Author Archives: Sarah Phillimore

Journalists in family courts – what can they report and can you keep them out?

This is a post by Sarah Phillimore

I have written generally on the issue of media reporting from family cases and also of my growing disenchantment with the ability or even the will of many journalists to report fairly and accurately, even with the information right in front of them. I had always naively thought that journalists investigated what was actually happening and reported on that – but that naivety cannot survive the reality that too many now appear to approach the family justice system looking for facts to fit a pre-determined theory.

Andrew Norfolk’s ‘Muslim Foster Carer’ report was one of the more serious examples of journalistic failure in this regard, but there are sadly many others.

However, regardless of what opinion I hold of journalists, its clear that the issue of greater transparency in the family courts and what can be reported about what happens there, is not going away; and nor should it. It is right that we are able as a society to understand the mechanisms of such an important element of it. I agree that people and organisations that go unchallenged have serious potential to fall into some very bad habits indeed.

I do however remain uneasy that the present push to simply make more information available is not the way to go about it; not without some greater reassurance that those trusted with the information will use it to inform debate rather than stoke up the fires of their own particular prejudice. Because the huge problem with this is that they want to use actual, identifiable families and children as their kindling.

We have to be willing to weigh the rights of parents and children to keep their painful private histories private, as against the rights of journalists or bloggers to promote any particular campaign.

So I am going to look in particular at the procedural mechanics of how journalists or legal bloggers may be involved in family proceedings and what you should do if you object to them reporting on your case or even attending your case at all.

At the time of writing (March 30th 2020) the UK is in its second week of ‘lock down’ during the COVID 19 global pandemic so the situation is of course made even more complicated by the prospect of remote court hearings via telephone or video link. Hopefully this situation will resolve in time.

The right of journalists and bloggers to attend court – yes they can.

This is hopefully now NOT controversial. Journalists and legal bloggers have a right to come into a family court. Rule 27.11 of the Family Procedure Rules 2010 allows ‘accredited journalists’ – those holding a UK Press Card – to attend private family hearings. Since October 2018, this rule extends to cover ‘legal bloggers’.

FPR 27 refers to “duly accredited representatives of news gathering and reporting organisations” – I shall use the shorthand term ‘journalist’ throughout.

However, the right to attend hearings does not confer a right to report on proceedings or publish details of proceedings. There is a clear tension between the right of journalists to report about court hearings and the right of the parties – particularly children – to keep probably very sensitive and upsetting material out of the public domain.

See section 12(1) of the Administration of Justice Act 1960 and Children Act 1989, s 97(2). These Acts provide exceptions to the general principle in favour of open justice. The court may also relax or restrict reporting restrictions in appropriate cases using its inherent jurisdiction. These matters are all covered in more detail here.

The guidance of the President of the Family Division, issued on 3rd October 2019, sets out the relevant legal and procedural considerations for the court, where issues arise about extending or limited what can be reported in a family case. As a matter of substantive law, the court will have to carry out a ‘balancing exercise’, with an ‘intense focus’ on the likely competing rights before it. These will probably involve (but are not restricted to) consideration of ECHR Articles 6, 8 and 10 – the right to a fair trial, right to privacy and right to freedom of expression.

The President’s guidance refers to a useful summary of required balancing exercise as set out at paragraph 22 of Re J (A Child) [2013] EWHC 2694 (Fam).

The best interests of any child involved in the proceedings are not ‘paramount’ in this argument, but will be the court’s primary consideration.

If no agreement can be reached, the court should hear submissions and replies, and give a judgment on the application. This doesn’t have to be a ‘full’ judgment but it must contain enough information to allow the parties to understand how the Judge got to his or her conclusions. See Re W [2014] EWCA Civ 1303 at para [49].

I don’t want journalists to report about my hearing. What can I do?

There is a presumption that journalists may attend family court hearings but still clear and significant limitations on what they can report and what documents they can see.

The court has even wider powers – it can exclude journalists from all of part of any hearing entirely – see FPR r 27.11(3). At any stage of the proceedings the court can decide not to allow journalists or other reporters to attend a hearing or part of a hearing if the following test of necessity is met:

  • in the interests of any child concerned in, or connected with, the proceedings;
  • for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or
  • for the orderly conduct of the proceedings; or
  • justice will otherwise be impeded or prejudiced.

The court can make this decision on its own initiative or after representations by any party, witness, child’s guardian or the child, if of sufficient age and understanding.

What is key however, is that the court must give an opportunity to any member of the press who is present an opportunity to make representations.

So if the journalists have turned up at the hearing, it seems pretty straightforward. You can make your application then and there and everyone is present to hear what is said and respond to it.

However, more significant problems arise if you want to make an application before any hearing has taken place.

But what if I want to exclude journalists before the hearing starts?

Applying to exclude all and any representatives of media organisations is clearly a serious thing and you will need to make that people who want to object, have a proper opportunity to do so. We now need to examine the procedural issues, rather than those of of substantive law and proportionality.

You will need to think carefully about this. Attempting to exclude the press may in fact just alert journalists to your case who otherwise would not have known about it. But if you consider press interest is inevitable and would be harmful, you may need to make an application in advance of the hearing. The Practice Direction 12 I comments that journalists are used to weighing up information in a short period of time so there may be more leeway for less notice to be given – but unless its an emergency you will need to make your application in sufficient time before the hearing.

The President’s Guidance sets out a summary of what you need to do at para 6:

Guidance as to the procedure for applying for RRO’s [Reporting Restrictions Orders] in the Family Division founded upon ECHR Convention rights can be found within FPR 2010, PD 12I and a CAFCASS Practice Note: ‘Applications for Reporting Restrictions Orders’(as updated in 2015). The application must be made in the High Court and notice must be given to the press through the Press Association (‘PA’) Injunction Alert Service [Human Rights Act 1998, s 12(2)].

Section 12 of the HRA is important as it sets out that an injunction restricting the exercise of the right to freedom of expression must not be granted where the person against whom the application is made is neither present nor represented unless the Court is satisfied (a) that the applicant has taken all practical steps to notify the respondent or (b) that there are compelling reasons why the respondent should not be notified.

It is possibly to get an injunction ‘without notice’ but it is clear that the circumstances must be ‘exceptional’ when one is attempting to restrict an Article 10 right. For further discussion see  Re X (A Child) (Residence and Contact) ([2009] EWHC 1728 (Fam)).

What is the Press Association Injunction Alert Service?

The Media Lawyer website explains

This service may be used to notify the subscribing media organisations of your intention to apply to the High Court for an injunction which will affect their rights under Article 10 by prohibiting or restricting reporting.

Nearly all the national media organisations have agreed to take part in the notification system.

The notification system

The purpose of the notification system is to provide a simple secure and verifiable method of sending national media organisations notice of proposed applications for injunctions, together with supporting documentation.

The notification system serves all the national media (newspapers and broadcasters) with the exception of the Financial Times and Sky News. If notice has to be served on these two companies it needs to be served on them directly. A list of those companies subscribing to this system and their contact details are at Media Organisations.

Nor does the CopyDirect service extend to local or regional media or magazines. The Practice Note (see below) states: If service of the application on any specific organisation or person not covered is required it should be effected directly. However this note does not expand on how such service is to be effective or what it means by ‘required’.

There is useful discussion from the then President of the Family Division in Re P (Enforced Caesarean: Reporting Restrictions) [2014] 2 FLR 410, FD, at [46]. This is also set out in the Practice Note below.

The President quote from a ‘most helpful note’ sent to his office by Mike Dodd in December 2013, the then legal editor of the Press Association.

“There is a page on the Injunctions Alerts Service website http://www.medialawyer.press.net/courtapplications/mediaorganisations.jsp – which lists the media organisations served, and the relevant telephone numbers, and which states at the top:’The notification system serves all the national media (newspapers and broadcasters) with the exception of the Financial Times and Sky News. If notice has to be served on these two companies it needs to be served on them directly.’

The service was also established on the basis that subscribing organisations would be taken to have been served with an application if notification was sent via the service. The system works as follows: Would-be applicants are supposed to call a number, given in the Practice Note, and speak to the Customer Services staff who deal with the service. They then send the documents, electronically (which is easier) or by fax, to the service. These documents are, if necessary, scanned to be put into electronic form, and are then distributed via e-mail alerts to the national media. Distribution is followed up by calls to each of the subscribing organisations to check that service has been received.

The service does NOT serve orders which have been obtained from the courts (despite the continuing efforts by some law firms to use it for this purpose).

The Media Lawyer site sets out the practical steps:

An applicant (or his solicitor) should telephone the Press Association’s CopyDirect service on a dedicated number – 0870 837 6429 – confirming that he wishes to apply for a reporting restriction order in the Family Division. The documentation identified in paragraph 3 of the Practice Note should then be faxed to 0870 830 6949 or emailed to the email address provided by CopyDirect when the applicant calls the service. Attachments to emails must be in Word format.

CopyDirect will, on receipt of the documentation send via either email or fax the documentation to the subscribing media organisations. CopyDirect will call the media organisations to ensure the material has been received.

CopyDirect will also confirm receipt to the applicant. CopyDirect will maintain records of notifications received and sent, including timings, for a period of three months. Copies can be made available to applicants, if required, for verification.

Operational Hours

Mon-Fri 8am-11pm
Saturday and Sunday 10am-11pm
Christmas Eve 8am-6pm
Christmas Day 9am-6pm
Boxing Day operating hours will be the same as the day on which it falls.
New Years Eve 8am-11pm
New Years Day operating hours will be the same as the day on which it falls.

There are no costs to applicants for this service.

Judges will expect applicants to have filled out the checklist for those applying for injunctions before they entertain an application. The Checklist PDF can be downloaded here

The Practice Direction 12I and Practice Note

The Media Lawyer site also provides a copy of the standard form of order to be adopted when a reporting restriction order is made in the Family Division. This is set out under ‘Further Reading’ below. It is also helpful to include an Explanatory Note . This sets out briefly what the case is about so allows journalists to make an informed decision about whether they want to object to your application or not.

The Practice Direction makes it clear such applications need to be made in the High Court. The other parties should get at least 14 days notice – Practice Direction 12C. The court may extend or shorten this time (see rule 4.1(3)(a)), using its general powers of case management. However, the case of AB in 2019, dealing with an application for reporting restrictions concerning an inquest into the death of a child, says only 3 days is required, relying on the CPR, rather than the FPR.

Methods of service are set out at Part 6 of the CPR – generally personal service, first class post or can be done electronically.

Application and evidence
The application may be a freestanding claim brought under the Part 8 procedure in the Civil Procedure Rules 1998 or it may be made within existing proceedings to which either the CPR or Family Proceedings Rules 2010 apply. I

It may be appropriate to seek a direction under CPR 39.2(4), that the identity of a party or witness should not be disclosed, and for documents to be drafted identifying individuals by initials.

The applicant should prepare

(a) the application/claim form

(b) a witness statement justifying the need for an order

(c) any legal submissions

(d) a draft order (see suggested form of this order below) and

(e) an explanatory note (an example of this can be found at the end of the suggested draft order below)

If you don’t have time to get the relevant documents together, the court will probably want you to provide a written statement as soon as you can. Unless the court orders something different, you should provide these documents on request to any person who is affected by the order. See W v H (Family Division: Without Notice Orders) [2001] 2 WLR 253; [2001] 2 FLR 927.

So how do I know who and how to serve?

The process seems relatively straightforward for those news organisations covered by Copy Direct. However, it does NOT cover the Financial Times, Sky News or ‘local or regional media or magazines’ OR legal bloggers.

There seems to be no guidance as to how a litigant in person is supposed to identify these entities and then go on to serve them. It surely cannot be proportionate to suggest that every single regional newspaper needs to be contacted to inform them that an application is going to be made to exclude them from a hearing about which they would almost certainly have had no interest in attending or reporting about.

The Practice Note isn’t much help, simply referring that service of ORDERS should be ‘effected in the usual way’ – the Media Lawyer website gives the addresses of the main news organisations on its site. However, with regard to applications to restrict attendance of journalists NOT subscribing to Copy Direct, it simply states

Appropriate local and regional newspapers and magazines should be served with application notices in the usual way

Again, it is not clear how one is supposed identify an ‘appropriate’ local/regional reporting outlet and how one is then supposed to go on to serve an entity one may not even be aware exists. Nor is it clear at all who or what now comprises ‘legal bloggers’ who may wish to be informed and how they may be contacted.

The LA in the AB case (above) served the media via Copy Direct and also the local papers in their area, which seems sensible – but the information they provided and a very sparse ‘explanatory note’ was criticised by the court.

The Media Lawyer website offers information at

www.willingspress.com

This is a subscriber website detailing comprehensive lists of UK and overseas titles (newspapers and magazines), their contact details and publishers – but at the time of writing, this link does not appear to work.

I can only hope that for litigants in person, so long as they comply with what is set out with regard to the Copy Direct notification service, and inform the Financial Times and Sky News separately, they cannot be criticised for any disproportionate breach of any journalist or legal bloggers Article 10 rights.

I will update this post if I get any better/further information.

Further Reading

(1) Model Order

IN THE HIGH COURT OF JUSTICE Case Number:
FAMILY DIVISION
[PRINCIPAL REGISTRY]

BEFORE [JUDGE] IN PRIVATE

IN THE MATTER OF THE COURT’S INHERENT JURISDICTION

BETWEEN

[ ]

and

[ ]

REPORTING RESTRICTION ORDER

IMPORTANT

If you disobey this order you may be found guilty of contempt of court and may be sent to prison or be fined or have your assets seized. You should read the order carefully and are advised to consult a solicitor as soon as possible. You have the right to ask the Court to vary or discharge the order.

EXPLANATION

  1. On [date] the Court considered an application for a reporting restriction order.
  2. The following persons and/or organisations were represented before the Court:[describe parties and their advocates]
  3. The Court read the following documents: [list the documents]and/orThe Court directed the [Applicant/Claimant] to file a statement no later than [date] setting out the information presented to the court at the hearing.and/orThe Court directed that copies of the attached Explanatory Note and [list any other documents] be made available by the [Applicant/Claimant] to any person affected by this Order.
  4. [In a case where an undertaking in damages is required by the Court:The Applicant gave an undertaking that if the Court later finds that this Order was obtained as a result of any deliberate or careless misrepresentation by the Applicant, and that this has caused loss to any person served with the Order, and that that person should be compensated, the Applicant will comply with any order the Court may make.]
  5. In the case of an order made without notice:This order was made without notice to those affected by it, the Court having considered section 12(2) Human Rights Act 1998 and being satisfied (i) that the [Applicant/Claimant] has taken all practicable steps to notify persons affected and/or (ii) that there are compelling reasons for notice not being given, namely: [set out the Court’s reasons for making the order without notice]
  6. [In the case of an application by a local authority:The Court granted permission to the Applicant to apply for the exercise of the Court’s inherent jurisdiction]

ORDER

  1. Duration Subject to any different order made in the meantime, this order shall have effect[in the case of an adult] during the lifetime of the [Defendant], whose details are set out in Schedule 1 to this order.[in the case of a child] until [date], the 18th birthday of the child whose details are set out in Schedule 1 to this order (’the Child’).
  2. Who is bound This order binds all persons and all companies (whether acting by their directors, employees or agents or in any other way) who know that the order has been made.
  3. Publishing restrictionsThis order prohibits the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, sound or television broadcast or cable or satellite programme service of:
    1. the name and address of
      1. the [Defendant/Child];
      2. [in the case of a child] the Child’s parents (’the parents’), whose details are set out in Schedule 2 to this order;
      3. any individual having day-to-day care of or medical responsibility for the [Defendant/Child] (’a carer’), whose details are set out in Schedule 3 to this Order;
      4. any residential home or hospital, or other establishment in which the [Defendant/Child] is residing or being treated (’an establishment’);
    2. any picture being or including a picture of either the [Defendant/Child], a carer or an establishment;
    3. any other particulars or information relating to the [Defendant/Child];IF, BUT ONLY IF, such publication is likely to lead to the identification of the [Defendant/Child] as being [set out the feature of the situation which has led to the granting of the order].
  4. No publication of the text or a summary of this order (except for service of the order under paragraph 7 below) shall include any of the matters referred to in paragraph 3 above.
  5. Restriction on seeking information This Order prohibits any person from seeking any information relating to the [Defendant/Child] [or the parents] or a carer from any of the following:
    1. the [Defendant/Child];
    2. [the parents];
    3. a carer;
    4. the staff or residents of an establishment.]
  6. What is not restricted by this Order Nothing in this Order shall prevent any person from:
    1. publishing information relating to any part of a hearing in a court in England and Wales (including a coroner’s court) in which the court was sitting in public and did not itself make any order restricting publication.
    2. seeking or publishing information which is not restricted by Paragraph 3 above.
    3. inquiring whether a person or place falls within paragraph 3(a) above.
    4. seeking information relating to the [Defendant/Child] while acting in a manner authorised by statute or by any court in England and Wales.
    5. seeking information from the responsible solicitor acting for any of the parties or any appointed press officer, whose details are set out in Schedule 4 to this order.
    6. seeking or receiving information from anyone who before the making of this order had previously approached that person with the purpose of volunteering information (but this paragraph will not make lawful the provision or receipt of private information which would otherwise be unlawful).
    7. publishing information which before the service on that person of this order was already in the public domain in England and Wales as a result of publication by another person in any newspaper, magazine, sound or television broadcast or cable or satellite programme service, or on the internet website of a media organisation operating within England and Wales.
  7. Service Copies of this Order endorsed with a notice warning of the consequences of disobedience shall be served by the [Applicant/Claimant] (and may be served by any other party to the proceedings)
    1. by service on such newspaper and sound or television broadcasting or cable or satellite or programme services as they think fit, by fax or first class post addressed to the editor (in the case of a newspaper) or senior news editor (in the case of a broadcasting or cable or satellite programme service) or website administrator (in the case of an internet website) and/or to their respective legal departments; and/or
    2. on such other persons as the parties may think fit, by personal service.
  8. Further applications about this Order The parties and any person affected by any of the restrictions in paragraphs 3-5 above may make application to vary or discharge it to a Judge of the High Court on not less than [48 hours] notice to the parties.

SCHEDULE 1

[The [Defendant/Child]’s Full Name:
Born:
Address:
]

or

[Information enabling those affected by order to identify the Defendant/Child]

SCHEDULE 2

[Similar details of parents]

SCHEDULE 3

[Similar details of carers or other persons protected]

SCHEDULE 4

[Contact details of responsible solicitor and/or press officer]

Date of Order: [ ]

(2) Example of Explanatory Note

NHS TRUST X v AB

Application for a Reporting Restriction Order

DRAFT EXPLANATORY NOTE

1 AB is a child who suffers from a degenerative disease. An application has been made by the NHS Hospital Trust responsible for his care for the Court’s approval of the withdrawal of ventilation. This course is opposed by AB’s family.

2 On [date] the application will be heard by the President of the Family Division, who will give judgment in open court.

3 A Reporting Restriction Order has been [made/applied for] to protect AB’s right to confidentiality in respect of his medical treatment. This does not restrict publication of information or discussion about the treatment of patients with similar conditions, provided that such publication is not likely to lead to the identification of AB, those caring for him, the NHS Trust concerned or the establishment at which he is being cared for.

Citations: [2005] 2 FLR 111

SCHEDULE 1

[The [Defendant/Child]’s Full Name:
Born:
Address:
]

or

[Information enabling those affected by order to identify the Defendant/Child]

SCHEDULE 2

[Similar details of parents]

SCHEDULE 3

[Similar details of carers or other persons protected]

SCHEDULE 4

[Contact details of responsible solicitor and/or press officer]

Date of Order: [ ]

(2) Example of Explanatory Note

NHS TRUST X v AB

Application for a Reporting Restriction Order

DRAFT EXPLANATORY NOTE

1 AB is a child who suffers from a degenerative disease. An application has been made by the NHS Hospital Trust responsible for his care for the Court’s approval of the withdrawal of ventilation. This course is opposed by AB’s family.

2 On [date] the application will be heard by the President of the Family Division, who will give judgment in open court.

3 A Reporting Restriction Order has been [made/applied for] to protect AB’s right to confidentiality in respect of his medical treatment. This does not restrict publication of information or discussion about the treatment of patients with similar conditions, provided that such publication is not likely to lead to the identification of AB, those caring for him, the NHS Trust concerned or the establishment at which he is being cared for.

The Big Question – does the new law on Domestic Abuse go far enough?

This is a post by Sarah Phillimore

“Thomas More: …And when the last law was down, and the Devil turned around on you–where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast–man’s laws, not God’s–and if you cut them down…d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.” 
― Robert Bolt, A Man for All Seasons

On Sunday March 15th 2020 I was happy to accept an invitation to appear on the BBC’s ‘Big Questions’ programme to discuss the new Domestic Abuse Bill.

The other contributors were Michael Lewkowicz of Families need Fathers, Maria Cripps who runs a perpetrator programme in Brighton, Katy Bourne the Sussex Police and Crime Commissioner, Laura Richards founder of Paladin (the National Stalking Advocacy Service), Jo Gough the CEO of RISE UK and Luke Gittos of Spiked online.

I tried to set out my thoughts via Twitter on the train on the way down

It was an interesting experience but the half an hour we got was no where near long enough to do more than lightly touch on some issues of considerable importance. However, I learned one thing above all which made a lot of things very clear to me for the first time – and that was the extent to which people either do not understand the distinction between the criminal justice system and the family justice system, or (perhaps more alarmingly) do not think it is important.

It was certainly naive of me not to have picked up on this before; as so many of us do I make the mistake of assuming that things which are clear and simple to me, are equally clear and simple to everyone else.

Much of the conversation was dominated by crimes; men who had committed them, how to identify them, how to ensure they did not get further access to their victims via any court system. With that, I entirely agree. Any person who has been convicted of a serious offence of violence against an intimate partner or child should have NO direct access to either without a very robust risk assessment and clear evidence of positive change. It is obviously wrong and harmful to allow such a person to directly cross examine their victim in any court setting. I am glad to see the Domestic Abuse Bill proposes to prohibit this but allow payment from court funds for an advocate to cross examine in those cases where the interests of justice demand it.

I do worry however how that will play out in practice and how long it will take to get the funds and find the advocate. My experiences in trying to find intermediaries do not fill me with optimism that this will be a quick or straightforward process. Nor am I aware from what pool of people these ‘cross examination advocates’ will be drawn nor any rate of pay. To cross examine effectively they will have to prepare thoroughly. Its not a matter of just turning up on the day and reading out a list of questions. Cross examination is a dynamic process where you must be ready to respond to answers you maybe did not expect.

However, this focus on criminal convictions and police intelligence, detracts from what I suspect are the majority of arguments in the civil family court about who spends time with children after a relationship breaks down. Typical of the cases in which I am instructed are a period of reasonably successful co-parenting after the separation, but then contact breaks down and allegations are made. Often each parent makes allegations against the other. Often neither parent has any kind of criminal record or concerns raised with any other agency.

During the debate the statistic that ‘only 1% of father’s are refused contact’ was raised. I don’t know where that comes from. Its not true, so far as I know. I can only assume that someone has bundled up direct AND indirect contact (which can be as little as two cards a year) and called it ‘contact’ – which of course is pretty dishonest. If anyone knows the source of this oft quote statistic, please do let me know. On my own cases I would say a lot more than 1% of fathers end up with no direct contact and no prospect of any direct contact either. And some of these fathers are identified by the court as ‘blameless’.

That this statistic has gained the traction it has – I hear it in many different places – underscores to me how the narrative of (female) ‘victim’ versus (male) ‘perpetrator’ is well established. This has the potential to do real and serious harm. It is fundamental to the rules of natural justice that people are able to challenge allegations made against them, if they do not accept them and if there is no evidence to support them such as a criminal conviction – which cannot be denied. An assumption at the outset that a women is a ‘victim’ has potential to cause great unfairness.

As I said in answer to a question by Nicky Campbell – the main problem with the civil family justice system is structural. What we need are quick and efficient fact finding hearings, judicial continuity and court buildings that can provide separate waiting rooms and other special measures such as screens and video links. What would be great also to have are safe, accessible contact centres so that when allegations are made against a parent, there is another route than simply stopping contact altogether while the court case winds its way though the system. I would like to see a strict time limit of 26 weeks as we have in public law cases and clear willingness to transfer the primary residence of children where possible, once it is clear that the primary carer does not accept a finding of fact and continues to obstruct contact.

It was sad but not surprising to see that I was instantly misquoted on social media, called ‘vile’ and a ‘disgrace’ for speaking nothing more than the obvious truth. If people genuinely think that pushing a false narrative and shouting down anyone who disagrees with them is a sensible long term strategy, I have some bad news for them. My only worry however is that these single issue campaigning groups appear to have captured a significant portion of the law and policy makers. And that IS a problem. Particularly when in their ranks are a number of women who have already been found by the family courts to have caused significant harm to the children in their care.

Hopefully we can keep talking and seeds can be planted. I have to continue to hope that we all want the same thing – for children to grow up healthy and happy with a relationship with both parents if that is safe for them. But nothing good ever came of denying the truth or bending the law to fit just one narrative. The problem with this debate was encapsulated by its title. Of course the law ‘doesn’t go far enough’. It cannot. Because what many campaigners seem to want is something that goes entirely beyond the law – a system whereby allegations (made by women) are simply believed without challenge. And that cannot be right. And I will continue to speak up against it.

Further reading

Alleged perpetrators of abuse as litigants in person in private family law – research from the MOJ from 2017 which explains why we are now in the current mess after legal aid was withdrawn from such cases in 2015.

Domestic Abuse Bill 2020: Over-arching fact sheet

Cross examination in the family court fact sheet

Safe not Sorry – Woman’s Aid report from 2016 which relies upon the bogus ‘1% contact refused’ statistic.

Westminster Legal Policy Forum keynote seminar: Next steps for family law in England and Wales


Next steps for family law in England and Wales – reforming care proceedings, protecting vulnerable users and modernising court procedures

Sarah Phillimore, Barrister, St John’s Chambers
Published on 26th February 2020

11.25 – 12.05 Reforming care proceedings in England and Wales – Special Guardianship Orders, improving standards nationwide and innovative approaches to care

I was very pleased to be asked to speak today, but rather less happy about what I was going to use my five minutes to say. There is clearly information and concern enough about the current operation of the child protection system to fill five days.

So I thought it probably most helpful to set out my general concerns. Because, while all of these articular identified issues and concerns are important, my worry is that without clarity regarding the underlying narrative of what drives state intervention with families, then much time and energy may be expended on reforms and alternations which do not have the intended consequences.

I will first explain my background and what I say gives me authority to comment in the way I do. I began to specialise in care proceedings around 1999. From 2011, I became increasingly concerned about the poor quality of public debate around these issues; sadly some of it generated by serving members of Parliament. This reached an apex for me in late 2013 with the case of the Italian national Alessandra Pacchieri who was subject to a ‘forced Caesarean’ after suffering a mental health breakdown on a visit to the UK – her child was later adopted. This generated a great deal of media commentary, some more accurate and responsible than others. However, it was clear that the ‘system’ did not cover itself in glory in the handling of this case and the visceral and terrified reactions of a fairly large sector of the public could not simply be ignored.

That prompted me to take more direct action; I set up my website Child Protection Resource Online and I organised over the years 3 multi disciplinary conferences where the aim was to bring together parents and professionals to discuss how the system was – or wasn’t – working.

Therefore for the past six years I have actively attempted to engage in dialogue with a great deal of people who have very varying perspectives on what the child protection system is FOR.

And the key difficulty appears to have emerged, in my view, that we have competing narratives that exist in tension with one another. I will deal with this fairly crudely given time constraints

The first narrative – and this is the one supported by successive governments – is that children are to be ‘rescued’ from neglectful homes, and placed for adoption in ‘warm loving homes’ with parents who will advocate for their children and support them, requiring less state intervention.

The other is that England and Wales are clearly outliers when compared to all other European countries in our willingness to make orders that permanently sever a child’s connection to his birth family. And that insufficient respect – or none at all – is paid to the rights of parents to be supported to care for their children. I see this particularly in cases involving parents with learning disabilities who, unless they have the benefit of supportive families are often simply unable to care for their children.

The narrative you embrace clearly has consequences for the direction of travel of care proceedings.

The example of Special Guardianship Orders is helpful and illustrative. The 26 week timetable together with various judicial warnings about the seriousness of a placement order has, without doubt, lead to SGOs being made on the basis of hope and crossed fingers. It is my view that a Supervision Order should never be attached to a SGO – this is supposed to be an order of permanence where the holder has ‘super PR’. It is simply illogical to suggest that it must be accompanied by a SO ‘to keep an eye on things’. If a SO is required, it suggests to me that the SGO should not be made.

This is in my view a direct consequence of the competing narratives. If we are fully committed to the ‘rescue narrative’ than frankly 26 weeks is far too long for most care proceedings, and as was envisaged by the original framers of the Children Act ,care proceedings could sensibly conclude in a matter of weeks. If however we espouse the need to provide families with more intervention and support then 26 weeks is no where near long enough.

How do we resolve this tension? I do not know. And happily I am not tasked with the very weighty responsibilities that fall upon law and policy makers in this room. But we will certainly not resolve anything if we can’t acknowledge it.

I would like to see greater awareness and discussion of what could be put in place to make care proceedings fairer, more accessible and less brutal for parents. Only this week I was pleased to read about the new assessment centre at Trevi House in Plymouth – if you don’t know about the work of Trevi House then I suggest you find out more. On Tuesday I attended a conference in Birmingham which discussed the success of parent advocacy programmes in the United States and what work was beginning to be done here with regard to use of such programmes and greater involvement of families by way of Family Group Conferences.

So I hope this provides some food for thought and a possible basis for further discussions.

Lived experience is great. But law and policy have to be based on facts. I hope I am wrong about my criticisms of the Family Justice ‘three’ month review and the way in which it has gone about gathering ‘evidence’.

Time, as ever, will tell.

Sarah Phillimore
26th February 2020

Competence and Collaboration in Care Proceedings

This is a post by Sarah Phillimore

I was struck in a recent case to read a very simple and powerful exposition by a psychologist of the ‘competence promoting approach’ when assessing parents, as opposed to the ‘competence inhibiting’ approach (Tucker & Johnson, 1989). I hope this psychologist will forgive me if I borrow entirely their summary of what this approach involves – I can’t name them in case that leads to jigsaw identification of the family involved.

To promote competence, the parent is enabled to be in control. Skills are developed on the basis of pre-existing strengths, rather than focusing on weakness. Parents are treated as equal partners when decisions are made about their children.

The ‘competence promoting approach’ has the following characteristics:
• Do not assume that all the problems are caused by parental mental health difficulties.
• Acknowledge environmental factors and parental coping skills.
• Do not assume a lack of nurturing skills or a limited capacity to learn new skills.
• Do not make comparative judgements about the adequacy of home-making and parenting that are informed by culturally inappropriate comparisons with norms for socially advantaged people.
• Recognise the emotional bonds between the parents and their children.
• Value the parents as people by ensuring that professional staff keep appointments, and deliver what they say they will deliver on time. This enhances rather than diminishes parental self-esteem.
• Do not manipulate parental fears about losing their child to ensure compliance.
• Do not provide a level of day to day surveillance that undermines the parents’ independence and reinforces the parents’ sense of inadequacy.
• Involve parents fully in all decisions.
• Provide intensive support at crisis points.
• Ensure that necessary and long term practical support is offered and maintained.
• Provide education and training opportunities that lead to self-reliance.
• Undertake a comprehensive check of state benefits available to the family.

I don’t think I had ever before seen this approach laid out so clearly and it was striking how difficult it was to think of cases where I could be confident that this was indeed the approach adopted by professionals in care proceedings.

I was therefore really pleased only a few days later to hear that Trevi House have now opened Daffodil House, a residential family centre based in Plymouth, Devon. Trevi House is almost unique in the UK, providing rehabilitation and parental assessment for mothers with drug or alcohol dependency issues, together with their children.

It looks like Daffodil House will be an excellent addition to what Trevi House can offer. It aims to offer a strength-based parenting assessment, to support parenst to identify what changes they need to make in order to keep their child safe. The focus is on the safety and welfare of the child, while using a psychologically informed approach in order to address often complex and longstanding problems that have had a negative impact on safe parenting.

Daffodil House adheres to the five core values of trauma informed services (Fallot & Harris, 2006). The aim is thus to provide a safe and nurturing environment for families so that the assessment is fair – whatever the outcome of the assessment, the family will have an experience of ‘transparent working’ and collaboration.

Daffodil House sets out its objectives as follows:

• To ensure that each child is protected and safe
• To put the needs and voice of the child at the heart of the assessment and care planning process
• To deliver assessments that are holistic, comprehensive, robust and timely
• To provide meaningful guidance and direction regarding the parenting capacity of parents
• To assist with decision making regarding the longer-term placement of the child
• To use effective and respected assessment tools
• To work in partnership with parents, building a relationship of trust and developing self-efficacy
• To work in effective partnership with all professionals involved in the family
• To provide a trauma responsive service that works with families using the trauma lens

I am aware of the dangers of being naive; how being ‘cheer leaders’ for parents may risk children suffering more harm for longer. But I am worried that what I usually see in care proceedings is a traumatic and brutal process that simply chews parents up and spits them out. The vast majority of parents love their children and want the best for them – but many simply just do not have the skills to make that desire a reality, due to their own longstanding traumatic experiences.

Therefore it is sad to note that Daffodil House is able to accommodate only ‘up to 5 families’. I know the old parable of the child throwing stranded star fish back into the sea – it made a difference to that star fish! But this a drop in the ocean. If we really value the most vulnerable members of our society, then this kind of provision ought to be the nationwide norm. How many of us who work in this field can say with confidence that the families that we deal with in care proceedings are approached from the basis of ‘confidence building’ as opposed to ‘confidence inhibiting’? And what do we think happens to the parents that the system leaves behind?

Please go to http://trevihouse.org/for-professionals/daffodil-assessment-centre-1 for more info or to make a referral.

Safeguarding in Schools around issues of Transition

The Safe Schools Alliance issued a press release on Wednesday 5th February 2020 to provide an update regarding the judicial review of Oxfordshire County Council’s support of the lawfulness of the Trans Inclusion Toolkit.

This was introduced with the objective of seeking to tackle and reduce LGBT bullying and ensure LGBT inclusion in schools. However, it purports to advise schools and others as to the law contained in the Equality Act 2010. Therefore it needs to get the law right.

The objectives of the Toolkit are clearly important and necessary. No child should face bullying or harassment at school or anywhere and certainly not any discriminatory treatment which relates to one of the protected characteristics in the Equality Act.

The problem arises however that there appear to be significant aspects of the Toolkit which are unlawful; in particular the guidance given concerning single sex toilets, single sex changing rooms, single sex sleeping arrangements and single sex sports.

Most tellingly, the Toolkit continually misrepresents the relevant protected characteristic of the Equality Act – ‘gender re-assignment’ – as some kind of nebulous ‘gender identity’ or ‘being trans’. Neither of these are protected characteristics.

Members of the SSAUK tried to raise and discuss their concerns about this from late 2018 – but this resulted only in the re-issue of the guidance in September 2019, that dealt with none of the concerns. Therefore an action in judicial review has become the only remedy – which is pretty dispiriting.

I have written previously about why I think this guidance, along with many others in a similar vein, risks being an unlawful diminishment of both child safeguarding and parental responsibility.

This legal challenge is one of many similar challenges to the apparently nationwide imposition of a the new orthodoxy that it is possible to change your biological sex and it that it should require nothing other than the assertion of the person who wishes to ‘change’ it.

As a disabled person who has a keen appreciation of the limits to ‘self identification’, I have written here about why I reject the assertion that biological sex can change, and written here about why I am very concerned about the implications of any such orthodoxy on the safety of women and girls.

The main objections to the guidance were summarised by Tanya Carter, a spokeswoman for SSA UK. She argues that it fails to take into account all the protected characteristics of the Equality Act 2010 and is in direct opposition to all safeguarding protocols which separate children over age of 8 and segregate by sex for reasons of safety.

In particular, it will result in schools and other educational settings being compelled to allow male pupils to share confined spaces with female pupils – without parents knowledge or permission – and allows males to take part in sports alongside females.

Tanya Carter said:

“We are concerned at the impact this guidance could have on all children, but particularly on the ability of lesbian, gay and bisexual teenagers to understand and embrace their sexual orientation. In addition, the guidance does not effectively safeguard the trans-identified students it purports to help. The misrepresentation of article 16 of the United Nations Rights of the Child removes trans-identified children from the protective processes of schools and parents working together in the child’s best interests.”

The claimant in this action is now a 13-year-old Oxfordshire girl whose identity is not revealed given her young age. Her reaction as set out in the press release is powerful:

The toolkit has a very significant impact on me as a girl. I am very surprised that the council never asked the opinion of girls in Oxfordshire about what we thought before they published the toolkit. Under these guidelines I have no right to privacy from the opposite sex in changing rooms, loos or on residential trips. Sports could end up being unsafe as I am a really small teenage girl and boys are bigger than girls. This guidance could be used in any educational establishment in Oxfordshire, which possible includes sports clubs.”

“The guidance makes me feel that my desire for privacy, dignity, safety and respect is wrong. It makes me feel sad, powerless and confused. I recently did my level 1 safeguarding course for guider training and I don’t understand how allowing boys and girls to share private spaces is okay”.

Why is this legal challenge so necessary?

These are hugely significant issues for ALL children. Children with genuine gender dysphoria need help and support. But confusion and unhappiness about one’s identity may spring from a variety of sources. It is dangerous to assume – as apparently we must now all do – that the moment a child declares a desire to ‘change sex’ that this stated desire must be supported without any examination into what underpins such a significant assertion.

It is dangerous because it seems many of those now responsible for devising and implementing safeguarding for children have apparently jettisoned its most basic and obvious principles in order to promote ‘inclusivity’ and a pathway for children of ‘affirmation’. Such a pathway, leading as it often does to medication and surgery, has very little credible evidence to support it as being in the best interests of children and worrying indications that it has the potential to do very serious – and irreversible – harm.

Refusal to allow deviation from the ‘affirmation model’ – or, even worse, to accuse those who raise concerns of some kind of ‘hate speech’, risks serious harm to children. The prescription of puberty blockers and other drugs to children is now the subject of a separate legal challenge to the Tavistock and Portman NHS Foundation Trust AND investigation by the NHS

It is very alarming for me to note that so many seem so invested in protecting the purity of the affirmation message that they will resort to very determined efforts to silence and intimidate any who speak up against it.

I note with particular concerns the recent actions of Social Work England – the new social work regulator – who are ‘investigating concerns’ against two senior social workers who have expressed their views about child safeguarding and issues of transition.

When even those, whose entire professional careers have been dedicated to promoting and protecting the rights of children, may not speak without fear of that career being ended – is a pretty stark indicator of just how bad things have become.

I hope that the various legal actions, now either pending, awaiting judgment or appeal will assist to bring some clarity back into the debate and some accurate representation of the law.

We all want the same thing – for children to be safe. To have the best chance they can have, to be the best adults they can be.

For some – this may mean a process of transition. For others – I suspect the majority – they need access to support, therapy, counselling and an environment were they are protected against bullying or other forms of harassment. And some children need to have respect shown to their sex based rights, to protect their safety and dignity.

But above all – children need honesty from the adults charged with keeping them safe. And safeguarding assessments based on actual risks and harms, not on adult wishful thinking.

The Crown Prosecution Service in the Classroom

This is a post by Sarah Phillimore

On Friday January 24th 2020 I was alerted to the recently launched ‘Commentary on the LGBT Bullying and Hate Crime Schools Project Classroom activities and guidance for teachers’

This is for key stages 3 and 4 – i.e. children aged 11-16.

The CPS initially said this pack could ONLY be seen by teachers.

I found that extremely alarming. I have a child of my own in the school system so my alarm extends far beyond my professional criticism of guidance that is in places muddled or plain wrong.

I set out at the end of this post my detailed comments on the text in the pack. I could not access the videos or PowerPoints and did not seek them out as the CPS were apparently saying this was the reason the pack may not be shared with parents, because it involves ‘sensitive’ case studies of – I assume – ‘real life’ children.

I will put aside for now the wisdom of attempting confidentiality around such private data in a pack that is presumably sent to every secondary school in the country. This is the least of my worries right now.

I emailed the CPS to ask them if I may publish the guidance and my commentary. They emailed me on January 27th to ask if they could see my commentary. I emailed it the same morning. EDIT They then replied on the 29th with a link to the text of the guidance which was now public. But not the videos or powerpoints. I don’t flatter myself that my decision to blog or not to blog made any difference to their decision – but I suspect the telephone calls from numerous journalists made them realise they could not continue to keep the text hidden from parents.

If they had not done this, I would have published the guidance in any event. It is a matter of public interest. I have not shared the videos or PowerPoints and therefore I hope that risk to vulnerable children is reduced. But putting vulnerable children in official school guidance and using that as a reason to keep parents from seeing it, would be a bizarre and unacceptable state of affairs and I very much hope that is not what has happened here.

Perhaps the CPS would like to explain what prompted their change of heart.

TL:DR Summary of concerns


As the table below indicates, I am very concerned about this guidance. But if I was asked to pick my Top Three, they would be these.

  • At page 25 there is an alarming list of behaviour, some of which is trivial or undefined which is offered as examples of ‘hate’ – this is particularly concerning as the Guidance repeats throughout that there is no statutory definition of homophobia or transphobia, and a ‘hate’ crime or incident relies entirely on the subjective perception of the alleged victim or bystander. This list includes ‘ostracising from a friendship group’ and separately (and undefined) ‘rejection’.
  • At page 33 there is an apparent attempt to create a ‘hierarchy of rights’ and to place LGBT+ at the top. This would seem to be unlawful as it discriminates against other characteristics protected by the Equality Act, such as race and disability. Surely schools should be developing robust policies against bullying which apply to all children, not attempting to set up one minority group as more deserving of protection.
  • I note that section 4 has as ‘activity 1’ ‘identifying potential criminal charges’. I am troubled by the implications of this, in the context of guidance that purports to help teachers and students ‘identify and report’ hate crime. Nor am I clear what a teacher is supposed to do if they or a student identify another classmate as having displayed ‘hateful’ behaviour. Where will it be recorded and to whom will it be disclosed?

Given that the guidance is very clear about how seriously such hate crimes and incidents should be taken, I am worried that a clear incentive is being set up here to encourage students to report one another’s behaviour or for a teacher to feel under pressure to refer it on to the police.

It is giving a very clear message to girls that anyone can be any ‘gender’ they like (including ‘pan’ ‘omni’ and ‘a’ sexual, none of which are defined anywhere in the guidance) and that it is ‘hate’ to object to anyone in your space, or to ‘reject’ them – again undefined but clearly means something other than social ostracism as that is given its own separate mention. So what DOES ‘rejection’ mean in this context? It has to mean sexual rejection. There is no other way children can ‘reject’ each other. They aren’t offering employment prospects.

I am therefore very troubled that this guidance was initially being kept from parents in its entirety – although they may now, after media pressure, see the text of it.

As is sadly common with all documents I have read which purport to promote the rights of the ‘trans child’, I can see no acknowledgment of or discussion about parental responsibility or Gillick competence in this guidance. As it is aimed at 11 year olds I consider that is a potentially serious omission.

I hope that a legal challenge will be made to this guidance. The influence of Stonewall etc is clear to see.

The time to speak up is now.

I will leave you with this quote from mumsnet user michelleoftheresistance

It’s already known the massive comorbidities going on with children presenting with gender identity issues, pretty much the same comorbidities coming up over and over again for other vulnerable kids. Treating one group as more privileged and better served than others is going to create resentment, particularly at a time when mental health care and SEND provision is dire and many families are angry and struggling. It will do nothing to meet the Code of Practice or Equality Act’s requirement to promote good relationships between groups: this will actively damage it. It does nothing to address the root problems underlying why children are becoming confused and distressed about their identities and bodies. It’s also inevitably going to incentivise transitioning. And that’s on top of the always there, bald insensitivity and rejection of female kids with history of abuse and sexual trauma, female kids whose religions don’t allow for going along with personal choice of sex over reality, female kids whose disabilities won’t bend in that direction, etc etc. 

Further reading

Thread on mumsnet discussing the CPS Pack

The Safe Schools Alliance have written a template letter for parents to send to the CPS

Detailed comments on the CPS pack

My commentary is in italics

HOW TO USE THIS PACK
How to use this pack – it is directed at ‘gay bisexual transgender and questioning people’ BUT NOTE at page 16 it includes ‘asexual’ ‘pansexual’ and ‘omnisexual’ people but gives no definition, then says definition of terms may change in any event. What is meant by ‘questioning’ people? How are they identified or defined?

The Glossary of Terms says (p19) ‘the process of exploring your own sexual orientation and/or gender identity’.
How is this different from ‘being a teenager’?

P7 Section 4 deals with identifying criminal charges ‘these are optional and additional. Teachers can use as many or as few of them as they wish… However we strongly recommend teachers consider them as they will deepen the students’ understanding of impact of anti LGBT behaviours…’ Unhelpful phrasing. So if this section is ‘optional’ all others are compulsory?
Clear indication given that teachers are to devote time to this
WHO is identifying criminal charges and why is this the job of a teacher?

P8 Before using this pack teachers are advised to ‘inform themselves’ by visiting a number of websites. Including Gendered intelligence and Stonewall. Clear evidence of bias in linked materials. Stonewall and Gendered Intelligence are well known for promoting narrative that questioning GI is ‘transphobia’. Other sites – Proud Trust and Schools Out I had not known about, but brief glance at their websites indicate they are in the Stonewall mould.
Why no reference to Transgender Trend or Safe Schools Alliance?

P9 ‘LGBT issues are best addressed in a school environment which explicitly supports and includes students’ What does this mean? Is asking questions about biology/GI to be seen as not supportive or inclusive and therefore frowned upon?

P9 All staff need to know how to challenge students demonstrating hostility to LGBT people What is the definition of hostility?

P9 Teachers must be especially mindful of the fact that some students in their groups will be LGBT and must be protected whether they are out or not Protected from what? Questions? Challenge?

P9 Make sure the students understand that anti LGBT behaviour is not caused by LGBT people; it is caused by people with homophobic attitudes. Trans people are not necessarily homosexual. Transgender is NOT a sexual orientation. This is setting up potentially corrosive expectations – that anyone who asserts anti LGBT bullying will be telling the truth and therefore presumably no investigation of their allegations will be required.

P9 Teachers should bear in mind that the most important thing is for students to discuss, think about and understand the issues This is not an appropriate exhortation when there is little clarity about what constitutes appropriate questioning and what will be seen as homophobia or transphobia. What ARE students allowed to discuss?

P10 STARTING TO USE THIS PACK
When an act is classed as a hate crime, the courts can impose a tougher sentence on the offender under the Criminal Justice Act 2003 It is odd for this sentence to immediately follow the exhortation that it is discussion that is important.

P10 What does the CPS mean by hate crime?
ANY criminal offence which is perceived by the victim or any other person to be motivated by hostility or prejudice based on race, sexual orientation, disability, or person being transgender Exactly the problems identified in the Fair Cop JR – Subjective definition of crime Protected strands do NOT mirror the protected characteristics of the Equality Act Being transgender in any event is NOT a protected characteristic. The actual protected characteristic is gender re-assignment “the process of transitioning from one gender to another.”

P10 What does the police mean by LGBT hate incidents? There is no statutory definition of a homophobic or transphobic incident Again – definition of ‘crime’ or ‘hate incident’ entirely subjective. Teacher has no objective standard by which to judge the behaviour of students.

P14 The CPS and the role of the police
P14 ‘It is more likely that prosecution is required if the offence was motivated by any form of prejudice against.. race, gender, disability age, religion, sexual orientation or gender identity’ Again, does not reflect the protected characteristics of the Equality Act. Why not?
Again, ‘gender identity’ is NOT in any event a protected characteristic.

P16 AIMS AND OBJECTIVES
What do we mean by LGBT+? … represents other sexual identities including pansexual, asexual and omnisexual and questioning people exploring their sexuality. Where will we find the definition of these terms?
Is there a universally accepted definition?
I note the Glossary at p19 does NOT contain a definition of ‘asexual’ ‘omnisexual’ or ‘pansexual’

Pg 19 defines ‘intersex’ as ‘When a group of conditions cause people to be born in between male and female. Sometimes this does not show up at birth.’ This is an inaccurate and offensive attempt to define disorders of sexual development.
P19 ‘transition’ is defined as ‘a process through which some transpeople begin to live as the gender with which they identify, rather than the one assigned at bdeirth’. ‘Gender’ plays no part in the birthing process. ‘Sex’ is observed and recorded at birth unless a baby is one of the tiny percentage who have ambiguous external genitalia, due to a DSD.
P19 Transphobia is defined as ‘discrimination against and/or dislike of trans people’ This is NOT the definition of a ‘phobia’. The NHS defines a phobia as “an overwhelming and debilitating fear of an object, place, situation, feeling or animal”
Again – WHAT constitutes discrimination or dislike? Any questioning of the assertion that a transwoman is a woman for e.g? Any reference to humans as sexually dimorphic species?
How can a mere ‘dislike’ of any person’s characteristics, possibly constitute a ‘phobia’ And absent any accompanying discrimination, can it become a hate crime or hate incident?

P20 ‘This glossary is not a definitive list and it is important to remember that people should be referred to in the way that they wish to be referred to. It is also important to note that definitions can vary and can change over time’. In the context of guidance offered under the mantle of identifying hate crimes, this simply isn’t good enough. How will the teacher know the definitions have changed? Who changes them? How is knowledge of this change disseminated?

P 21 SECTION ONE Activities and worksheets
P23 Everyone has a sexual orientation … it is the part of a person’s identity that describes who people experience attraction to, commonly based on gender… gender identity is a person’s sense of themselves as being a boy/man woman/girl both or neither. Gender identity is not necessary dictated by a person’s physiology. This is nonsense. Sexual orientation is a protected characteristic. [EDIT For gay people] It means sexual attraction to the same sex. This definition effectively erases lesbians by saying that a male bodied person can identify as a woman even if retaining penis and testicles.
If a teenage lesbian then objects to a sexual encounter with a male bodied person – is that sufficient ‘dislike’ or ‘discrimination’ to warrant a referral to the police?

P24 Students should be told that the behaviour in school is dealt with through education, the school disciplinary procedures etc.. it would be rare for incidents to be reported as crimes. Explain then the circumstances in which an incident WOULD be reported as a crime.

P25 Categories of hate crime or hate incidents As a general point, some of the examples given are filmsy and particularly dangerous when coupled with the existence or not of ‘hate’ being determined by the alleged victim or bystander.
‘ridiculing and stereotyping comments’ Unclear what this means.
Ostracising and excluding from friendship groups So it is enough that the ‘victim’ or any bystander simply perceives this ostracism as being by virtue of being trans
How can schools sensibly police friendship groups?
Rejecting someone or not wanting to work with them because of their sexual orientation, trans identity or perceived trans identity So a lesbian teenager is compelled not to ‘reject’ another student who alleges they are a transwoman?
What IS included in this word ‘rejecting’?
Showing or distributing anti LGBT+ leaflets comics or other propaganda’ Define propaganda! On this definition the recent episode of South Park would constitute ‘hate’
Wearing Anti LGBT+ Symbols – for eg badges or Tshirts What will count as ‘anti’? The LGB Alliance? Fair Cop?

P33 LGBT Bullying ‘worse’ than all other forms of bullying I think this is the core of my concern with this document. Primacy is being given to LGBT rights on a false basis. For example claims this bullying is ‘different’ because people get killed. Well, so do disabled children! So do black children! This is a very concerning document. It is unlawful to give primacy to right group over another. That in itself risks discrimation.

The person being bullied or attacked because of their sexual orientation will be afraid that other members of their community might also be attacked and are at risk WHAT IS THIS DRIVEL
Most of the ‘examples; here apply equally to race hate.

P36 It is never appropriate to ask a gay person to use separate changing facilities Really? So where does the gay transwoman go, if in reality she is visibly male bodied with penis and testicles and makes girls uncomfortable when sharing a space? Presumably if any girl objects she is guilty of ‘hate’.
P67 Tell the students that no one should put up with bullying, whether its happening to them or they are drawn into a situation where it is happening to someone else. So provide an impetus to escalate any complaint?

P90 We will not tolerate bullying or harassment and if we see it we will report it and see that it is dealt with. Sinister in context. Report to who?

P101 SECTION FOUR IDENTIFYING POTENTIAL CRIMINAL ACTIVITIES
Inside and outside school – on the bus So children are to be on the look out for crimes even beyond the school.
P104 In the final class they can discuss the possible charges they have identified and what the potential consequences would be Sinister in context
Tell the students that guidance from the EHRC generally encourages organisations and service providers to be trans inclusive. This means treating trans people according to their gender identity and only excluding trans people from facilties in exceptional circumstances where this can be justified. Unhelpful and confusing fudge of existing law.
Worksheets to ‘train’ children as investigating offices and to decide what charges to bring Dear Lord.

Further commentary on the videos by a colleague at Fair Cop

SP : I have not seen the videos, but from these comments I am concerned. The use of language such as ‘henchperson’ seems utterly bizarre and deliberately pejorative.

  1. Videos: FEAR acronym – False Evidence Appearing Real – does not distinguish between justifiable fear and baseless prejudice. Conflating the two, and reducing fear to the category of baseless prejudice .is gaslighting girls into accepting boys into their toilets and other single-sex facilities.
  2. Definitions of homophobia, transphobia, etc. Interesting to note that the definition of homophobia does not extend to those perceived to be gay, but the definition of transphobia does extend to those perceived to be trans.
  3. The definition of hate crime/incident: this includes not merely acts that are objectively negative (where it is perceived that the perpetrator is motivated by hate), but also omitting to do something (where it is perceived that the perpetrator is motivated by hate). This omission does not need to be something that an individual reasonably and legitimately expects, or that the law demands is provided (e.g toilets). The omission could also be something that the LGBT+ person simply desires (e.g. the girls toilets, or admission to a particular girls friendship group). The only necessary factor is that it must be perceived by someone that the decision has been motivated by hate.
  4. Video: Transition.
    The questions in and of themselves are actually quite valid. Here we see the attitude of the girls (which is aggressive) conflated with the content (which includes that which is reasonable) with the result that the content is also positioned as unacceptable and a hate incident.
  5. Video: Toilets.
    The girls merely correctly identified him as a male.
  6. Discussion of, much less asserting of, sex-based rights under the EA becomes impossible and falls into the category of hate bullying/hate incident/hate crime. This is because any discussion of these rights, that permit the exclusion of trans individuals where it is a proportionate means to a legitimate end, must make reference to people’s biological sex whatever their felt gender identity may be. Thus it involves misgendering, upsetting people, being seen as offensive and may out people as trans against their wishes. It simply cannot be the case that discussion of existing rights enshrined in law, and the protection and needs of the members of a protected category become hate incidents or hate crime and liable to criminal prosecution.
  7. Where are the other 2 in the series of 3 resource packs developed to increase awareness of identity-based bullying and hate crime? Are these similarly forbidden to parents? (This is different from edition 1 of this document).
  8. The definition of transgender on page 19 means that a male who has neither socially nor medically transitions should still be fully accepted as a girl purely based on his say so.
  9. Use of the term ‘henchperson’ is extremely sinister. This entire document is designed to install fear and to train children to police each other’s behaviour, friendship groups, speech etc.

The interplay of ‘Gillick competence’ and ‘parental responsibility’

This is a post by Sarah Phillimore

And what are the dangers for children of ignoring this?

TLDR: Any guidance which ignores or downplays the importance of both Gilick competence and parental responsibility is probably unlawful and probably harmful to children and should be challenged, for all the reasons that I set out below.

Safeguarding Children.

As a general point, safeguarding of children demands robust risk analysis. Failures in child safeguarding usually involve an inadequate risk assessment which has failed to either understand or share relevant information. Risks approached on the basis of untested assumptions are unlikely to be properly assessed. The welfare of children is generally held to be the paramount concern in most situations pertaining to decisions that concern a child, but this does not by itself absolve an individual or organisation from considering the impact of its decisions or actions on other legal rights.

Any guidance which asserts that it promotes safeguarding of children in the context of choices children aspire to make, ought to be clear about two very important issues:
a. ‘Gillick competence’
b. Parental responsiblility.

Gillick competence

Gillick competence refers to the recognition that the capacity of a child to make serious decisions pertaining to his or her welfare will increase as does the age and understanding of that child. It derives from the decision of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112,

Most – but not all – 14 year old children would be ‘Gillick competent’ to make decisions across a wide range of issues. Most – but not all – 7 year old children would not. Determining ‘Gillick competence’ is fact specific and depends on the circumstances of each individual child.

Once children reach 16 they are held by various statutes as able to make their own decisions across a range of issues. These are set out in the judgment of Lady Hale at para 26 of D (A Child) (Rev2) [2019] UKSC 42 (26 September 2019). For example Section 8(1) of the Family Law Reform Act 1969 provides that the consent of a child of 16 to any surgical, medical or dental treatment “shall be as effective as it would be if he were of full age”

Parental responsibility

Parental responsibility is defined at section 3(1) of the Children Act 1989 as “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.”

The House of Lords in Gillick approved the following dictum of Lord Denning MR

… the legal right of a parent to the custody of a child … is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.

This is a significant matter of status as between parent and child and, just as important, as between each of the parents. (see W (Children) [2012] EWCA Civ 999).

Interplay between Gillick competence and parental responsibility

These two concepts are thus intertwined. The younger the child and the less capacity he or she has to make decisions, the greater the extent of the exercise of parental responsibility. This is important for two main reasons.

  • Most parents, most of the time, have their children’s best interests at heart. Parents are likely to be an important part of decisions around keeping children safe. Who else is advocating for the child?
  • Families are also the ‘breeding ground of diversity’ and entitled to special protection – see Baroness Hale B (Children) [2008] UKHL 35.

Thus the importance of parental responsibility is recognised and protected by domestic and international law.

As was set out by Lady Hale in para 72 of The Christian Institute & Ors v The Lord Advocate (Scotland) [2016] UKSC 51 (28 July 2016):

Many articles in the UNCRC acknowledge that it is the right and responsibility of parents to bring up their children. Thus article 3(2) requires States Parties, in their actions to protect a child’s wellbeing, to take into account the rights and duties of his or her parents or other individuals legally responsible for him or her; article 5 requires States Parties to respect the responsibilities, rights and duties of parents or, where applicable, other family or community members or others legally responsible for the child to provide appropriate direction and guidance to the child in the exercise of his or her rights under the Convention; article 14(2) makes similar provision in relation to the child’s right to freedom of thought, conscience and religion; article 27(2) emphasises that the parents have the primary responsibility to secure, within their abilities and financial capabilities, the conditions of living necessary for the child’s development;

And at para 73:

Individual differences are the product of the interplay between the individual person and his upbringing and environment. Different upbringings produce different people. The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world. Within limits, families must be left to bring up their children in their own way.

I would therefore expect to see any guidance directed at the safety and welfare of children to give due consideration to both these issues. A failure to do so, risks diluting the effectiveness of advice around safeguarding, and being an unlawful infringement of parental responsibility.

The younger the child in question, the more serious both these failings.

Safeguarding concerns around transitioning children need careful assessment. These could involve:

  • parental pressure to transition due to homophobia or wish for attention
  • lack of parental support or understanding for a child who wishes to transition
  • failing to consider risk to other children of ‘gender neutral’ spaces, either within a school or on residential trips
  • failing to involve parents in discussions about the safety of children
  • a younger child who wishes to take puberty blockers

It is neither ‘kind’ nor ‘inclusive’ to pretend that risks don’t exist and to fail to have a clear eyed and open minded approach to how to deal with them. On the contrary, it is both dangerous and stupid – and, I assert, unlawful.

Children aged 4 are very different to children aged 14. Children are not kept safe by a refusal to discuss – or even admit – this quite basic fact. Any guidance or advice that does not deal clearly with the interplay between Gillick competence and parental responsibility should be approached with caution.

Be wary: guidance and commentary which fails

Trans Inclusion Tool Kit for Schools and Educational Settings 2019 – makes only superficial reference to Gillick competence and only one glancing reference to parental responsibility at page 15. Is explicitly aimed at primary school children.

No one, no issues is off the table when it comes to safeguarding – ‘advice’ from a social worker published in the BASW journal that issues around transition are ‘not’ safeguarding issue. No mention of either Gillick competence or parental responsibility.

Only adults? Good practices in legal gender recognition for youth – explicitly urges for removal of any minimum age requirement for access to services around transition.

When should a trans child’s identity be permitted to be a material issue in a family case? – blog by the legal adviser to the charity Mermaids. The answer is – rarely. If a child of any age says they are trans, they are trans.

Please do let me know of any other examples you can find.

And support the Safe Schools Alliance in their legal action against the Trans Inclusion Took Kit.

After the Adoption…

This is a post by Sarah Phillimore

What are the legal options or implications for an adopted child who wishes to spend more time living with their natural parents?

I read recently a very interesting post on the MummyTigerBlog about ‘When is a mum not a mum?’

The blogger adopted two girls and managed to forge a relationship with their natural mother – ‘mummy Jo’. She writes of the importance of that relationship for the girls and the questions they now ask:

The trauma of separation from natural family, their experience of foster care and subsequent adoption has had a lasting impact on my children, an impact that, despite rebuilding the severed natural family relationships that are so important to them, continues to hurt for both girls, although in very different ways. For both girls the re-established relationships with their natural family has been a huge help in their healing process and for their identity as they approach adolescence and the teen years but still brings up many questions of why? Why me? Why weren’t we kept together? Why weren’t we allowed to see our brother?  And more recently why can’t I live with Mummy Jo?

The emotional and legal implications for children in this situation are likely to be complicated. I cannot speak to the emotions, other than to agree that the importance of relationships with birth parents and siblings can be positive and significant and we need urgently to reconsider our historical clinging to adoption as ‘a closed shop’ – I have written about this in more detail in this post, Contact Post Adoption – Time for a new Default Position?

However, I thought it might be helpful for other families in this position to consider what are the legal implications of an adopted child wishing to spend more time with his or her family of birth – or even move to live with them.

The starting point is to remember the consequences of an adoption order – this removes parental responsibility from birth parents and the adopted child becomes the child of the adoptive parents. If the adoptive placement breaks down, this does not restore the parental responsibility of the birth parents. Some judges have gone so far as to say that adoption destroys ANY consideration of an Article 8 right between parent and birth child. Given that Article 8 protects psychological integrity, I have always doubted that this could be correct in law, but so far as I am aware there is no case that has looked at this point in the Court of Appeal or beyond.

Can adoption orders be overturned? Yes, but it is rare.

It is possible for the court to revoke an adoption order – i.e. discharge/end that order –  using its ‘inherent jurisdiction’ but this is a very exceptional and very rare step for the court to take given that ‘adoption’ is a statutory process that is supposed to facilitate the creation of the new ‘forever’ family.

The case of PK v Mr and Mrs K [2015] EWCH 2316 is one of the rare examples in case law where an adoption order was revoked – it highlights how exceptional this is. PK was nearly 4 when she was adopted by Mr and Mrs K in May 2004. However in 2006 Mr and Mrs K sent her to live with other family members in Ghana where she was subjected to significant abuse. In mid July 2014 PK returned to England and was reunited with her biological mother and grandmother. She became a ward of court on her own application and her mother was granted full care and control. PK was very clear she wanted to revoke the adoption, live with her mother and change her name. The court had no doubt that this was the right outcome for PK.

An adoption order was also revoked in the case of Re J (Adoption: Appeal) [2018] EWFC 8 but again, the circumstances of this were unusual; the child had been adopted by his stepfather and his mother had lied about the father’s whereabouts. When the father found out he applied for the adoption order to be revoked and the court agreed – but it made no difference to the child’s day to day life as he remained living with his mother.

But does the adoption order need to be revoked?

The situation described by the blogger is not one where the child is reacting against an adoptive placement where she has been mistreated – rather the child, now a teenager is expressing a wish to live with her natural mother. It’s interesting to speculate what the court might do if the child did want the adoption order revoked in these circumstances – but I am not aware of any similar reported case.

This is unsurprising, given how rare it is for an adoptive and birth mother to be able to work together in the way that the blogger and Mummy Jo have been able to do. But it may well become a more usual situation; and I hope it does. For a long time now I and others have thought that the ‘closed shop’ model of adoption does not serve children well.

However, this puts the blogger in the uncomfortable position of trail blazer. I am not aware of this situation ever coming before the courts before. What are the legal options or implications for an adopted child who wishes to spend more time living with their natural parents?

This does need to be thought about. A weekend here and there is unlikely to cause many problems – but if a child spends many months or moves permanently to live with a person who does not have parental responsibilty for them, this has the potential to cause problems.

There is a limited form of parental responsibility under section 3(5) of the Children Act 1989 which states that someone who has the care of a child but no PR may (subject to the provisions of this Act) do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare.

But this may not be sufficient to allow the carer to make decisions for the child that the child needs to be made – particularly if the child isn’t Gillick competent.

Could this situation be a private fostering arrangement? This is an arrangement whereby a child under the age of 16 (or 18 if the child has a disability) is placed for 28 days or more in the care of someone who is not the child’s parent(s) or a ‘connected person’. A connected person is defined as a ‘relative, friend or other person connected with a child’. A relative under the Children Act 1989 is defined as a ‘grandparent, brother, sister, uncle or aunt (whether full blood or half blood or by marriage or civil partnership) or step-parent’. The blogger writes:

Mummy Jo is very much a parent, blood relation and a ‘connected person’, the girls were connected to her via the umbilical cord however does this stand up legally? Currently she has no legal connection. What if the girls stay for over the 28 days, a month? the six weeks of the summer holidays? is this a ‘private fostering’ arrangement or just the girls staying with their Mum, because that’s who she is in their eyes, but not the eyes of the law. Any private fostering arrangement needs to be reported to the Local Authority to assess and monitor… an option none of us would relish!

I don’t think this is a private fostering arrangement – I agree that Mummy Jo is a ‘connected person’ – simply by virtue of her friendship with the adoptive mother or by her biological connection.

How should – or could – this situation be regulated?

So how could or should this situation be regulated? I discussed this with a newly qualified social worker and her reaction was very interesting – one of great concern for the emotional welfare of the child and what would happen if the living arrangements with her birth mum broke down. We discussed whether any local authority should get involved and whether the child’s school might want to refer it on. In this particular case, there seems little doubt that Mummy Jo is a tried and tested ‘safe parent’ – but what of cases where there is more doubt?

We batted back and forth the question of whether this kind of situation requires professional intervention. I argued that an adoptive parent has been assessed as able to be a child’s parent and should be allowed to get on and do what they think is right for their child – the state should not intervene without evidence of significant harm.

The social worker responded that I could not treat an adopted child in the same way as a biological child, as it was inevitable by the very fact that the child had been adopted that there had been significant trauma in that child’s life and there ought to be some professional oversight of any such move.

I can see the force in that argument. There is no doubt in my mind that social media has made it very easy for children to find their biological parents. I have no doubt that situations are going to arise where there is not the good working relationship between adoptive and birth parent that we see in this situation. We need to start thinking more about the legal framework whereby a child moves from adoptive to birth parent.

We ended our discussion by thinking that the solution here was a child arrangements order. That would provide a legal framework for the birth mother and also some oversight of the process by way of a section 7 report.

However – as the blogger comments, this route does not solve all the problems

Do we go to court to get a Child Arrangement Order (previously residence Order)? A child arrangement order would only last until the girls were 16 and they still wouldn’t have the legal ties to their natural family. Can an adoption order be dissolved in the UK? Where would that leave the girls if one wants to stay with me and another return to Josephine, their relationship with each other and their big sister legally severed if the adoption is no longer in place? What about visits, if they want to come back to stay with me for 28 days or more, or come abroad on holiday with me and their sisters, would we have the same issues? Wherever the girls live, they will always be family, we’ve shared good times and bad, learned from each other, laughed and cried together, and as long as any of my children want I will always be there for them, severing the adoption would allow them back to where they belong but in my heart, as with Mummy Jo, the girls will always be ‘our girls’, unfortunately legally it isn’t so easy!

In the end – is the only solution for the adoption order to be revoked and the birth mother to then apply to adopt her own child? This cannot have been a situation envisaged by any of those drafting the Adoption and Children Act! Although at para 20 of the PK case the court comments:

PK has extremely strong feelings about her legal status. It is very important to her that the court takes account of her wishes and firm views which are that she should no longer be the adopted child of Mr and Mrs K but instead revert to having legal status as a member of her biological family.

I do not know what the court meant by ‘revert to having legal status as a member of her biological family’ as revocation of the adoption order does not – so far as I know – restore the PR of the birth parents. So what is meant here by ‘legal status’ ? Am I wrong about revocation of an adoption order not restoring a natural parents’ PR? Or presumably, the powers under the inherent jurisdiction being theoretically limitless, the High Court could restore PR?

Maybe someone has to volunteer to be a test case.

I would be very interested to hear other’s views – particularly if there are any reported cases I have missed which deal with this situation. I am pretty confident that this will not be the first or last example of the complexities that can follow the ‘happy ever after’ adoption order.


Child Protection Resource: 2019 The Year in Review

This is a post by Sarah Phillimore

It has certainly been a busy year. 2019 made me think again and hard about some of my previously unchallenged assumptions – that the people I met on this road were invariably to be trusted to fight the good fight. I have seen instead increasing polarisation and promotion of narrative over substance. I have seen examples of cowardice and dishonesty from those I previously admired that has made me gasp.

But it is always better to know. I have certainly dialled down my ‘crusading’ given my realisation of just how tricky things are out there. I will remain very interested in what the 3 month ‘Inquiry’ into the FJS can possibly achieve, particularly given the ‘capture’ of many campaigning groups by people I know to be criminal and dangerous.

I remain sceptical that journalists have the ability or even the will to report on the FJS accurately or responsibly. While I was very pleased to be part of the appeal that lead to new October guidance on Reporting in the Family Courts, this may yet be a phyrric victory if journalists cannot be persuaded to move away from the salacious headline over accurate and fair reporting.

But the aim of the CPR is not to provide a platform for me to moan about things, although I will happily admit to hijacking it on a few occasions to do exactly that.

The aim of this site has always been to provide accurate and useful information for everyone in the child protection system – parents, lawyers, social workers etc. So its interesting to look at what posts were popular this year.

What did the audience want?

In 2018 the three most popular posts, with not much to divide them, were

interestingly, the post about section 20 of the Children Act 1989 – which in previous years had vied with the post about mental health as the most popular, had slumped to 4th place – which I hope reflects the growing unease and greater knowledge about the use and misuse of section 20.

So what was the picture in 2019?

This is – for me – pretty interesting. Its the first time since the site’s inception in 2014 that the post on mental health in care proceedings has been knocked from the top spot – to be replaced with ‘The Social Worker is Out to Get Me – Common concerns we hear from parents’ . In 2019 that post had gathered about 10K new views. I can only speculate why that is but guess that it may be a reflection of the growing awareness of ‘fake news’ and manipulation of social media. It’s interesting to note that all Top 3 posts are now from the ‘Mythbusting’ menu of the website.

The post meanwhile that continues to provoke the angriest comments was from June 2018 where I attempted to break down an argument that mothers abused children more than fathers – I concluded that it was pretty even but fathers just pipped the mothers at the post. The degree of consistent abuse and vitriol I have received from this post indicates that it is a very sensitive area and those with a stake in it often express themselves in very worryingly aggressive tones.

The massive dip in users in November 2019 is explained by a switch to a different host and the site went off line for 2 days.

Hopes for 2020

In 2019 the site had 390,871 users, the vast majority – 87% – new users coming from organic google searches. This is an increase from 2017 at 340,024 but a decrease from 2018 when this number was 437,338.

Again, I can only guess at the reason for this dip. It may be due to Twitter now refusing to publish anything with a link to this site; this censorship began around April 2019 and has never been explained by Twitter, despite frequent efforts to contact it. The noticeable ‘dip’ in users around that time as can be seen above, supports that view.

It may also be that other and better sources of information are spreading and available.

I really hope its the latter. As I keep saying – either we simplify our laws and our procedures or we provide better support for those who have no choice but to go through the system. Once the analytics show me that no one is reading anymore, then I will close down the site.

But for now, I think the need is still there. Let’s see what 2020 brings now we can finally focus on something other than Brexit. One thing I hope to see in CPR’s future is its own podcast!

A Happy New Year to all my readers.

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’.