Author Archives: Sarah Phillimore

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

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

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

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

I will examine the following

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

Some historical context

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

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

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

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

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

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

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

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

The Court of Appeal therefore concluded:

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

The key guidance is at para 139:

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

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

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

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

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

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

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

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

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

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

Is a fact-finding hearing required?

RELEVANCE, PURPOSE, PROPORTIONALITY AND MITIGATION

Consider:

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

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

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

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

Participation directions.

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

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

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

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

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

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

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

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

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

Case Law – when it goes wrong.

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

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

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

At para 40 of the appeal judgment it is noted:

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

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

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

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

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

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

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

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

The key quote can be found at para 65:

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

So where next?

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

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

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

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

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

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

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

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

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

CAFCASS Guidance on working with Children and Gender Identity

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

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

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

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

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

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

Assumption of contested narrative as truth

The introduction makes the following comment

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

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

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

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

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

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

Ignoring current evidence

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

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

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

Poor analysis of safeguarding

The Guidance identifies the main issues around ‘safeguarding’ as

Parental responses
Parental disputes and differing views
Homelessness
Discrimination
Lack of health and social care support and progression through the care pathway
Lack of CAMHS provision
Suicidality and self – harming behaviors
Hate crime
Bullying/ difficulty with peers
Disruption or cessation of formal education
Conversion therapy- direct or indirect
Online safety

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

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

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

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

The Guidance notes, ominously

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

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

Signposting to outdated, unreliable and dubious sources

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

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

As Professor Levine noted in 2020:

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

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

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

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

.

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

Conclusion

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

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

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

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

Systemic Failings in the Family Justice System

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But what exactly is this something else?

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

She identified some possible solutions.

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

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

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

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

The pilot scheme.

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

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

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

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

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

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

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

What can we do right now?

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

Speed it up

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

Triage

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

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

Examine other jurisdictions

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

What do we need to stop?

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

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

I wrote about my concerns in 2019.

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

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

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

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

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

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

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

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

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

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

Conclusions

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

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

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

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

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

Burden and standard of proof

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

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

Do not speculate and do not reverse the burden of proof

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

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

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

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

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

Consider all the evidence

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

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

Reliance on expert evidence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pool of perpetrators

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

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

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

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

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

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

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

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

Taking a child abroad for a double mastectomy

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

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

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

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

The run up to the final hearing

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

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

The final hearing – application to withdraw

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

So what went wrong?

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

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

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

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

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

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

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

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

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

Comment – no evidence of significant harm?

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

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

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

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

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

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

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

Procedures on Bruises in Pre-Mobile children

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

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

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

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

AB is going to

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Can a local authority restrict a child’s use of a mobile phone?

I was recently asked to consider a case involving a 16 year old child in local authority care, following fears of child sexual exploitation. The local authority wanted to apply to the court for permission to put ‘spyware’ on the child’s mobile phone, in order to monitor any conversations the child was having with those who posed a risk of harm. The local authority made an application for permission under the inherent jurisdiction to deprive the child of liberty. The court raised a question mark about the appropriateness of this application – was it really a deprivation of liberty?

The questions raised here have broader applicability to on going tension between ‘paternalism’ (protect the child from his foolish decisions ) or ‘autonomy’ (allow the child the freedom to make decisions). I find it interesting that there is such intense scrutiny of a child’s access to a mobile phone but rather less of a child’s assertion that they have ‘changed sex’ and want access to cross sex hormones. Children aged 16 and over pose particular problems in this debate, but it is one we must keep on having.

The local authority wanted permission to restrict a 16 year old child’s access to the internet via a mobile phone or other device and in particular asked the court to give it permission to remove the phone and monitor the child’s access to the internet by installing ‘spyware’ that would log texts and messages. This was done with aim of protecting the child from further sexual exploitation and it was argued this was proportionate and necessary. The local authority suggested that these restrictions be in place for a relatively short period of time, and they could then be reviewed.

I identified the following questions to the court

Is removal or monitoring of a child’s mobile phone a deprivation of liberty?
If it is, is it lawful? i.e. a proportionate and necessary response in the best interests of the child or does the child have capacity to consent and does consent?
If this isn’t a deprivation of liberty, is it rather a a breach of article 8 ECHR (right to privacy)
If so, is that breach lawful?

If the proposed restrictions are neither a deprivation of liberty nor breach of article 8 ECHR, then the local authority does not require the authorisation of the court to exercise parental responsibility for the child. However, given the child’s age and the nature of the restrictions sought, it was sensible to put this matter before the court.

Use of mobile phones by teenagers in local authority care

A survey from Ofcom in 2014 showed that in the UK, 88% of sixteen-to-twenty-four-year-olds owned a smartphone. It seems unlikely that this percentage has fallen in intervening years. The use of mobile phones with internet access is now commonplace and most teenagers will have and use one. Although there are obvious risks inherent in the use of mobile devices that can connect to the internet, such as making children more vulnerable to sexual exploitation, they can be a very useful tool to allow a child to maintain contact with friends and family.

The Institute for Research and Innovation in Social Services noted

The use of mobile devices and the internet are a normal part of everyday life for children and young people, including those in care.

A balanced view of use of devices and the internet by children and young people in care is to appreciate both opportunities and risks associated with use.

There are a number of factors known to increase the vulnerability of children and young people online. However, in considering vulnerability online, this should be done holistically, taking account of a child or young person’s life in general at a given time, and with awareness of both protective and risk factors.

There is a need for practitioners to move towards a more expansive and child-centred approach with a focus on relationships. This should encompass an appreciation of stepfamily and biological family, and the maintenance of relationships with a wider variety of individuals that reflect the world of the child or young person in care.

As the child is subject to a care order, the local authority ‘shares’ PR with the parents and may override the parents’ wishes if it is ‘necessary’ to safeguard or promote the child’s welfare. The parents in this case did not object to the proposals but the child was refusing to discuss the matter with social workers. However, parents cannot consent to their child’s deprivation of liberty. A child can, if they have capacity, but also that consent may be withdrawn.

For a child under 16 it is submitted that the removal of a mobile device, restriction on its use or monitoring of conversations on it, are likely to be well within the ‘zone of parental control’ and do not require the local authority to seek the court’s permission. The UK Council for Child Internet Safety (UKCCIS) is clear that parental controls on internet usage is accepted and necessary – such as requiring phones to be turned off at school or surrendered during the night.

Some local authorities have set out advice for foster carers around removal/restriction of mobile phones which suggests that certainly for younger children, the local authority as corporate parent does not need to seek the court’s permission to exercise control over a child in care’s mobile phone use. For example, see the guidance from East Riding which considers the removal of a mobile phone as a decision of ‘last resort’

… taken when other measures have failed. This decision should itself be reviewed regularly and the phone returned as soon as possible. Any decision to remove the mobile phone for a long period (more than a few days) should be endorsed by the Safeguarding/LAC/Pathway Team Manager, with confirmation for the reasons in writing to the young person and a copy to the carer.

Not only is removal of a mobile phone considered a serious matter, the older a child gets, the less likely it will be that this is a reasonable exercise of parental responsibility. 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.

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”.

Therefore, it is important to consider what is the lawful basis for depriving or restricting a 16-year old’s access to a mobile phone or the internet. If this is outside the ‘zone of parental control’ then it is submitted that it is desirable for the local authority to seek authorisation from the court, rather than run a risk of being found to have unlawfully breached either Article 5 or Article 8 of the ECHR.

Article 5 ECHR provides that everyone has a right to liberty and security. Distinguishing between a ‘deprivation’ of liberty and a mere restriction is one of ‘degree or intensity’ and not one of nature or substance. The question whether a person’s liberty is restricted is determined by comparing the extent of that person’s actual freedom with someone of similar age and situation whose freedom is not limited. All children should be subject to restraint upon their freedom to do as they wish, but these restraints necessarily decrease as the children grow.

Many cases involving a deprivation of liberty involve restriction on physical movement, such as refusing to allow a person to leave premises without supervision. Such cases are governed by the three limbed test set out in Storck v Germany (Application No 61603/00) (2005) 43 EHRR 96, para 71, and 74 emphasising physical confinement.

However, deprivation of liberty is not restricted solely to limits set on physical movement. Lord Kerr in Cheshire West described ‘liberty’ as “the state or condition of being free from external constraint”

The Mental Capacity Act (2005) Deprivation of Liberty Code of Practice states that denying social contacts constitutes restraint and therefore is a significant factor as to whether the care and treatment amounts to a deprivation of liberty. The importance of social contact for a child is reflected in article 37 of the UNCRC “…. every child deprived of liberty… shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.”

In the case of HC (A Minor Deprivation of Liberty) [2018] EWHC 2961 (Fam) the court considered a variety of issues beyond mere physical confinement which had the cumulative effect of depriving a child of his liberty. For example, at para 40 the judge commented on the issues of ‘supervision, support and control’.

Linked to the question of freedom of movement is the question of supervision. A typical 13-year-old will certainly be supervised or controlled in certain formal or dangerous settings. For example, at school, much of the time is supervised to a greater (e.g., in the classroom) or lesser (e.g., during break-time) extent, and a risky sport or activity will generally be conducted under close adult supervision.
However, a typical 13-year-old will also enjoy significant periods of time without any active supervision whatever. In particular, it is intrinsic to the lives of teenagers that they are able to spend ever-increasing periods of time speaking to and interacting with their friends and peers, and without this being subjected to adult scrutiny. Equally, it is very much a part of a teenager’s life that they are able to spend time alone, without the presence of an adult or any other person, whenever they like (and their routine allows).

The Judge considered further the consequences of restricted access to social media and the internet.

Most 13-year-olds have access to social media and the internet. For many, this represents a very significant element of their burgeoning independence, sense of self and social life. Of course, for most, the use of social media is important because of and to the extent of that young person having both an immediate network of friends and possibly a secondary network of online acquaintances or ‘followers’ using any particular medium or platform.
To a greater or lesser degree, most 13-year-olds will be subjected at least to parental attempts to monitor and to restrict their use of social media and the internet. Close and constant monitoring of all use would, in my view, be unusual

Conclusions

This child was 16 years old and therefore it was highly unlikely a court would agree that it was within the ‘zone of parental authority’ to deny her access to her mobile phone for more than a short period of time or to monitor her use of it by way of ‘spyware’. (If a parent is paying for the mobile phone, it is probably lawful to refuse to keep paying for it!) and thus the proposed restrictions may amount to a deprivation of liberty, for which the court’s authorisation must be sought. It not a deprivation of liberty, this could be an unlawful breach of Article 8, but if its neither then the local authority will be reassured that its actions are within the lawful boundaries of its exercise of parental responsibility.

UPDATE 23 November 2022

When this matter came before the court, the Judge did not agree that restrictions on use of mobile phone, or adding ‘spyware’ was a deprivation of liberty (which required the court’s authorisation) but it was a breach of Article 8. However, this breach was lawful as it was necessary and proportionate to protect the health and morals of the child. The Judge did not think the local authority required authorisation from the court as this situation was within their parental responsibility.

I think there is probably room for further argument about all of this, certainly on the deprivation of liberty point but for the time being, local authorities should consider carefully such restrictions, make sure that the reasons for them are articulated and impose restrictions for the shortest time necessary. This will protect against any future assertions of an unlawful breach and possible action under the Human Rights Act 1998.

An open letter to Hannah Hirst re the ‘right’ of a child to medical transition

Children under 16 are very different to children over 16, both in legal terms and cognitive capacity. What happens when arguments are made for ‘children’s rights’ that does not make this explicitly clear?

Dear Ms Hirst

I attended your presentation at the webinar on November 11th ‘An Uncharitable Alliance? Mermaids v Charity Commission and the LGB Alliance’ where you spoke about children’s rights in the context of medical transition and your concerns about how the activities of the LGB Alliance and others might limit those ‘rights’. I note that prior to joining the University of Sheffield you taught Medical Law, Children’s Rights and Public Law at the University of Liverpool as a Graduate Teaching Fellow, so you clearly have knowledge and expertise in this area.

This increases my concern over some of your assertions made at your presentation, which I set out below.

As I think this is a matter of significant public interest, I am posting this on my substack and on the Child Protection Resource website. I would be very happy to publish a guest post from you in reply to all or any of this.

I set out some of my specific concerns below, as I tweeted my thoughts during your presentation. While I would be grateful for any further information you can give about these specific concerns (most notably, the treatment offered, the ages, sex and outcomes for the ‘children’ who presented for ‘gender affirming’ treatment in the 1930s) my over-arching concern is that you apply a ‘rights based’ narrative of child welfare on ‘children’ as a whole, without any distinction between those who do or do not have capacity.

You point out the dangers of treating children as a ‘homogenous group’ – which I agree is often antithetic to the paramountcy principle of the Children Act 1989 which requires an intense focus on the welfare of the individual child who is the subject of legal action. However, you fall into exactly that trap, by failing to make explicit any distinction between children over and under 16 years of age. This is a particularly important distinction because a 16th birthday imports a statutory presumption of consent in many areas. 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”

Referring simply to ‘children’ as you did throughout your presentation therefore in my view presents a significant risk to those younger children who in my view are highly unlikely to be able to offer consent to even social transition, let alone medical or surgical transition. They must not become ‘lumped in’ with children of 16. Applying a ‘rights based’ analysis to the welfare of children under 16, is in my view not merely inapt but can be actively harmful to the welfare of these children, when the adult making decisions on their behalf is working on prior ideological assumptions.

The law clearly recognises and applies the importance of the child’s maturation in any decision making process. The House of Lords in Gillick approved the following dictum of Lord Denning MR

If a person cannot understand the nature or consequences of a particular ‘right’ then the decision to enforce that person’s access to it is inevitably made by another. Despite the commendable efforts made by the Mental Capacity Act 2005 to underscore the importance of the ‘best interests’ analysis for those lacking capacity, it remains an inevitable truth that those who lack capacity will have decisions made about them and for them. It is essential that the adults who do this, approach the ‘best interests’ test with an open mind and free from prior assumption.

For children under 16 what you are in fact advocating for is that an adult’s agenda must prevail where those children – I argue the overwhelming majority – are not Gillick competent. It was clear what this agenda is from your presentation and those of your colleagues that I heard. ‘Transition’ is presented as a ‘right’ of a child, attempts to argue for caution in the light of the lack of any compelling evidence for its efficacy, are dismissed as ‘transphobia’ or attempting to ‘erase’ trans people.

I was not aware of any attempt in your presentation to engage with the Cass Review or how this has translated into the NHS England draft specifications regarding treatment for gender dysphoria. You made a brief mention of the Review and then spoke about how transition was not merely a medical issue but a social and emotional one also. I am sure you are right about that. But it does not mean that clinicians ought to be encouraged to provide treatment for a child which is irreversible, significant and has no evidence base. To do this is not merely wholly at odds with the welfare of the child, but requires clinicians to abandon the ethical foundations of their practice.

This blurring or simply ignoring the crucial differences between children’s capacity to consent as they age and mature is sadly a common feature of discussion in this area from those who advocate medical transition as a moral and social good. I note for example the claim from Mermaids that if a child says they are trans, at ANY age, they are trans. The recognition that children ‘age into’ capacity is not some capricious, arbitrary or ‘transphobic’ whim – it is supported by decades of research into child development and noting how children’s ability to understand, retain and weigh up information is compromised by the development of their brain. The solution to this cannot be – as you suggest – to simply offer them ‘more information’ and was explicitly rejected by the Divisional Court in Bell v Tavistock.

This is a matter of particular concern for me as I note a ‘industry’ growing up of those who have not merely staked their professional reputations on the ‘trans child’ but also their income streams.

I would welcome any comment you feel able to give about any of the points I raise.

Comments via live tweeting of the presentation

Says there is evidence of children seeking gender affirming care from the 1930s ??? <I would like to see this>. Thinks true numbers of children seeking care now could be much higher as difficulties accessing care.

Recognises concerns about GIDS – inadequate rating and Cass Review. No acknowledgment of ‘gender diverse’ GD children’s rights. Under 18 not included in GRA. Gaps in EA and UNHRC.

accuses courts of not engaging with GD children’s rights and AGAIN refers to ‘rhetoric’. Access to medical transition has become a ‘power dynamic’ re access, compares to abortion and contraception (???)

Says Mermaids action has impact on child’s right to identity. Children are not one homogenous group and don’t have a identity separate from being a child. We don’t describe them as ‘agender’ or ‘nonbinary’

This might be linked to adult ‘discomfort’ about children having an ‘identity’ (OR we reject any assertion that a child can have an ‘agender’ identity as it is made up?)

Says the medical treatment of children has ‘moral and social’ benefits. (and isn’t this the problem? Clinical decisions and evidence overshadowed by adult preoccupations about what is morally good)

Says implications for child’s rights to information. They have rights to ‘all kinds’ of information (that’s certainly an interesting way of putting it).

Says ‘puberty is not reversible’ so treatment needed to prevent adults from surgical intervention. Children will pay hormones from unregulated websites (focus then should be on criminalising those providers, not making them an excuse to prescribe cross sex hormones).

‘we don’t have long term data because its so difficult to get children to engage’ WELL EXACTLY. they are children. They don’t have the capacity to engage in discussion or thought about this.

Now citing Sally Hines who says there is a lack of information for GD children (I think this can only mean a ‘lack of information promoting gender identity treatment). how can it be made accessible for children. (how indeed)

Child’s right to be heard in all matters affecting them (yes but their wishes and feelings can rarely be determinative, particularly when under 16). We need to engage with them.

LGBA have not involved GD children in their activities. Has due weight been attached to their views? (NO! because they are CHILDREN) Heavy reliance on Micheal Biggs but they should listen to Sally Hines.

Is this part of wider problem in hearing GD children who were also excluded by Gov in conversion therapy debate. An adult agenda put on children. No child witnesses in Bell (this is not true. statements from children. Which horrified the court)

Thinks LGBA will end up erasing minority groups, saying they ‘don’t exist’ and ‘shouldn’t be heard’ (this is NOT what anyone is saying. We are asking to listen to evidence). ‘Rolling back Gilick competence’ – (what is this? 16 years old have statutory competence.)

What impact does this have on GD adults and their experiences?

NHS public consultation on treatment of gender dysphoric children

The consultation ends on December 4th. I broadly welcome these proposals as a long over due return to holistic treatment of the child; rather than blanket ‘affirmation’ of a child’s expressed wish to ‘transition’. Whether you agree or not, please have your say. It is important that the consultation has a wide range of responses.

On 20th October 2022, NHS England opened a consultation to seek views on a proposed interim service specification for services for children and young people with gender dysphoria. Once agreed, this interim service specification will be operational only until a new service specification is formed in 2023/24 that will be used by a new configuration of regional providers. The consultation closes on December 4th 2022 and NHS England recognises the importance of involving the public

…to check whether proposals are right and supported, whether the public understand their impact, and to identify any alternatives before decisions are made.

This consultation follows the the Cass Review’s interim report, which was commissioned to investigate concerns over the significant surge in in the last few years in the number of children referred for medical treatment for ‘gender dysphoria’ – (the number of referrals is currently at 8.7 per 100,000 population per year in 2021/22 compared to 4 per 100,000 in 2020/21 and 4.5 per 100,000 in 2019/20) alongside the scanty evidence base to support claims about the efficacy of such interventions. The ‘single gender clinic model’ of the Tavistock GIDs had also proved an operational failure, with long waiting lists.

There is much to be very pleased about in terms of protecting children from significant medical interventions that currently lack any compelling evidence base. The key points set out below represent a very welcome and timely return to psychotherapy as the first and usually only treatment for gender dysphoric children; thus England joins Finland and Sweden in explicit rejection of the WPATH guidelines

The consultation explicitly recognises that ‘gender incongruence’ may be a transient phase, particularly for prepubertal children, and that there will be a range of pathways to support these children and a range of outcomes.

The consultation examines

How care is currently provided.
How the interim service specification could change care and the way that services are delivered, and the reasons for these changes.
How the proposed changes will be implemented.

The Good – Key Points

Biological sex must be recorded and tracked
The importance of a DSM-5 diagnosis of ‘gender dysphoria’ as a gateway to treatment – which is characterized by significant distress and/or functional impairments related to “gender incongruence”. This is in contrast to the reliance by WPATH SOC8 on the ICD-11 diagnosis of “gender incongruence,” which is not necessarily associated with distress and relies primarily on the individual’s own subjective desires for certain treatments.
Thus the ‘gender affirming approach’ which originated in the USA has been abandoned and the focus returned to psychoeducation and psychotherapy, rather than an assumption that such children should automatically receive speciality ‘transgender health care’.
Treatment pathway will thus be devised by examining the “clarity, persistence and consistency of gender incongruence, the presence and impact of other clinical needs, and family and social context.”
Decisions about a child’s eligibility for medical treatment will be made by a centralised service and puberty blockers will be prescribed only in ‘research protocol settings’ . Cross sex hormones are not mentioned, but it is assumed that a similar approach will be taken here. Those who attempt to access medical intervention outside the NHS protocol will not be supported by the NHS – which may initiate child safeguarding referrals.
All children and young people being considered for hormone treatment will be prospectively enrolled into a research study which will track them into adulthood and provide a secure evidence base about the effects of hormonal interventions
‘Social transition’ is recognised as not a neutral act – it may have significant effects on psychological functioning and is to be discouraged. It should only be pursued in order to alleviate clinically significant distress or impairment in social functioning and only after an ‘explicit informed consent process’.
Emphasis on a multidisciplinary team that goes beyond “gender dysphoria specialists,” to include experts in other relevant areas such as paediatrics, autism etc to enable holistic support for gender dysphoric children.

The Bad – captured language and magical thinking

Some have raised serious concerns about some of the language used in the consultation documents. As Isla Mac commented (see further reading below), service specifications are provided in ‘captured language’ based on ‘magical thinking’ which is ‘meaningless nonsense’ and is likely to impede the necessary interventions of the multidisciplinary teams.

I do not share the same degree of concern raised by Mac and could find only one reference to ‘sex assigned at birth’ against another reference to ‘birth registered sex’.

What does trouble me however is that the term ‘gender identity’ is embedded in the consulation at numerous points – I have not noted any attempt to define what this means and to what extent it differs from simple reliance on sex-based stereotypes. For example in the ‘background section’ it says

A quick look at the term used to describe a discrepancy between birth-assigned sex and gender identity is ‘gender incongruence’.

Conclusions

However, I balance my concern over use of the term ‘gender identity’ or ‘sex assigned at birth’ against the very welcome rejection of the WPATH guidelines. We now have a long over due return to an approach that sees the whole child in the context of their family and their environment, rather than simply affirming a ‘trans child’ to be hurried through to medical transition.

I will therefore be responding to the consultation to say I broadly agree with it. Whether you also agree or you don’t, it is important that the consultation hears from as many people as possible. Please have your say.

Care Proceedings involving parents with learning difficulties – a very short guide

It seems that I have been saying the same thing now for over 20 years. Parents with learning difficulties or disabilities have a compromised ability to understand and retain new information. This may be mitigated to some extent by help and support, but parents will not ‘get better’ and, depending on the degree of disability, may require help and support for the rest of their lives.

This poses particular challenges for parenting, which requires us not merely to be able to undertake efficiently and consistently a huge array of practical tasks around feeding, hygiene, clothing etc but also demands that we are able to respond -sometimes instantly – to an ever changing array of potential threats, on top of demonstrating emotional atunement and availability. ‘Good enough’ parenting is demanding for anyone. For those with learning difficulties who do not have access to a reliable support network, it is often impossible.

I have not been able to discern much of a shift in how these cases are managed. I continue to be involved in cases where the most basic and obvious of lessons that by now should be second nature to professionals about their interventions, were ignored.

So all that happens is that the care proceedings turn into a particularly cruel piece of theatre, where we pay lip service to the notions of fair proceedings but we all know what the eventual outcome is going to be. Often a considerable amount of money is simply wasted on supervising the parents without any apparent agreement about or understanding of what work would be done to help them increase their parenting capacity and who was going to provide it.

I worry that the proliferation of ‘Equality, Diversity and Inclusion’ officers over the past decade has had precisely zero impact on inclusion for disabled people. I suspect this is because that to include us often costs a lot of money and investment in physical infrastructure. Our inclusion is not performative, it is not secured by a rainbow lanyard or concern about pronouns.

So I thought it might help to set out here, as concisely as I can, what every professional needs to have in mind when working with parents who have learning needs.

read the Guidance on working with parents with a learning disability. Internalise the five key components
- accessible information and communication
- clear and co-ordinated referral and assessment processes and eligibility criteria
- support designed to meet the needs of parents and children based on assessment of their needs and strengths
- long-term support, if necessary
- access to independent advocacy

Be aware of particular opportunities for support in the community, for example that which is offered by Shared Lives Plus
read the President’s Guidance from April 2018 about managing court proceedings involving parents with learning needs.
Read Family Procedure Rules Part 3A and PD3AA. Consider the need for intermediaries or advocates at the earliest opportunity
Read Re D (A Child) (No 3) [2016] EWFC 1
Read A Local Authority v G (Parent with Learning Disability) [2017] EWFC B94
Read Nottinghamshire County Council v XX and others [2022] EWFC 10, [2022] 4 WLR60
XX, YY and Child H (Rev1) [2022] EWFC 10 confirmed that the Guidance on working with parents with learning disabilities MUST be more widely disseminated; social worker had been unfamiliar.

Some historical context

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

Is a fact-finding hearing required?

Case Law – when it goes wrong.

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

So where next?

Further reading

Assumption of contested narrative as truth

Ignoring current evidence

Poor analysis of safeguarding

Signposting to outdated, unreliable and dubious sources

Conclusion

Further reading

But what exactly is this something else?

The pilot scheme.

What can we do right now?

Speed it up

Triage

Examine other jurisdictions

What do we need to stop?

Conclusions

Further reading

The run up to the final hearing

The final hearing – application to withdraw

So what went wrong?

Comment – no evidence of significant harm?

Conclusions

Further reading

Comments via live tweeting of the presentation

The Good – Key Points

The Bad – captured language and magical thinking

Conclusions

Further reading

Further reading on this website