Cultural and religious factors – these could increase the risks of notification but also under pin the importance of the child being in a family placement.
Does the court know who the father/family members are? Notification can only take place if there is someone to notify. It is difficult to see how a mother can be forced to give up this information if she refuses. But in some cases it maybe worth trying to find out.
The impact of delay – investigation of other family members will inevitably take time and the court needs to consider what impact that might have on the child, such as losing a particularly suitable adoptive placement.
Reasons given not to inform the father
She has a history of depression for which she takes medication and did not feel physically or emotionally capable of caring for him.
The father has also suffered with mental health issues.
She had terminated two previous pregnancies, both by A’s father, with his agreement.
He would agree with the decision for A to be adopted as he would not want to be involved in the child’s life.
Her own mother would agree with the decision to adopt A. She too has mental health issues and her brother has learning difficulties. Other maternal family members are too old to care for A.
If she cannot look after B herself, she would rather she was adopted than be placed in the care of her family, so that B should not experience the abuse she herself suffered.
She is scared of her family’s reaction if they found out that she had a child outside wedlock with someone of a difference race and cultural heritage.
The family would therefore be unlikely to respond positively to being told of B’s existence, and it would cause them needless upset and distress.
An assessment of her family would be likely to be negative and little benefit would be gained.
The father (the first man so named) did not want to play any part in the baby’s life and even booked a termination for the mother. He was violent towards her while she was pregnant. He is involved with drugs and gangs and is currently serving a long prison sentence. She is scared of what he would do if she shared information about him with the local authority.
Mother C – who said her child had been conceived by rape
Caring for C would remind her of the rapes.
She and the father have an unconventional relationship. Although they are married he works away, was infrequently at home and rarely provided care for the children. They permanently separated in September 2018, following the rapes, but the father visits the home to see the children.
The father has a bad temper and on one occasion punched and damaged a door. He has been intimidating and controlling. She is scared that he would assault her if he found out that she had kept C’s birth a secret.
He would humiliate her by informing members of the local community. She would then have to leave the area with all her children.
He would not be willing or able to care for C.
There is no other maternal or paternal family member who would be willing or able to care for C.
The Court decided that other relatives must be told in all cases – despite the very distressing circumstances of C’s conception, her father had parental responsibility for her. This indicates that very serious reasons are necessary to justify not informing other relatives – the mother’s desire not to tell anyone is important, but it can rarely be determinative.
Keira Bell’s case, which began on October 7th 2020 has provoked a lot of comment about the issues of children and their capacity to consent to medical treatment. This is an attempt to provide a quick over view in easy to understand language. If you are interested in this area in greater detail, I set out some ‘further reading’ at the end of this post.
Medical treatment is only lawful if given in an emergency or with informed consent.
The case of Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland)  UKSC 11 deals with what risks about birth should have been shared with an adult patient – but is a useful discussion of the general parameters of what can be meant by ‘informed consent’ – patients do not have the medical knowledge of doctors, may not know what questions to ask. Doctors have a duty to reveal and discuss ‘material’ risks with a patient.
At para 77 the court comments approvingly on 2013 guidance to doctors:
Work in partnership with patients. Listen to, and respond to, their concerns and preferences. Give patients the information they want or need in a way they can understand. Respect patients’ right to reach decisions with you about their treatment and care.”
In a genuine emergency, doctors are unlikely to be penalised for treating a patient on the spot. In all other cases, medical intervention to which the patient does not consent is likely to be a crime.
Someone is said to lack capacity if they can’t make their own decisions because of some problem with the way their brain or mind is working. This could arise due to illness, disability or exposure to drugs/alcohol. It doesn’t have to be a permanent condition.
Some people lack capacity because their disability or injury brings them under the terms of the Mental Capacity Act and they cannot understand or weigh up the necessary information. These cases may have to go to the Court of Protection so the Judge can decide what is in their best interests.
Some people lack capacity because they are a child. A child is a person aged between 0-18. While most people would agree that a child aged 4 is unable to make any serious decisions on his own, the waters get muddier the older a child gets, as their understanding and desire for autonomy increases.
A child over 16, who doesn’t have any kind of brain injury or disability, is presumed to be able to consent to medical treatment as if an adult, under the Family Law Reform Act 1969.
Adults who have parental responsibility for a child can give consent when a child cannot. However, the older the child gets, the more likely there is to be tension between what the adult and child think is best.
If the child, parents or doctors cannot agree about what treatment is best, then this has to come before the court to decide. A very sad example of this which got a lot of media attention, is the case of Alfie Evans, a toddler whose parents disagreed very strongly with the medical advice that his life should not be prolonged.
Applying the basic principles to the Bell case
I have seen some very odd comments about this case. However, first – if it is correct that Bell’s lawyers are arguing that NO child ever could consent to taking puberty blockers, I agree this is a bold submission and would certainly seem to be moving away from the clear statutory recognition of the likely autonomy of the 16 year old child. It may be that this submission rests on the grave concerns about the experimental nature of such treatment – and certainly the Tavistock does not seem to be able to provide the court with much if any hard data about the longer term consequences of this.
But any suggestion that the Bell case will somehow ‘destroy’ Gillick competence and deny 15 year old girls the right to contraception or abortion, is simply wrong.
The first and basic point is that Gillick was decided by the House of Lords – now the Supreme Court. The High Court has no power to change or alter the decision of the Supreme Court. Second point is that even if Bell’s case does succeed in getting a declaration from the High Court that NO child can ever consent to taking puberty blockers for transition, this will not impact other areas of decision making for children about medical treatment.
This is because the nature and quality of such treatments is well known and researched. It is therefore possible to weigh up the consequences, benefits and risks, in a way many would argue is simply impossible for puberty blockers given to aid ‘transition’ rather than to deal with precocious puberty.
When the nature and quality of such treatments are not known and doctors are unhappy to offer it, or a child (or parents) is refusing consent to a treatment that the doctors say is essential, then the matter will need to come to court.
I await the judgment in Bell with very keen interest. It will certainly need to cover all the areas I briefly touch on above, and hopefully will make such vital issues much clearer for many.
I accept a small minority of children DO need access to puberty blockers to prevent the development of sex characteristics they find very distressing. But I think they will be a tiny minority. I think the evidence to dates shows very clearly the impact of some kind of social contagion around issues of ‘gender identity’ which has led to staggeringly high numbers of children seeking ‘transition’ as a cure all for their emotional distress.
While I do not agree that NO child is capable of consenting to take these drugs, I certainly agree that the evidence base which will inform them of the risks and benefits is lacking, and dangerously so.
EVERY child should be given the right information in order to make these decisions.
Imogen (No. 6)  FamCA 761; (10 September 2020)
This is a post by Sarah Phillimore.
This is a case from the Family Court in Australia – so of interest to those of us in England and Wales as our jurisdictions share a common history. It is a case that makes much of Gillick competence which is certainly a familiar domestic concept and I have written about it in more detail here. One key difference however is that Imogen was over 16 years old – therefore if this was a case in England or Wales, she would be considered competent to consent to medical treatment as if she were an adult, by virtue of the Family Law Reform Act 1969.
Imogen was born a boy called Thomas. She was diagnosed with Gender Dysphoria and was taking puberty suppression medication. When she was aged 16 years and 8 months old, she wished to move to ‘stage 2 gender affirming hormone treatment ‘. Her father supported this but her mother did not, disputing both the diagnosis of Gender Dysphoria and that Imogen was Gillick competent, i.e. able to make the decision to take hormones. The mother wanted Imogen to have therapy, rather then medical treatment.
Both the Australian Human Rights Commission and the Australian Attorney General were intervenors in the case, so its importance is clear. There was also an Independent Children’s Lawyer (ICL).
The court had a variety of questions to grapple with. If there is a dispute about medical treatment for an adolescent, was it mandatory to make an application to court to resolve that dispute? If Imogen was Gillick competent – could she make her own decision without her parents’ consent? If the court had to resolve the dispute then what was the legal test?
The court found that where there was such a dispute about the existence of a medical condition or the need for treatment, it was mandatory to make an application to the court – and interestingly there was official guidance that got the law wrong about that. The court decided that the test was what was in Imogen’s best interests – and it was for her to receive the treatment she wanted.
The discussions in this case are very relevant for every common law jurisdiction – there has been a staggering increase in recent years of the number of children wishing to ‘transition’ from one sex to the other and some interesting legal actions on the horizon, criticising the swiftness with which children are put on the path of ‘affirmation’ that leads to medication and surgery.
What is the best way to treat children with Gender Dysphoria?
The court acknowledged that this case was taking place within a wider debate about treatment for children with gender dysphoria, but the court was focusing on what was best for Imogen. Expert evidence was heard which was split roughly into three camps.
Imogen’s treating medical practitioners followed “The Australian Standards of Care and Treatment Guidelines: For trans and gender diverse children and adolescents” (“the Australian Standards”) which adopted a multi-disciplinary approach to treatment using gender affirming hormones.
The mother relied on an expert psychiatrist Dr D’Angelo, who advocated a more conservative approach, preferring psychotherapy rather than medication.
Reference was also made to the “Informed Consent Model” where general practitioners are willing to prescribe gender affirming hormone treatment to 16 and 17 year old adolescents without knowing whether their parents or legal guardians consent.
It was clear that Dr C – Imogen’s treating psychiatrist – and Dr D’Angelo adopted “fundamentally different diagnostic frameworks, methods, and conceptualisation of the experience of Gender Dysphoria”.
The court – annoyingly – describe ‘Gender Dysphoria’ at para 22 as
Gender Dysphoria is a term that describes the distress experienced by a person due to incongruence between their gender identity and their gender assigned at birth.
This conflation between sex and gender is very typical and has not assisted clarity in the general debate about the proper approach to a child who rejects the sex with which they were born.
The Australian Standards provide (at page 11) that the optimal model of care for trans and gender diverse adolescents who present to services involves a coordinated, multidiscipline team approach. There are two stages to treatment – Stage 1 is ‘puberty suppression’ via gonadotrophin releasing hormone analogues (GnRHa) in order to halt progression of physical changes such as breast growth or voice deepening. Stage 2 is ‘gender affirming hormone treatment’. Some of the effects of this medication are irreversible and likely to lead to the child becoming infertile.
The court noted at paragraph 27 that the Australian Standards gave incorrect guidance as to the law about when an adolescent could consent to stage 2 treatment – an interesting parallel to the situation in England and Wales where a number of official guidances around treatment of trans children are being challenged as unlawful.
At page 7, the Australian Standards state, “current law allows adolescent’s clinicians to determine their capacity to provide informed consent for treatment. Court authorisation prior to commencement of hormone treatment is no longer required”… “…[a]lthough obtaining consent from parents/guardians for commencement of hormone treatment is ideal, parental consent is not required when the adolescent is considered to be competent to provide informed consent”.
Further investigation of Gillick competence.
Australian courts have adopted the approach explained by the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority  UKHL 7;  AC 112, that the parental power to consent on behalf of a child diminishes as the child’s capacities and maturities grow: a child is capable of giving informed consent, and a parent is no longer capable of consenting on the child’s behalf, when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.
However, at paragraph 29, the court noted that regardless of the child’s Gillick competence, its permission was required for non-therapeutic procedures, in particular those that required in combination:
invasive, irreversible and major surgery;
a significant risk of making the wrong decision, either as to a child’s present or future capacity to consent or about the best interests of a child who cannot consent; and
Where the consequences of a wrong decision are particularly grave.
The case of Re Kelvin, found that both stages of treatment were therapeutic and therefore, if the child, the parents and the medical practitioners agreed the child was Gillick competent, there was no need to involve the courts – the child could decide what treatment they were willing to accept.
But the court was clear, at paragraph 35 that the matter MUST come before a court if a parent or doctor could not agree
If the child was Gillick competent
The diagnosis of Gender Dysphoria
or the proposed treatment for Gender Dysphoria
If the only issue in dispute was Gillick competence, the court would either declare the child competent or not – if competent, the child could consent to whatever treatment they liked.
BUT if there was a dispute about diagnosis or treatment, it was then up to the court to determine the diagnosis and decide what treatment was appropriate on the basis of what was in the adolescent’s best interests. Therefore, if the parents dispute the need for treatment, a doctor should NOT agree to provide it to even a Gillick competent adolescent without the authorisation of the court.
This is an interesting re-assertion of the parens patriae duty of the court – the protective and paternalistic jurisdiction it has over children to keep them safe from harm and certainly goes against the stated trend of current UK guidance that ‘parental responsibility’ is of little or even no importance against a child’s stated wish to ‘change sex’ – apparently even when the child is far too young for Gillick competence to be likely.
Why is it important to come to court to resolve these disputes? The Attorney General recognised two good reasons
Without the court’s authorisation, if a doctor gets it wrong about a child being Gillick competent, they risk criminal or civil liability for providing treatment, as the child cannot consent.
or a doctor may override the parental responsibility of the parent who does not consent, which puts the doctor in an invidious position.
Why is the finding of Gillick competence of an adolescent not determinative, if parents do not agree about treatment?
This is the key question, not only for this court but for all others who operate according to the principle of Gillick competence. If we are saying that an adolescent is competent to make their own decisions, why isn’t that an end to the matter? This is because the court retains the ‘parens patriae’ jurisdiction over a child – to act as if the child’s parent.
There was no disagreement, that the court had the power to make an order against the wishes of a Gillick competent child, but it was unusual. For example, In X and Others v The Sydney Children’s Hospital Network  NSWCA 320; (2013) 85 NSWLR 294, the court did not allow a competent 17 year old Jehovah Witness to refuse blood products which were potentially lifesaving. However, this was the only case identified where a court has overruled the views of a Gillick competent child to impose treatment. Other cases involving anorexia nervosa and treatment for drug rehabilitation involved children who were not Gillick competent (Director General, Department of Community Services v Y  NSWSC 644; Director General, Department of Community Services v Thomas NSWSC 217; (2009) 41 Fam LR 220).
No case was identified where a court had refused to authorise therapeutic treatment where a Gillick competent child had consented.
At para 59 the court was clear it should determine the dispute about the nature of the treatment to be given and in doing so the court should have regard to the best interests of the child as the paramount consideration and give significant weight to Imogen’s views in accordance with her maturity and level of understanding (Re Jamie, per Bryant CJ at (f)).
There is an interesting suggestion at para 57 about
the proliferation of academic and other writings since Re Kelvin and the emergence of alternate thinking about treatment and questions arising from the state of knowledge in respect of the long-term implications of current medical treatment for Gender Dysphoria.
Which suggests the court was certainly open to considering whether Stage 2 treatment was really therapeutic after all.
The Informed Consent Model.
The court went on to consider the legality of this.
Dr C gave evidence that “the Informed Consent Model” of care in Gender Dysphoria is being adopted by an increasing number of medical practitioners. This model sees general practitioners proceeding with the prescription of gender affirming hormone therapy to adolescents over 16 years of age who express the desire to do so and who are assessed by the general practitioner as being able to give informed consent to the treatment, without the general practitioner making any inquiry as to whether or not the parents or legal guardians of the adolescents give their consent. Dr C opines that there is confusion in respect of the legality of the Informed Consent Model.
The court was very clear. This was not lawful. See para 63
This judgment confirms the existing law is that any treating medical practitioner seeing an adolescent under the age of 18 is not at liberty to initiate stage 1, 2 or 3 treatment without first ascertaining whether or not a child’s parents or legal guardians consent to the proposed treatment. Absent any dispute by the child, the parents and the medical practitioner, it is a matter of the medical professional bodies to regulate what standards should apply to medical treatment. If there is a dispute about consent or treatment, a doctor should not administer stage 1, 2 or 3 treatment without court authorisation.
This re-affirmation of the importance of parental responsibility and court oversight is very important. Both have run the risk of being over looked or even over ridden by some who push an ‘affirmation model’ very insistently, to the extent that any challenge or even mild objection is characterised as ‘hate’ and ‘bigotry’. It will be interesting to see how in our jurisdiction, the Family Law Reform Act may shine a different light on the statutory competence of children aged over 16.
I concede there is a distinction between a child who seeks life changing treatment and a child who refuses life saving treatment, but we must surely all be able to agree that for anyone, serious surgery or medication must only be accessed via valid consent.
In the judgment, some very interesting discussion then follows about the emerging literature in the field of Gender Dysphoria and how to treat it – although I wonder if the reliance on ‘extremely high rates of suicide’ discussed below is a reference to now thoroughly debunked claims. But there can be no doubt at all that the way forward is by data and by discussion. It is not ‘transphobic’ or ‘hateful’ to care about the health of our children, both mental and physical.
In August 2019 the Federal Minister for Health wrote to The Royal Australian College of Physicians (RACP) seeking advice on the treatment of Gender Dysphoria in children and adolescents in Australia. The RACP responded on 5 March 2020.
In that response, the RACP noted that trans and gender diverse children and adolescents are a very vulnerable population, experiencing stigma and extremely high rates of depression, self-harm, attempted suicide and completed suicide. Importantly, the RACP described treatment for Gender Dysphoria as an emerging area of healthcare where existing evidence on health and wellbeing outcomes of clinical care is limited due to the relatively small number of studies, the small size of study populations, the absence of long-term follow up and the ethical challenges of robust evaluation when control (no treatment) is not acceptable. The College relevantly observes that similar limitations on the existing evidence of healthcare apply to other conditions which affect small segments of the population, such as rare cancers.
The College expressed the view that addressing gaps in the evidence base is important, although notes that further scientific evidence may take a considerable period of time to produce.In the meantime, the College supported the principles underlying the Australian Guidelines, and specifically the emphasis on the multidisciplinary approach to providing person-centred care which priorities the best interests, preferences and goals of the child or adolescent. The College recommends that treatment should be holistic, developmentally informed, child centred and individualised. In order to facilitate a higher level of informed consent, the College recommends that patients and families must be provided with information about the limitations of the available evidence regarding Gender Dysphoria and there should be informed discussion of the burdens and benefits of treatment and options in a way each child or adolescent can understand. The College points to differences across Australia in the access, funding and delivery of care and treatment for Gender Dysphoria. It recommends the development of a national framework for service provision and outcomes monitoring and believes that that is the best way to ensure consistency in the outcome of data collection across jurisdictions.
The right to be fully informed – This site collates and summarises the medical literature and legal issues surrounding puberty blockers so that parents and doctors can be more fully informed. The information should not be taken as medical advice.
The case of R v P (Children: Similar Fact Evidence)  EWCA Civ 1088 is of interest to family lawyers for its technical examination of when ‘similar fact’ evidence should be allowed in family cases.
But it is also of wider interest for how it illustrates what I argue are the primary reasons family cases go off the rails – not because Judges and lawyers ignore or don’t care about issues of violence and coercive control, but because lack of judicial continuity and legal aid inevitably cause chaos.
Background to the proceedings
The parents were in a relationship from 2013 to 2017. After they separated, the father made application for contact. The proceedings soon became a ‘procedural muddle’; there was no judicial continuity, with at least 15 different judges involved, and six attempts at a finding of fact hearing to determine the truth or otherwise of the mother’s allegations. The parties had ‘inconsistent or non existent’ legal representation throughout 2019.
In 2018 the father began a relationship with Mrs D. She was involved in court proceedings in Wales regarding her children and their father, Mr D. The court in Wales ordered a section 37 report which raised serious concerns about her children’s welfare and the nature of her relationship with the father. On the advice of the police, the Welsh local authority contacted the local authority in London who were involved with the father’s contact application.
The report from Wales revealed concerning information about the degree of influence exerted over Mrs D by the father. In December 2018, the court in Wales removed the children from Mrs D’s care and placed them with their father. Mrs D did not engage with the local authority or make any efforts to see her children and the Welsh local authority concluded that the father had behaved in a coercive and controlling way towards Mrs D. The mother asserted that the Welsh reports showed that the father had subjected Mrs D to the same kind of coercive control that had been directed against her.
By January 2020 the mother had secured legal representation and a three day finding of fact was listed for the summer. There was a pre trial review on June 24th, which was held remotely. There were serious difficulties in connection and the Judge ended up with limited time to consider the issues.
The hearing before the judge
With regard to the Welsh evidence, the Judge took the view that this had been excluded at a July 2019 hearing, and she was very critical of the mother’s solicitors for including this evidence in the court bundle. She pointed out that the reports contained hearsay and the father could not have a fair hearing if the reports were admitted on the assumption they were true.
The mother’s counsel replied that the father would have the opportunity to challenge the report’s contents but the Judge disagreed and was clearly exasperated that it was unclear which witnesses would be coming to court to give evidence. She wanted the fact finding hearing to go ahead. She permitted the mother’s own parents to be called as witnesses, but refused the mother’s application to rely on the reports from the Welsh local authority or the letters provided by Mr D and Mrs D’s parents.
The appeal – analysis of the admissibility of similar fact evidence
The mother appealed. It was argued on her behalf that the Judge was wrong to exclude this evidence as it was highly relevant, both to the fact finding hearing and to any welfare decision. The evidence concerning the father’s relationship with Mrs D and the D children showed a strikingly similar pattern of behaviour to that alleged by the mother. The judge did not consider their relevance at all, nor did she carry out the necessary analytical exercise in relation to admission or exclusion, despite having been referred to the legal principles. She was wrong to have regard only to fairness to the father when exclusion of such significant evidence would be unfair to the mother.
The Court of Appeal considered the relevant procedural rules, practice directions and case law to give general guidance to the approach a court should take when considering the admissibility of similar fact evidence in family cases.
The court has a broad power to control evidence and limit cross examination pursuant to the Family Procedure Rules 2010 para 22. Hearsay evidence is admissible in proceedings concerning children by virtue of the Children (Admissibility of Hearsay Evidence) Order 1993. Part 23 of the Rules includes provisions for the management of such evidence.
Practice Direction 12J applies when it is alleged or admitted or there is other reason to believe that the child or a party has experienced domestic abuse perpetrated by another party or that there is a risk of such abuse. Paragraph 19 of the Practice Direction contains a list of matters that the court must consider when making directions for a fact finding hearing in a case of this kind, including at paragraph (d) what evidence is required to determine the existence of coercive, controlling or threatening behaviour, or of any other form of domestic abuse.
The final report of the expert panel to the Ministry of Justice in June 2020: Assessing Risk of Harm to Children and Parents in Private Law Children Cases notes that a focus on recent incidents may fail to acknowledge a pattern of behaviour over a long period of time (page 55) and expresses concern about the limitations of Scott Schedules, which may tend to disguise the subtle and persistent patterns of behaviour involved in coercive control, harassment and stalking (page 94).
The need for the court to recognise patterns of behaviour was also discussed by Baker J in Re LG (Re-opening of Fact-finding)  EWHC 2626 (Fam) at 
Similar fact evidence in civil cases was discussed In O’Brien v Chief Constable of South Wales Police  UKHL 26;  2 AC 534. The court considered the two necessary questions for the court considering similar fact evidence which apply equally to civil and family proceedings. • To be admissible, evidence it must be relevant i.e. it must be logically probative or disprobative of some matter which requires proof. • If legally admissible, should it be admitted? This is a more difficult issue and requires an often difficult and sometimes finely balanced assessment as to the significance of such evidence in the context of the case as a whole. There is a possibility that such evidence could place a considerable burden on the party who wishes to challenge it, particularly if it relates to something that happened some time ago; documents may be lost and witness recollections fade.
The similar fact evidence in this case involved ‘propensity’ so the Court of Appeal went on to consider to what extent do the facts relating to the other occasions have to be proved for propensity to be established? That question was answered by the Supreme Court in the criminal case of R v Mitchell  UKSC 55  AC 571.
In summary, the court must be satisfied on the basis of proven facts that propensity has been proven, in each case to the civil standard. The proven facts must form a sufficient basis to sustain a finding of propensity but each individual item of evidence does not have to be proved.
The Court of Appeal also considered the family case of f Re S (A Child)  EWCA Civ 44, where similar fact evidence was excluded on the basis that evidence about rape of a previous partner had only recently surfaced and the previous partner was not being called to give evidence. However, in the present case, the father was well aware of the allegations against him which were contained in professional reports.
Applying all these principles, the Court of Appeal were unanimous that the judge’s decision to exclude the evidence relating to the father’s relationship with Mrs D could not stand. The hearing had clearly taken place in very difficult circumstances but nevertheless, the necessary analysis required to determine the admissibility of the evidence was not carried out.
The ‘procedural muddle’
This is worthy of further consideration, which is set out at para 10 of the judgment. Perhaps most astonishingly was the role played by Mrs D as ‘MacKenzie friend’ to the father. It is difficult to understand how the court felt that could be appropriate in all the circumstances of this case.
Returning to the proceedings concerning these children, the issue of the admission of evidence relating to the father’s relationship with Mrs D was played out in an unsatisfactory way against the background of repeated attempts to hold a fact-finding hearing. In brief, the issue arose at four hearings before the one with which we are concerned on this appeal:
(1) In February 2019, the court ordered the mother’s solicitors to write to the court in Wales seeking disclosure of the two reports of the Welsh local authority and recited that the court was of the view that those reports would be of assistance in the current proceedings. The father was absent from that hearing.
(2) In May 2019, a deputy district judge directed the updating section 7 report from the London local authority in order to take account of the contents of the Cardiff reports, which had by then been received. The mother was unrepresented. The father sought a direction for the attendance of KS and she was invited to attend, though the court indicated that the fact-finding hearing would go ahead in any event. The non-molestation order against the father was extended. The father’s application for a continued non-molestation order against the mother (transferred from the North-West in February) was dismissed as being without merit.
(3) In July 2019, the parties appeared before the same deputy district judge. The mother was unrepresented. The order recorded that the court would not be assisted at the fact-finding hearing by the evidence of KS. What was meant by this was obscure until an email was discovered during the course of this appeal which showed that the father’s former solicitors had stated that they did not require the attendance of KS. Until then, the meaning of the order was disputed, it being suggested on behalf of the father that it showed that the court had excluded the Welsh reports.
(4) In September 2019, when the matter came before a district judge, both parents were unrepresented, with the father, bizarrely, being allowed to have Mrs D as his ‘MacKenzie friend’. The court recorded that the mother had sought permission to rely on the Welsh reports but that permission was refused on the basis that it had been refused at the July hearing and that nothing had changed.
Without judicial continuity, legal representation for parents, speedy fact findings and robust enforcement these cases are doomed from the outset and it doesn’t matter how many ‘Inquiries’ the MoJ hold or how many campaigners insist on further expensive training for Judges. Denial of this obvious truth is magical thinking at its finest and I grow very tired of it.