Author Archives: Sarah Phillimore

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

Further reading on this website

Parents with Learning Disabilities/Difficulties

Court gives guidance on how to ensure fair proceedings for learning disabled parents

After Brexit: Jurisdiction to make care orders when child is a foreign national

London Borough of Hackney v P and Ors [2022] EWHC 1981 (Fam)

Judgment was handed down by Mr Justice MacDonald on 29th July 2022. This case concerned a 12 year old girl who was born and lived in France until her mother’s death in 2017 when she moved to Tunisia in the care of her paternal grandmother. In 2021 she came to the UK to live with a paternal uncle but was shortly after taken into foster carer amid a variety of serious allegations made against the grandmother and H’s father by the uncle.

The court was dealing with two applications. The first was an application for a care order issued in August 2021, the second by the paternal grandmother for the summary return of H under the inherent jurisdiction of the High Court.

The court had to deal with the following preliminary issues

i) Does the jurisdictional scheme under Chapter II of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility apply to care proceedings under Part IV of the Children Act 1989 and, if so, does it apply to these proceedings notwithstanding this case involves a non-Convention State?

ii) If the jurisdictional provisions of Chapter II of the 1996 Hague Convention do not apply to these proceedings under Part IV of the Children Act 1989 involving a non-Convention State, does jurisdiction arising out of the presence of the child in the jurisdiction subsist for the purposes of care proceedings pursuant to Part IV of the Children Act 1989?

iii) If the question of habitual residence falls to be determined in this case, whether under the jurisdictional provisions of Chapter II of the 1996 Hague Convention or otherwise, what is the relevant date for that determination?

Having heard extensive erudite and comprehensive submissions, the court was satisfied that the Hague Convention did provide the jurisdictional scheme to govern this case, even though Tunisia was a non contracting State. If H was not habitually resident in England and Wales and thus the Hague Convention did not apply, the court could rely on the common law test of her physical presence to justify an order. The question of H’s habitual residence is to be determined at the date of the hearing and a further hearing was needed to determine this issue. 

Discussion 

H was born in France and said to have both French and Tunisian citizenship. Her primary language is French. She lived with her parents in France until she was 4. Her father was sent to prison and H and her mother were homeless for a long period, H was removed from her mother’s care in 2015 until returning to her mother in January 2017. Sadly, her mother then died in March 2017.

The paternal grandmother travelled from Tunisia to seek care of H and was assessed as safe to care for her in August 2017. H moved to live with her grandmother in Tunisia. Her father also moved to Tunisia and was reported to have a good relationship with H. The French proceedings were thus discontinued in June 2018. 

In June 2021, H travelled to England to stay with a paternal uncle. Shortly after, the uncle contacted the police to say that H had been sent to England to ‘ruin his life’ in the context of a family dispute. H alleged her uncle had hit her. She was taken into foster care. 

The local authority began investigation and the uncle claimed H was not safe in Tunisia as her grandmother was ‘sadistic’, physically abusing H and allowing her to be sexually abused by others. Further, he claimed H’s father was involved in people trafficking in Tunisia which led to others threatening the family. H’s grandmother denied these allegations, H herself said there were ‘good and bad’ times with her grandmother who sometimes hit and swore at her. 

H was then returned to the care of her uncle but he shortly after took her to the French Embassy in London reporting that H ‘bullies’ him. H went back to foster care. She was placed with a French speaking Algerian family on 3 August 2021 where she remains. 

H made a number of allegations against her paternal family and was noted to display a lack of understanding of socialisation and boundaries. The local authority thus issued care proceedings, correctly identifying that there may be an issue as to jurisdiction and citing the relevant provisions of the 1996 Hague Convention. A hearing was listed in December 2021 to consider “a declaration of habitual residence”. Significant delay occurred due to lack of time in the court lists and problems with the grandmother’s legal aid. The matter finally came before Mr Justice MacDonald in June 2022. 

The Tunisian authorities recommended that H be returned to her grandmother’s care but the local authority sought a care order, asserting that the court had jurisdiction to make this order based on H’s physical presence in the jurisdiction. The Hague Convention did not apply as Tunisia was not a contracting State and therefore habitual residence was not the relevant factor.

The grandmother sought summary return of H to the jurisdiction of Tunisia under the court’s inherent jurisdiction.  She argued the 1996 Hague Convention did apply and H’s habitual residence was in Tunisia. Alternatively, she argued that Tunisia was the more appropriate forum to undertake a welfare enquiry. 

The Guardian argued that the court did have jurisdiction by virtue of the 1996 Hague Convention and should make a care order. Interesting as the legal issues were, the Guardian reminded the court that the heart of the case is H, who has been clear she wishes to remain in the UK and refused to have any contact with her grandmother. 

The court first considered the relevant law. Following the UK’s departure from the European Union, jurisdiction in children’s cases is now governed by the Family Law Act 1986 and the 1996 Hague Convention. 

The Family Law Act 1986 has been described as a ‘thoroughly unsatisfactory statute’ It concerns only private law orders. Nor does the Children Act 1989 make any provision regarding jurisdiction for public law orders. This lack of statutory provision has been the subject of much discussion. The position prior to the UK joining the European Union was that where the Family Law Act was silent, the court was free to adopt such ‘territorial’ test for jurisdiction as seems most appropriate. However, this common law approach was then modified by (EC) Regulation 2201/2003 (Brussels IIa). The grandmother argued this represented a significant shift in international family law to a common jurisdictional framework premised on habitual residence, regardless of whether or not the other country is a Member State of the European Union, which survived the UK’s exit from the European Union. 

After Brexit, the courts then turned to the Hague Convention 1996, which was directly implemented in domestic law in 2020 by amendments made to the Civil Jurisdiction and Judges Act 1982. The intent behind the Convention, is to centralise jurisdiction in the authorities of the State of the child’s habitual residence and avoid the problems of competing authorities claiming concurrent jurisdiction.

The question then arose if the Hague Convention applied where the proceedings involve a non-contracting State, such as Tunisia as in H’s case.

The court noted that with regard to Brussells IIa  the Supreme Court had established that it applied in care proceedings, irrespective of whether the other country was  a Member State of the European. However, there was limited utility in considering the terms of other international Conventions, when each must be considered on its own terms and within the particular context in which it was agreed. 

A previous court decision involving a the non-contracting State of Gabon concluded that the Hague Convention would apply and in  H v R [2022] EWHC 1073 (Fam) Peel J appears to have accepted that it is the general jurisdictional provisions of Art 5 of the 1996 Hague Convention that will operate to determine whether England and Wales has jurisdiction in respect of a child who is in this jurisdiction notwithstanding the proceedings involving a non-Contracting State, in that case Libya. 

The relevant date for evaluation of habitual residence under Brussels IIa was the date on which the court is seized of proceedings. However, the Hague Convention does not specify the date on which the question of habitual residence falls to be considered. 

In re NH (1996 Child Protection Convention: Habitual Residence) [2016] 1 FCR 16 at [24], Cobb J expressed the obiter view that the relevant time was the date of the hearing as the principle of perpetuatio fori does not form part of the Convention – i.e. a change of habitual residence during proceedings leads to a change of jurisdiction. This makes it important that the question of habitual residence in such cases is determined swiftly, in order to avoid habitual residence being determined by mere effluxion of time over the course of protracted proceedings.”

Having heard extensive erudite and comprehensive submissions, the court was satisfied that 

  1. If H was habitually resident in England and Wales, the Hague Convention did provide the jurisdictional scheme to govern this case, even though Tunisia was a non contracting State
  2. If the Contracting State does not have, or loses, jurisdiction under Art 5(1) of the 1996 Convention, Art 5 ceases to apply and the national law of the Contracting State becomes operative. Therefore if H was not habitually resident in England and Wales, the court could rely on the common law test of her physical presence to justify an order
  3. The question of H’s habitual residence is to be determined at the date of the hearing. 

On behalf of the grandmother it was argued that it was no longer appropriate to argue that mere physical presence conferred jurisdiction – but the court was not willing to accept that ‘bold submission’. A particular object of the Hague Convention is that of the protection of the child and a residual common law jurisdiction with respect to public law proceedings based on presence is not incompatible with that object and, indeed, is consistent with it. 

The position of H demonstrated the point – if the court found in due course that she was not habitually resident in England and Wales, and the court could have no recourse to a residual jurisdiction based on presence, the court would be unable to make any substantive orders, notwithstanding that H had been in England for now over a year and has expressed a strong wish to stay. But it was vital to determine issues of habitual residence as soon as possible, in order to avoid establishing a habitual residence by mere effluxion of time. 

Parental alienation and the limits of the courts’ jurisdiction.

On 15th July 2022 the Court of Appeal agreed that a decision to refuse to allow the police to interview children,was wrongly decided. The court made an injunction prohibiting the police from interviewing two teenage children A and B without the judge’s express permission, unless they needed to determine if the children were at immediate risk of harm. The police appealed, saying the court did not have the power to make this injunction. The Court of Appeal held that a previous finding that the children were manipulated to make false allegations does not exclude the possibility that the recent allegations are credible, nor did that previous finding absolve the police from its responsibility to consider whether or not to investigate. The court had overreached its powers.

Background

This appeal came about in a very long running private law dispute, with at least four published judgments and a number of experts. Re A and B (Parental Alienation) at [2020] EWHC 3366 (Fam); [2021] EWHC 2601 (Fam); [2021] EWHC 2602 (Fam) and [2021] EWHC 2603 (Fam). The conclusion was that A and B could not remain living with their mother as they would suffer further serious emotional and psychological harm because she had alienated them from their father. The court ordered that A and B live with their father and they moved in November 2020.

Things did not go smoothly at the outset and the children ran away twice. However, then they appeared to be settled and happy in their father’s care until the summer of 2021. The family went on holiday to the USA whereupon B ran away, went to the police and made allegations against his father. The family then returned to the UK. Then on 15th October 2021 the children sent an email to A’s school to say that the father has ‘hit, choked and pushed’ them and that they lived ‘in a constant state of terror’.

The school notified the police who spoke to B, then aged 12 who confirmed the allegations but no injuries were seen. A had already gone to school but left and was reported as missing. The mother’s solicitors informed the father that the children would be seeking separate representation in court and had instructed a solicitor to whom they gave a detailed statement about their father’s abuse. The police and children’s services decided to conduct a joint investigation and went to B’s school. However, by 4.27pm the police were told that the father had been granted an injunction to prevent the interview.

The court order stated that the court was ‘satisfied’ the father had not abused the children and it was later amended to say that the police could speak to the children if they were at immediate risk of harm. The police objected, asserting that the court did not have the power to interfere with the operational decisions of the police to investigate criminal matters. The police made an application on 24th October 2021 to interview the children to assess whether there were allegations that required further criminal investigation. The father resisted. But the police did not seek to set aside the order in light of the court’s concerns about the emotional impact on A and B, instead asked for their application to be adjourned to provide further evidence. The police did not pursue that application.

On 15th December the father attended court ‘ex parte’ – without the attendance of any other party – and Ms Woodall, a therapist working with the children, gave evidence that A told her she had been repeatedly contacted by her mother via third parties and the mother instructed the children to make allegations against the father. The maternal grandparents were also involved. The court was very concerned to hear this and considered the children at ‘exceptional risk of significant harm’, reciting in the order that the mother should not be told in advance of a hearing listed in January 2022 and nor should the children attend school until after the hearing.

At the January hearing the court considered the existing police application to interview the children and ordered that the police should consider the report of Karen Woodall and then seek permission to withdraw its application. The police did not withdraw and the matter came back on 24 March 2022. The judge was clearly hostile to the police involvement, pointing out that other allegations made against the father had been found to be false. He refused the police application on the basis that the police had not taken into account the welfare interests of the children and he was ‘exceedingly’ worried about their well being, noting it was now 5 months since the allegations were made. He commented that the local authority were satisfied the children were safe and well – but it does not appear that the local authority spoke directly to A and B.

The Appeal

The police appealed on the basis that the judge overreached his otherwise extensive inherent jurisdiction and usurped the common law and/or statutory duties of the police in the detection, prevention, and prosecution of crime. The Court of Appeal were very unhappy with the ‘wholesale lack of discipline’ that then followed in preparing for the appeal to be heard and noted the ‘partisan slant’ of the mother’s skeleton argument which should not be ‘a vehicle for the pursuit of a partisan agenda in relation to other matters’. The father’s skeleton argument was not served until the morning of the hearing and did not deal with the issues at hand. Nor had there been original compliance with procedure when seeking the ex parte injunction – it seems the judge was not referred to the Practice Guidance (Family Courts: Without Notice Orders) [2017] 1 WLR 478. The police did not cite relevant authorities in October, to point out how ‘vanishingly rare’ are the circumstances in which a High Court Judge could make a prohibitory order against a public authority exercising statutory powers.

Analysis

The Court of Appeal agreed that in theory, the High Court has retained a parens patriae jurisdiction to prohibit a police officer from questioning the children. But exercise of that theoretical power must be seen in the light of a ‘considerable body of jurisprudence which has endured more than 40 years, conveniently summarised by Sir James Munby, President in A Ward of Court [2017] EWHC 1022 (Fam).’

The starting point are the words of Lord Scarman In re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791 at p 797:

“The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority. It matters not that the chosen public authority is one which acts administratively whereas the court, if seized by the same matter, would act judicially. If Parliament in an area of concern defined by statute (the area in this case being the care of children in need or trouble) prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or reviewing power over the merits of decisions taken administratively by the selected public authority.”

The Court of Appeal noted that the facts as found by the family court may be influential but do not bind another public body from exercising a power based on “altogether different considerations.” (See R v Secretary of State for Home Department ex parte T [1995] 1 FLR 292.)

The Court of Appeal stated

Whether it was fair to categorise the MPS as taking “no account” of the welfare best interests of A and B is not the subject of this appeal, but the judge’s subsequent comparison of “welfare best interests” as against “simply the broad duty upon the police to investigate crime…”(emphasis provided) is suggestive that the judge had lost sight of the “altogether different considerations” which fall within the remit of other public bodies. As it is, I find the order of 15 October 2021, (as amended), impermissibly interferes with an operational decision made by the MPS regarding the scope and manner of the criminal investigation to be conducted into the circumstances of the case.

A previous finding that the children were manipulated to make false allegations does not exclude the possibility that the recent allegations are credible, nor did that previous finding absolve the police from its responsibility to consider whether or not to investigate.

Comment

An article by Hannah Summers gives some more background detail

Ms Woodall was not criticised by either court, but the article notes

While the important appeal shines a light on the interplay of powers between the Family Division’s emphasis on child welfare and the statutory duties of public bodies, the wider case also raises questions as to the extent and use of court appointed psychological experts in cases where allegations of “parental alienation” are raised.

In documents submitted to the court for the 28 June hearing the Met’s advocates highlighted the role of Woodall, writing: “The concern is as to the appearance or otherwise of her independence and that too much emphasis has been given … to the report and opinions of Ms Woodall in respect of the police speaking to the children. She is seemingly playing a large role in the Metropolitan police Service being unable to even have a preliminary talk with the children.”

A skeleton argument supporting the appeal from the mother’s legal team outlined her concerns that Woodall’s recommendations are relied on by the court despite her not being registered with the regulatory body the Health and Care Professionals Council.

Of course, this case does not shed any light on whether or not ‘parental alienation’ exists but rather is added to the sadly ever growing pile of cases that highlight the dispute between those who claim to be a victim of it and those who claim that a parent who alleges ‘parental alienation’ is simply seeking to cloak their own abusive behaviour. I suggest that reading the 2020 judgment shows very clearly where the truth lies here. The frustration of the first Judge and his grave concerns for the children are well founded. However, those concerns did cause him to fall into error. The police should have spoken to the children.

And I suggest that public trust and confidence in these type of very difficult cases is not assisted by the continued reliance on experts who are not subject to any external regulation. I have previously written about the need for all such experts to be regulated, if only to give parents a route of complaint. But at this current time, the Family Court System has rejected that need. I think this is a mistake. It simply feeds into the narrative of some that ‘parental alienation’ does not exist or is promoted by charlatans to protect abusive fathers. Whereas those of us who represent mothers and fathers in private law disputes are very clear that parents can and do alienate their children from the other parent and that the consequences of this can be severe and life long. But all of us would benefit from knowing that the experts who opine on such serious cases, have agreed to submit themselves to external regulation. And that we have to carefully weigh the impact on children of being encouraged to speak about allegations that may be false – against the harm done by not allowing their voice to be heard at all.

The Care Review

We all know the care system isn’t working. Conference after conference, review after review over the last 20 years tells us so. In 2014 I helped to set up this website, over growing concerns from many lawyers, parents and social workers that the system just wasn’t working. In 2015 I organised the first of three multi disciplinary conferences in 2015, 2016 and 2018 examining why the current child protection system wasn’t fit for purpose.

In February 2016 I attended a conference about more humane social work practice and noted

What kind of society do we want? Is social work about ‘helping’ or ‘fixing’? What’s going wrong, and what can we do about it? The paradox is that we pump enormous amounts of resources into a system that doesn’t seem to be helping – in fact is often terrifying families. There is too much focus on a complex system that ‘investigates’ more than it helps.

A quick review of the posts on this website reveals myriad attempts to analyse and address the problems and suggest solutions since 2015.

In 2015 there was a ‘Solution Finding Conference’ at the Bristol Civil Justice Centre and I attended a conference in Finland to discuss the ‘leap to co-working’ between parents and professionals. I wrote that the system was in ‘continual crisis’.

In 2018 the Family Rights Group published the Care Crisis Review

In February 2020 the Westminster Legal Policy forum keynote seminar

In December 2020 came the report of the Family Justice Board with vague statements of intent such as

…the system needs to be ready to support all vulnerable children and adults who depend upon it, and the greatest need is to ensure that those who need support and safeguarding receive it at the right time. Where appropriate, pre-proceedings work and the extended family network should be used. The priority should be to renew existing good practice within the Public Law Outline and implement a system-wide leadership focus on practice improvement.

In March 2021 we had the President’s Public Law Working Group Report

So what does the latest Review recommend? How likely do I think it is that any recommendations will be implemented or have a positive impact?

The 2022 Review

The final report of the Independent Review of Children’s Social Care was published on 23 May 2022. There is an executive summary and a child friendly version.

There are over 70 recommendations including the creation of around 20 new ‘Regional Care Co-operatives’ or RCCs to run and set up new fostering services and commission services from other sectors. Ultimately the Review would like to see all children’s homes managed by the regional bodies. There is a further recommendation for the abolition of the role of the Independent Reviewing Officer.

The Review describes its remit as

…a once in a generation opportunity to reset children’s social care. What we need is a system that provides intensive help to families in crisis, acts decisively in response to abuse, unlocks the potential of wider family networks to raise children, puts lifelong loving relationships at the heart of the care system and lays the foundations for a good life for those who have been in care. What we have currently is a system increasingly skewed to crisis intervention, with outcomes for children that continue to be unacceptably poor and costs that continue to rise. For these reasons, a radical reset is now unavoidable.

Recommendations are made in ten areas

  • Helping families
  • Keeping children safe
  • Making good use of family networks
  • Adoption
  • Transforming care
  • Listening to children’s voices
  • Protecting care experienced people from stigma and discrimination
  • Moving on
  • Helping the workforce be the best it can be
  • Making sure the system is focused on children and families

The full report is 278 pages so I am going to comment here on just a few areas and recommendations I think are significant. A primary focus appears to be on recognising and supporting the child’s links to their family and communities. Those contributing to the review expressed the concern – with which I agree -that the system often seems intent on ‘assessing’ rather than helping and parents and children find this confusing and frightening.

There is a recommendation to make ‘care experience’ a protected characteristic in the Equality Act, which seems a good idea. I agree with the following assertion

The disadvantage faced by the care experienced community should be the civil rights issue of our time. Most children in care feel powerless, they are often invisible to society, and face some of the greatest inequalities that exist in England today. 

There is a recommendation for a new form of ‘Family Help’ which seems sensible, to replace ‘targeted early help’ or ‘child in need’ work.

The aim of Family Help should be to improve children’s lives by supporting the family unit and strengthening family relationships. This will help children to do well and keep families together, helping them to provide the safe, caring environments that children need. 

If concerns escalate, despite the intervention of Family Help an “Expert Child Protection Practitioner” will start to work alongside the Family Help Worker, to provide continuity and to hopefully enable parents to find the process fairer and more understandable.

There is increased focus on maintaining the child’s relationships with wider family. While I agree that the first step should always be to investigate what help the wider family can provide – indeed, this is a statutory requirement, I did find this comment odd

Currently there isn’t enough time spent identifying family members who, with the right support, could either provide full time care, or share care with a child’s parents, whilst the parents work through resolving the problems they’re facing.

That isn’t my experience in court at all – quite the reverse. In all my care cases considerable time is spent on viability assessments of various relatives. It is common for final hearings to be delayed due to the late arrival of a family member. Of course, the Review is looking at how to avoid care proceedings and I assume that this comment is directed at work done prior to the application to court. But my experiences in the court process do show that in the majority of cases where I am instructed, family hep and support is patchy at best – or at worst it was the parents’ experience of growing up within their own abusive families that have left them unable to recognise and implement any template of good parenting. The answer to the current crisis cannot simply be to assume that family ties conquer all. And ‘the right support’ is doing a lot of heavy lifting here. What is this ‘right support’ and how much will it cost?

A system that is ‘relentlessly focused on children and families’ – as the Review wants it to be – will still have to grapple with the fact that some children face the most serious risks of harm from their own families. This problem of ‘two hats’ in the child protection system will remain; helping to support a family while at the same time gathering evidence about why the family isn’t safe. This is a constant and damaging tension and I think needs more explicit recognition than this Review is willing to give.

Why am I cynical?

I have absolutely no doubt that the Review correctly identifies the problems inherent in the vast expense of care proceedings, which usually come far too late to help cement any positive change and that it makes more sense to spend this money on helping families before they get to care proceedings and supporting familial ties of love and affection. I agree with this comment from the Executive Summary

Without a dramatic whole system reset, outcomes for children and families will remain stubbornly poor and by this time next decade there will be approaching 100,000 children in care (up from 80,000 today) and a flawed system will cost over £15 billion per year (up from £10 billion now).1 Together, the changes we recommend will shift these trends and would mean 30,000 more children living safely and thriving with their families by 2032 compared to the current trajectory.

But to get the new systems approach up and running is going to require a considerable initial cash injection and the returns on this investment may not be seen for many years. The State will have to continue providing a framework of legal support for those parents who face the removal of their children.

The Review suggests the Government should invest £2 billion now “to make Family Help a reality for families now and to keep supporting families in the future.” More training is needed for social workers and other professionals. That is broken down

….achieving this whole system reform programme will require £2.6 billion of new spending over four years, comprising £46 million in year one, £987 million in year two, £1.257 billion in year three and £233 million in year four.

The Review recognises the current crisis in foster care by calling for a drive to recruit 9,000 more foster carers. All of these once recruited, will need to be paid.

I am afraid I think that a cash injection of £2 billion is never going to happen. In the next few years we will see another child protection scandal, where a child is killed, and the cries will start up again about useless social workers and their incompetence and how children at risk should just be removed as soon as possible. We get the child protection systems we are prepared to fund and the quality of social workers we are prepared to respect.

The Review suggests that some of this funding will come from “a one-off payment from the following people to cover the cost of changing the care system: the largest private children’s home providers and large independent fostering agencies. This payment will be based on the profit they have made from children’s social care.”

I am ignorant as to how this will work in practice, how such a levy will be organised or profit calculated and how much money all that will cost. I assume legislation will be needed. Handing over child protection to private profit making agencies was not something that happened without the Government’s knowledge -it was done with their full connivance, in the continuing hopeless and naive (corrupt?) view of many politicians that the private sector is necessarily lean and efficient, rather than focused on profit for a few individuals.

Without doubt the Review is correct to focus on making child protection work well – to make the right decisions at the right time about when investigation is necessary, where support would be the best way to keep children safe, and where a child needs to come into care so that they are safe. 

But Social Work is at its foundation about relationships. This is explicitly recognised by the Review

This means giving professionals the time and resources they need to build strong, respectful relationships with children and families.

Relationships take time and skill to build. The Family Help Workers and ‘Expert Child Protection Practitioners’ will not work for free. And to do their jobs effectively they will need time to do them. Making rules about when agency workers can be appointed, is not addressing the reasons why so many expensive agency workers are relied upon – because so many social workers are off work, burnt out from stress.

The current massive strain on the existing system, where social workers routinely have to juggle case loads way in excess of recommended safe levels, suggests to me that – and sadly – this review will join all the others that float about the internet in ghostly recrimination of us all. We have all known for decades what is going wrong. But there seems very little political will and certainly no public money to fix it. As ever, I will delighted to be proved wrong.

Further reading

Commentary from Article 39 – which sounds a note of caution

“There are thousands of children in care who are living in unregulated properties where there aren’t any carers or consistent adult supervision. Children are being sent hundreds of miles away from their communities to Scotland, and the family courts are inundated with stories of desperately vulnerable children and local authorities who have nowhere for them to go. Children who arrive in the UK on flimsy boats, without parents or carers, are being put by the Home Office into hotels because the care system has been closed to them. In every part of England, our communities have adults in them still struggling to come to terms with childhoods where they didn’t feel loved or that they mattered, and a care system which left them to fend for themselves at the earliest opportunity. The care system, like many other collective endeavours in our country, has been undermined and starved of public funds.

“Against this backdrop, it is heart-sinking that the care review’s principal recommendations are for major structural reorganisation, which will, for years, consume many millions of pounds and the hearts and minds of people who could instead be leading cultural change to put children and their rights at the heart of everything. It is depressing that, yet again, there are proposals to take away legal protections from children, and that the promise of strengthened advocacy services, which exist to make sure children are always heard and their rights defended, has been tied to the loss of other independent roles.

“The review is rightly passionate about the need for fundamental change, and sets out a powerful case for it. There are individual proposals within the review’s report which have the potential to make life hugely better for children in care, particularly for those children whose families can be properly supported to look after them well. But this will be a review remembered for the structural reorganisation of children’s social care, moving people, services, power and funding away from local authorities. At any time, this kind of major structural upheaval would be questionable. When there are children in the care of the state who are living in hotels, bedsits and caravans, it could be an unforgivable distraction.”

Statement from the Children’s Society

Statement from Pause

Patrick Butler in the Guardian

Book review: Sexy but Psycho

This is a review from a contributor who wishes to remain anonymous. The issue of how female victims of domestic abuse are treated in the family justice system is a controversial one. My experiences as a lawyer in the system over 20 years does not support the narrative that I often hear from others, that women’s experiences of violence and abuse are dismissed or actively turned against them. But what is equally clear is that many disagree with me. I am still not clear how we square this circle. Either I am a victim myself of a misogynistic system and simply cannot see the truth as it is played out – or there is a degree of exaggeration by the system’s critics. Presumably the truth, as ever, lies somewhere in between. I cannot deny the number of women who feel very strongly that something is going very badly wrong; here one women gives her history to explain why. I can’t dismiss something simply because it does not chime with my experience or belief – but it is a matter of continuing curiosity and worry to me, how big the gap can be between mine and other women’s experiences.

Sarah Phillimore

“She’s mental “ is currently being played out both in court and in the media in the Heard versus Depp defamation case. What is happening under the gaze of the world, could have been a case study in Dr Jessica Talyor’s latest book.

Amber Heard has been evaluated by the defendant’s witness to have two personality disorders . This is a common diagnosis in family law cases, where there are allegations of intimate partner violence.

The blurb on Sexy but Psycho proclaims “ Angry , opinionated,mouthy,aggressive,hysterical, mad …. Why are women and girls who report violence against them so likely to be diagnosed with personality disorders ? Why are women and girls pathologised for being angry about oppression and abuse ”  Dr Taylor argues ( yes she is angry ) that women are classified by the psychiatric profession as mentally unwell when they in fact are having a normal stress response to trauma. She delves into the historical context, women who did not play the game being labelled as witches or locked up in institutions. Any protesting was seen as further evidence of mental illness. Little girls and grown women it seemed were in the words of the nursery rhyme supposed to be made of “ sugar and spice and all things nice” – woe betide them if they stepped over the line.

The Heard-Depp case proves that this is not just historical, it is happening today. The book includes a chapter titled “ Pathologising women and children in the courtroom” , which starts with the case study of a young mother labeled with emotionally unstable personality disorder and depression after being abused and raped by her partner. He then used the label against her in the courtroom. This may be familiar to many. The woman continued to be labelled for years afterwards as unstable, without the violence she had been a victim of being recorded in her files as well.

I eagerly awaited this book and it did not disappoint. I too, was labelled with a personality disorder by a court appointed psychiatrist after years of intimate partner violence, ignored by the authorities the times I asked for help. I had no previous mental disorders or addictions. The NHS could find nothing to treat when I referred myself to mental health services. My daughters were placed under a care order with my abusive ex partner; his previous offending was ignored.  I was told that my condition was not treatable by the court expert in the timescale for the children. It was unbelievably surreal, but sadly, is not unique. 

Dr Taylor demonstrates that the system is unwell rather than the women.It is misogynistic, created by men to control women. Despite so-called equal rights it still does so. She sets out a plan to change , starting with psychiatric services pathologising and medicating trauma victims. She wants to remove funding from pharmaceutical companies and instead invest that funding in free trauma treatment. She advocates for training for all professionals dealing with women , to understand why the woman may be presenting as she is, a frightened person rather than an unstable person out for revenge /attention …..

Medical transition of children – where now?

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

DETERMINATION ON THE FACTS – 22/04/2022 

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

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

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

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

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

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

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

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

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

I would like to not have boobs;

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

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

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

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

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

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

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

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

Suggested way forward

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

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

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

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

Background 

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

The GMC case against Dr Webberley was essentially:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The most astonishing assertion of the Tribunal is at para 111

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

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

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

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

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

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

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

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

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

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

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

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

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

‘Hi,

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

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

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

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

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

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

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

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

Further reading

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

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

Abuse and findings of fact

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

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

The case was about whether or not the findings of fact made by the District Judge should be over turned. On the first appeal, the findings were upheld but the Court of Appeal gave permission for the father to re-argue his grounds. Briefly, the father submitted that the District Judge had not considered his case that the mother had alienated the children and the findings made of rape, coercive and controlling behaviour and physical abuse of the children are unsound. The mother argued that there was a high threshold needed to over turn findings of fact, and it had not been reached in this case.

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

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

Non- court dispute resolution

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

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

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

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

The Judge has to consider this question carefully. The Court of Appeal relied on the ‘key guidance’ from Re H-N, including para 139:

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

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

The Court of Appeal were crystal clear at para 65

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

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

Concluding remarks

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

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

Time for Climate Change in the Family Justice System

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

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

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

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

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

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

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

Language is critical part of any reframing. Helen queried the use of ‘Family Justice System’ – If that is what is said on the tin, that is what people expect, to play out rights and wrongs, to ‘win’ or to exact retribution. David Norgrove said our system is about ‘least worst outcomes’. If we renamed the FJS as ‘least worst outcome system’ would so many people want to go through it? If we don’t want families to go to war, we need to offer them something else. 

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

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

Then we heard about recent research regarding ‘Profile of parents within the Family Court’ from Dr Linda Cusworth and Jude Eyre, Associate Director of the Nuffield Family Justice Observatory. The research indicated the heightened vulnerability of adults in private law proceedings in the year preceding the court action, i.e. it was not going to court that initiated the problems. Parents in private law proceedings had higher rates of mental health distress, including anxiety and depression when compared to the general population. There were higher rates of self harm and exposure to domestic abuse as either victim or perpetrator.

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

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

Some comments

It’s impossible to disagree with anything that was said by the speakers. The adversarial system is clearly the last place any stressed and anxious parents need to be. Cases that drag on for years – as many do – are clearly going to cause children life long emotional damage. We can all see how easily and quickly situations become polarised and how the children suffer the most when caught in the middle.

All the speakers appeared to have arrived at the same solution – we must identify better solutions for families than simply funnelling them through an adversarial system which appears to achieve little and does it very slowly. But equally, all noted that the barriers to such triage are significant. To be blunt, there is often very little on offer or it requires significant financial resources to obtain. The money wasted on a bloated adversarial court system could be redirected to provide more focused and effective interventions – but it’s going to require a political will and co-ordination that I frankly do not think I will see in my lifetime. The Children Act 1989 was the last great piece of legislation to reform a fragmented system within 30 years, that crossed political lines and united everyone.

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

But what is also essential is recognising the powerful statement of the women who said the family courts saved her life. The elephant in the room is the 10% of estimated cases that will be impervious to mediation, support or ‘re-framing’ – those cases which involve men and women who are truly damaged and dangerous and who require a robust court structure to minimise the harm they do. I welcome the proposals for more effective triage – just so long as we do retain the option for judicial control over those cases which need it.

Further Reading

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

The purpose of the pilot is set out at para 2.1

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

Transparency as a way to correct a false narrative

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Neutral Citation Number: [2021] EWCA Civ 448

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

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

Summary of guidance

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

Do we need a finding of fact hearing?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judge commented at para 120 

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

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

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

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

b)        What is the likelihood of it arising?

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

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

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

f)         Is the outcome proposed proportionate?

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

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

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

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

d)             possible motivations for making allegations;

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

His last comment at para 139 is interesting 

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

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

The following special measures were therefore put in place

a) separate waiting areas were arranged for the mother;

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

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

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

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

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

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

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

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

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

Further reading

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