Author Archives: Sarah Phillimore

The woeful state of our debate; when facts just don’t matter anymore

This is a post by Sarah Phillimore

I feel like I am caught on a constant hamster wheel of the same problems and the same criticisms. Nothing seems to change or get any better. Rather, it gets much, much worse as now we see actual Government departments being drawn into an Inquiry on what I fear is a false premise.

So what’s the latest update at the coal face of the dispiriting Mine of Fact lite Narrative?

I have written before about my disquiet over the narrative that appears to be gaining traction in the ‘debate’ about the Family Justice System (FJS). The influence of those pushing the notion that the FJS exists as a tool of misogynistic oppression, and that judges are simply ignorant or uncaring around issues of violence and abuse, has apparently been taken up wholesale by the Ministry of Justice with its 3 month ‘Inquiry’ recently announced. I have also written about this in critical terms; pointing that 3 months is barely long enough to arrange the first meeting and decide the terms of reference.

However, I was initially hearted to see the MP Louise Haigh, one of those who had pressed for the Inquiry, apparently acknowledge via Twitter the true scope of the difficulties.

Cuts to legal aid and soaring complex caseloads for dedicated social workers are all part of a family courts system under incredible pressure,” she wrote. “There needs to be the political will and resource to fix the structural problems in order to keep our children safe.”

However, this optimism was short lived. It soon became clear that the Panel chosen to undertake this Inquiry came from a narrow group and arguably fails to reflect the sheer weight of the competing perspectives and issues that come together to challenge our FJS.

The Ministry of Justice said this about the Panel on May 21st

The three-month project aims to ensure that the family court works first and foremost in the explicit interests of the child, such as their safety, health and well-being. The MOJ-chaired panel will consist of a range of experts including senior members of the judiciary, leading academics and charities.

And – rather worryingly, as the MoJ are apparently silent about how they are going to ‘fact check’ or reassure themselves of the credibility of any complainants:

A public call for evidence will also be launched imminently and will look to those with direct involvement to share their experiences.

The panel was then announced as

  • Melissa Case & Nicola Hewer, Director of Family and Criminal Justice Policy, MOJ (Chair)
  • Professor Liz Trinder, University of Exeter
  • Professor Rosemary Hunter FAcSS, University of Kent
  • Professor Mandy Burton, University of Leicester
  • Mr Justice Stephen Cobb, Judiciary
  • District Judge Katherine Suh, Judiciary
  • Nicki Norman, Acting Co-Chief Executive, Women’s Aid
  • Dierdre Fottrell QC & Lorraine Cavanagh QC (joint representatives), Association of Lawyers for Children
  • Isabelle Trowler, Chief Social Worker for England (Children & Families)

The panel will also be supported by analysts, researchers and relevant policy officials from MOJ.

This is a list of the great and good indeed. But what is immediately apparent is that it contains only one man – Mr Justice Cobb. Women’s Aid get a representative but no charity or organisation that exists to support men within the system is represented. How is this right? How does this encourage faith in the Inquiry to look with the necessary impartiality at the various issues that bedevil the system? Women’s Aid for example have been shown repeatedly to present unhelpful and inaccurate information in pursuit of their agenda.

Why wasn’t a group such as Families Need Fathers approached (I asked them; they weren’t). The dangers of approaching a problem from one perspective only should not really need pointing out. I have already commented about my real unease that women such as Victoria Haigh are being promoted and supported by  ‘those prominent in the domestic violence sector’.  This is not a men versus women issue – both sexes are capable of horrible cruelty and unkindness towards each other and their children. This has to be recognised and accepted before it can be dealt with.

My misery increased when I read a guest post published by the Transparency Project by barrister Charlotte Proudman. It was a piece published without comment or context – simply saying that ‘other pieces were in the pipeline’. I commented directly that I thought this was irresponsible given that Ms Proudman appeared to be making some very serious assertions about the failings of the judiciary to deal properly or at all with issues of domestic violence in the FJS and yet provided nothing by way of any evidence to support these  worrying claims – that did not chime with any of the barristers who commented via social media.

Nor was unease confined to the lawyers.

 

No one gets a free pass

I am glad to see the Transparency Project published a response on 6th July to the unease that this post generated, but remain sorry that such comment was not made at the time. To publish initially Ms Proudman’s post, without comment or context, that made such frankly incredible claims, risks appearing like endorsement.

I am also concerned to see it said by the Transparency Project in their response that people objected to the post because they didn’t ‘like’ what was said or were using their own anecdotal experience as somehow superior to Ms Proudman’s.

My concerns are not about shutting up people who don’t agree with me. But if people are making incredible assertions, that chime not at all with my experience, then I do not think it is unreasonable to ask that the person making the assertion support it with some evidence and that their views not simply be published without comment or context.

This is far too important an area to be decided by any individual’s ‘feelings’ or inherent prejudice or assumptions. I am glad that the Transparency Project does not wish to ‘play it safe’ and will continue to publish a variety of views – but no one should get a free pass about the need for evidence.

I remember hearing Dan Levitin, author of ‘A field Guide to Lies’  speak at the Bristol Festival of Ideas in 2017. He told us we have a moral obligation to check our assumptions and challenge our colleagues. I wrote then and believe still:

The key message from Dan Levitin was that we must ALL take personal responsibility for educating ourselves to think critically and challenge people that we know are pushing misinformation. We cannot discuss issues sensibly or at all unless we are able to agree on what the ‘facts’ are. There are no ‘alternative facts’ only ‘facts’. But peoples’ beliefs about what is or is not a fact can shift over time.

The consequences of the degraded respect for ‘facts’ and ‘experts’ are all around us. Challenges to the FJS need to be based on proper data, properly analysed. The consequences if it is not are very serious. I am afraid the constitution of the Panel for the Inquiry and the continued promotion of incredible assertions on no evidence, gives me very little confidence that one inherently skewed narrative is going to be challenged sufficiently or at all.

But we shall see. I hope I am wrong.

The NSPCC and child protection – what I learned this month about speaking up

I started this website with the help of Mumsnet users in 2014. I thought it would be a good way to address some of the misinformation on offer about care proceedings and child protection in England and Wales.  The website analytics seem to bear that out – so far in 2019 (from Jan 1st until June 23rd 2019) the site has 202,170 users, about 34,000 every month.

Child protection seems to be an ever green topic of difficulty for many. I will restate it in the simplest terms I can.

  • A child is defined as a person aged 0-18.
  • The majority of children under 12 are unlikely to be considered ‘Gillick competent’ to make important decisions about their own lives.
  • We have a difficult and grey area around 13-16 where children may well as individuals have greater capacity than the law allows them. But we have to draw a line somewhere.
  • And for children, sex and the criminal law, that line is firmly set at 13 years.  See the Sexual Offences Act 2003. A child under 13 cannot consent to sex. It is rape.

I therefore consider myself on firm ground to say that the vast majority of children under 12 neither want nor need exposure to adult sexuality. It is important that they are allowed the time and space to develop their own identities and their own sexual preferences; free of the coercion or manipulation of an adult. And once they cross that threshold into adulthood they should be free to live and love as they wish, according to the boundaries of the existing laws. Sexual activities between consenting adults is none of my business or concern.

What I have witnessed developing over the last year or so has caused me increasing concern about the extent to which groups of adult men wish to re-frame the discussion about the sexuality of children. And the extent to which they are often coy about stating exactly how they define ‘a child’. The difference between a 9 year old and a 16 year old is vast and in every domain; physical, sexual, social.

Their scripts should not be written for them by adults who have a particular drum to beat – I have already written, for example, at my deep unease about how a High Court Judge dealt with a 3 year old ‘transitioning’.

(as an interesting aside I found myself subject to a recent actual blackmail attempt by the pro-paedophile organisation Prostasia after querying why they had a man involved in their organisation who had been arrested in 2012 for sexual contact with a child under 13. The rage of thwarted male entitlement is strong indeed.)

My concerns finally reached their zenith on June 12th 2019. Idly scrolling through my Twitter feed I noted that a number of people had raised concerns with the NSPCC over allegations that one of their employees had come to work dressed in his rubber fetish gear, masturbated in the toilets at work, filmed it and published on the world wide web. The response of the NSPCC was – via their public twitter feed – to call those who raised concerns ‘bullies’ and asked people to report them. Various high profile Twitter users followed suit, calling them ‘homophobes’ – as apparently the employee in question is a gay man.

I wrote the following email to the NSPCC

https://twitter.com/SVPhillimore/status/1139186612506714112

The text of the email is here:

I write using my Chambers email address so that you are able to reassure yourself as to my identity and my interest in/knowledge of child protection law and safeguarding policies. I have been a specialist family law barrister since 1999. I have copied my MP Michelle Donelan into this email given the level of my concerns.

On the evening of 12th June 2019 I became aware via the social media site ‘Twitter’ of an allegation that a member of your staff had engaged in sexual activity on NSPCC premises, had filmed himself engaged in this activity and published that recording to the internet, making it clear that he was filming himself on NSPCC premises. I then further noted that when members of the public attempted to alert you to this via Twitter, your response via your public Twitter feed was to describe this as ‘homophobia’, and to suggest any such tweets should be reported as in breach of the Twitter terms of service as ‘bullying’.

On the morning of June 13th 2019 I therefore published a tweet, including the Twitter handle of your organisation, asking your organisation to make it clear what investigations you proposed into this allegation. I am well aware that social media is frequently used irresponsibly by some to make malicious and false allegations and I certainly want to play no part in dissemination of false information. However, I assume that if the allegation about your member of staff was in fact malicious or otherwise false, you would be able to respond quickly to reassure the public. That you have not done so, causes me considerable concern.

This allegation, if true, represents unboundaried and actively dangerous behaviour. It would be unacceptable in any workplace, but is even more alarming in the context of your charitable status and significant statutory powers in the field of child protection. The public is entitled to know what your response is to such a serious allegation.

I asked for a reply by 4pm today and have heard nothing.

Please therefore would you respond to me by 4pm on Friday 14th June. If you are unable by then to reassure me that either this allegation is false or that you are taking urgent steps to investigate, I will refer this matter on to the Charities Commission without further reference to you.

Regards
SP

I received no response to this email other than some cut and paste job sent at 16.05 on 14th June, by which time I had already made a referral to the Charities Commission. [EDIT – this should read ‘Charity Commission’]

I was then contacted by the Sunday Times and a news agency, neither of which reported on this – I was told by the news agency that ‘no paper would touch this’. I expressed frustration and concern about this – why? why would no paper report on this? It is a clear and obvious matter of public interest that a charity set up to safeguard children would attempt publicly to shame people who had attempted to bring serious allegations to their attention.

A week after that, I offer grateful thanks to Roll on Friday, The Sunday Mirror and Mumsnet users who seemed to be the only ones prepared to recognise and report upon a matter of public interest.

I note with increasing concern that matters appear to be continuing along the same path of seriousness; that the NSPCC appears to see itself as an organisation geared to the promotion and protection of the sexuality of adult men. On every metric of which I am aware, adult men are those who pose the biggest risk of sexual harm to children.  The most recent news is that the NSPCC are apparently subject to a variety of ‘conditions’ before they will be ‘allowed’ to take part in London Pride.

https://twitter.com/SVPhillimore/status/1143762521280700416

 

Where now?

Imagine if I said as a disabled woman – you may not criticise my behaviour. If you do I will call you ‘disablist’ – I will try and get you sacked etc, etc. That would obviously be ridiculous. Disabled people are people after all; we aren’t saints. Exactly the same argument applies to those who identify as gay or trans or any thing else. No one is above scrutiny. No one can use their identify as part of a minority, persecuted or not, to shut down legitimate concern about their activities. To allow this will be to put children at serious risk of harm from those predatory adults who will claim membership of particular groups to evade scrutiny. We must speak up against this.

The Charities Commission request 30 days for a response. On 15th July I will consider that response, or lack thereof.  If I am not satisfied that they and the NSPCC understand the seriousness of this situation I will raise money via the Crowdjustice web site to investigate what legal action is possible.

I hope very much that the response I get will reassure me – and the many others who complained – that the NSPCC does understand its charitable objectives and guiding principles and it will never, ever, again attempt to shame or dissuade people from raising concerns if it appears to be acting in breach of those.

IIf you are or if you know of a lawyer with specialist knowledge in charities, regulatory law or judicial review, do please get in touch. My next steps must be to identify specialist lawyers who would be willing to take on a legal action via funding from Crowd Justice.

I will update this post on July 15th 2019.

 

 

EDIT JULY 27th

I am pleased to note that the NSPCC did contact me on July 15th to say that they had referred themselves to the Charity Commission, recognising that this was a serious incident. I have yet to hear back from the Charity Commission itself and will chase them for information in September.

Why I no longer support opening up the family courts

This is a post by Sarah Phillimore

Yesterday I was told that a published judgment in a family case had been the subject of an article in a tabloid newspaper. I am not going to link to either the case or the article for reasons which I hope will become very clear. But if anyone doubts the veracity of what I am saying, contact me and I will share the links with you privately.

The article was the usual tabloid fodder. No discussion of the wider issues examined by the judgment, no recognition of the work done by parents, the social workers, or the court. It read to me simply as an exercise in slut shaming. Given the level of detail about the services the parents had been offered it was apparently easy for people in their locality to know who they are. The parents, I am told and understandably – are distraught.

I had an email discussion with a journalist about this. I haven’t asked their permission to repeat their emails so I don’t. But you will get a flavour of the conversation from mine:

This is why transparency will stall as journalists are so irresponsible….

Really? You didn’t notice even a whiff of slut shaming in their approach? It is this kind of thing that will slam door shut on transparency. Journalists have to step up…

OK but the door to transparency remains firmly shut – this is why. Again the excuse that journalists only hold mirror up to society, rarely any recognition of or responsibility taken for how your profession feeds that. A great shame. The mother is distraught. That is a whole group of lawyers who won’t be supporting the next publication of a judgment and I too am wavering.

The damage done by journalists over the death of Peter Connelly is with us still. They continue to compound this damage as for example we see with the reporting of Andrew Norfolk over the ‘Muslim Foster carers’ case. Time and time again I see gleeful reporting of women who have had children removed as just some kind of shameful baby making machines. But these are real people – with real children.

It is just not good enough to say that journalists are ‘just giving the public what they want’. Journalists need to accept that they are also responsible for encouraging and feeding this – going to ever more lurid extremes in their reporting to secure readership and comment.

I have always been wary about whether or not we have the journalists we need to report on sensitive family matters. I have decided now that we do not. I remain very grateful for the efforts of Tortoise media to provide more detailed coverage of these important issues but my fear is that they will always be overshadowed and overwhelmed by the tsunami of nasty, prurient baiting that comes from the majority of the press.

I am still glad I played a small part in Louise Tickle’s victory in the Court of Appeal to challenge an unlawful Reporting Restrictions Order, and that it will lead to a greater discussion about transparency. What she revealed about the nature and extent to which lawyers either understood or applied the law was frightening – the expensive administrative labyrinth she entered into merely to make an appeal, even more so. I will continue to admire and pay tribute to the courage and tenacity she showed to do the right thing.

But should anyone care to ask for my views in the forthcoming Transparency Review then they will be as set out above. I sadly don’t think the majority of our journalists have the will or the ability to report on family matters in any other way than sensationalised click bait. And this hurts people. It doesn’t ‘shine a light’ on the system or increase public understanding. Its just the 2019 equivalent of the stocks or the ducking stool.

I will not support further opening up of the family courts. I will no longer support the pain and misery of my parent clients being offered up for public entertainment. I will no longer agree to the publication of any judgment in a case where I act, unless and until I can see some recognition from our Fourth Estate of the power they wield, and the harm they do.

What can we do to help parents understand and participate in care proceedings?

This is a post by Sarah Phillimore.

Imagine you have landed on an alien planet. The locals speak a completely different language. Their customs and culture are completely different to anything you know. There is no one available to translate for you. No one to explain. What happens?

Since starting this site in 2014 I have become more and more aware that many parents simply do not understand what is going on in care proceedings. Sadly, this group often comprises my own clients; after I have patted myself on the back about my great skills at establishing rapport and explaining things in simple terms, it becomes clear a few weeks or months later that they didn’t really understand at all. And by then it is often too late.

This was brought home to me with particular force recently. I was asked by a parent to look at the final judgment in her case and advise her if there was any way at all she could resist the making of an adoption order. With a terrible poignancy she sent me photographs of each page of the final judgment, laid out on her floor. The pages were in random order; some were missing. She clearly had no understanding at all of what had gone on.  She emailed me:

I wish I did right, from the beginning. But I guess it’s to late for me. My sw called me in today, to say they found a family for E, breaks my heart. To even hear her say that. I just dont know what I can do. I probably, will just have to accept it, and concentrate on my two kids who’s also placed in long-term care. Thank you so so much I appreciate your time. I’m sorry if somethings i wrote didnt make sense. English is not my first language and I do struggle with this.

In the narrative of many parents, often their lawyer is entirely absent. The social worker is afforded a God like power to make all decisions.

Quite rightly as a society we endorse non-means non-merits tested legal aid for parents in care proceedings – but without some kind of bridge between parents and their lawyers, is this a benefit that we are squandering? I do not think this lack of understanding comes about because parents are stupid – but mainly because they are afraid and confused. Language barriers of course, do not help but these problems of lack of understanding are not restricted to those who do not have English as a first language.

We know advocates for parents can help – David Tobis has shown how it works in the USA. There are also pockets of good work around the country  – see what New Beginnings are doing and individuals such as Surviving Safeguarding – but the lack of nationwide standards means that there are many dangerous people and organisations who purport to ‘help and advise’ very vulnerable parents.

I asked another parent for her views about the benefits of advocacy in child protection cases and her post is below.  It is clearly not only the relationships with lawyers that parents need help with.

Advocacy in Child Protection Interventions – guest post from a parent

Imagine you have landed on an alien planet. The locals speak a completely different language. Their customs and culture are completely different to anything you know. There is no one available to translate for you. No one to explain. What happens? You find yourself stumbling along, learning only by experience, by trial and error. Even if you do happen upon someone who does speak your language, they are incredibly busy and have little time to truly sit down with you. Time goes on and you do your best to muddle along but make mistakes in the form of misinterpreting or being unable to make your communication clear. You attempt to use their customs and communication styles but because you don’t have the cypher to the code they speak in your attempts are often misinterpreted, or even ignored because they simply don’t have the time to move at your pace. Wouldn’t it be incredibly useful if there was someone to act as a bridge and help you to understand better?

I am the mother of two children. One whom I have not seen and spoken to in nearly two years, the other who lives with me for a substantial amount of each week. There was a time when all three of us lived together, unfortunately that came to an end when I experienced a crisis. I had experienced domestic abuse, the result of which left my ex-partner with a conviction. I had experienced his wrath in the subsequent months leading from his arrest and conviction in the form of family court proceedings I weathered the storm, fought nearly 12 months through court, moved areas and tried my best to continue as a single mother of a child with a disability and a toddler. I had no family support. It would be wrong of me to say that I sailed through the whole process because things like this take its toll and with the best will in the world, co-parenting with someone who holds a grudge and who has made it very clear that they believe you are an incompetent parent is no easy task.

I asked for support, for a carer’s assessment so I could have a modicum of time to myself, to regroup and recharge, unfortunately that assessment was not forthcoming and a few short months later I reached crisis point. At that point social services became heavily involved and I was shoved onto what felt very much like a conveyer belt moving at great speed the controls for which were written in a foreign language.

My children’s case has been closed to my local authority now for a little over 6 months. I however am left with many questions, the result of which has led to an ongoing complaint. I am 18 months into that complaint with no resolution in sight. In an attempt to understand and find answers I have taken to Twitter and much online reading and have come to an understanding that there are many parents out there who simply do not understand the process they have gone through, have lingering doubts they were treated fairly and want answers. I count myself as one of those parents.

There seems to be a common theme amongst those of us who talk online, and also from many professionals (social workers, adopters, foster carers, barristers) who also spend their free time sharing their views, practices and experiences within the child protections system: parents are frequently not adequately supported.

This is where good advocacy could help. A good advocate tasked solely with the job of understanding you and your ‘planet’ whilst having plenty of knowledge of the ‘planet’ you find yourself on and finding a way to help you, and the ‘locals’ navigate your way through. Time would not be wasted. Misunderstandings may not happen, and if they did they could be cleared up. All the while keeping the goal at the centre of the process: safe and happy children. This is the position parents potentially find themselves in when they enter the planet of child protection. Parents and social workers often want the same things: for the children at the centre to be safe, to thrive, to be happy. A common goal. It was certainly my goal. Unfortunately somehow, and I take responsibility in this for I am not the best communicator when afraid and feeling very much alone, it was a goal that seemed to become lost amongst much alien talk of me being ‘disengaged’, ‘mentally unwell’, ‘abusive’, ‘neglectful’, ‘unaware’, ‘robotic’, ‘alcohol dependant ’etc etc etc.

From a purely personal point of view, I struggle to assimilate and understand lots of information at once unless I can refer back to it. I asked repeatedly if I could communicate via email (except in meetings of course). These requests were largely ignored. I took to initially politely emailing LA employees with questions or clarifications of my understanding. I sent information I had gathered over the years to refute some of the claims that were being made of me. I was also aware though that social workers have huge caseloads – I was frightened of annoying them, or of coming across as ‘unhinged’ – this is a left-over of years of dv.

It was only after a I had met someone now close to me who just happened to work within the system that I realised I should have continued to keep pressing my point home, I should have continued to ask questions – by that time the damage had already been done. I did manage to assert myself enough to now have a meaningful relationship with my youngest child, but my eldest is not lost not only to me but also to their sibling. Things could have been so different. A good advocate would have spoken up, would have helped me understand, would have helped point out the poor process that was taking place (and it was poor – that is becoming more evident). Very little of what I experienced could truly be seen as ‘child centred’ – and much of that, I now firmly believe, was because there was not someone who could help me to see into the culture of the alien planet I was on and could help the ‘locals’ see me rather than the preconceived ideas they had of me based on my inability (within the child protection arena, since, whether intended or not, the treatment I received was unfortunately quite similar to the tactics of my abusers, and probably unbeknownst to the social workers involved, only served to silence me) to advocate for myself and my children.

What is the evidence base for orders about indirect contact?

This is an article by Sarah Phillimore and Families Need Fathers. It was first published in the May edition of the Family Law Journal and is reproduced here with acknowledgment and thanks

Indirect contact: on what basis do such orders promote the welfare of children?

This article examines the evidential basis supporting orders for indirect contact to provide a mechanism whereby direct contact may at some point resume. The authors are concerned that this ‘wait and see’ strategy at best achieves nothing and at worst is actively harmful. They call for better research about the impact of indirect contact in cases of entrenched opposition, and greater willingness to consider psychological intervention at earlier stages.

For the purposes of this piece, ‘indirect contact’ is defined as letters, cards, emails – usually at specified times or events.

There are many reported cases where parents (usually fathers) are refused direct contact in private law proceedings. A recent one is R (a child – appeal: termination of contact) [2019] EWHC 132 (Fam) (29 January 2019). Here the court was initially prepared to refuse direct contact, even having accepted that the child would then be parented solely by his mother:

‘… who had been identified not only as having caused emotional harm to him through her alienation of him from his father but also and as significantly whose parenting was identified as creating an enmeshed relationship where R was unable to developmentally separate, to develop his own identity separate to that of his mother.’

The appeal was allowed in essence because (para [77]):

‘… the combination of the consequences of the findings of fact that had been made and the lack of full exploration of the options available (in particular in relation to therapy for the mother) meant that the end of the road had not been reached.’

Therefore the appellate court was ready to take a stand in a case where a finding had been made that the resident parent had caused emotional harm by alienation. But what about the presumably greater number of cases where no such clear finding is made against either parent?

Where there is no clear finding against either parent

I recently represented a father in such a case on his application for permission to appeal a refusal to make an order for direct contact. The child was born in 2007.and in 2010 the court made findings against the father of behaviour that was unpleasant but not sufficiently serious to rule out direct contact, Such contact was positive until 2011 when it ceased, the child demonstrating increased anxiety until eventually claiming to have no father at all.

The father’s position was that this was nothing to do with the quality of his relationship with his son but rather that, from the outset, the mother was ‘entrenched’ ‘ in her opposition to it. NYAS and Cafcass intervened, the court suggested that the mother undergo therapy and she had some kind of counselling, but nothing shifted.

Throughout, the court adopted the ‘wait and see’ strategy, in the hope that ‘time would heal’ and the indirect contact would blossom into direct contact. In 2015 the father’s appeal was before the full Court of Appeal who shared his concern about this strategy and noted that if it continued to fail, then expert evidence ought to be considered. The father subsequently applied for a psychological assessment of the mother.

By the time that application came to court in 2016 the child could not contemplate even discussion about his father; the applications for further expert evidence was refused. The father appealed again but in 2017 that appeal was dismissed, the Court of Appeal agreeing that continuing the proceedings was not in the child’s best interests. The father continued, with his now decade long battle which finally ended in October 2018 where Mr Justice Moor refused permission to appeal against the final decision at first instance to refuse direct contact.

The client perspective

I asked my client for his views.

‘The non resident parent usually, sooner or later, comes to a point where they see their attempt at trying to maintain contact with their child as futile. This point can be reached even before contemplating making a court application when told by those familiar with the cycle of the family justice system that it is unlikely they will maintain contact where the non resident parent opposes it, sometimes it takes one year of court attendances and going to contact centres, sometimes it takes many years before a parent gives up or is forced to give up, the system is designed to make maintaining contact as difficult as possible.
… At the last contact session my Son said “see you next time” he waved as he left, I have not seen him for seven years now.
… Where it is clear the resident parent will never support the child to have a meaningful relationship with their parent it is essential that the Judges order direct contact….It should be acknowledged by the Judges that indirect contact merely supports an entrenched resident parent’s ability, either deliberately or incidentally, to also entrench the child’s views against the other parent, indirect contact makes matters worse.’

This case appeared to me a clear example of the failure of the ‘wait and see’ strategy when one parent was entrenched in opposition. I could find no research or other literature which offered any evidential basis for this as a successful strategy. I therefore I asked Families Need Fathers if they could conduct a survey of their members.

The FNF survey on indirect contact

FNF conducted a survey of 154 service users, (95% dads), who had final orders for indirect contact only.

In just one case (0.6%) was direct contact restored, seemingly, without further intervention in a situation where the indirect contact order was mostly complied with.

Three others reported direct contact resuming, but not attributable to factors beyond indirect contact. In one case a direct relationship was re-established through the intervention of an elder sibling. In another, direct contact was established following a successful appeal and in one more through a change of residence.

Almost universally (97%) respondents said that these orders were made in response to implacable hostility towards them from the parent with whom the child lived.
In most cases (58%) someone in a position of authority specifically suggested that given time things might settle down and lead to the restoration of visitation. Cafcass were the most likely to express such optimism (37%), as did a third of Judges (34%) either in the final order, in a final judgement or both.

In the vast majority of cases (92%) the orders made included a requirement for the children to be supported in responding to letters or gifts received. However, 79% of respondents said that they ‘never’ received a response, 13% did so rarely or occasionally and just 4% reported full compliance.

Many expressed doubt that their correspondence was reaching their children at all. In one case a father who always sent gifts for his daughter’s birthday and at Christmas, reported evidence that the mother was writing brief ‘thank you’ cards for receipt of gifts purporting to be from the child so as to give the appearance of compliance with court orders.

Clearly this survey is not based on a scientifically balanced sample, but these figures suggest that parties are being offered false hope in spades with virtually no prospect of a positive outcome during the children’s minorities. Not surprisingly, some respondents, in hindsight, considered that they were being fobbed-off with hope for the convenience of the Courts or Cafcass – perhaps to make the figures of duration of proceedings look better against targets or to save their money by not exhausting all possible routes to a solution. Many expressed frustration and disappointment at the lack of stronger interventions by the courts to ensure any meaningful contact.

The low level of compliance with these orders and lack of enforcement of family court orders, precisely in the more hostile situations where it is most needed, has led to infinitesimally low levels of successful outcomes. Perhaps we need to remind ourselves that these are situations where courts were satisfied that contact was not only safe, but also best served the welfare interests of the children.

Personal stories

Dozens of respondents shared their stories of personal devastation. Several had contemplated suicide and one grandparent had done so. Two spoke of suffering from Post-Traumatic Stress Disorder, others described other consequent stress on them and their families:

‘I felt – and still feel bereft. I have struggled with my mental health since then; I am on anti-depressants and sometimes cannot work because I haven’t slept in days. My wife holds me through the night when I am crying and missing my children and I wonder who holds them when they cry that they are missing me.’

Some parents agreed that indirect contact, where correspondence was received, at least informed a child that the other parent continues to love them and has not abandoned them. However, should relationships then be restored in adulthood, it does not take away from damage done. The internal ‘wiring’ of the brain is set. The relationship may be all but extinct. This suggests that indirect contact should be used only as part of or pending a plan of intervention, to restore meaningful relationships.

Family courts are there to weigh up the evidence in determining the best interests of children. Many respondents expressed the view that ‘hope’ is an inadequate basis for meeting children’s welfare needs; doing nothing may merely create the fragile illusion of calm for children. Respondents were convinced that it would be a mistake to assume that children are not being harmed whilst living in an environment that denigrates half of their family. Inevitably, the comments made to us suggested not only a deep frustration with family justice, but concern at the lack of support for children left harbouring false perspectives and unjustified hostility to once-loved parents. Respondents’ experiences also demonstrated the lack of support for themselves when court proceedings were over without a satisfactory outcome. One father, who had withdrawn his application on advice from CAFCASS after the mother promised to ‘de-escalate’ the situation, said this:

‘In the last phone call I had with my daughter, she told me that she remembered loving me once, but “luckily I have been allowed to stay away from you and now I realise only an insane person would want to see you.”’

Father who withdrew court application for direct contact on advice from Cafcass and promise of de-escalation by the mother.

Conclusion: The need for proper research

It was the view of the (now) President of the Family Division in the 2017 Bridget Lindley Memorial Lecture that judges need better information about outcomes – without information about outcomes, Judges were left trying to hit a bullseye by throwing a dart over their shoulders.

If indirect contact is to be relied upon as a mechanism to restore direct contact, then we need proper research about this. Currently data on Child Arrangements Orders does not even distinguish between orders for direct and indirect contact. There is, we suggest, a need to consider proper psychological intervention about how to break entrenched parent deadlock and more willingness to consider change of residence.

It is the view of the authors that it is clear that mere passage of time is highly unlikely to ‘heal’ entrenched opposition – rather it is likely to cement it, particularly as many fathers cannot simply sit and wait as years go by with no direct contact.

Michael Lewkowicz
Families Need Fathers
Sarah Phillimore
St Johns Chambers Bristol

Why does Everyone Hate the Family Court ? Part Four.

Heads You Lose: Tails You Lose

Sarah Phillimore writes:  I am grateful for this post from Emma Sutcliffe, part 4 in our series ‘why does everyone hate the family courts’?  Emma’s previous post on this topic can be found here.

The family justice system is very much in the public eye at the time of writing on May 15th 2019- 120 MPs have called for an inquiry into how the courts operate and The Victoria Derbyshire programme has hosted two discussions so far. It seems to be promoting the Women’s Aid line that the family courts ‘push contact with abusers at all costs’. I don’t think that is true.

But what I can’t deny is the level of fear, misery and misinformation around the family justice system and the fact that people often come out of it more brutalised than when they went in. What is the problem? How can we fix it? The only way I know how, having very little by way of political or media influence, is to continue to host these kind of discussions in the hope that somehow, some where a seed will be planted that may grow.

I don’t agree with everything that Emma says, I don’t agree the system is ‘set up against women’ . I am also concerned to see a picture painted of two parents – who presumably at one point loved each other enough to have children together – who now treat each other as bitter enemies. I don’t think the family court is responsible for that level of bad feeling, but I accept that as an arena it is the worst place to put frightened or angry people.

However, the point of this post is not to get Emma to agree with me or hound her for being ‘wrong’. The point is to identify where our perceptions differ and what shapes that. Is that divide a product of misunderstanding? Or some deeper ideological differences? Is the perception of parents’ clouded by their pain and misery? Or is my response foggy or jaded because of professional arrogance?

What should be happening here is the entirely sensible requirement when preparing for an adversarial environment, that you develop a theory of the case and you prepare your cross examination around that. A case with no strong narrative arc is messy and uncompelling. If the burden of proof is on you then a lack of focus on your theory of the case may be enough to sink you. What Emma describes here sounds to me like game playing of a much more cynical kind and verging on the unethical. Its not a tactic I ever employ or would ever advise. Once your life is being held up to microscopic examination in a court setting, then playing games should be the very last thing on your mind. 

However, this was Emma’s experience.  And, as she so powerfully says, no one should ever have to  ‘put on a performance’ to persuade a court to analyse the evidence before it and make a decision in the best interests of the child. Our courts should not be a theatre. If there is anything about the system and the people in it that encourages this – it needs to stop. 

How does a barrister prepare you to lose your children?

By roughing you over as if you’re a criminal. Family court is vilifying, humiliating and terrifying. It is worse when the narcissist you divorced is your opponent. Because the only person a narcissist loves is themselves and they’re quite prepared to lose whatever it takes in the process so that they don’t lose face. It’s called a ‘scorched earth policy’ and my barrister pummelled me in readiness of every court statement and appearance for the inevitable lies, fury and shouting that accompanies any head to head with someone who would even suggest their own children would be better in the care system than with their own mother.

The barrister who worked for me made me look straight on at the loss of my children and study assiduously both the recommendations of the court and the people who made the recommendations. ‘what’s the sound track in the court?’ He asked when we first met — some 16 hearings in by the point.

‘You are a bad parent’ he told me. Looking directly at me as he delivered a crushing home truth — “because just by even being in family court and having strangers decide how your children are going to play out their childhood you have let them down. In the eyes of the court therefore you are a bad parent”.

Am having got me to a state of despair he then sought to get me ‘judge ready’.

“This is the Anna* we need the judge to see — an exhausted, working mum who has been driven to seek to need the court’s help to deal with an utterly uncooperative parent. We need to mitigate risk to the judge — that you can accept your flaws but still do your best for the children. Let us let the baddest parent show themselves for what they are. Otherwise this just looks to the judge like two very clever people who are adept at arguing whilst their children look on. You need to accept and convey that you are contrite and remorseful that such behaviour has and would cause them emotional harm if it were to continue.”

And with that I had an epiphany.

Like it of not; family court is a game of chess. And the system is set up against women. Children are the sacrificial pawns and to win this game I had to have the agility of the Queen and read the board. The king appears to be the dominant player, but it’s the queen who can contort to whatever move is needed to protect and win the game.

And so, with that in mind I determined to adjust my mindset and moves. I could lose 50 percent of holiday time with my children for a few years until they get wise enough to reject their father’s bullying by themselves or I could dig my heels in, battle the court officers and keep portraying myself as a battling parent too determined to beat my ex than protect my children.

Thanks to that roughing over by the barrister the small lose or ultimate lose strategy was easy to shapeshift into.

Once he knew I understood the games and the rules, the barrister and my solicitor then crafted every statement and every question in every hearing thereafter to play to the soundtrack of the court — hardworking, long suffering caring mother, able to withstand every ludicrous allegation and still demonstrate cooperativity.

And as we walked into the final hearing — the narcissist did what narcissists ultimately do and lost it when he didn’t get exactly what he believed he was entitled to — adoration and dominance.

Judges do not like risk. And they do not like arrogance. They care not for how much money someone has, what car they drive, how well connected they are or if they are dressed in Armani or Primarni. They want to know that you show up, you accept help, you recognise your flaws and vulnerabilities and you put your children first. Game over. I lost the small battle.

The loss was wonderful because it was palatable. And in his summing up the judge adeptly dismissed every taunt, claim and even overuled his own biased officers. Furthermore he praised me for my courage under persistent sniper fire and concluded with words that were music — the music of the court — to my ears and to my children:

‘I cannot be confident that if residency were given to Dad that given the ludicrous allegations Mum has successfully defended Dad would not seek continued punishment of Mum using the children. Further time with dad risks psychological harm to the daughter. And without changes in the environment when a child is 12 they will start to vote with their feet and at this point it is Dad who risks losing the relationship without making changes. Given that the children are articulate, intelligent and clearly gifted, if they goose not to go to a parent’s house when they are 12 the court will not force the contact’.

The 24 months of worry that I would lose my children and my life was lifted during that 40 min judgment.

I had been judged.
My children had been heard and understood and our concerns justified.

There is no greater victory.
The loss that never ends — the loss of a meaningful loving relationships of trust, fairness, unselfishness and courage to give your children what they need — is the ultimate loss. I won the residency order. I won my children’s faith. The only loss I have is respect for their Father. That is the loss that knows no end.

Years later, however, I remain enraged about the performance I had to make to be ‘the exhausted, desperate Mum the judge needs to see’. I resent that my strengths — accuracy, challenging injustice, truthfulness and obstinance — qualities admired as ones of leadership in a man were instructed to be turned down because they are interpreted as non-compliant in a woman. We should speak up when something is not right, when undermining is taking place, when systems, people, Cafcass Officers are corrupt and corruptible. We tell our children to be brave, be bold, be yourself. Then we tell those girls who become women to stop these characteristics and accept the archetypes directed by our own Family Courts and the officials that turn the cogs.

The Cafcass Officer didn’t like my challenges. The psychologist accepted and praised my enquiring mind and described my ex for being fixed and resolute (uncooperative) whilst telling the court I held ‘the key to the resolution of the conflict — by backing down, shutting up, accepting the abuse persistently doled our through gaslighting, stonewalling and intransigence. I could flex and contort to any slight so the abuse could continue unchecked if I wanted residency of my children. Three different judges wanted or saw three different ‘Anna’s’ — one saw a frustrated mum, one only saw a mum with anxiety and hurried me out of his court, one saw why I was ‘challenging’ and that my ability withstand years of abuse and coercive control transacted through my children was attributable to my being bold, brave, myself.

The Barrister did what he had to do to get me the right result for the misogyny of the family court with officers and paid-for experts waiting to point their fingers and say ‘difficult woman, difficult woman’.

Because challenging women challenge them and their infrastructures, assessments and belittling of women.

So I’m here. And I’m ready to fight back for all those women who don’t have my strength or have had their resilience worn away by the family courts. It is time for change.

https://twitter.com/SVPhillimore/status/1129118565876097035

Fabricated and Induced Illness

This is a post by Sarah Phillimore. I was recently alerted to a Radio 5 Live Investigation into ‘Fabricated and Induced Illness’ [FII] in May 2019. I think this is a useful opportunity to explore FII in more detail for readers of this site. 

https://twitter.com/MumScots/status/1124948692606304256

The history of Fabricated and Induced Illness [FII]

Concerns that parents may exaggerate or even cause their children’s symptoms of illness have been around for a long time. It used to come with the flowery title ‘Munchausens Syndrome by Proxy’, from the fictional character Baron Munchausen who told outrageous lies about his non existent achievements.

Obviously, this description was confusing to many parents and professionals, as well as wrongly giving the impression that it was a psychiatric condition in its own right. As Kate Grieve commented in 2015, the case of R v LM [2004] QCA 192 at para. 67 (4 June 2004)  in the Supreme Court of Queensland, Australia, held that “the term factitious disorder (Munchausen’s Syndrome) by proxy is merely descriptive of a behaviour, not a psychiatrically identifiable illness or condition”. She further comments:

FII is not a mental illness as can be diagnosed. Perpetrators will have various psychological, psychiatric, and environmental features leading to the behaviour of fabricating or inducing illness in a child. FII is a form of child abuse where the perpetrator uses medical professionals as tools to subject the child to harm.

The Royal College of Paediatrics and Child Health of 2021 (see further reading below) refers to 3 different terminologies:

Medically Unexplained Symptoms (MUS) –  a child’s symptoms, of which the child complains and which are presumed to be genuinely experienced, are not fully explained by any known pathology. The symptoms are likely based on underlying factors in the child (usually of a psychosocial nature) and this is acknowledged by both clinicians and parents. MUS can also be described as ‘functional disorders’ and are abnormal bodily sensations which cause pain and disability by affecting the normal functioning of the body. The health professionals and parents work collaboratively to achieve evidence-based therapeutic work in the best interests of the child or young person.

Perplexing Presentations (PP) – a term introduced to describe the commonly encountered situation when there are alerting signs of possible FII (not yet amounting to likely or actual significant harm1), when the actual state of the child’s physical, mental health and neurodevelopment is not yet clear, but there is no perceived risk of immediate serious harm to the child’s physical health or life. The essence of alerting signs is the presence of discrepancies between reports, presentations of the child and independent observations of the child, implausible descriptions and unexplained findings or parental behaviour. 3.2.3

Fabricated or Induced Illness (FII) – a clinical situation in which a child is, or is very likely to be, harmed due to parent(s) behaviour and action, carried out in order to convince doctors that the child’s state of physical and/or mental health and neurodevelopment is impaired (or more impaired than is actually the case). FII results in physical and emotional abuse and neglect, as a result of parental actions, behaviours or beliefs and from doctors’ responses to these. The parent does not necessarily intend to deceive, and their motivations may not be initially evident. It is important to distinguish the relationship between FII and physical abuse / non-accidental injury (NAI). In practice, illness induction is a form of physical abuse (and in Working Together to Safeguard Children, fabrication of symptoms or deliberate induction of illness in a child is included under Physical Abuse17). In order for this physical abuse to be considered under FII, evidence will be required that the parent’s motivation for harming the child is to convince doctors about the purported illness in the child and whether or not there are recurrent presentations to health and other professionals. This particularly applies in cases of suffocation or poisoning.

The NHS describe it in this way.

FII covers a wide range of symptoms and behaviours involving parents seeking healthcare for a child. This ranges from extreme neglect (failing to seek medical care) to induced illness.

Behaviours in FII include a mother or other carer who:

  • persuades healthcare professionals that their child is ill when they’re perfectly healthy
  • exaggerates or lies about their child’s symptoms
  • manipulates test results to suggest the presence of illness – for example, by putting glucose in urine samples to suggest the child has diabetes
  • deliberately induces symptoms of illness – for example, by poisoning her child with unnecessary medication or other substances

How widespread is FII?

FII It is undoubtedly a ‘real thing’ and can cause serious harm to children as well as a massive drain on NHS resources. But it is also a rare thing – it is difficult to estimate with certainty how many cases arise each year, but some estimate about 50. The NHS refer to one study which published in 2000 which estimated 89 cases of FII in a population of 100,000 over a two-year period. However, they believe this figure is a likely under-estimate of the actual number of cases.

Taking a figure of 50 per year, is on a par with statistics around children who are murdered; 330 children were killed between 2009 to 2015  i.e. about 47 per year. Compare this with road traffic accidents  – in 2011, 2,412 children aged 0-15 years were killed or seriously injured on Britain’s roads. So about 7 children a day will die or be badly hurt on the roads as opposed to less than 1 a week being victim to FII.

Fiightback told Radio 5 Live that they had about 600 people seeking their support and 70% had been ‘cleared’. They had attempted FOI requests from LA to be told that no data was held about numbers of FII cases.

Concerns that cases of FII are rising

The group “Fiightback” was set up “to support those accused of FII, to fight for an unbaised criteria, a fair investigation and a pathway to rebuild the lives of those wrongly accused”. It shared with the BBC their worries about a ‘wave of false allegations’ of FII.

It now wants a review into the number of FII child protection investigations like Amy’s, as well as the FII guidelines for medical and social work staff.

It also wants national and local policy on responses to accusations of FII to be looked at, and new standards set.

Carol Monaghan MP – who has led calls in Parliament to raise awareness of FII – said she would support an inquiry.

She added: “Disturbingly, diagnoses can be made by health professionals who have not met or examined the child, and child protection procedures can then be instigated as a result of a remote diagnosis.”

I can’t comment on the statistics that inform that comment about ‘wave of false allegations’ because I don’t know them. I can’t find any references on the Fiightback website. All I can say that in my practice spanning 20 years I have only been instructed to act in a handful of FII cases. I have not encountered in the past few years any noticeable increase. And I would be very troubled if diagnosis of any medical condition was attempted by any doctor who had not actually met the child – unless this was a court authorised review of medical records collected by other doctors for e.g.

But if such concerns are raised, then it is right that they are properly investigated and we have clear evidence to either support or deny them. A suggestion was made in 2018 that such cases are on the rise because local authorities want to avoid paying for services – that is an extremely serious situation, if true. Andy Bilson commented to Radio 5 Live that the definition of FII appeared to be widening in some areas to include parents who ‘genuinely’ believed their child was ill – thus bringing into the net of suspicion those parents seeking services for their children.

Efficient and speedy investigation is needed.

FII brings the ‘perfect storm’ for a family justice system, already prone to risk averse decision making. FII represents something that doesn’t happen often, but when it does the consequences for child could be catastrophic. Little wonder then that many professionals may act defensively.

And of course, professionals are fallible. A decision made hastily to separate parents and child may turn out, after proper investigation to have been the wrong decision, based on imperfect understanding of the medical evidence as it initially presented. The Websters for example, whose child’s broken bones were caused by scurvy, rather than deliberate infliction of force. Sally Clark, who was convicted of murder on the failure of Professor Sir Roy Meadows to understand and apply statistics correctly.

We need a clear idea about how many cases there are and how many do not result in any findings against the parent – as the impact of such cases can be devastating if no findings are made. Amy, the mother interviewed by BBC Five Live commented :

I felt like my character was assassinated, my family was ripped apart and my child was stolen

So how do we manage these cases?

Few would disagree that if a competent medical practitioner raises a concern that a child is being hurt by a parent, that this needs to be investigated and the child kept safe while the investigation is carried out. The problem of course is that this investigation can often take many months or even years and throughout that time the child is likely to be living separately from his parents, although hopefully still having regular contact.

The key therefore must be to make sure investigations are carried out as efficiently and quickly as possible.  The NHS guidance for medical professions highlights the necessary steps.

  • Its important to have a senior paediatrician to carry out an overview of the case and to seek further specialist advice or testing if needed.
  • A detailed chronology must be written of all the available information related to the child’s medical history. 
  • Doctors must contact the relevant child protection team of the local authority’s children’s services to inform them of the concerns.
  • Other agencies involved with the child’s welfare, may be contacted in case they have information that’s relevant such as the child being absent from school.
  • The police will also need to be informed and all professionals must meet to discuss the best way to proceed with the case.
  • Covert (secret) video surveillance may be used to collect evidence that can help to confirm a suspected case of FII but this will require proper authorisation and is rare in practice as usually the parent will not be allowed unsupervised access to a child once concerns about FII are raised.  For a discussion about surveillance of families by social workers, see this post from Pink Tape. 

The LA will usually start care proceedings immediately and seek separation of child and parent, unless there are other family members who can help to provide constant supervision.  There may well be parallel police and care proceedings – while care proceedings should never ‘wait’ for criminal proceedings to get started or conclude, it is clear that if a live police investigation is also on going, this has the potential to cause delay.

As ever the focus must be on the evidence – what is needed, who is best person to provide it, and how should it be tested. This are not easy cases and will require more than most continuity of Judge and lawyers.

Further Reading

Re X, Y and Z (Children) [2010] EWHC – Application by local authority to withdraw from proceedings, under FPR r 4.5, for interim care of three children. Local authority ordered to contribute to the costs of the parents.

Concerns over Fake Illness Cases in Troubled GOSH department – April 2018 Melanie Newman

Safeguarding children in whom illness is fabricated or induced – 2008 Statutory guidance from Department of Education, on protecting children where carers or parents make a child ill or pretend a child is ill.

Regional Child Protection procedures for West Midlands – guidance on FII 2017

Achieving Best Evidence in Children Act cases. 

Guidance from the Royal College of Paediatrics and Child Health February 2021

BR and others (Three Families: Fabricated or Induced Illness: Findings of Fact) 2023 High Court Judgment Template

In the matter of: Re N (Children: Fact Finding – Perplexing Presentation/Fabricated or Induced Illness) [2024]

The State versus the family: does the Government no longer trust parents?

This is a post by Sarah Philimore

I was really pleased to attend the Tortoise ThinkIn in London on May 1st. The aim of Tortoise is to ‘flesh out’ how to take reporting forward. A ThinkIn is a system of organised listening, a forum for civilised disagreement and the ‘engine of our journalism’.

Polly Curtis, the journalist who has already written examining in depth the child protection system, and James Harding, the co-founder of Tortoise and former Editor of The Times, chaired the discussion. It is not difficult to see why they are interested in understanding more about the child protection system; many are seriously concerned at where we now find ourselves. As Polly commented in her article ‘The Poor Parents’:

These are the numbers: by the time they reach their fifth birthday, nearly one in five children have been referred to social workers. The number in care has peaked at 75,000 – the highest level since records began in 1994. The system designed to keep our children safe is creaking under its caseload.

So what is going on? Opening the floor to those who are ‘really thinking’ about the issues – regardless of their backgrounds and experience,  may open up a different perspective and increase the understanding of even the most specialist participant.

Defensive practice

The starting question asked  –  what are the drivers to this huge increase in care proceedings? Andy Bilson made the point that there are drivers both inside and outside the system. Outside we see the cuts in services, poverty and deprivation. You are ten times more likely to be in care if you fall within the bottom 10% of the most deprived in the population. Then there are the drivers within the system; defensive social work practice and risk aversion. He noted that before their 5th birthday 1 child in 16 would be investigated for risk of abuse; in 66% of cases no abuse is found. There is no evidence that the current child protection system works. Social work itself has changed.

We circled back to this point with a variety of speakers. One made the very powerful point that we were seeing ‘assessment without action’. Box ticking was a way for social workers to guard against criticism but the work had no purpose.

So why are social workers so defensive? I was very glad to hear James Harding admit that he had felt ‘uncomfortable’ for much of the discussion, recalling the role he had played as a journalist in shaping the narrative around child protection issues; a focus on ‘single issues’ that then translated to political culture.

We could all see the spike on the graph after2007 and the media storm around the death of Peter Connolly. As one speaker commented, as a society we have a collective responsibility for how social workers behave – if they are to be subjected to death threats for not intervening and a child dies, then do not be amazed if a decade later we are seeing the ripple effect of that defensive culture still in operation.

But as James commented – it is easy to show what you are against, rather harder to show what you are for.  How do we create an agenda to create change?

 

Timescales

There was much talk about ‘timescales’. Clarissa, a parent whose children have been adopted said how much she hated the word as she heard it all the time. She was told to write a letter to her children apologising for ‘not making changes’ ‘within their timescales’ – changes she said she did not know how to make. Alice Twaite of The Transparency Project commented that access to knowledge comes too late; legal aid provision is skewed to the very end of the process where the 26 week timescales for care proceedings may mean it is impossible for parents to access the therapy or support they need to show that they can turn things around. I commented that the apparent rigidity of the 26 weeks caused me concern; not least because I saw real fear and unease in court at times when Judges commented that they had to keep the case ‘on track’ or risk ‘their stats’ being scrutinised.

But of course, the response to that is that 6 months is a long time if you are a baby – its possibly your entire life.  The neurological evidence seemed clear – the impact of abuse and neglect on young children was very serious. We had to move quickly to prevent children becoming very seriously damaged. Polly commented that this would be a fruitful area of further investigation as something substantial that can be measured.

What is our narrative?

There were so many other points made of interest that it would take a blog post of many thousand of words to cover it all. I have tried here to highlight what resonated most for me. What I find most compelling is the intersection of the various narratives. What ‘story’ do we want to tell, and why?  Is it about the child who needs ‘rescuing’ from the dangerous home? Is about the mother like Clarissa who sees her children once a year and counts herself ‘lucky’ to do so; she grieves every birthday, every Christmas.  Is it about austerity and cuts and lack of services? Is it about distrust and blame and fear?

Its all of these of course. And that has been the challenge for journalists over the years. To take these many and unweilding narratives and from that find a story that the public want to read. When the family courts are closed and secretive, journalists will fill the gaps in their knowledge with the sensationalised. The challenge is now upon us all to investigate openly and honestly. As Alice Twaite pointed out; journalists need to take care with their narratives. If there is a published judgment where findings of fact have already been made, those cannot be skated over in favour of a more lurid and clickbait worthy narrative from a parent who may not have an incentive to reveal all the necessary detail.

I have been – rightly I think – very critical of journalists in the past and I think the negative legacy from their reporting of the deaths of Peter Connolly and Victoria Climbie is with us still. But many of us ‘in the system’ have not helped the wider public to understand, indeed many still cleave to ‘privacy’ as some strange badge of  honour.

I do not know what we need to do to turn this ship around. And I appreciate that constant talking around a problem can appear nothing more than an indulgent waste of time. But this felt different. Since 2015 and the first CPConference. I had often felt despair about how the willingness to engage in talking would ever translate into action.  But finally now, it seems as if something is happening. Parent advocacy groups are springing up around the country, Louise Tickle continues with her Open Family Court project – and Tortoise shows that there is appetite for a different kind of journalism that may finally give children and families the examination of their narratives that they deserve.

 

Do we make unnecessary use of care proceedings?

This is a post by Sarah Phillimore.

This is the text of a talk I gave at the Bristol Civil Justice Centre on April 15th 2019 as part of a debate entitled ‘We make unnecessary use of care proceedings’. 

The situation regarding care proceedings in England and Wales is dire. There are various reports and worries about the ever increasing number of care proceedings with no corresponding increase in identification of those children who actually suffer harm. The worry from many is that we have created a voracious and possibly unstoppable  ‘risk monster’

EDIT – that line should read ‘ever increasing number of section 47 investigations’ rather than care proceedings. 

Various senior Judges have warned that the family justice system is close to collapse and cannot sustain this continuing increase in numbers of applications for care orders.

Much of the discussion on and off line from parents and some professionals is in very bleak terms about the sustainability of the system and the harm that it does to those who come within it.  Richard Devine commented on Twitter in March 2019:

Sometimes I wonder, in 50 years time, what aspect of the current child protection system will, with retrospection, seem incomprehensible, unethical, absurd?

The answer came swiftly from one Twitter user:

Most of it. Its harms to health, mental health and human well being will be evident and regrettable.

This is a fairly typical exchange. So I can immediately see and understand that the easy and obvious answer to this question is ‘yes’. But, as ever, I think the answer is a more complicated than the question poses at face value. And that’s why I wanted to speak against this motion. Not because I have any naive hopes that my mere rhetoric will sway anyone from their decided view. But in the hopes that you might at least listen and think about some of what I say.

All care proceedings involve failure.

All care proceedings involve failure. It is a failure of at least one of the following 3 things; the very worst cases are a failure of all 3.

  • A failure by parents to reach ‘good enough’ standard in their parenting, a failure so serious that it either causes their children significant harm or puts them at serious risk of the same. The degree of blame to be attached to this can vary from ‘none at all’ for those parents with disabilities who did their best, to a very high level of culpability which finds the parent also facing criminal proceedings, for example due to sexual assault or deliberate infliction of physical harm
  • A failure by social workers or other professionals to build a relationship pf trust with a parent who is struggling. Or worse than that, professionals who operate from untested assumption and prejudice. Or worse still, professionals who actively mislead by altering documents or lying to the court. I hope that latter example is a very small minority but I accept that even one case a year is one too many
  • A failure by the State to provide any sufficient safety net for parents and professionals who are struggling. A failure to provide and maintain support for those with poor housing, mental health struggles etc. A failure to provide safe working environments for professionals, allowing case loads to rise beyond what is sustainable or safe.

Once the case then comes to court, The court system itself often fails to deliver what we know is needed. The procedure is often not quick, efficient or humane. This puts at risk the need to have the right decisions made on the right evidence, which in turn puts in peril the child’s need to have the right placement and the right support identified and provided.  Parents are left behind at the end of it, confused, miserable and alone with no further legal support to challenge a decision they may feel is profoundly wrong.

The whole system is predicated on failures. Some of those failures are a shameful indictment of the way our society operates. Other failures are simply a reflection of the inherent frailty of human beings. We could only eradicate those types of failures by going down a road of eugenics and social engineering which only a fanatical and dangerous few would ever advocate.

Because a system ‘fails’ does that make it unnecessary?

I would like to conduct a quick and unscientific poll.

Children are vulnerable. Not all parents can be good enough parents. This isn’t about moral blame. Its about asking hard questions about what we, collectively, agree we should do to protect the most vulnerable members of our society.

  • Who in this room thinks that children aren’t at risk of death or serious harm from their parents? Raise your hand.  31 children under 16 were killed by their parents in England and Wales in 2015 – three a month – compared with 23 in 2014. 
  • Of course, deliberate murder is thankfully rare. But who in this room thinks that the State should step in to protect only those children at risk of being murdered? Raise your hand.
  • Who in this room thinks that the State should step in to protect only those children at risk of having their bones broken? Raise your hand.
  • Who in this room believes that from the age, say of 0-12 years only a parent can have any authority over the education and health care received by their child? Raise your hand. 

Unless ALL or NONE of the hands go up in answer to the last 3 questions, then we have to accept that there is room for disagreement about exactly where the line should be drawn – but the one thing I think we would all agree with – there is a line, somewhere.

EDIT – NO hands were raised. On reflection, it would have been more interesting to ask a question about the more nebulous aspects of threshold, such as emotional abuse. But it was clear that all in the room agreed that children need protection from dangerous parenting. 

The journalist Louise Tickle visited Dublin recently and discussed her visit on her Open Family Court website. She made the point that the importance of the family is set out explicitly in the Irish Constitution

 

This is reflected in many other international and domestic laws and practices. But it cuts both ways doesn’t it? If you are expecting the State to step in and defend the family as a ‘necessary basis’ of social order and ‘indispensable’ to the welfare of an entire nation, then presumably the State must have something to say about those individuals who threaten the sanctity of the family by harming members of it?

Its interesting to note what else Louise Tickle observed. One of the benefits of Ireland’s Child Care Law Reporting Project was that not only did it act to permit scrutiny of state action in interfering with families, it also allowed the public to see just how bad things could get for children

McKittrick also believes that reporting has raised society’s awareness of and sensitivity to child abuse. “Our perception is that the general public have had no idea of the level of misery that these children experience, and we can’t talk about it,” she said.

Conclusions

So no, I don’t believe that we make ‘unnecessary’ use of care proceedings. I do however think that the outcome of these proceedings is moving ever further away from what was hoped for by those who framed the Children Act. We have essentially betrayed the legacy of the Children Act 1989 by removing funding for the support services so essential to its proper operation.

As Professor Jo Delahunty QC commented after her recent lecture to commemorate its 30th birthday

The lack of financial support for community resources [and the] the rise in [applications under] s 31, they are linked. Hence the value in reminding the audience of how the Act was meant to cover community as well as court procedures with access to services, advice and support being embraced within its composite parts . However with limited legal aid for pre proceedings advice for parents , S 20 abuses , legal aid deserts for early (any!) advice in private law , court staff / judges acting as advisors and counsellors and lack of court time as we have judges working to break point: all these deficits are crippling.

Community lack of access to services and legal advice compounds an overwhelmed and overwhelming social care environment staffed by disrespected social workers , often unsupported , and inadequate managerial oversight with little joined up thinking with legal departments. I think every strand is intertwined.

Hence why I thought a reminder of what we should strive at might be timely.

Further reading

Thread of live tweets from the night #FCDebate

Children Act ‘betrayed’ in climate of cuts 16th April 2019 Community Care

You never lose the fear of the knock on the door April 2019 Tortoise Media

Care Proceedings in England: The Case for Clear Blue Water March 2019 Isabelle Trowler

 

 

Mums on the run: When you have tried everything else you have nothing else to lose

This is a post by Sarah Phillimore.

On April 4th BBC’s Woman’s Hour discussed the issue of mothers who repeatedly lose their children into the care system and the decision made by some to ‘flee’ the jurisdiction, sometimes with the financial and emotional support of an organised network of people.

This prompted some further discussion online. I have already written in some considerable detail about the issues that arise from this; see the posts set out in Further Reading below.

The conversation on line was very useful for clarifying some thoughts and questions about where we go from here.

A typical reaction to hearing the story of ‘Zara’ on the Woman’s Hour podcast was of shock and sadness. Why should any mother have to go through this? Just what is the scale of the problem and what can we do about it?

A number of parents asserted to me that ‘lots’ or ‘the majority’ of parents who left the UK ‘settled well’. I pressed them to help me understand what actual numbers informed this statement – and what happened to the minority who did not settle? The parents were not able to answer and seemed to find my questions an attack on their integrity and intelligence, which I did not understand. I was asking for the raw data that informed their confident assertions. After a few hours of such to and fro it became clear that no one knows the numbers. And that has been the primary issue that causes me concern about all of this.

One person provided screen shots of a group operating in Egypt which explained to parents

…. remember summer is blisteringly hot here. Not like a summer holiday. We want only mums who will fight to the end whatever the conditions to protect their child… medication to cope with withdrawal from drugs we can get… (winking face emoji)

Even that brief description suggests the risks to parents and children, many already vulnerable, are huge. Rather chillingly, one parent commented:

Genuine neglect, abuse and incapability cases never survive long… unless you can survive for 6 months with no income, don’t bother…

Those who offer money to send people out of the jurisdiction appear to undertake no risk assessment, keep no records and don’t record the progress abroad of the fleeing parents. We urgently need to understand the scale of the problem.  The ‘fight’ rhetoric is worrying and will obviously be appealing to desperate parents. As one commented via Twitter

And they wonder why we run when you have tried everything else – you have noting to lose

What is the scale of this problem?

One parent (who had left the jurisdiction and was now parenting her two youngest children, despite losing the older ones to the care system) suggested that about 50 parents ‘on average’ left the jurisdiction.  One parent wondered if a higher number of parents who already had dual nationality would leave the jurisdiction – but that, interestingly has not been my experience.

One person commented that the following three questions need to be asked

a) Why do parents flee

b) why do other countries not consider the same parents to be a danger to children?

c) what the hell is going on?

I think these are all essential questions to be answered. The problem is, that we need proper data in order to try and answer them.  I would like to know:

a) how many parents leave the jurisdiction each year to avoid care proceedings?

b) What countries do they go to

c) how many ‘do well’ and settle

d) those who don’t do well – what happens to them and their children?

 

Way forward

One parent suggested that I make a FOI to various LA to see how many port alerts they issued for parents. That could be useful information but it won’t answer my questions above. What does seem to be key here is getting more information about how other jurisdictions operate. Clare Fenton Glynn has done some useful work on this but I am not aware of much else that could help to answer the questions.

One parent suggested that the key difference was that no other jurisdiction recognises ‘risk of future harm’ in the way we do – I accept that this is a concept that causes many unease and which we investigated at #CPConf2018.

As one person commented:

… if process wasn’t adversarial from the outset there would be no need for mums to hit [social media] and look about fleeing… ban SWs from scaring mothers by saying ‘have any more, we’ll take that too”…

I would be grateful for any other suggestions about how we can collectively move forward to have sensible discussions about this. We need some hard data and we need to keep asking some hard questions. We need to know a lot more about how other countries operate. Although I do not have firm data, It cannot be right in 2019 that parents feel they have no choice but to uproot themselves from their own country and put themselves and their children at serious risk of harm.

Further reading

Mums on the run April 7th 2019 post by ‘Annie’ member of The Transparency Project and a mum who nearly ran.

Helping parents leave the jurisdiction – what happens when you don’t know the whole story, or you don’t care? August 2015 Child Protection Resource

Keep on Running September 2016 Child Protection Resource

Keep on Running Part II April 2018 Child Protection Resource.