Author Archives: Sarah Phillimore

Who Cares? An interactive play by What Next Theatre Group

On December 4th I travelled to see the production of the ‘What Next Theatre Group’ who describe themselves as ‘a new and exciting company working with Gloucestershire County Council and the Nelson Trust to present a new play in three scenes called ‘Who Cares?’ The play deals with the difficult issues surrounding adoption and the real consequences for the family and professionals involved’.

it was clear that the intent went beyond the mere presentation of a piece of theatre – after the play the actors and real life professionals gathered on stage to take questions from the audience – the actors remaining in character.

As the Theatre Group says:

We think that there is a rapidly increasing interest in the work of the family court and in the social issues with which it deals. We want to work together to show what may be done to help people through the most difficult ties of their lives – times when they experience extreme loss and degradation. We hope that by combining legal knowledge, theatre experience and the important work of the Nelson Trust, we can help the audience to consider new ideas and practice changes and understand some of the social issues that arise in this difficult area

So what follows are my impressions about how this enterprise met its stated goals.

It was certainly a bold idea. I do not wish to criticise its staging as that would clearly be unfair – this is a group which was set up about 8 weeks ago and presenting its work in a brightly lit lecture theatre with a very difficult and small stage on which to work. I would like to see it performed in a more sympathetic environment – the actors alone cannot do all the work of enabling us to suspend disbelief and even a punchy script and talented performers will struggle against these surroundings.

I am also entirely unclear what the random ‘trans’ character Ella/Ed bought to the narrative, other than to enable some members of the audience to signal their deep understanding around issues of inclusivity and identity by putting questions to Ed about how his (fictitious) family coped with his search to know who he was.

One of the most powerful strands of the script was the fact that the mother was herself adopted at the age of four, and how her adoptive parents had struggled with apparently little support with her behaviour as she grew. This is worthy of more exploration.

I also felt that the way in which the scenes were ordered detracted from rather than powered up the narrative – the court scene came second, after a very powerful opening in the hospital where the social worker was assaulted by an angry and terrified young mother, facing the removal of her second child.

I would have liked to have seen the court judgment as the final scene – it was well done, and an uncomfortable experience to be forced as a member of an audience to consider how the legal language and dry rejection of the birth family as ‘suitable’ to care for a child, must feel to those who have to sit and listen and struggle to understand.

I suspect that a more accommodating stage would have allowed for the court scene to have more power, regardless of where in the time line it came.

However, I can see that the drive of the production was to explore how after these proceedings the mother was simply left behind – the circus packed up and moved on, her only option to find temporary hostel accommodation once her mother and baby foster placement came to and end. The court is not the ‘end’ for parents.

‘Show not tell’

Leaving the limitations of staging aside, how did this production succeed on its aim to ‘show, not tell’ and to educate people about the work of the family justice system?

Without interviewing the entire audience its hard to say for sure. But I think I picked up enough information to reach some tentative conclusions. I was able to interview two of the audience who had no choice but to answer my questions as I was driving them home. This was interesting. One was a teenager who claimed to have only come because I bribed her with steak. However, she was able to provide an animated response and the evening had clearly piqued her interest. She found that language used by the mother challenging – she appreciated that this was no doubt realistic but it put up a barrier for her being able to feel compassion and sympathy.

The other was a newly qualified social worker who was very enthusiastic and said it had been a ‘great learning experience’ for her. She felt frustrated that she hadn’t been able to ask questions of the cast and wanted to know much more about why the baby’s grandparents could not have cared for him and what underpinned the social worker’s relationship with the mother in the first scene.

She asked – and I thought this very interesting – why no one had commented on the fact that the social worker was physically assaulted in the very first scene. Why this is something that is just seen as ‘what happens’ to social workers,

During the question and answer session with audience and cast, I was struck by how many in the audience appeared to be social workers, given the laughter or angry murmuring that followed some comments. One of the biggest laughs followed a question to the social worker about why she wanted to do the job. When asked how she coped she replied ‘I have supervision’ which bought another cynical chuckle from many.

The assertions of the Nelson Trust that social workers were ignorant about ‘trans’ and addiction issues caused a definite ripple and some passionate responses that it was simply wrong to expect social workers to know everything about everything – they work in multi agency teams and part of their job is knowing when they DON’T know and where to send people to for help.

So I asked if the audience would give me a show of hands as to how many were social workers. It was about half the 150 strong audience.

And that is interesting. Because its part of why I am concerned that these efforts to help people understand will not bear the fruit that is hoped. Its part of the reason that I abandoned active campaigning earlier this year – as I was so depressed by the refusal of many to challenge their own narratives, how they used every attempt to widen conversations as simply support for that narrative, rather than a challenge to it that ought to be accepted.

HHJ Wildblood was asked by the audience why he had become involved. His answers were interesting – I paraphrase here:

People don’t see how the family court works, just don’t understand the system, so I put this on stage … feel don’t think, make up your own minds…really wanted to make the point for after care, parents matter too. The main work must surely be done before court.

The whole purpose of our lives in one word – compassion. There is no ‘them’ there is only ‘us’ – want to try and send out that message.

It is powerful to hear these words spoken by a serving and senior member of the judiciary. I do not disagree at all with his distillation of the central message into one word – compassion.

But what the audience reaction showed to me is that efforts to make people ‘feel’ rather than ‘think’ may do nothing else but cement their already strong ‘feelings’ about why the system doesn’t work or who is to blame. It was clear where the Nelson Trust thought the blame should lie – parents aren’t given ‘enough time’ to make changes. In one uncomfortable exchange with the birth mother the social workers were referred to as ‘fuckers’ – this made the newly qualified social worker very uneasy, coupled with the complete lack of reaction from anyone to the fact that the social worker faced a physical attack on meeting the mother.

Nor do I think the ‘enough time’ argument has any weight. When I started out, 20 years ago, care proceedings routinely took one or even two years to drag to conclusion. This helped no one, least of all the child. ‘Time’ alone cannot turn around a person’s life. ‘Time’ plus ‘effective intervention’ may well do so. But this we do not have, for a variety of reasons – none of which say anything good about us as a species.

The reasons the system is failing are many. But as a species we cling to simple narratives to try and make sense of chaos and pain. It was clear that some in the audience (and cast!) clung to that narrative that its the ‘fault’ of the social workers – their arrogant language that they made the ‘decisions’ rather than recommendations to the court. And social workers don’t help themselves by this constant refrain that ‘we are child focused’. A child doesn’t exist in isolation from his family. A system that leaves the parents behind is cruel and ineffective. As the parents go on having children.

But. As the real life Team Manager said ‘We have to make the decisions that no one else wants to make’.

I think there is a real risk that social workers are being blamed for each and every social ill that has led us here. The saddest comment of all, for me, was to here the Team Manager talk about the difficulties of working with people from other agencies – the lack of time, the lack of trust.

And this chimes with my fundamental concern. Most people, most of the time appear to be on broadcast mode only. To open up space in their heads for real thought, to challenge their dearly held narratives is hard. Not many people seem able or willing to do it. I hope that events such as these do push at the door for some. Without a willingness from all concerned to be honest about what is happening, the situation can only get worse. But already it is quite beyond the efforts of any one group to change.

However, whatever my fears and cynicism – which certainly I also have to be open to challenge – at least 150 people traveled on a cold winters evening to participate with enthusiasm in a pretty unique piece of theatre. It is no small thing that a serving member of the judiciary has taken this step and is trying to do something to make us remember – there is no ‘them’. There is only ‘us’.

If you tolerate this – then your children will be next

This is a post by Sarah Phillimore.

The end of safeguarding for children?

Young children do not have capacity to make decisions

A child is a person between the ages of 0-18. Older children may be considered ‘Gillick competent’ and able to make serious decisions about their welfare needs which may then override parental objections and give adult doctors etc the necessary lawful consent to treatment or other interventions etc.

A very broad approach is this. A child under 6 is vanishingly unlikely to have the capacity to make serious decisions. Children between 6-12 will vary in their ability to understand and weigh information. Children approaching their teenage years are likely to be ‘Gillick competent’ and able to give consent to medical treatment etc but even the wishes of a ‘Gillick competent child’ are not automatically held to be determinative of every case.

Parents have a legal obligation to protect the children in their care.

Parents have ‘parental responsibility’ for their children. This is set out at section 3 of the Children Act 1989

In this Act “parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.

In Christian Institute v Lord Advocate [2016] UKSC 512017 SC (UKSC) 29, paras 71 to 74, the Supreme Court recognised the responsibility of parents to bring up their children as they see fit, within limits, as an essential part of respect for family life in a western democracy.

A parent who fails to exercise parental responsibility for their child may find their children removed from their care by the State or even that they face criminal charges of cruelty or neglect. For example, The Children and Young Persons Act 1933 deals with ‘cruelty to a child under 16’

If any person who has attained the age of sixteen years and has responsibility for any child or young person under that age, wilfully assaults, ill-treats (whether physically or otherwise), neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated (whether physically or otherwise), neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (whether the suffering or injury is of a physical or a psychological nature), that person shall be guilty of an offence, and shall be liable—

It therefore remains very surprising and alarming to see a constant stream of ‘advice’ and even court proceedings which appear to start from a very different basis entirely. That for one issue alone – that of ‘gender identity’ – a child of ANY AGE should be given the power to make decisions, this cannot be a safeguarding issue and any parent who stands in the way of this should find themselves the subject of legal censure.

If you are talking about children’s rights – which children do you mean?

The state of ‘childhood’ covers a very wide canvass. Children of 6 are not the same, on any level, as children of 16. I have written about this before. See:

No one, no issue is off the table when it comes to safeguarding – I discussed my alarm at a social worker suggesting that parents supporting a child around issues of gender identity was ‘not’ a safeguarding issue.

You had better make some noise; Abusers will eploit bad laws and poor safeguarding

So it was with enormous unease that I read about the latest comment on parental responsibility via issues of gender identity for children. Because this appears to be spearheaded by a major law firm, Dentons.

Roll on Friday reported on November 29th 2019 about the production of a document headed : ‘Only adults? Good practices in legal gender recognition for youth’. This purports to be a ‘report on the current state of laws and NGO advocacy in eight countries in Europe, with a focus on rights of young people’.

The authors of the report recognises with thanks whose who have contributed to it.

IGLYO and Thomson Reuters Foundation wish to extend their thanks and deep gratitude to the legal teams and activists who contributed their time and knowledge to create this report.

The report was prepared by Dentons Europe LLP with the assistance of Dentons UK and Middle East LLP, and the NextLaw Referral Network. Our special thanks to Dentons trainee lawyers Jennifer Sim, Anna Mackinnon and Madeleine Macphail and to the Dentons Europe Pro Bono Trainee, Margaux Merelle.

There is a disclaimer:

This report does not constitute legal advice and should not be relied on as such. Readers wishing to act upon any of the information contained in this report are urged to seek individual advice from qualified legal counsel in relation to their special circumstances.

This report does not necessarily reflect the personal views of any of the lawyers, staff or clients of Dentons, Thomson Reuters Foundation or other lawyers, law firms or organisations that contributed to the development of this report.

Regardless of such disclaimers. this report is clearly intended to be used as a significant lobbying tool with the aim of changing the law. That is the explicit aim of the report.

GLYO’s aim was to create user-friendly resource for itself, its members and the broader advocacy community for use in campaigning efforts for better gender recognition laws across countries in the Council of Europe.

The report wishes to eliminate protections for children based on their age and understanding.

I went through the report to see what mention was made of children by age. There is no attempt to distinguish between the preschool child or the teenager. This is not surprising when you come to page 15 which calls to end the legal minimum age requirement.

Eliminate the minimum age requirement.

Where legal recognition procedures require prior medical treatment or investigation, these are often only available at the legal age of maturity and thus discriminate based on the age of the applicant. In other cases, where there is no medical requirement, minors are barred from legal recognition unless they have parental authorization. This remains a huge hurdle for young trans people who are yet to reach the age of maturity.

See also Page 9: Children and teenagers need to be allowed to define themselves however it suits them, both in social and legal terms

Page 13: The best interests of the child should be a primary consideration in legal procedures, and the child’s view should be given proper weight, taking into account their individual maturity and development. A child’s best interests must include respect for the child’s right to express their views freely and due weight given to said views in all matters affecting the child. In practice this would mean, for example, that a statement from a public authority suggesting that children of a certain age are too young to be aware of their identity is contradictory to the “best interest” principle and the right to be heard. 

There is no doubt that the authors of this report see protections for children based on their age and understanding, do not apply when it comes to the issue of gender identity.

I can find no understanding or assessment of the impact this has on the legal and moral obligations of parents to protect their children, apart from a few vague references to the welfare of children. I can see no mention of the Article 8 rights to respect for family life.

The report wishes to punish parents who want to take responsibility to protect their children

Not only does this document appear to be ignorant of or uncaring about the young child’s lack of capacity to make serious decisions about their physical or mental health, there is even a call for parents to be punished if they do not accede to the demands made by their child – regardless of age or understanding – see page 14.

For example, states should take action against parents who are obstructing the free development of a young trans person’s identity in refusing to give parental authorization when required.

This is confusing, particularly when Norway – a country lauded for its progressive approach – sets out clearly the age restrictions considered important.

Norway is the most liberal, with legal gender recognition being available at any age, although with certain conditions for different age groups. For example, minors under the age of 6 can only have their legal gender altered if they are intersex. For minors between 6 and 16, it is available with parental consent, and for those over 16 a self-determination model operates. In contrast, in Belgium, legal gender recognition is unavailable for minors under the age 16, and for those between 16 and 18 years old parental consent is required.

Do the authors of this report agree there is a distinction between a 6 year old and a 16 year old? I am not sure they do. Rather, this distinction becomes irrelevant as their work is ‘to educate the public that legal gender recognition is a purely civil process’.

This is probably the most dangerous fudging of reality of all. The main reason many share my fears about removal of any age limits when considering transition is that the current model of engagement in the UK is ‘affirmation’ only – and a child set along a pathway of puberty blockers, cross sex hormones and surgery. These issues and the frightening lack of clear understanding about what is motivating every increasing numbers of children to want to change sex were recently investigated by Newsnight and File on Four, when looking at those who now wish to ‘detransition’.

What does it say when you want to keep your arguments hidden?

The report is clear that those campaigning must ‘fly under the radar’ to avoid uncomfortable scrutiny:

The most important lesson from the Irish experience is arguably that trans advocates can possibly be much more strategic by trying to pass legislation “under the radar” by latching trans rights legislation onto more popular legal reforms (e.g. marriage equality), rather taking more combative, public facing, approaches. 

Advice is given about activism ‘behind the scenes’:

Another technique which has been used to great effect is the limitation of press coverage and exposure. In certain countries, like the UK, information on legal gender recognition reforms has been misinterpreted in the mainstream media, and opposition has arisen as a result.

What of any benefit is done in the dark? This says to me loud and clear that the authors of this report know that what they are recommending cannot stand up to scrutiny. It says to me that they risk being motivated by something other than the welfare of the children they profess to be fighting for. When you bring in slick professionalism from law firms and others motivated by profit, it rings some very, very loud alarm bells for me.

Always ask yourself – who stands to benefit from from any change to the law? If the people pushing this are seeking professional or financial validation, always be wary. If the people pushing it wish to ‘fly under the radar’ – always ask yourself why.

There are clear parallels between the recommendations of this group and how cults and predators operate. Those who are to be successfully recruited into the cult must be isolated from friends and family who do not share the cults aims and beliefs.

Unless and until there is a significant body of evidence that the ‘affirmation’ model is one that operates in the best interests of children, we should all be extremely wary and worried about this.

And parents should continue to take responsibility for their children and protect them from making potentially harmful decisions with life long consequences – regardless of what is threatened by lobby groups who do not appear to know or care about the law.

Further reading

Working with young people questioning their gender? Ditch the label and understand the child’s world CAFCASS website March 2018 Anthony Douglas CEO – fails to distinguish between Gillick competent and non Gillick competent children and contains alarming phrase We have to understand whether we should support a fast track transition, which can for example mean we recommend immediate use of hormone blockers so that transitioning does not become more complicated biologically if there is delay.

NHS staff being advised to ignore parents’ wishes if children self-declare as different gender, guidance shows The Telegraph January 2019

Dentons campaigns for kids to switch gender identity without parental approval Roll on Friday 29th November 2019

The document that reveals the remarkable tactics of trans lobbyists The Spectator December 2nd 2019

When will violent men be prevented from taking part in care proceedings?

This is a post by Sarah Phillimore

I was recently asked to write a summary of a case called LA v XYZ (Restriction on Father’s Role in Proceedings) [2019] EWHC 2166 (Fam) (18 February 2019). I thought this was a useful case to discuss the legal framework about how you can stop a child’s father being involved in care proceedings.

This issue was subject to wide public discussion in November 2018 when Sammy Woodhouse asserted that her child’s father (in prison at the time of the application by the local authority for a care order) had been ‘offered contact’ with their son in care proceedings. A number of politicians took this up and there was manufactured outrage about this so called ‘rapist’s charter. The reality – as ever – was more complicated than that. The child’s father retains a right to know about care proceedings unless application is made to the court to expressly disallow this.

I think this is a useful illustration of why its so difficult to present issues around the family courts in a way that reflects reality. Deciding whether or not to allow adults to continue to have a role in a child’s life requires careful analysis about competing ECHR rights. There is no ‘rapists charter’, there is no demand that violent men have contact at ‘any price’ – but you would not know this from the various ‘campaigns’ now on going which seek to change a law that doesn’t actually exist.

So how is it that we can’t just ignore the existence of fathers who are violent or abusive? And if we do want to restrict their access or remove them entirely from care cases, what are the requirements we have to fulfil to make this lawful?

This case involves the child Z, who was in the home when her mother was murdered by her father. He was convicted and sentenced to life imprisonment, to serve a minimum term of 22 years. The Local Authority applied for a care order and did not want the father to be a party to those proceedings. The LA didn’t want the father to have any contact with Z and made an application under section 34(4) of the Children Act 1989 to stop this.

Finally, the LA asked to be released from its statutory duty under section 22 CA 1989 to consult the father about or give him notice of any future decisions relating to Z. This would mean the court needed to use its ‘inherent jurisdiction’.

The Guardian supported the LA position and reported that Z had said she wanted no further indirect or direct contact with her father and did not want him to know anything about her.

The father argued that he did not wish to cause harm to Z, but simply wanted to participate in proceedings. He could not interfere in his daughter’s life as he did not know where and with whom she now lived. He would accept continued redaction of documents to maintain that position.

The court decided to grant the LA’s applications. It is clear that such orders are ‘exceptional’ but in this case were necessary; having conducted an analysis of the various considerations the court was clear that Y’s continued involvement in these proceedings was ‘deeply harmful to Z.’

It is important to consider such issues as early as possible. If such an exceptional application is made, it should set out the terms of order sought and evidence must then be provided to set out the evidential foundation for why such an order is necessary. It may be necessary to re-allocate the case to the High Court.

General legal framework

The court considered the general legal framework if you want to stop a party to proceedings seeing some or all of the documents – or if you want to stop someone being a party at all.

Part 12 Family Procedure Rules [FPR] 2010 sets out who should be an automatic party to proceedings and who should be given notice of any application. A father with parental responsibility is an automatic respondent to care proceedings while Practice Direction 12A sets out that the LA should inform fathers who do not have parental responsibility about the application for a care order. See further the discussion in CD (Notice of care proceedings to father without parental responsibility) [2017] EWFC 34

The court has case management powers under rule 4.1 and 12.2 FPR 2010 to restrict a party’s access to material filed within proceedings. But this is an ‘exceptional’ course of action.

As the former President of the Family Division Sir James Munby commented in Re B (Disclosure to Other Parties) [2001] 2 FLR 1017. such cases will remain very much the exception and not the rule. It remains the fact that all such cases require the most anxious, rigorous and vigilant scrutiny.

With regard to exercise of the inherent jurisdiction, the court referred to the ‘extremely helpful analysis’ by Knowles J in Re X and Y (Children) [2018].

The LA required permission to make the application and needed to satisfy the requirements of section 100(4) CA 1989. The court was satisfied the relevant grounds were made out; the declaration sought can only be made under the inherent jurisdiction, and the welfare of Z was clearly engaged.It is clearly a serious matter to permit the LA to be released from its duty to inform and consult with parents pursuant to section 22 CA 1989.

Hayden J stated in Re O (A Child) [2015] EWCA Civ 1169 (paragraph 27)

The objective of the process here is to ensure not only that there is proper planning but the plan for the child continues to be the correct one, developing and evolving as the child’s needs change. It is to fortify the rigour of review that the section imposes a wide-ranging duty to consult, not least with the parents. Even a parent who has behaved egregiously may nonetheless have some important contribution to make in the future. The requirement to solicit the views of a parent is not contingent upon a moral judgment of parental behaviour; it is there to promote the paramount objective of the statue as a whole, i.e. the welfare of the child. These duties are a statutory recognition of the need appropriately to fetter the corporate parent.

Of particular relevance in this case was the evidence that the father had continually attempted to breach an order of 2015 which set out the limited parameters of his involvement in Z’s life. In January 2018 it was suggested that the father’s associates tried to force their way into Z’s new address, causing her significant distress. The court commented on the father’s inability in any of his written documents to recognise or understand the impact of this on Z.

The court therefore accepted the submissions of the LA – Article 6 would, all other matters being equal, favour disclosure to the father of information about Z, but when looking at the competing rights, in particular the Article 8 rights in relation to Z, there was ‘weighty justification’ for compromise of the father’s rights.

Human Rights and Adoption

This is a post by Sarah Phillimore

It’s what we don’t know we don’t know that gets us every time

I was asked to speak at the recent Open Nest Collaborative Conference on Monday 14th October in York – just five minutes on human rights. O easy I thought, just a quick chat about Article 8, job done.

But then Amanda Boorman, founder of the Open Nest Charity showed me what she had written down as important to get across to the audience.

Protocol 1 Article 1 of the ECHR provides

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

Amanda, rightly, thought this was very important from the perspective of the child in the care system, who finds their treasured possessions lost or thrown away as they are moved about from placement to placement.

She also wanted to talk about Article 14 

The enjoyment of the rights and freedoms set forth in this European Convention on Human Rights shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

This was clearly very important in light of the growing concern about the impact of poverty on how likely it was to find yourself referred for a child protection concern.

I was shocked to consider that it had simply not occurred to me – the lawyer – to discuss either of those two issues. I was content to trot out our old favourite Article 8 – the right to a family and private life, to psychological integrity – but the right that cuts both ways for the child in the care system; their ‘right’ to retain some kind of link with their birth family, considered of less or even no importance when balanced against their need for a ‘warm, loving forever family’.

So I had to confess my embarrassment that it had not even occurred to me to examine either of these rights, despite the impact both had on children and families in care and adoption proceedings.

I recalled earlier unease when I discussed  the ECHR with social workers on Twitter and found that they did not seem aware of the importance of such rights- I wrote about that here. 

This concern had also been stated by Brid Featherstone that day, in her talk about the BASW Inquiry into the role of the social worker in adoption

She asked the audience what do YOU think we need in this framework? At every stage of process, to ask – what should social workers be doing?

Andy Bilson then raised the UN Convention on the Rights of the Child -this has has 54 articles setting out the civil, political, economic, social and cultural rights that all children everywhere are entitled to.  It is ‘the most complete statement of children’s rights ever produced and is the most widely-ratified international human rights treaty in history’ . The Social Services and Well Being (Wales) Act 2014 makes specific reference to the UN Convention in its ‘overriding duties’ at Part 7 –   a person exercising functions under this Act in relation to a child falling within section 6(1)(a), (b) or (c) must have due regard to Part 1 of the United Nations Convention on the Rights of the Child adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 (“the Convention”).

However I don’t think I have ever made reference to the UN Convention in any English case in my now 20 years of practice.  Hopefully the consideration by BASW of a new framework for social work education about human rights can bring the UN Convention more sharply into focus.

 

Why are Human Rights important?

But if I , the lawyer, couldn’t see the importance of Protocol 1 and Article 14 in the context of adoption,  without it being pointed out to me – how can I criticise social workers for not being as alive to the ECHR and its implications as I would wish?

So I thought it worth a reminder of why the human rights framework is so important when looking at State intervention in family life – particularly when the State intervenes to remove children permanently from their family of origin on a low standard of proof.

The European Convention on Human Rights (ECHR)

The European Convention on Human Rights (ECHR) protects the human rights of people in countries that belong to the Council of Europe – this is separate from the European Union and is larger, it has 47 members as opposed to the EU’s 28 (or shortly 27). Therefore it will NOT disappear if  Brexit actually happens.  This may be a disappointment to those who scoff at human rights as some kind of namby pamby pandering to snowflakes, but anyone who takes that view is revealing a disturbing ignorance about events still in living memory – when a European nation, home to great literature, music and scientific discovery, decided that it would categorise a number of its own citizens as ‘untermensch’, round them up, send them to concentration camps and kill them.

The ECHR was the response to the horrors of the German ‘Final Solution’ to eradicate the Jewish  people. It was largely drafted by British lawyers and came into force in 1953.

The Convention guarantees specific rights and freedoms and prohibits unfair and harmful practices.

  • the right to life (Article 2)
  • freedom from torture (Article 3)
  • freedom from slavery (Article 4)
  • the right to liberty (Article 5)
  • the right to a fair trial (Article 6)
  • the right not to be punished for something that wasn’t against the law at the time (Article 7)
  • the right to respect for family and private life (Article 8)
  • freedom of thought, conscience and religion (Article 9)
  • freedom of expression (Article 10)
  • freedom of assembly (Article 11)
  • the right to marry and start a family (Article 12)
  • the right not to be discriminated against in respect of these rights (Article 14)
  • the right to protection of property (Protocol 1, Article 1)
  • the right to education (Protocol 1, Article 2)
  • the right to participate in free elections (Protocol 1, Article 3)
  • the abolition of the death penalty (Protocol 13)

Although Article 6 and Article 8 will continue to be the rights of overarching importance in care and adoption proceedings, all of us who work in this field have an obligation to become familiar with ALL the rights and freedoms protected.  I note for example the right to education and the negative impact that care proceedings often bring to a child’s continuing education, ending up in a foster placement far from a much loved school.

As Elie Wiesel said, having survived the Holocaust – it is by denying our essential humanity that makes it easy to destroy another.   Taking someone’s child away is an act that strikes against the psychological integrity of both parent and child. That child may urgently need taking away, the sooner the better; but if we persist in mechanisms of removal that deny both parents and child their fundamental human dignity, then we do great harm.

We don’t fight to preserve the human rights of others simply for their sake – it is also for our own.

 

Further reading/listening

An interesting roundup of the day from the Adoption and Fostering Podcast. 

A letter to the President of the Family Division: No unregulated expert shall be allowed to report in a family case

We, the undersigned have experience of experts in the family courts as either professionals or parents.

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.

Practice Direction 25B sets out the standards expected of expert witnesses  – see Annex paras 4 and 6.

The expert is up-to-date with Continuing Professional Development appropriate to their discipline and expertise, and is in continued engagement with accepted supervisory mechanisms relevant to their practice.

If the expert’s area of professional practice is not subject to statutory registration (e.g. child psychotherapy, systemic family therapy, mediation, and experts in exclusively academic appointments) the expert should demonstrate appropriate qualifications and/ or registration with a relevant professional body on a case by case basis.  Registering bodies usually provide a code of conduct and professional standards and should be accredited by the Professional Standards Authority for Health and Social Care (See Appendix 2). If the expertise is academic in nature (e.g. regarding evidence of cultural influences) then no statutory registration is required (even if this includes direct contact or interviews with individuals) but consideration should be given to appropriate professional accountability.

We feel strongly that the requirement to consider such regulation on a ‘case by case basis’ is potentially unfair to parents who may be acting in person and who may not initially appreciate the potential significance of a failure by any professional to submit to external regulation.

We are very concerned that parents who wish to raise significant concerns about the conduct of an expert who is not subject to external regulation, have no where to go other than the appeal process, which is clearly not a suitable mechanism to deal with the majority of complaints against an expert’s conduct.

We would be grateful if you would give our letter consideration.

SIGNATORIES as of 17th October 2019

Sarah Phillimore, Barrister

Professor Lauren Devine

Stephen Parker Senior Lecturer

Dr Sue Whitcombe  CPsychol AFBPsS

rob@voiceofthechild.org.uk

Carine Moller

Vinice Cowell

Ruth Tweedale, family law solicitor and lecturer

Alison Bushell, expert

Nicky Sole, parent.

Alice Tew

Deborah Hope

Mike Flinn , Child and Family Therapist , MBACP ( accred)

Roy Mackay, Family Law Reform Campaigner

Belinda Jones, FMC Family Mediator, AFCC Parenting Co-ordinator, GDL, LPC.

Trish Barry-Ralph ISW, expert witness

Ruaidhri Magee, Parent

Helen Taylor Social Worker

Dr Nick Child, BSc MB ChB MRCPsych MPhil Retired Child Psychiatrist and Family Therapist

Debi Richens, parent and grandparent

Tracey McMahon – Housing and Welfare Rights Practitioner

Nick Burke Social Worker

Rosie Dixon Psychologist

Alicia Leal Parent

Jennifer Cole, Midwife

Charlotta Bolton – Parent

Emma Cleaver – Parent

Julia O’Connor – Parent

Rachel Barnes

Dave Gwilliams

Amanda Hewitt-Coleman

Andrea Brougham

Rachel Gough

Simon Cushing

Shelly Wieczorek

Zainab Hassan

Tracy Stapleton Childcare Professional

Doreen Langford

Carol Newton

Lisa Blakey

Sofia Nilsson

Helen Woodhouse NHS Nurse

Emma French

Moira McCann Registered Childminder

Harriet Hughes

Maria Denny

Therese Lindberg

Samra Soliman

Izy Soliman

Marie Howell

Helen Green NHS

Hazel Rhoades

Louise Edwards

Jurate Puodz

Caroline Howe

Becci McFadyen

Sarah Tolson

Nina Coulianos

Padmini Baker

Charlotta Bolton

Lynn Aicorn

Anna Bradshaw

Heather Murray

Ekaterina Crawford

Laura Brooks Deputy Headteacher

Leah Moyse

Zoe Elisabeth

Alexander McKee

Maria Rosberg

Amanda Fakeerah

Alison Elstone

Laura Low-Douse

Sue Roberts

Victoria Cushing

Mark Howell

Nina Ayalon

Christina Lamb, parent.

 

 

 

 






No one, no issue is off the table when it comes to safeguarding

This is a post by Sarah Phillimore.

I was sent a copy of an article this evening. It appears in the October edition of ‘Professional Social Work Magazine’ which I am told is a publication for those who belong to the British Association of Social Workers (BASW) a powerful and influential organisation which claims over 20,000 members, ‘committed to the highest standards of practice and ethics’.

The article was written by someone who did not want to reveal their identify, in order to protect that of their child, which I can quite understand. The article is titled ‘Listen to children on gender – what being the parent of a trans child has taught me’.

It is the account of a teenager who struggled with a ‘gender identity’ that did not ‘match the sex they were assigned at birth’ and how the parents supported the child to transition from female to male after the child made his wishes known at 12 – having spent ‘months, if not years’, ‘thinking about his body as wrong’.

It is a sensitive account from a parent about how they responded to their child who, on this account clearly did appear to be expressing strong views that had been held over time. I have absolutely no difficulty with this. It is clear that ‘gender dysphoria’ does exist and a small percentage of people will benefit from surgery to bring their physical body more into alignment with what they believe their body should be.

However, there will, I am equally sure, be those who profess a wish to ‘change sex’ who have other issues and difficulties that medication or surgery will not alleviate. Such intervention may have permanent and life long consequences and should not be entered into lightly. Enormous caution should be taken around ‘supporting’ a child who is not Gillick competent into making any serious decision about their lives.

And this is where the article began to make me feel very uneasy. Far from restricting it to an account of one child’s journey, it is clear that the author wishes to offer far more general guidance and does so on the basis of assertions that are – in my view – profoundly misguided and actively dangerous.

The author raises as a ‘myth’ that hormone treatments are given to children under the age of 16 or surgery is considered only at 18. Possibly she or he is unaware of the activities of Dr Helen Webberley and what appears to be a growing number of activists who demand that ‘puberty blockers’ should be available to children as young as 12. Ironic also is the fact that the CEO of Mermaids Susie Green took her child abroad for surgery when the child was only 16.

Offering up these age limits of 16 and 18 as some kind of inviolate barrier beyond which people cannot pass is simply naive – particularly given the inevitable ‘drive’ for increased intervention at a younger age as that will make it easier for a child to ‘pass’ – particularly a boy who wants to become a girl.

But my real fears are raised by the ‘bullet points’ at the end of the article

  • Just because a child is telling you they are transgender, does not mean they are too young to know this
  • Its not possible to force a child or young person to be trans
  • parents supporting their child in their gender identify is not a safeguarding issue

I wonder if the author of this article has read the judgement in Re J?  I wrote about this in more detail in this post – In whose best interests? Transgender children: choices and consequences – and the issues around bear repeating here.

This is an important case – J (A Minor), Re [2016] EWHC 2430 (Fam) (21 October 2016).

The Transparency Project wrote about the case and the media response here and summarised the court’s approach in this way:

Mr Justice Hayden heard the case over a number of days in the summer and, based upon the experts and professionals whose evidence he heard (along with that of the mother herself), the judge concluded that J was a little boy whose mother’s perception of his gender difference was suffocating his ability to develop independently – and was causing him significant emotional harm. He was placed with his father, where he quickly began to explore toys and interests that were stereotypically “boys”. The judgement is very clear that the father had brought “no pressure on J to pursue masculine interests” and that his interests and energy were “entirely self motivated” (pa 47). So, not forced to live “like a boy” (whatever that means) – but choosing (there is more detail in the judgment).

Importantly, Hayden J acknowledged that there are genuinely children who are transgender or gender dysphoric, and who present in this way from an early stage, but – and here is the crux of it – this child was not one of them. This was all about the mother’s position.

At para 63 of the July judgment, the judge commented on the expert opinion of the mother and how she presented:

When stressed and distressed, [M] becomes controlling, forceful and antagonistic. This reflects her underlying anxiety. She is actually very frightened and upset. She tries to sooth herself by taking control of situations but her interpersonal style is counter-productive. She does not negotiate well. She finds it difficult to compromise and situations become inflamed rather than de-escalated. In situations of interpersonal conflict, she protects herself from loss of confidence or face by unambiguously perceiving herself as correct which means that from her perspective, the other party is wrong. To acknowledge her flaws, even to herself, feels crushing and devastates her self-esteem so she avoids this possibility by locating responsibility and blame elsewhere. When she is unable to achieve the outcome that she wants, she resorts to formal processes and/or higher authorities: complaint procedures, The Protection of Human Rights in Public Law, the European Court of Human Rights, Stonewall and so on.”

It is clear that the mother was insistent with all agencies that J ‘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 Mermaids who played a significant role in the development of a ‘prevailing orthodoxy’ that J – at 4 years old – 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.

No one and no thing is exempt from safeguarding

I am profoundly worried by that last bullet point in the article – “parents supporting their child in their gender identify is not a safeguarding issue”.

The mother in re J was supported throughout by Mermaids, who issued an angry press release after the judgment and said there would be an appeal. There was not. The author of this article refers its readers to Mermaids as a useful resource.

It is surely the antithesis of any responsible social work or safeguarding policy to set up groups of people or particular issues that are immune from examination or critical regard. While the author’s 12 year old child may have thought long and hard about the issue and demonstrated his Gillick competence beyond doubt – I suggest the same certainly cannot be offered with regard to a 4 year old. But is the issue of ‘trans’ now off the table for social workers? Whatever the child’s age or level of understanding – if he or she declares they are trans, then that is that? No further investigation or assessment is required? How can this be right? How is this good social work?

I am really worried about this. I would be interested to hear from other social workers about what they think, and how they would approach a case involving a very young child who wished to embark upon a path of ‘changing sex.’

 

 






After 5 years as a ‘crusader’ I am admitting defeat – and this is why.

In 2014, with the support and encouragement of mumsnet users I set up the website Child Protection Resource online. We had considerable concerns about the lack of reliable information which was easily available for parents facing care proceedings and real fears about the way in which people in positions of authority and power seemed happy to promote false narratives to make people afraid.

I had such high hopes. Surely all people need is to see the facts set out before them, clearly and simply and all will be well! In pursuit of this dream I organised 3 multi-disciplinary conferences in 2015, 2016 and 2018.  It seemed to go well. The first conference was a genuinely energising and positive experience when for the first time parents, social workers, experts and lawyers gathered in one room to speak honestly about their experiences in a system of children protection that we all agreed was not working and was brutalising those within it.

But as the years went by, my naivety has been revealed for what it was and my enthusiasm has dimmed. It is clear to me now that professionals do not operate in isolated silos, failing to engage with others, because they are forced to – it is because they WANT to.  Stepping out of your comfort zone and facing some hard and uncomfortable choices about your profession and the choices you make within it is very difficult. I can see why many are simply unable to do it.

And that’s ok. I am not here to berate people for not being willing to risk their homes and their jobs on some crusade. I appreciate it is very difficult for many to speak out. Family cases are particularly difficult to engage with in public due to the many necessary rules that exist to protect identification of children.

So I get that. But I wasn’t asking people to be warriors. I was asking people to be authentic. To be honest. To connect. And it is sadly clear to me now that this is never going to happen. There are not merely the concerns about possibly being in contempt of court – which I quite understand – but there is something much darker going on. A lack of honest recognition of problems and difficulties because this might challenge a prevailing orthodoxy or a funding stream or a personal ‘brand’ – or simply be embarrassing.

And I will not be complicit with this. Because I think its really harmful. Not only to the possibility of driving forward any real change to a brutalising system, but because there are real people – real children – who get ignored if people are more concerned about embarrassment and saving public face than they are about engaging with what is going wrong.

As I have already indicated, I have withdraw support from any journalist who wishes to campaign to open up the family courts, as the last five years have shown me that journalists are either unwilling or unable to accept the harm they do to this area in particular, by click bait appeals to the lowest common denominator.  I will no long be willing to sit in conferences and talks by social workers that preach the importance of relationships when key members of that profession seem unable or unwilling to recognise that the fundamental building block of any relationship is honesty and trust. I will not sit by in silence when even the Ministry of Justice does not appear to understand its own system of laws and I will continue to object very loudly to those who push fake and partisan narratives at the expense of the rule of law.

I will keep my site going and updated. For the parents who may benefit from it. No parent is responsible for this system and its failings. No parent should be asked to care about this. They need a system that can operate fairly and efficiently, to either remove those children who need protection their parents cannot give in the least cruel way possible, or to step away from those families who have unfairly been the subject of state scrutiny. Better yet, not ever have to engage in punitive measures against families which may have been able to make it with some guidance and support.

I have been deeply disappointed by the last five years. But I don’t regret for one moment embarking on this experiment. It has opened my eyes and my mind and both before were, to a large extent, closed. It has enabled me to meet many people of great wisdom and courage that I would otherwise never have met. To all of them, I offer my thanks.






How pushing the ‘victim/perpetrator’ dichotomy in the Family Court system hurts us all

This is a talk delivered by Sarah Phillimore at the Families Need Fathers conference in London on September 14th 2019

The abstract concept of ‘Justice’ is often portrayed as the Greek goddess Themis, usually depicted holding a sword and scales. This represents her ability to cut fact from fiction with no middle ground and the need to be balanced and pragmatic. However the blindfold is a modern addition.  It symbolises that justice must be blind i.e. applied equally to all who come before her.

In recent years there appears to have been an orchestrated campaign against both the scales and the blindfold, when it comes to issues of violence in intimate relationships before the family courts.  For the first time in my 20 years now as a lawyer, I see not merely journalists and campaigners showcasing their lack of understanding of law and procedure – I see them joined and supported by actual politicians and actual ‘Inquiries’ established by actual Government departments. I and others have commented critically about this elsewhere

If this sounds harsh I am sorry. I do not say this to diminish the suffering of victims of abuse. Violence in relationships is common and is a blight on our society. I agree that a parent who is abusive to anyone, let alone their child’s other parent, is not a good parent and they should not have unfettered access to a child without some clear evidence that this is safe.  I agree that women are more likely to be the victims of violence at the hands of male partners. Further, I would be surprised to find anyone who doesn’t think it outrageous that people risk being cross examined directly by those who may be using the court system to further abuse and humiliate. Happily, in my experience at least this is not commonplace – Just out of interest – how many people in this room have either questioned directly an ex partner in court or been questioned directly by an ex partner?

We must be able to say the names of those children who have died painful and frightening deaths at the hands of their adult carers, when the child protection system failed to ask the right questions or properly assess risk – Ellie Butler, Alexa-Marie Quinn, Peter Connelly, Victoria Climbie, Elsie Scully-Hicks Daniel Pelka

Even this short list is too long. When the child protection system fails it is their faces that we must see.

 

 

 

 

 

 

 

But. It is clear that children risk being hurt and killed by men AND women. Even in that short list above shows women are capable of hurting and killing children, or of deliberately lying to protect the men they know are hurting them.

The only fool proof way to prevent children from pain and suffering is to prevent them from ever being born.  There is no system that can protect against all risk. We need to do better – and I will discuss today how we can do that – but the answer to a system that you find unsatisfactory and potentially unfair is NOT to agitate to make it even more unsatisfactory and unfair.

I don’t agree the current crop of campaigners will achieve anything to make victims and their children safer. The MoJ Inquiry and the Sunday Mirror ‘campaign’ etc etc etc is a call to examine or change laws which do not actually exist.  I am repeatedly told via social media that we ‘must’ see a change to the law that permits ‘snap decisions which promote contact at all costs’. This is not, never has been and never will be the law.

To campaign on such a false premise is a waste of time and energy. More sinisterly, the ‘changes’ which people want to see, appear to involve very significant challenge to the integrity of both the rule of law and due process.

  • by describing complainants as ‘victims’ at the very outset.
  • Assuming that these ‘victims’ are women
  • By inviting under the campaigning umbrella a number of women who have been found to have caused very serious harm to their children, yet rejecting those findings as yet more ‘failings’ of the family courts. [For comment on Victoria Haigh and the very many judgments against her, see this post from The Transparency Project. ]

 

I believe Brexit has unleashed something very harmful into our attempts to talk about serious issues; experts are disdained, facts are distorted and feelings are what matter. This joined forces with another trend – the identification of ‘complainants’ as ‘victims’ before any allegation is either accepted as true or found to be so. This first emerged in the criminal justice system; tragically as a very well intentioned effort to combat some of the truly disgusting treatment meted out by police and lawyers to those who complained about sexual assault.

However, the law of unintended consequences continues to operate, and as Richard Henriques warned and the the trial of Carl Beech showed, to designate people as ‘victims’ at the very outset of any investigative procedure, has the potential to cause serious and damaging consequences for the integrity of what follows.

The time has long gone for those of us who are deeply troubled by all of this to attempt to reclaim the narrative, to restore the position that words have meaning. They are important. Because language shapes thought – not the other way around.

There are two fundamental and serious problems in using the word ‘victim’ to describe a complainant whose allegations have either not been proved or have not been accepted. It is unfair to all who participate in court proceedings.

  • setting up a complainant as a ‘victim’ at the inception of the court process gives that person a wholly unrealistic view of how their evidence may be treated in an adversarial court process. It is not enough to simply assert something – you must prove it.
  • Treating one party as a victim prior to any findings made about the factual basis for that status, risks undermining the fairness of the proceedings and casting the respondent as a ‘villain’ at the outset.

So I will attempt today to go back to basics.

  • What is the rule of law? What is ‘due process’? And why are they important?
  • What is evidence? And how does the family court use it? How should you present it?
  • Where is the system failing and what can we do to make it better?

 

What do we mean by the ‘rule of law’ and ‘due process’ ?

The Secretary-General of the United Nations defined the rule of law in this way:

a principle of governance in  which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.” (Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies (S/2004/616).

The rule of law is one of six of the key Worldwide Governance Indicators (The others being Voice & Accountability, Political Stability and Lack of Violence, Government Effectiveness, Regulatory Quality, and Control of Corruption).

‘Due process’ is under the umbrella of the Rule of Law:

  • procedural due process – legal proceedings which are carried out in accordance with established rules and principles; and
  • substantive due process – legal proceedings should not result in the unfair, arbitrary or unreasonable treatment of an individual.

If you are in any doubt as to the importance of the ‘rule of law’ or due process, visit and spend some time in one of the countries which doesn’t have either.

 

So what IS evidence? And how does the court treat it?

I make no apology for going back to basics, such is the staggering level of misinformation  I am seeing on a daily basis from those who purport to have positions of authority and credibility.

Evidence is anything that you experience, read or are told that causes you to believe something happened. It is the information used in court to try and prove something. It can be obtained from documents, objects or witnesses.

Establishing the evidence in a case allows you to ask ‘what does it prove?’. A thing that is proved or accepted then becomes a fact which is relevant to the outcome of the case.  We need to know the facts in order to decide what consequences follow or what the risks are and how they are to be managed. The Family Justice System (FJS) puts proof of facts at its heart.

In 2013 Mr Justice Baker addressed a conference asking  – how can we improve decision making in the family courts? He identified the twin evils of delay and cost which impact on the quality of decisions made. He commented on the alternatives to litigation, such as mediation or arbitration that might work to mitigate those evils. But he was also clear that alternatives to litigation could never be complete substitutes for litigation.

But there will always be a substantial number of disputes in which a forensic process is unavoidable, a process that involves consideration of allegations and cross-allegations made by the parties, a judicial analysis of the evidence, the makings of findings and an assessment of the consequences of those findings. There are some people who genuinely believe this can be done by some sort of committee without involving lawyers at all. Such views are profoundly mistaken.

This does not mean of course that our current system is without flaws. ‘Fact finding’ may sound simple but is anything but. The foocus on most law degrees is dissection of the lofty legal decisions of the superior courts – but when they hit the ground in practice, the vast majority of legal endeavours will involve the identification and processing of facts.

Understanding how to identify and apply facts in court is complicated.  Jerome Micheal, the author of ‘The nature of judicial proof: An inquiry into the logical, legal, and empirical aspects of the law of evidence’ summarised his view of the ‘theoretical basis of the arts of controversy’ in 1948, pointing out that there are very many things we need to appreciate when we approach evidence in a court. Among others, we need to understand probability, causation, the distinction between direct or perceptual and indirect or inferential knowledge. We base much of our understanding on presuppositions about human nature and behaviour – these often change over time or as research develops – but we need some basic knowledge about how humans think and react.

Judges often say findings of fact must be based on evidence, not speculation – Re A (A Child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12) but as that case illustrates, the line between the two is not always clear or easy to find and obviously involves some subjective discretion form the decision maker.

However, regardless of all the obvious imperfections of the fact finding exercise,  we have as yet, no other system to deal with contested allegations.  I am not sure what else could be suggested – we return to trial by combat? Or in the modern era presumably this will be ‘trial by Facebook’ – whoever can garner the most ‘likes’ and ‘shares’ or the biggest amount in their crowd funder will ‘win’. I have a horrible suspicion that this is exactly how some people think it should work, as we have seen in both the Minnock and Baldwin cases.

But unless and until Parliament decides to dissolve the courts of law in favour of the courts of public opinion, we need to focus on what we have got.

 

The family court process

Deciding what ‘weight’ attaches to the evidence will comprise a mixture of objective and subjective elements. Judges have a pretty wide discretion; it is not a ground of appeal that you didn’t agree with the judge’s decision. You have to show the judge was wrong – he or she took into account the wrong things or ignored the right things. Just because a Judge fails to explicitly mention a particular point, doesn’t mean the appeal court will allow your challenge to succeed. A useful example of this can be found in the case of A and R (Children), Re [2018] EWHC 2771 (Fam) where the Recorder was criticised for not making explicit reference to some parts of PD 12J.

Family courts operate an ‘adversarial’ as opposed to ‘inquisitorial’ system. This means that the Judge can only decide the case that is in front of him or her. The Judge does not take on an investigative role. Evidence is presented to the court and challenged by the parties as ‘adversaries’ in the court process. Claims that we are in fact ‘quasi-inquisitorial’ seems to mean in practice to amount to little more but that lawyers are asked to tone down their combativeness a notch.

The court must take into account all the pieces of evidence in the context of all other evidence, The civil standard of proof applies, which means facts must be proved ‘on the balance of probabilities’: If it is more likely than not that the thing happened it is proved – see Re B [2008] UKHL 35). This is known as the ‘binary system’ as there are only two options  – true or false. I appreciate that there is legitimate criticism of this, particularly given the low standard of proof and again I would like to see more official recognition of this, rather than the predominant congratulatory back slapping that the family courts have ‘discovered the truth’. 

Over time rules of evidence developed, to attempt to make proceedings as consistent and fair as possible. For example, in most civil cases ‘hearsay evidence’ is not permitted – that is the evidence of those who tell the court, not what they know themselves, but what they have heard from others. A fundamental point of fairness is that if you don’t accept the evidence offered against you, you must have the ability to challenge it. Its obviously very difficult to challenge the words of someone not in court. For this reason if hearsay is accepted in family court proceedings, the judge must think very carefully about the weight to be attached to it. 

 

Expert Evidence

particular bone of contention revolves around the use of experts – as these experts are often in the ‘soft science’ field of psychology.  I accept that the use of experts is not without controversy and I have seen a worrying lack of humility from some about the strength of their conclusions. However, it’s important to remember that ‘the expert advises but the court decides’ . Expert evidence is just one piece of a jigsaw that a judge needs to try and put together – it is rarely the entire answer to the case  – see Re T [2004] 2 FLR 838.

As Professor Luthert commented in R v Harris and Others [2005] EWCA Crim 1980: It is very easy to try and fill those areas of ignorance with what we know, but I think it is very important to accept that we do not necessarily have a sufficient understanding to explain every case.

 A judge does not have to accept an expert’s evidence but must explain why the evidence is not accepted. See the comments of Lord Justice Ward and Lady Justice Butler-Sloss in the case of Re B (Care: Expert Witnesses) [1996] 1 FLR 667

I accept we need a greater awareness of and willingness to challenge experts on the basis of confirmation bias or scientific prejudice but as barrister David Beddingfield comemented in 2013 –  this can be tricky  – see Expert Evidence – Another Chapter in a Continuing Story in Family Law Week:

The expert, as we all know, is expected to give an opinion about the most significant issues in a case. A paradox underlies the use of all expert evidence: the reason an expert is required is that the decision-maker lacks the expertise of the expert and requires that expert’s help. How is that same decision-maker also competent tojudge the content of the expert’s evidence? How is the decision-maker to choose, for example between two competing experts, each using different methodologies beyond the ken of any non-specialist?

 

Practical problems in family cases – Documents versus words

The uncontroversial ‘gold standard’ of evidence is the contemporaneous documentary record. And this is the fundamental reason why allegations about what did or did not happen in intimate relationships can be so difficult to prove in court, even on a low standard of proof. Many cases I have dealt with involve a bitterly fought battle between parents who make allegations each against the other which are starkly different. It is difficult to discern patterns of behaviour and very difficult to cross examine on a bare denial.

Relationships, which may have endured over decades, may offer the court little evidence but the words of the parties themselves.  Not many of us – I hope – enter into a relationship expecting to keep a running log of all the bad behaviour of our partners.

I was asked a very interesting question about this issue of ‘collecting evidence’

…. would it help to suggest that people keep diaries, records, photos, dates, times, places – particularly when there are already difficulties i.e. any statements may be seen to be more credible if they are detailed and based on contemporaneous notes?

And my answer to that is ‘be careful’. You do run a risk that you may appear to be offering self serving or manipulated evidence. The courts are often very wary of recordings of arguments etc because of course it is difficult to know what happened immediately before the recording started. I have seen recordings and diary entries used with powerful effect but there is always a suspicion that such one party may have acted deliberately to antagonise the other in order to ‘collect evidence’ . I appreciate this is a very difficult position to be in – much abuse occurs behind closed doors and the abuser is able to present a very different face to those outside the relationship.

But it remains an inescapable truth that the more serious the allegations you make, the less likely is any court to simply accept them, absent any supporting evidence – see for example the case of Sivasubramaniam v Wandsworth County Court & Ors [2002] EWCA Civ 1738. The complainant described events to the court in this way:

part of a long-running criminal conspiracy against him involving members of Wandsworth Borough Council solicitors, lawyers and the chief executive and the finance officer and their assistants, members of the Wandsworth police, doctors in the hospitals, social workers, local court officials, judges and the lessee occupying the flat below his. The conspiracy involved unsuccessful attempts to murder him … It had included impersonation of him, had involved the fraudulent termination of four sets of legal proceedings that he was conducting, including the two with which we are concerned, while he was detained under the Mental Health Act or under medication thereafter, and continued to this day.

Unsurprisingly the court declared that no Judge would be able to accept such a version of events on one person’s word alone.

 

 

Gold Standard Evidence versus Witness Credibility

The courts have said for a long time that the best way of testing witness credibility is to test witnesses against objective facts which are independent of their testimony.

Lord Goff in Armagas Ltd v. Mundogas S.A. (The Ocean Frost), [1985] 1 Lloyd’s Rep. 1, p. 57:

Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.

Lord Pearce in the House of Lords in Onassis v Vergottis [1968] 2 Lloyds Rep 403 at p 431:

Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred.

It is clear that people who have been traumatised by abuse over many years can behave in ways that reflect that trauma. They may not be able to be clear or consistent in their account.  They may have been too afraid or too ashamed to have told any one else so have no police or medical evidence. Or they may worry about ‘rocking the boat’ and risking losing contact with their children. Exposure to gradually escalating abuse and intimidation can become numbing and appear ‘normal’ – the ‘boiling a frog’ principle.

The massive problem for the court system however is that a tendency to be inconsistent or reveal crucial details at a much later stage is also strongly suggestive of someone who is lying.

Therefore the credibility of witnesses in family cases is often of supreme importance. It really matters how you come across when you give evidence. The appeal courts often say that they are at a disadvantage when examining a challenge to the decision of the first court, as they don’t have the same opportunity to assess how people gave their evidence as well as what they actually said. I think there is a danger – of which the courts are aware – that too much or improper weight can be put on demeanour as an indication of credibility.  They are two very different things –  ‘demeanour’ is concerned with whether or not a witness appears to be telling the truth.

It is usually unreliable and often dangerous to draw conclusions from demeanour alone. Is someone hesitant because they are lying or just naturally cautious? These problems are magnified where the witness is from a different country or culture than the Judge or is giving evidence through an interpreter. I accept that most of us still do have a view of how a ‘victim’ should present in court – particularly if that alleged victim is female, and I accept there is a risk that people who don’t fit the general stereotype of ‘victim’ – i.e. weak, timid, tearful – may find their accounts treated as less credible.

The case of Excelerate Technology v Cumberbatch [2015] provides some useful discussion about how Judges assess credibility. It is determined by looking at the following issues.

  • is the witness a truthful or untruthful person?
  • If truthful, is he telling something less than the truth on this issue?
  • if untruthful is he telling the truth on this issue? Not all liars lie all the time and motivations for lying can vary; see the Lucas direction.
  • If truthful and telling the truth as he sees it, can his memory be relied upon?
  • Is what is asserted so improbable that it is on balance more likely than not he was mistaken in his recollection?

 

 

What can we do to improve the situation?

So – what do we do? I accept that court arenas are unpleasant places at the best of times. Attempting to establish the truth or otherwise of your experiences in an abusive relationship is very far from the best of times.

The lawyers and judges must have a clear understanding of how to make proceedings as fair and efficient as possible:

  • have clear understanding of the requirements of PD 12J – see below.
  • Be wary of making any decision based on the demeanour of a witness or what a victim ‘ought’ to do
  • make sure vulnerable witnesses have a safe place to sit and wait before the hearing starts
  • make sure that issues of screens in court, video links and intermediaries are properly discussed in good time.
  • be more willing to impose serious penalties on those who are found to have lied in their evidence
  • list findings of fact as soon as possible and be prepared to take enforcement action as soon as it becomes clear the resident parent won’t accept the findings of the court

What will help the parties?

  • Understand the court process
  • Understand the burden and standard of proof
  • where ever you can – find some additional evidence that supports what you are saying. Are there any medical records or police reports? Did you say anything to a friend or family member at the time? Would they be willing to come to court and be cross examined about what you said?
  • If you have nothing other than your words – that is still evidence but you must be careful to be as clear and consistent as you can. Set out your statement in short numbered paragraphs and go in chronological order. Include everything that you can remember.

However, it has been my view for some time that the fundamental challenges to fair, efficient and humane processing of legal complaints about violence in intimate relationships are very little to do with the lawyers, the Judges and their lack of understanding or training. The real problems will require political will and a huge amount of cash to sort out.

  • court buildings that are not fit for purpose – no or very few waiting rooms, no separate entrance, courts sitting in cramped rooms with very little space, inadequate technology to accommodate video links etc
  • lack of judges and available court rooms to hear fact findings quickly – cases quickly become stuck and are allowed to drift.
  • lack of judicial continuity which is detrimental to effective case management – see comments in the case of A and R (Children), Re [2018] EWHC 2771 (Fam) para 57 -61.
  • lack of legal aid so that vulnerable witnesses may have be face being cross examined by their alleged abuser, the issues in the case are not identified and presented efficiently, litigants in person can’t afford to instruct experts etc, etc, etc.
  • wider societal problems, such as lack of available safe and affordable housing so that the financially weaker partner finds it very difficult to leave an abusive relationship particularly if there are children involved.

This is what we need to tackle. And I have to wonder why we are all so keen to be distracted by yet another newspaper campaign based on what seems to be a complete lack of knowledge or understanding of any of the issues I raise above. At the moment, the only people I can see who will benefit from all this are those who are pushing for Judges to be ‘trained’ – presumably by their own organisations and at significant cost.

And a the elephant in the room will remain. Why do so many people behave so badly in intimate relationships? And why do so many people have so little self worth that they accept it or cannot recognise it until many years have passed and great harm has been done? What as a society are we going to do about this? is there anything ‘we’ can do?

All I can say with certainty is that continued insistence on the FJS or any external agency to ‘fix’ the problems of cruel, unreasonable or otherwise dysfunctional people is doomed to expensive and emotionally harmful failure. And those who will suffer most, as they always do, are the children.

 

 

APPENDIX

Definitions in Practice Direction 12 J

Domestic abuse” includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment;

“coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim;

“controlling behaviour” means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour;

“development” means physical, intellectual, emotional, social or behavioural development;
“harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another, by domestic abuse or otherwise;

“health” means physical or mental health;

“ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical

 

Para 5 what must the court do?

  • dentify at the earliest opportunity (usually at the FHDRA) the factual and welfare issues involved;
  • consider the nature of any allegation, admission or evidence of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms;
  • give directions to enable contested relevant factual and welfare issues to be tried as soon as possible and fairly;
  • ensure that where domestic abuse is admitted or proven, any child arrangements order in place protects the safety and wellbeing of the child and the parent with whom the child is living, and does not expose either of them to the risk of further harm; and
  • ensure that any interim child arrangements order (i.e. considered by the court before determination of the facts, and in the absence of admission) is only made having followed the guidance in paragraphs 25–27 below.
    In particular, the court must be satisfied that any contact ordered with a parent who has perpetrated domestic abuse does not expose the child and/or other parent to the risk of harm and is in the best interests of the child.

Para 8

In considering, on an application for a child arrangements order by consent, whether there is any risk of harm to the child, the court must consider all the evidence and information available. The court may direct a report under Section 7 of the Children Act 1989 to be provided either orally or in writing, before it makes its decision; in such a case, the court must ask for information about any advice given by the officer preparing the report to the parties and whether they, or the child, have been referred to any other agency, including local authority children’s services. If the report is not in writing, the court must make a note of its substance on the court file and a summary of the same shall be set out in a Schedule to the relevant order.

How do we deal with tension around open justice and protecting the vulnerable? Para 10:

If at any stage the court is advised by any party (in the application form, or otherwise), by Cafcass or CAFCASS Cymru or otherwise that there is a need for special arrangements to protect the party or child attending any hearing, the court must ensure so far as practicable that appropriate arrangements are made for the hearing (including the waiting arrangements at court prior to the hearing, and arrangements for entering and exiting the court building) and for all subsequent hearings in the case, unless it is advised and considers that these are no longer necessary. Where practicable, the court should enquire of the alleged victim of domestic abuse how best she/he wishes to participate.

Why are fact findings important – para 16

The court should determine as soon as possible whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegation of domestic abuse –

(a) in order to provide a factual basis for any welfare report or for assessment of the factors set out in paragraphs 36 and 37 below;

(b) in order to provide a basis for an accurate assessment of risk;

(c) before it can consider any final welfare-based order(s) in relation to child arrangements; or

(d) before it considers the need for a domestic abuse-related Activity (such as a Domestic Violence Perpetrator Programme (DVPP)).

Para 40 In its judgment or reasons the court should always make clear how its findings on the issue of domestic abuse have influenced its decision on the issue of arrangements for the child. In particular, where the court has found domestic abuse proved but nonetheless makes an order which results in the child having future contact with the perpetrator of domestic abuse, the court must always explain, whether by way of reference to the welfare check-list, the factors in paragraphs 36 and 37 or otherwise, why it takes the view that the order which it has made will not expose the child to the risk of harm and is beneficial for the child.

 






The Migrant Child with no Recourse to Public Funds

I am grateful for this guest post by Hal Fish who is a content writer for the Immigration Advice Service; an organisation of leading UK immigration solicitors that help migrant families regulate their immigration status.

Whilst there are numerous issues that affect and damage the many migrant families of the UK, the welfare of migrant children is a profoundly troubling matter which continues to be overlooked in mainstream media. Migrant children are being thrown into a state of vulnerability due to the immigration status of their parents. Street homelessness, poverty and other forms of dejection are rampant issues for these children as they grow up without access to the same public funding as those with British Citizenship.

The main reason causing this problem is the ‘No Recourse to Public Funds’ (NRPF) condition. Coming from theImmigration and Asylum Act 1999, the clause states that if a person is ‘subject to immigration control’ they will have ‘no recourse to public funds’.Without standard routes to public funding, the only support left to the children of migrant families can be found in Section 17 of the 1989 Children Act. This act places a duty on local authorities to safeguard and promote the welfare of children ‘in need’ in their area. This one source of provision has become a safety net for underprivileged migrant families; sadly, however, the children keep slipping through the many gaps of that net.

It seems that the government’s commitment to creating a ‘hostile environment’ for migrants is being prioritised over the commitment to providing safe living conditions for children in need. The Home Office have shifted their responsibility to support these children onto local authorities. However, pressures of austerity and other budgetary restrictions have left such authorities reluctant to provide financial support. With these limitations in mind, tactics such as misinformation, intimidation and unfair judgements on credibility are being employed by local authorities as to withhold their funds from impoverished migrant families.

It was found by Project 17, an organisation working with migrants fixed in the NRPF condition, that 60 percent of its clients were wrongly refused assistance when they initially contacted their local authority. On top of this, 22 percent of families were wrongly refused support on the basis of their immigration status. Habitually the reasoning for these refusals are arbitrary and baseless, often decisions are made before assessment is even conducted. Many families have been incorrectly informed that by requesting support under section 17 they were trying to claim ‘public funds’, whilst others have been told they can only be supported if they have leave to remain in the UK. One of the main problems is that local authorities seem much more concerned with trying to catch parents out for fraud as opposed to actually assessing the considerable needs of the children.

And even when support is granted, there is no statutory guidance on the rates of financial support provided under Section 17 of the Children Act 1989. This means that there is no set figure to determine exactly how much money families should be given. Different children have different needs, and therefore discretion should be used when judging just how much financial aid should be offered to each case – for instance, some children will have greater medical bills. But regardless, families with NRPF are overwhelmingly in need of basic level of financial support as to provide accommodation, food and other essentials for their children. Yet the Children’s Society found that some families received lower than the asylum support rate of £36.50 per person per week – a figure nowhere near the level required to alleviate destitution and one in breach of human rights law.

A report by Project 17, spoke to children living with NRPF and found that 41 percent of them felt unsafe as they were ‘homeless’, ‘moving around a lot’, ‘living with people they did not know’, ‘uncertain about their housing situation’, and ‘travelling long distances to school’. It’s clear that not enough is being done to keep these children safe and supported. Social worker and researcher Andy Jolly brought home this point when he recently said: ‘the death by starvation of Lillian Oluk and her daughter Lynne Mutumba in March 2016, while being supported by a local authority under section 17 of the Children Act (1989), illustrates the consequences of inadequate support for undocumented migrant families in the hostile environment.’

Worryingly, there is very little evidence to suggest a change in the Home Office’s or local authorities’ approach to families with the NRPF condition. Yet the number of families requiring support under section 17 has steadily been rising for years now: between 2012 and 2013 it rose by 19 percent. To exacerbate troubles, the Home Office have proposed cuts to asylum support contained in the Immigration Bill 2015. Which means, if passed, the number of children who rely on section 17 will increase as there will be even less financial support for them from other means. And rules such as those contained in the Immigration Act 2014, which limit rented accommodation to those migrants who have the ‘right to rent’, will lead to homelessness amongst migrant families; once more creating a greater need for section 17 support.

Ultimately, while section 17 support does provide a thin layer of protection for thousands of children in the UK, it does not offer enough. With minimal guidance given on how assessment should be made, and support administered, there is too much reliance on the discretion of local authorities; who often work with other (namely financial) concerns prioritised. There must be more done to fight against the harrowing circumstances and impoverished lifestyle that these vulnerable children are being exposed to. It is imperative that the government implements a consistent and adequate structure of support for migrant families living with the NRPF condition; one which is capable of offering the necessary level of provision for the children overwhelmingly in need.

 

Further Reading

Financial and Housing Advice.

Hackney Migrant Centre guide to section 17 – The guide contains information, advice and guidance gathered from those who have experience of seeking this kind of support. The guide covers an explanation of section 17 support, the child in need assessment, what support might look like, what happens if support is refused and a helpful evidence checklist. The guide also contains signposting to partner drop-in’s and immigration advice sources.

 

 






Can you challenge a finding of fact in a family court?

This is a post by Sarah Phillimore

TLDR; yes  – but its difficult. Don’t rely on being able to challenge a finding after it is made – it is far, far better to challenge it at the time of your court case, if you have all the available evidence.  

However, if you discover evidence after the hearing that shows the findings have been made on an inaccurate basis, it is clear that there is a mechanism to challenge this. 

So anyone who asserts the the Judge ‘got it wrong’ at their hearing and they have the evidence to prove this – ask yourself (and them) why they haven’t asked the court to look at this. 

 

in cases involving children, it is clearly very important that decisions about their welfare are based on sound factual findings. See W (Children), Re [2009] EWCA Civ 59. But what does a parent do if they think the finding of fact was made on the wrong basis?

Section 31F(6) of the Matrimonial and Family Proceedings Act 1984 was inserted by the Crime and Courts Act 2013, section 17(6), Schedule 10, paragraph 1 and came into force on 22nd April 2014.  It gives the Family Court the power to “vary, suspend, rescind or revive any order made by it”. it’s an interesting provision as that undermines the principle in relation to finality of judgments and orders – but which itself is in tension with the principle that decisions about children, which have such long lasting consequences, should be made on the soundest footing.

in the case of Re E (Children: Re-opening Findings of Fact) [2019] EWCA Civ 1447 the  Court of Appeal held that the Family Court had the statutory power under the Matrimonial and Family Proceedings Act 1984 s.31F(6) to review its findings of fact at any time.

In this case, the children were removed from the mother’s care, after the youngest was found to have cigarette burns on her arm. The mother said it was an accident but her accounts were inconsistent. In the criminal investigation, the police medical evidence supported the mother and said she offered a plausible explanation for accidental burns. The mother then got permission to appeal out of time on the basis of that report.

The Court of Appeal found that a finding of fact was not “an order” in the strict sense of s.31F(6), but it could be appealed if it was integral to the order on which it was based and therefore came within the scope of section 31F(6). A finding of fact that the mother deliberately hurt her child was clearly integral to the order made to remove them.

Nor did section 31F(6) express that it was limited to a particular time after the hearing, given that findings of fact often have longstanding consequences for children and their families.

The court refused to follow G (A Child), Re [2014] EWCA Civ 1365  where the judge commented that when a sealed order, after a fact finding hearing, is challenged then that challenge must be to the appeal court and the mother should not have been allowed to apply to the first court to re-open factual issues.

However, the Court of Appeal in Re E dismissed the mother’s appeal and found she should apply directly to the trial court – the trial court was more likely to be in a better position than any appeal court to assess the true significance of the further evidence and was likely to be able to deal with the application more quickly and cheaply.

 

Applying to the first court to look at its findings again.

So if a parent wants to review a finding of fact the approach is set out in Re ZZ, (Children) (Care Proceedings: Review of Findings) [2014] EWFC 9;[2015] 1WLR 95.This case adopted a three part test first set out by Charles J in Birmingham City Council v H and Others [2005] EWHC 2885 (Fam):

  • the court must consider whether it will permit any challenge to the earlier findings
  • it then has to decide the extent of the investigation and evidence heard by the review
  • then it hears the review and decides whether or not the earlier findings still stand.

The court will not get beyond the first stage unless there is some ‘real reason; to believe that the earlier findings can be challenged. ‘Mere speculation and hope’ are not enough. The over arching question for the court will be whether there was any reason to think that a rehearing would result in a different finding,

 

Appealing to another court to about the findings

Or a parent could appeal based on further evidence but this might need an application to extend time, as applications to appeal have strict time limits.  Pursuant to CPR r.52.21(3) an appeal to the Court of Appeal would be allowed where the lower court decision was either wrong or unjust because of a serious irregularity.

Under r.52.21(2) any evidence not before the lower court would not be admitted without permission, looking at criteria in in Ladd v Marshall [1954] 1 W.L.R. 1489

  •  that it hadn’t been possible to get the evidence for use at the first hearing
  • if heard, the evidence would have had an important impact on the case
  • and the evidence was credible.