Author Archives: Sarah Phillimore

Why does everyone hate the family courts? And what – if anything – can we do about it?

The is a post by Sarah Phillimore, with a significant contribution by two parents; a mother who nearly ran and a father who has now lost a relationship with his child. I am very grateful to both commentators. In our various exchanges we have at times doubted each other’s good faith but have persevered  to try and have a conversation about something important. 

In November 2018 I attended a conference in London where it was asserted very clearly by a speaker, with the enthusiastic assent of almost all the (female) audience, that family courts were tools of misogynistic oppression and decisions were routinely made in favour of violent and abusive men who used accusations of  ‘parental alienation’ against the mother as a cloak for their own abuse.

In January 2019 I became aware of Ellie Yarrow Sanders who had ‘gone on the run’ with her 3 year old son just before a ‘significant’ court hearing involving his father’s application for contact. The Transparency Project have written about the background to and media attention around this case.

A petition has been organised to allow the mother to ‘tell her story’; already circulating on the internet is a letter purportedly written by the mother about how she felt she had no choice but to flee the father’s abuse. The Women’s Coalition who support the mother, have referred to the Judge in the case lying and ‘distorting evidence’; it is asserted that the appointment of a guardian for the child necessarily means he is going into State care – which is of course, not true.

They comment further

The Women’s Coalition is launching a counterattack to this public lynching of a wonderful mother, just like in the Samantha Baldwin and Rebecca Minnock cases [see link below]. Both cases engendered much public outrage about judges taking children away from loving mothers and giving them to controlling and abusive fathers. Help make this post go viral too!

The difficulty with this analysis of course is that Rebecca Minnock was found to be ‘manipulative, truculent and attention seeking’ and to have caused emotional harm to her son; he no longer lives with her. Samantha Baldwin gave her children drugs and made false allegations against their father. 

So what the Woman’s Coallition says no doubt feels very true to them. But has found not be to true on a number of occasions. Of course, no doubt they will say this is due to the (male) Judges who actively hate women or can’t be bothered to educate themselves about the extent and nature of male violence.

On the other side of the debate of course are the groups such as Fathers 4 Justice who will assert that women are no more than hysterical alienators of children and that the family court system bends over backwards to meet their every spiteful demand.

So what is going on? why are the two sides of the discussion so polarised? Why is our public discourse about this so often hysterical and toxic. so unwilling to admit any shades of grey to a narrative of ‘abusive men’ or ‘lying women’.

I had an exchange recently with one visitor to my site ‘John’ who was commenting on my post “Are the Family Courts biased against men?” Our initial exchange was quite dispiriting. We were both rude to each other. However in some post Christmas miracle, we were both able to reflect on our mutual NY resolution to be more mindful of our language on line and John made the following comment which I set out below in full.

I think it is an articulate distillation of the fundamental issues – which I think boil down essentially to pain, fear and distrust. There is little wonder that father and mothers can end up seeing the same situation in radically different ways; their perception and understanding clouded by pain. But equally there is little doubt the the system itself often operates to make things worse. I have commented before and at length as to why I don’t think the court system is ever the best place to attempt to unpick toxic and failing relationships  – but it is our only place and it is surely better than deciding a case on the basis of who can gather more ‘likes’ and clicks on social media.

Like John, I now consider the only way to attempt to counter the persistent and dangerous flow of false information, fear and misunderstanding is to open up the family courts to greater public scrutiny.

EDIT Jan 9th – I have now included an account from a mother who gives the other side of the coin. She nearly ran but didn’t as she was lucky enough to find a lawyer who had the time, patience and ability to explain what was going on and help her anxiety.  I agree that this is a very important part of the problem – too often I think lawyers make assumptions about what parents understand or worse, don’t even care that  much. A necessary survival ability to ‘switch off’ when dealing with human distress and misery on a daily basis, can if left unchecked develop into a callous lack of concern. If parents are finding it so hard to understand what is going on, those of us who are lawyers have to consider more carefully what part we are playing in this.

John’s story

“Grief fills the room up of my absent child,
Lies in his bed, walks up and down with me,
Puts on his pretty look, repeats his words,
Remembers me of his gracious parts,
Stuffs out his vacant garments with his form”
Shakespeare – King John

The above sonnet will resonate with many readers since this is what it feels like when you are cut off from your child. I would like to start by remembering that Fathers and Children have feelings, as well as mothers.

I can appreciate, that working daily in the Family court system you must encounter many occasions where people have helped to create or compound the problems they now grapple with. I am sure that the courts also have to deal with lots of cases of genuinely vulnerable, at-risk children. However I feel that it is rather too glib and superficial to maintain that the system is not at fault – it’s the people using it! If I may draw an analogue – if I were to design a car that required an expert driver otherwise you would crash, it would not be an adequate defence to maintain that it was the driver’s own fault that they crashed.

In a similar way, surely it is reasonable to expect a court system to provide maximally just and equitable outcomes. Maximum happiness with flawed material, if you like.

Of course I, and many others, tend to view the Family court system through the prism of their own experiences. It makes objectivity tough. I would also expect that the people who tend to contribute to blogs like this, are those that aren’t happy.

I do feel that an important factor is the secrecy surrounding the family court system and the consequential lack of reporting on, and analysis of decisions. It makes gathering accurate metrics and statistics hard. There seems to be a lot of anecdotal evidence, particularly with the rise of the internet and social media. Social media is not the best platform for a sensible debate.

I mentioned earlier that I read somewhere that the great majority of the time in the UK, the child resides with the mother. I honestly can’t cite the source. But unless we also know how many times that decision was contested, or was it by mutual agreement, and the circumstances, then we don’t have all the facts to formally establish bias (or lack of).

Without facts from careful analysis of hundreds of thousands of cases, we are tempted to fall back on ‘belief’ which is often founded on personal experience or on hearsay that confirms our prejudices.

I recognize that the court has a responsibility to protect the interest of the child. I also feel that the court has a responsibility to ensure that both parents are treated equally justly & fairly.
If we take it true though that the child ends up with the mother most of the time, then I feel that it follows that if the court must protect the child, it must also may, to some extent give greater protection to the parent the child now lives with, which could lead to an unequal treatment of resident v non-resident parent.

Another problem is the adversarial system that promotes conflict. It also provides employment and income to a great many people and there is an awful lot of vested interest in continuing that – and there has been for hundreds of years.

Anecdotally, many ‘resident parents’ knowingly engage in false accusations of abuse or in behaviour directed towards parental alienation as a means of exacting revenge against their ex-partner. They are assisted by lawyers who have a vested interest in promoting conflict.

There do not seem to be many instances where that behaviour is punished and reported on. The one I recall reported was a case from 2004. Interference with visitation and blocking of access has certainly been my personal experience. Am I the exception or the rule? Hard to say without statistics.

In my own case, I was disgusted to discover that the court seemed far more willing to accept my ex-wife’s word that I was ‘abusive’, despite their being no evidence, than they were to accept my word that she was interfering with visitation or engaging in alienating behaviour. I can understand why – it’s a lot safer and easier to prevent a dad seeing his kid ‘because he might be abusive’. But for those dads who have honestly done nothing wrong, it can feel like an uphill struggle.

As I alluded to before, the fact that these important decisions are not made by jury, but by a single human being, also is not helpful. I would imagine that the cases are often influenced by reports from social workers, agencies and so forth who are not subject to independent scrutiny.

In an ideal world there would be no divorce. Perhaps co-parenting after divorce just simply does not work.

Sigh. I don’t know. I didn’t file for my divorce, I didn’t ask to lose my child and I didn’t ever abuse my ex-wife in any way. It makes me very sad and occasionally bitter and angry that I have been an unwilling part of a process which I was powerless to stop.

In the end, it is the child that suffers most. I have been forced to move on. There is no point in spending my entire life fighting a battle I cannot win.

I have another child and I can cope with the loss of the first at great personal sorrow.
However my son can never have another father.

The mother’s story – she wanted to run but didn’t

It’s been some years since my decision not to run. I have met and instructed several lawyers since then but not all made me feel like a person and less like a process. This is an important factor in understanding why someone might not be able to trust their lawyer and feel they have no option but to run and we need to talk about this, as it goes hand in hand with misinformation about the family courts.

The law is there to protect but, all too often, a lawyer is seen as working a system instead of working for their client. This is a myth the law needs to work much harder to put right or more people, like Ellie, will feel they have no option but to run.

Although I rarely liked what my lawyer said, I learned to trust that she was working for the best outcome. It wasn’t an automatic trust. She translated the convoluted legalese into language that my permanently fearful self was better able to digest. She deconstructed the law and made it less intimidating, which was key. She understood my irrational fear of social workers yet she did not dismiss it but helped me to see what their role really was instead of the role I had assigned to them in my head of the Childcatcher from Chitty Chitty Bang Bang.

My lawyer remained patient and continually kept me informed every single step of the way, allowing me to process what I didn’t understand, often explaining on a loop. She understood that my exhausted body was permanently flooded with adrenaline, geared for threat and very, very bad at assimilating complex information so she would frequently offer a HUGE dose of calming perspective whenever something had upset me. Before each hearing, she would meet me in a café, so I would not have to go into court on my own. I believed my lawyer would fight my corner.

But what made me want to run? Things changed with pregnancy. It had started subtly enough. I found it difficult to breastfeed. He stood behind me and watched like a hawk- criticising at any given moment. It started when he told me my breast milk was inferior. That I was starving the baby. That the baby was better off having formula because you could see the ingredients on the packet. He was attentive and charming around the Health Visitors but once they had gone, he monitored everything I did, telling me I was useless because I couldn’t get the baby to sleep through the night, I couldn’t keep the house clean, I couldn’t do the most basic things that most new mothers found second nature. My struggles with parenting a newborn, the difficulties with breast feeding, baby blues and exhaustion were all cited as reasons for just how crap I was. I wasn’t a proper mother. Constant digs that I wasn’t coping with what should come naturally for a mother, led to him suggesting that if he didn’t support me, my baby would be taken from me . He told me he would prevent that from happening because he wanted my baby to have a relationship with me – even if I wasn’t a very good mother. I was at rock bottom and believed him, spiralling into an ever increasing mass of inadequacy.

He told me that I was disgusting, that I was no longer attractive and he was doing me a favour by staying with me because on my own, I would end up begging on Oxford Street. It never stopped and I started to believe that the only thing I could do, to keep my child with me, was to get away from a system that seemed hell bent on separating us.

I was too scared to speak to my GP, fearful it might set the child removal wheels in motion. In fact, I was terrified of anyone whose job it was to support and I have heard many women share the exact same fears.
I remember how grateful I was, that he would allow me the chance to be a mother!

I say all this because it worries me that people aren’t getting the help they need. I worry about Ellie and hope she has a lawyer who will take the trouble to understand her reasons for doing what she did and not demonise her.
I hope she has a judge who will understand why a mother might run and who can acknowledge that decisions like this won’t have come easily. I hope the judge asks what made her take the risk? What was going through her mind? What had she been told? What kind of support did she have around her? Which professionals could she trust? What was her relationship like with her lawyer? What was her greatest fear?
All of this even before considering whether her ex was abusive or not.

I don’t believe that many lawyers and judges are fully cognisant of just how imposing and intimidating court can be and how, when faced with the prospect of genuinely believing your child will be removed, how someone might see that their only option was to run.

For a person to have faith in the legal process and the court, the court needs to work harder to show that that faith has been earned and I cannot, hand on heart, say that it has.

Want to Adopt? Review of new book by Helen Oakwater

This is a post by Sarah Phillimore. Helen Oakwater is an international trainer, coach and author. Her ‘world axis tilted’ in the early 1990s when she adopted a sibling group of children, then aged 5,4, and 2 from the UK care system. I am grateful for a chance to read and review her latest book prior to its publication. My own views about ‘forced adoption’ can be found in this post. 

In March 2012 I reviewed Helen’s first book: ‘Bubble Wrapped Children – how social networking is changing the face of 21st century adoption’ . I commented then that I thought it did the book a disservice by apparently focusing on only one element of what was making closed adoption a trickier concept as electronic communications networks grow at exponential rate.  In 2012 I said this:

The book inevitably has to cover a very wide range of topics in order to allow the reader to fully understand the full potential for harm from such unexpected contact  to children already traumatised by earlier life experiences. The author sets out to  explain the likely nature and extent of trauma suffered by the adopted child and the ways in which the child can be helped to make sense of his or her world. She also puts herself in the shoes of the birth parents and considers how they might be thinking and feeling and how this can influence their actions.

The book is thus an excellent resource for those coming new to the system and who require an introduction to the psychological theories around attachment and trauma. The author is able to present a number of quite complicated concepts in direct and vivid language, making good use of metaphor and diagrams to aid understanding; I found illuminating the example of child development as a river. Some rivers flow smoothly to the sea, others are turbulent with additional murky tributaries. Which river would you rather navigate?

For me, the key issue then (and now) was Helen’s clear analysis of the difficulties ahead for children and their families given the almost inevitability that any adopted child will have suffered some kind of trauma and loss before joining their ‘forever’ family.  Her second book takes this head on. It is called ‘Want to Adopt? How to prepare yourself to parent a child from the care system’. It will be published this spring.

The book is divided into three parts. Part 1 ‘I want my own healthy baby’ – immediately, in my view a sensible recognition of what often provides the dangerous tension in debates about adoption; providing children for those who cannot have their own biological children is a very different system from that which seeks out quasi professional parents to provide reparative care for some very traumatised children. The public face of the debate often seems to slide over this very necessary distinction and offers instead just platitudinous mantras about a ‘loving warm home’ being all you need.

Part two deals with ‘Stepping Stones’ – how to approach and deal with the necessarily intrusive assessment process that will follow into your capabilities and your motivations behind adopting. Because of the impoverished public discussion we generally have about adoption I would be very interested to know what the rates are of parents who apply to adopt and then drop out mid way or after the assessment process.  Helen identifies the very pertinent and I think over over looked point that it isn’t just enough to prepare yourself for adoption – you must also prepare those around you who may make up your support team. They will also need to make efforts to understand the challenges and complexities of parenting a child with trauma.

Part three is ‘to cross the river or not’, looking at when hope and reality collide. Chapter 13 has some useful direct quotations from various adoptive parents.  Helen focuses the discussion on the inevitability of disappointment and challenge in life and the need for an honest appraisal of how we propose to deal with this.

This is a useful and ambitious work which again presents some complicated concepts in clear and vivid language. I do find the use of quotes and diagrams useful, this is an engaging and interesting subject and it deserves a similarly engaging and interesting analysis.

As Helen says in her introduction:

‘This is one of the books I wish I had read before starting my own adoption process back in the early 1990s. I wish I had had this information throughout my journey. I wish I understood the impact of trauma in my own life and its devastating effect on the three children I adopted’.

She does not regret her decision or her children. But it is obvious that any such challenging life event is made easier to navigate with the right information, the right tools, the right people to help and guide you. My very real fear is that for far too long the debate about adoption has simply fallen between the ever widening abyss between the two polarised extremes: that children must be ‘rescued’ urgently from feckless parents where a warm and loving home awaits that will ‘fix’ them OR that any attempt to intervene to provide children with a safe and secure home is part of some murky conspiracy to line the pockets of individuals or agencies.

We need voices like Helen’s who are prepared to tell it like it is and break down this rigid and arid binary. The sentence that really jumped out at me was ‘when hope and reality collide’. So much of human misery that I see appears to stem from the often sadly vast gulf between what we know to be true and what we would like to be true. It takes a lot of energy to keep such dissonance alive. And its wasted energy. As Maslow says, the facts ARE always friendly. There is nothing dangerous or unsatisfying about being closer to the truth. The ‘truth’ about adoption may in reality be very far removed from the sanitised fairy tale of a ‘forever family’ but it is no less an extra-ordinary journey and for some children it is absolutely what they need.

I therefore hope Helen and others like her continue to speak and write and push for wider understanding of some of these fundamental issues. The better prepared adopted parents are, the more cognisant they are of the likely reality, the more able they will be to survive their journey which will be of immense benefit to them – and their children.

Of course, knowledge and preparation alone cannot magically solve all the problems – some of which are very serious and lead to the de facto breakdown of families. See the website of Parents of Adopted and Traumatised Teens for further discussion. Some adopted children will need considerable support beyond their immediate family and I have serious doubts about the availability and coherence of such support – but that’s a topic for another post!

 

 

In whose best interests? Transgender Children: Choices and Consequences

This is a post by Sarah Phillimore. I am concerned that the decisions by Mr Justice Hayden in Re J [2016] are being overlooked in the ongoing debate about children who want to ‘change genders’, and in particular the role played by the Mermaids organisation. I discuss my unease about what would have happened in Re J if it was decided this year in a talk at the Make More Noise event on July 27th 2019 

First disclaimer. I am not a bigot.

It has, and has always been my view from when I was very young, that if consenting adults wished to dress in a particular way, have sex in a particular way or get married to someone they loved who loved them back, that was absolutely their business and no concern of mine, other than to be happy for them that they had the chance to live their best life. As a disabled person I am well aware of those times in my life when I have been denied opportunities, been insulted or attacked for a physical characteristic that I did not ask for and was completely out of my control. I would never knowingly inflict that kind of harm upon another.

But I am also a lawyer. So by training and by temperament I am not interested in what people ‘feel’ about any particular issue. I am interested about what they can prove. What evidence do they bring to the table to support their fears or worries?

Some advice; if you find what I say ‘hateful’ and wish to have me removed from social media or my employment then of course you must take what ever steps you think are appropriate. But please remember I don’t have an employer; I am a self employed sole trader. If you think my words mean I am not fit to be a lawyer, please refer the matter to the Bar Standards Board. 

Please also note that I will not agree with you and will use my best efforts to challenge and reject any complaints made.

Second comment. We cannot sacrifice facts for feelings.

In the on-going and harmful ‘debate’ about trans women with intact male bodies in female spaces (such as sports or prisons) we find very clear and horrible illustrations of what happens when people bring feelings to a fact fight; when both sides of the ‘debate’ appear to believe that they are supported by facts and reasons and the other by unreasoning hysteria and bigotry. 

While adults may insult others as they wish, provided they don’t step over the line dividing freedom of speech from criminal harassment, I am concerned here about what is being argued on behalf of children. The need for clear and honest debate is particularly important when talking about the ‘rights’ of children to transition and to be supported/encouraged in accessing surgery or medication to do so.

i have no interest in controlling what consenting adults do to other consenting adults and think such attempts to control is a moral wrong, unless and until of course their activities impinge on my ability to live my life. However, as a lawyer who has worked in many years in child protection law, I do have a very keen interest in what adults do to children, often purporting to act in ‘their best interests’ when, to the objective outsider, it seems anything but.

Much of the increasingly anguished ‘debate’ about transitioning is now very clearly focused on children and at what age they could or should be supported to make the ‘decision’ to transition from ‘male’ to ‘female’ or vice versa. This ‘transition’ is often required to be supported by medication or pretty serious surgical intervention. The impact on the child’s body as he/she grows will be serious, often leading to infertility or loss of sexual function.

I have become increasingly concerned about the role played in all of this by the Mermaids organisation. 

They describe themselves in this way:

Mermaids is passionate about supporting children, young people, and their families to achieve a happier life in the face of great adversity. We work to raise awareness about gender nonconformity in children and young people amongst professionals and the general public. We campaign for the recognition of gender dysphoria in young people and lobby for improvements in professional services.

The decisions in Re J [2016]

I am worried that the continuing debate and discussion over the role of the Mermaids organisation has overlooked a very important judgment from Mr Justice Hayden in July 2016 – J (A Minor), Re [2016] EWHC 2430 (Fam) (21 October 2016).

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

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

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

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

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

It is clear that the mother was insistent with all agencies that J ‘disdained his penis’ and was being subjected to bullying at school etc. She could not provide any proof of this and the school denied it was happening. She was supported throughout by Mermaids who played a significant role in the development of a ‘prevailing orthodoxy’ that J – at 4 years old – wished to be a ‘girl’. That view was found by the court to have no bearing in reality and was a product of both ‘naivety and professional arrogance’ 

Mr Justice Hayden was highly critical of the local authority for getting swept up in this prevailing and false orthodoxy, commenting at paragraph 20 of the July judgment

This local authority has consistently failed to take appropriate intervention where there were strong grounds for believing that a child was at risk of serious emotional harm. I propose to invite the Director of Children’s Services to undertake a thorough review of the social work response to this case. Professional deficiencies to this extent cannot go unchecked, if confidence in this Local Authority’s safeguarding structures is to be maintained.

A later judgment in October 2016 dealt with the aftermath of the boy’s removal and how he had settled with his father and to what extent these matters should be in the public domain. That judgment is here: J (A Minor), Re [2016] EWHC 2595 (Fam) (21 October 2016)

What happened after 2016?

Mermaids at the time were highly critical of these judgments and said they would be supporting the mother in a appeal. No application was made to appeal. They showed no humility or understanding in their press release of October 2016, insisting that the courts simply had not understood issues of gender identity. I assert that no one can in good faith make such argument if they had bothered to read the lengthy and careful judgments of Mr Justice Hayden.

Since 2016 Mermaids have continued – in my view – to show no understanding or humility. The current controversy is around a grant to their organisation of £500K by the Lottery Fund which is currently under review and has been the subject of some critical press attention. 

Children are – quite rightly in my view – protected as a vulnerable class of people in our legal system. Children below the age of 12 are highly unlikely to be considered to have the requisite maturity and understanding to make significant decisions about their lives that will impact well into adulthood. Even those older children who are ‘Gillick competent‘ may find that their wishes and feelings are not allowed to determine issues of significance; such as the right to refuse surgery.

The accepted wisdom of the majority of child psychologists is that a child under the age of 6 years is probably unable to express any view that does not align with his or her primary care giver. This is a relatively simple matter of stages of cognitive development and pure survival. The older a child gets the more their wishes and feelings carry weight, but they remain unlikely to be ‘determinative’ unless and until they age out of the protected class of ‘child’.

So why are we even entertaining any discussion that a 4 year old is in possession of all the facts and their consequences needed to make a serious decision about whether or not to keep or ‘disdain’ his penis? Particularly when organisations such as Mermaids and their supporters appear to wish to push for wholly regressive and offensive gender stereotyping such as little girls like pink and sparkly things and little boys want to play rough and get dirty. If a little boy wants to play with dolls and wear a dress, why does he have to ‘disdain his penis’ to do that?

What do we know about the implications of medical and surgical intervention for children?

Not only is a young child likely to be unable to grasp the necessary information to make an informed decision about transition, it seems that the adults around him or her do not yet even possess sufficient information to make a safe, informed decision on the child’s behalf. We appear to know more about the impact of puberty blockers on sheep than we do on children. Note comments from the Science Symposium on 18-19 October 2018 at The Tavistock and Portman NHS Foundation Trust, cited below in Further Reading. Grateful thanks to @bettytastic to alerting me to this.

We do know something of the effect of puberty blockers on the brain development of adolescent sheep however. Professor Neil Evans of the Institute of biodiversity in Glasgow reported impairments to several functions, including a sheep’s capacity to find its way through a maze, which persist after stopping puberty blockers. This raises questions about the possible neurological effects of puberty blockers on children’s psychological, social, sexual and cognitive development. Some of Professor Evans’s references are listed below (Robinson et al 2014, Hough et al 2017 a & b).

The consequences of a pathway of surgical and medical intervention are not merely physical of course. Stephen B Levine wrote in 2018  in the journal of Sex and Marital Therapy ‘Informed consent for transgender patients’ reminds us that risk needs to be identified across three categories – the biological, social and psychological. Four specific risks arise in each category.

Biological risks include loss of reproductive capacity, impaired sexual response, shortened life expectancy, Insistence that biological sex can be changed cannot alter the possibility of sex based illness – such as prostate cancer arising.  Social risks include emotional distancing from family members, and ‘a greatly diminished pool of people who are willing to sustain an intimate and loving relationship’. Significant psychological risks involve deflection of necessary personal development challenges, inauthenticity and demoralisation – when changing your body does not bring about the desired changes to the way you ‘feel’.

Of course, the existence of risk does not mean that one should never embark upon a risky endeavour. It may well be that the benefits outweigh the possible disbenefits to a significant degree and the risk is well worth taking. But that conclusion cannot be reached without clear eyed and dispassionate unpicking of the risks AND benefits.

How can the ‘no debate’ platform and unquestioning acceptance of any child’s expressed wish to ‘transition’  ever reflect the serious ethical duty of medical professionals to be sure their child patient has offered informed consent?

To what extent are adult influences driving children?

Julian Vigo independent scholar, filmmaker and activist who specializes in anthropology, technology, and political philosophy, wrote for Forbes in December 2018 about discussions with Mermaids in 2013 and the concern noted then about what might lie behind adult desires for their chid to ‘transition’ – to help the adult ‘fit in’.

I spoke to Linda at Mermaids, a support group in London formed in 1995 by parents of transgendered children.  She told me that this group supports parents who have children who do not ‘fit in’ with ‘gender roles.’  I ask what she meant exactly by ‘fitting in’ and Linda explains, ‘If you are a little girl who behaves like a boy, you will want to have your hair short, to play with the boys.  Even at play group they will be different…they will be picked on and those are the problems.’  I tell Linda that many little girls will have short hair and play with boys—I was one of those little girls.  She says, ‘I have known a lot of girls in my time and they don’t like rough and tumble..they don’t like playing with boys.  They like to play with dolls, dressing up, playing in the Wendy House, to grow their hair…’  Linda emphasises that it is important that these children ‘fit in,’ a phrase she often repeats in our discussion.  Is this what transitioning for some trans adults is about?  Is this the ‘support’ that parents are receiving in order to understand ‘gender roles’?

Professor Michele Moore makes some similar points and her talk is linked to below.

Conclusions

I will never make any apology for raising and discussing these issues. As a disabled child who could not be ‘fixed’ it became clear to me in my teens that I had a choice; to kill myself or to try and live the best life I could in the body I had. I had virtually no support from the adults around me in this process; the 1970s and 1980s, when I grew up, were much less enlightened times than now and I am glad these issues can be more freely raised.

I wish for all the chance to the live their best life and to live it freely, with love and respect from their fellow humans. We should all do what we can to allow this to happen. If we can’t support it, we should step back and keep quiet.

However, we need to tread very carefully when it comes to little children, who are wholly at the mercy of the decisions made on their behalf by the adults caring for them. Any decision which has the consequence of setting their bodies and hence their lives on a particular path is one that must be taken carefully, honestly and in possession of all the facts. It should never be about a way of assuaging the pain or mental distress of any adult.

None of this means it is impossible for a four year old to have clear and decided views about what he or she wants to do with his or her body, or that it would be automatically wrong to act on those views. But it is – by simple matter of that child’s very young age and compromised cognition – highly unlikely that the vast majority of four year olds can make informed decisions about something serious – such as surgery. We need to be very, very careful about the extent to which adult hopes and dreams are pinned on children.

If anyone in the Mermaids organisation cannot read the judgments of Hayden J and feel appropriate remorse for their role in contributing to the significant harm caused to a 4 year old child, they are not fit to receive even 50 pence of public money, let alone £500K.

Edit 26th December 3.40pm

I am really grateful for the mostly courteous expressions of interest in this post. In particular, the comments from the parent of a trans child. I agree with her that this was not a case where anyone (so far as I know) was advocating for immediate surgery on a 4 year old. I remain very concerned about what the logical outcome for the child would have been if no one had intervened to disrupt the ‘disdain the penis’ narrative. But I accept that surgery and/or  medication are not usually on the horizon until the child approaches puberty.  I also accept – as did Hayden J – that there are children who will need the kind of support and intervention advocated by Mermaids. But to force ‘transition’ on a child who didn’t want it is as every much a horrible tragedy as it is to deny a child help and support they desperately need. The only way – I think – out and through these difficult and emotional questions is by adherence to facts and rational debate about them.

Second Edit 26th December 5.55pm

A reader comments that it is ‘absurd’ to say that re J highlights anything about Mermaids. I refer to this article in the Guardian which confirms that Mermaids supported the mother in court. I stand by my assertion that the judgment in Re J reveals very worrying things about Mermaids’ operation and assumptions. ‘To the man with a hammer – everything is a nail’.

Third Edit 1st January 2019

I have further edited this article to include references to some interesting papers and online talks which I have discovered in conversation with others on line. i remain profoundly grateful for the opportunity to take part in these kind of discussions.

Further reading

Articles/Research

A New Way To be Mad The Atlantic 2000

How common is intersex? Journal of Sex Research Dr Sax August 1 2002

Autopedophilia: Erotic-Target Identity Inversions in Men Sexually Attracted to Children November 2016 Psychological Science Journal

Mum of ‘gender non conforming child’ sells fake ‘extra small’ penises for transgender children under five – The Mirror December 2017

But nobody is encouraging kids to be trans! Lily Maynard March 2018

Emperor’s new clothes. Gender ideology and rebranding the privileged as the marginalised –  Liberals for Sanity June 2018

,No, you don’t have a disorder. You have feelings – Lisa Marchiano July 2018

Those of us in the mental health profession ought to be in the business of helping people to see themselves as having the potential to be well and whole. We should help them understand themselves as resilient, rather than infirm and frail. We ought to help people imagine larger, richer, more complex stories for themselves, rather than simplistic narratives of illness and victimhood.

The Science of Gender: what influences gender development and gender dysphoria – summary of the 2018 European Society for Paediatric Endocrinology (ESPE) Science Symposium on 18-19 October 2018 at The Tavistock and Portman NHS Foundation Trust. By Bob Withers and posted by Miranda Yardley in November 2018

Trans groups under fire for huge rise in child referrals – Andrew Gilligan November 2018

Young children, reality, sex and gender Katie Alcock May 2019

Politicised trans groups put children at risk, says expert – The Observer July 27th 2019

The Tavistock’s Experiment with Puberty Blockers* Michael Biggs Department of Sociology and St Cross College, University of Oxford (version 1.0.1, 29 July 2019)

Deficiencies in Scientific Evidence for Medical Management of Gender Dysphoria Paul W. Hruz 20th September 2019

Talks/television

Rene Jax, a male to female transsexual, calls for caution and further research over use of medication for children who express gender dysphoria  – Calfornia Family Council July 2018

Professor Michele Moore speaks in October 2018, discusses her concerns about the lack of debate about the impact on children of a medical and surgical pathway; that gender dysphoria does not reside in the body. Encouraging self identification in children is a tool of adult self interests. She is expert in Inclusive Education and Disability Studies

The Man who Lost his Body BBC 1997

Case law

Gillick v West Norfolk and Wisbech Area Health Authority and another [1986]

Jay v Secretary of State for Justice [2018] EWHC 2620 (Fam) (08 October 2018) and note the evidence of Dr Barrett quoted at para 29 of the judgment:

“Separately, and recently, she reports gender identity problems. Her history, if taken at face value, is reasonably consistent with this diagnosis but the difficulty is that other aspects of that history are rather directly at odds with the documentary records leading me to have doubts about the veracity of her whole history – which would include a reasonably consistent history of gender identity problems. This aspect might be made clearer if a source other than [Ms Jay] could be interviewed …. If collateral collaboration is elicited I would reach an additional diagnosis of some sort of gender identity disorder. Whether the intensity of gender dysphoria caused by that disorder is great enough to merit or require a change of gender role might be explored in the setting of a gender identity clinic; it might be sufficiently intense in a prison but not so outside one and in civilian life, for example. If collateral corroboration is not convincingly elicited I would have grave doubts and wonder whether [Ms Jay]’s somewhat dependent personality had caused her to unwisely latch onto a change of gender role as a seemingly universal solution to both why her life had gone wrong and how it might be rectified.”

Lancashire County Council v TP & Ors (Permission to Withdraw Care Proceedings) [2019] EWFC 30

TT, R (On the Application Of) v The Registrar General for England and Wales [2019] EWHC 2384 (Fam) (25 – transman applied to be registered on child’s birth certificate as ‘father’ – refused as he remained ‘mother’ according to common law . This was appealed – the appeal failed. Apparently it will be taken to the Supreme Court.

https://twitter.com/VictoriaPeckham/status/1079039829604814849

Transparency: Be careful what you wish for

This post originally appeared on The Transparency Project but objections were raised to my use of the feature image. So I repost it here.

 

This post is to comment on the latest ramifications of the long journey of two parents who faced the same accusation in both criminal and family courts but with very different outcomes.

The Transparency Project commented on this case in 2016; first looking at the legal position with regard to over turning adoption orders. Julie Doughty described the factual background in June 2016, asking the question ‘can an adoption order be undone?’ (answer – yes but it’s very rare):

In …  Re X [2016] EWHC 1342 (Fam), the President of the Family Division, Sir James Munby, gave permission for a full re-hearing of the original allegations made in care proceedings in 2012 involving an injury to child, now aged four, who was adopted in 2015. The problem that has since arisen is that the criminal proceedings brought against the parents, later in 2015, were dropped part-way through the trial. The trial judge directed that the parents be acquitted, as there was no case to answer. The standard of proof in a criminal case is of course higher than in a family case, but the parents now want that family case overturned. This is understandable, because if they want to have more children, or to work with children in the future, the family court finding will still say they pose a risk. However, their barrister told the President that if they were successful at the re-hearing, they would go on to challenge the adoption itself.

I also commented on this decision to hold a re-hearing in November 2016: ‘You can’t handle (51%) of the Truth’ . By October 2016 the parents were clear they did not wish to participate in any rehearing  and did not wish to challenge the adoption order. They provided written statements setting out that they could not contemplate removing X from a settled home after so much time had gone by. However, the LA, Guardian and adoptive parents all wanted a hearing.

The LA accused the parents of cynically withdrawing from a case they knew they could not win. The criminal prosecution had failed not because the parents were a victim of a miscarriage of justice and had been ‘exonerated’ but because prosecution witnesses could not agree about the existence or otherwise of metaphyseal fractures; accepted by all as a difficult area of diagnosis. Metaphyseal fractures are also called ‘corner fractures’ or ‘bucket handle fractures’ as they refer to an injury to the metaphysis, which is the growing plate at each end of a long bone, like a thigh bone. Most experts agree it is a indicator of abuse as the force applied to cause these fractures is shaking. Metaphyseal fractures occur almost exclusively in children under 2 because they are small enough to be shaken and they cannot protect their limbs.

The prosecution decided, very properly, that they could offer no further evidence against the parents in light of their own experts’ lack of certainty when set against the high criminal standard of proof.

This emphasis on declaring ‘the truth’ on the balance of probabilities, troubled me then, and troubles me now. In 2016 I commented:

What I had hoped we would see would be some open, transparent and honest discussion about the often enormous and sometimes irreconcilable tensions between doing right by parents and doing right by their children. Some recognition of the unnecessarily cruel bluntness of the lack of options for children to keep in contact with birth families, when decisions are made for adopted children, and which the Court of Appeal recognised in Re W [2016] needed further thought.

However, what it looks like we may get is some dreadful pantomime, further spending of many thousands of pounds of public money in some charade that by holding a re hearing of a finding of fact on the civil standard of proof (the balance of probabilities) we will somehow get to The Truth and we must do this because it will benefit the child.

What happened after October 2016?

For reasons which are not explained, the decisions of the court made in 2016 around this re-hearing have only just been published on the BAILII website in December 2018 so we are finally able to understand how this unusual situation has resolved.

Can a hearing take place if the parents won’t participate? And what are the implications for ‘The Truth’ ?

The first issue to be determined was whether or not the parents’ refusal to participate in the new finding of fact meant it should not go ahead. The court decided it should, commenting at para 30 and my emphasis added:

The fact is that, because of everything which has happened in this most unusual litigation, we are in a very good position to know what the birth parents’ case is and how it would, in all probability, be deployed before me were they to remain participating fully in the re-hearing. So I am reasonably confident that the essential fairness and validity of the process will not be compromised by their absence, just as I am reasonably confident that, even if they play no part in it at all, the process will be able to find out the truth for X and for the public.

I have highlighted that part of the judgment as it does not reassure me that any of the points I raised in 2016 have been answered; rather my concerns have increased. This creates a situation where the child and the wider public are asked to accept that ‘The Truth’ has been discovered on a balance of probabilities, with no participation from the parents and a Judge who is then only ‘reasonably confident’ that the process will work. By the time of the conclusion of the renewed fact finding the President was on firmer footing (see para 47), and was now ‘confident’ the truth had prevailed – but this remains ‘the Truth’ only on a balance of probabilities.

The court then continued with the finding of fact over a 12 day hearing in October and November 2016. See X (A Child) (No 4) [2018] EWHC 1815 (Fam)(decided in 2016 but not handed down in open court until 14 December 2018)

The court found that the parents had hurt X and they had decided at a late stage to try to avoid a finding of fact because they knew ‘the game was up’. The (then) President commented at para 125:

…I ought to say something about the timing and asserted basis for their attempted withdrawal from the proceedings. I cannot accept their protestation that the motivation for this was concern for X’s welfare and a recognition that there was little realistic prospect, whatever my findings, of ever being able to challenge the adoption order. If that had indeed been the case, they could have sought to withdraw much earlier. The truth, as it seems to me, is that, faced with the overwhelming weight of all the expert evidence which by then had been marshalled, they realised that ‘the game was up’ and cynically sought to withdraw, hoping that this would stymie any attempt to re-visit Judge Nathan’s original findings and thus prevent those findings being vindicated…

Matters of interest: Controversial expert evidence

These proceedings touch on a number of key issues that frequently become the subject of discussion and concern about how we deal with allegations that parents have hurt children. I have already commented on the issue of the standard of proof in family proceedings above. Annie will give below her perspective as a parent on how she reacts to the potential for different outcomes on the same facts in criminal and family courts.

It also highlights the difficulties around ‘controversial’ expert evidence which we touch upon in our guidance note relating to experts in the family courts – see Part 6relating to issues of medical controversy. In the criminal court the parents instructed Dr David Ayoub, a board certified radiologist licensed to practise medicine in the United States of America in the states of Illinois, Missouri and Iowa.

He could not be persuaded to attend the renewed fact finding in 2016 so the court considered his 2015 report and the evidence given in the criminal proceedings. Dr Ayoub had taken the controversial view that metaphyseal fractures happen extremely rarely and ‘for a great deal of the time, the medical community fail to take account of rickets’. His evidence was dismissed by the court as ‘worthless’, noting the reactions of the other doctors who described Dr Ayoub’s evidence as ‘nonsense’ (see para 43)

Asked by me to amplify what he meant by “nonsense”, whether he was using it with the colloquial meaning of “bonkers” or with the meaning “lacking any sense”, Dr Somers unhesitatingly replied “both.” Dr Somers said that Dr Ayoub’s interpretation of the images was “so far removed from any competent radiological interpretation that I have encountered that I would question either motive or competence.” He said of Dr Ayoub’s report that it “obfuscates important issues with a selective interpretation of the evidence in order to support an unproven theory.”

It is worth commenting that this is quite an incredible exchange for one expert to have with a Judge about the quality of another purported expert. There are other reported examples of parents attempting to rely on ‘foreign’ experts of less than stellar reputation and I wonder whether this is the inevitable consequence of the growing distrust of ‘the system’ and belief that all experts are in the pockets of the local authority – for an interesting example of the problems this can cause note also A (A Child), Re [2013]EWCA Civ 43. For further comments and concern about Dr Ayoub, see this article from The Times on 10th December 2018,which noted that Dr Ayoub had given evidence in other cases in the UK, further claiming calls were mounting to curb ‘incompetent experts’ and growing fears about their lack of regulation or control.

Matters of interest: Should a Reporting Restrictions Order continue to conceal the parents’ identities?

it is this issue which I think is probably the most pertinent for those of us who are interested in greater openness and transparency in the family courts. We have to grapple with the possible consequences of increased transparency, particularly in light of what seems to be a prevailing journalistic culture that rests very heavily on salacious and personal details as necessary to drive a story. When other members of the Transparency Project commented on a first draft of this post they asked why had chosen not to name the parents. My response was that I had not consciously chosen not to name them – but I felt very sorry for both of them. I have no doubt that they were encouraged to act as they did by those self styled campaigners against the family court system who persistently offer parents very bad advice on the basis that the whole system is corrupt and designed to steal children. Anyone who wants to know their names will find them by following the links in this post. I still feel uneasy about naming them here, even though I know this is futile.

The parents had welcomed considerable publicity after the collapse of the criminal trial in 2015 and their names were well known. The mother gave an interview to the Daily Mirrorsaying:

People need to know this goes on and be told the truth – you can take your baby into hospital scared they might be ill and the hospital can steal your baby away from you.

Their criminal barrister was quoted in the same article as saying:

Every step of the way when people had the opportunity to stand back, look at things again and say ‘we have made a mistake’, they ploughed on instead. These innocent parents have been spared a criminal conviction and a prison sentence for a crime they never committed. But they have had their child stolen from them. Their life sentence is that they are likely never to see their baby again.”

Sadly, this comment could not be excused as excitement in the heat of the moment arising from media attention, as the barrister’s Chambers published a blog which is still on linemaking the same points and quoting the parents’ junior criminal counsel as saying

“This tragic case highlights the real dangers of the Government’s drive to increase adoption and speed up family proceedings at all costs.”

Alarmingly, the blog post claims the parents were ‘exonerated’. They were not. The prosecution offered no further evidence. This is not a positive finding that the parents were innocent of any accusations made against them. This has echoes of the unfortunate ‘exoneration’ of Ben Butler by a family court when his text messages later revealed a very different picture; sadly after he had killed his daughter.

Such claims of exoneration are awkward when read against the 2016 fact finding. X did not have rickets. There was no miscarriage of justice. X had suffered ‘really serious abuse, child cruelty’.

At para 121 the court noted.

Standing back from all the detail, the overall picture is deeply troubling. Over a few short weeks, during the first few weeks of life, and extending, I am satisfied, over some period of time before taken to RSCH, X suffered an extraordinary constellation of what, I am satisfied, were inflicted injuries for which there is no innocent explanation: the constellation of marks and bruises noted by Dr Maynard (excepting the handful for which there may be an innocent explanation); two torn frenulae; and a number of fractures to different limbs. This was really serious child abuse, child cruelty. Whoever was the perpetrator must have known that X required medical attention. Even if someone was neither the perpetrator nor present at the time when injuries were inflicted, that person must have realised, even if only as time went by, that something was seriously wrong and that X required medical attention. Yet, until the final episode of oral bleeding, neither of the birth parents made any real attempt to obtain medical assistance for X, let alone to protect X from what was going on. Whoever was, or were, the perpetrator or perpetrators, both of the birth parents carry a high measure of responsibility for what on any view were serious parental failures.

Despite the considerable public attention already upon the parents in 2016, the court at that time agreed to impose a Reporting Restrictions Order to prohibit further naming or photographs, noting that the absence of that kind of detail would reduce the amount of publicity that could risk identification of the child or adoptive parents during the second finding of fact. The matter would be considered again when proceedings were concluded and this was done at a hearing on 30th November 2018 X (A Child) (No 5) [2018] EWHC 3442 (Fam) (14 December 2018)

In light of the outcome of the renewed finding of fact, it is not surprising that the mother now wished for the RRO to continue. She had since separated from the father who did not participate in the hearing. Her lawyers argued on her behalf that the mother was:

a vulnerable woman, lacking in formal education and certainly lacking in sufficient sophistication to negotiate dealing with the press. In the aftermath of the criminal hearing, [she] quickly came to regret having been forthcoming to the media. She experienced a level of interest and unwelcome attention that she had not anticipated and with which she could not easily cope. She withdrew from any further such involvement. She learned her lesson after the damage was done, but this socially disadvantaged young woman could never have been expected to have understood the ramifications of ‘going public’ and should not now be held responsible for the actions of others, who could have been expected to have such understanding.

However the court was not sympathetic to this argument. After conducting the balancing exercise between Articles 8 and 10 the court was clear that the parents should not be shielded by anonymity. The arguments put forward by the adoptive parents and the Press Association found favour:

…that there are in the public domain two competing narratives: one, the false narrative, in which identified birth parents portray themselves as the victims of a miscarriage of justice; the other, the correct narrative, in which unidentified birth parents are shown to have wrongly portrayed themselves as the victims of a miscarriage of justice. If the RRO continues in relation to the birth parents, it will not be possible to ‘link up’ the two competing narratives and therefore not possible to demonstrate that the false narrative is indeed false. It will remain indefinitely on the internet without anyone being able to counter it and demonstrate its falsity. More specifically, the allegation (now, as we know, false) of the identified birth parents that they – two named individuals – were the victims of a miscarriage of justice will remain indefinitely on the internet without the possibility of challenge and refutation. Ms Cover and Ms Rensten seek to meet this argument by submitting that the dragon is sleeping and will not be revived unless the birth parents are now identified. Even assuming that their premise is correct, this does not meet Ms Fottrell’s point, which is that the false narrative is out there – readily accessible by anyone with access to the internet.

A birth parent’s perspective

Annie, one half of the Project Coordinator role at the Transparency Project and author of Surviving Safeguarding: a parent’s guide to the child protection process adds her perspective.

I remember this case as it unfolded in the glare of the media in 2016.

What I, and other parents read was that these parents had taken their child to hospital, quite rightly, for medical help, and were accused of harming him or her, meaning that the baby was removed from their care at six weeks old. These parents were then put through the ordeal of a criminal trial and were found innocent of harming their baby. In the meantime, the Family Court had found, on the balance of probabilities, that the child had been harmed and decided that the baby should never be returned to their (seemingly innocent) parents and forcibly adopted. After being cleared of any criminal charges, the parents launched an appeal to have that child returned, an appeal which they then withdrew from, saying that their child had been with the adopted parents so long it would not be fair to move them.

To add insult to injury, Sir James Munby, the President of the Family Court Division (as he was then) added in cynical comments saying that he thought the parents had withdrawn because they “knew the game was up”. He stood by the family court findings (that the child was harmed by the parents).

I, like many birth parents with experience of the child protection system, felt both confused and angry by what I was reading. I felt angry with Munby and defensive towards the parents. How could birth parents who had been found innocent of abusing their child still go on to lose that child to a non-consensual adoption? It seemed utter madness – and a terrifying concept. Since 2015, I have offered direct advocacy to birth parents embroiled in the child protection process. What was I supposed to say to a parent who came to me, frightened, and not engaging with the local authority as a result, who had read this story in publications like the Daily Mail? How was I to reassure them that if they engaged with the help being offered that they had a far better chance of their family staying together when this story was being splashed all over the news and shared in amongst Facebook groups set up to protest against forced adoption? And quite frankly, who could blame these parents for feeling scared? I was, too.

I’ve since read the judgments, and taken time to review what evidence is available in the public domain. I understand better, and my view has changed. However, in the main, most members of the general public don’t read judgments. In the main, we read the news reports and form our opinions from them.

When it comes to parents involved with Children’s Services, these news reports only serve to exacerbate our fears that social workers are the “bogeymen” who will steal our children, even when we are found innocent. This perpetuates the “them and us” narrative, and means we are far less likely to either ask for help, or engage with the help being offered to safeguard children.

Conclusions

Sir James Munby’s confidence that the ‘true’ narrative will now overpower the false one, perhaps displays too great a faith in the ability of people to readily abandon narratives that chime with their own emotional reactions when presented with ‘facts’ (particularly if these are facts established as likely only on 51%). Publishing information on the internet does not by itself remedy the harms caused by adherence to more general conspiracy theories; a matter I have discussed in more detail at the Child Protection Resource.

However, this case with its harrowing and hopefully very unusual set of circumstances, sets out some powerful lessons. I think it is a continuing reminder of the need to be honest about what findings of fact in court can achieve. They are rarely about ‘exonerating’ or ‘damning’ but rather making a finding on a particular standard of proof. That means we need good quality evidence and experts who adhere to good standards of practice. Although Sir James was at the end ‘confident’ that ‘the truth’ had prevailed, the situation as highlighted in the criminal proceedings remained; the images of the fractures were of poor quality and the experts were not unanimous about what they saw.

As Annie comments above, it is a very clear example of just how confused those are outside the system about how it operates. The different standards of proof in criminal and civil cases is rarely understood, and when it is many parents make the reasonable comment that if their child is going to be adopted, it should be on the higher standard of proof.

However, most compellingly of all in my view, this case is a reminder of that he genie cannot be put back in the bottle. If we are pushing for greater openness and transparency, we all need to be mindful of the possible consequences. Once information is ‘out there’ it is very difficult to control how it will be republished or reinterpreted, no matter how hard you insist yours is the ‘right’ version. Once you have got journalists excited about the intimate details of your case, you may well attract more attention than you bargained for and end up the centre of a story that you had not anticipated.

Possibly parents who have greater faith in a court system will be less likely to seek to use journalists to fight their cause. But the risk of people pushing a false narrative with intent to deceive will remain and we are naive to think that publishing ‘the facts’ at a later stage will undo all the damage.

Feature Pic courtesy of Michell Zappa on Flickr (Creative Commons licence) – thanks!

The futility of opposing adoption orders

Parents are going to stop trying to break the cycle if there is no chance of of opposing adoptions or having contact with an adopted child.

This is a post from a parent who talks about the adoption of her children and her attempts to either oppose the adoption or get a post adoption contact order. She asks the important question – what is the point of a law existing when parents never seem able to succeed? Even if parents are granted leave to oppose an adoption order on the basis of a change of circumstances, all seem to fall at the the second stage of the test which asks what is in the child’s best interests.

I can think of only one case since the Adoption and Children Act 2002 where the court refused to make an adoption order and the child went to live with a paternal aunt – but even this case was based on the presumption of placement in a birth family which has been rejected by subsequent authorities. I do not agree with the poster that the court never grants leave to oppose – I have successfully applied for leave. However, I am not aware of a single case where a birth parent succeeded on the second limb of the test and successfully opposed the making of an adoption order. I would be grateful to know if there are any out there!

With regard to post adoption contact I first discussed this in 2014 and the need for shift in position; nothing seems to have changed. 

 

I am a 37 year old mum. I have 8 delightful children. 4 girls, 4 boys.

The girls are D 17, S 16, L 11 and G 10.

The boys are R 15,  J 14, E 7 and P 4.

My mum was in care. I was in care. The local authority tried to take my eldest at birth. We kept her at home.

I walked out on my marriage to A in December 2002. I was pregnant with R. I stayed with a friend (SG) Gave birth to R and fell pregnant with J. I left (way too late) in March 2006 due to it being a violent relationship.

I then met a great man (M) and had L and G. We stated together until February 2010. I ended the relationship to restart the relationship with my ex husband. (A) We had my 7th child E a year later.

A year (2012) after he walked out with our 3 eldest children (D,L and R) and failed to return them. My eldest returned the same night. My 4th child J went to stay with my (abusive) ex (SG) for 3 months and failed to return him. Then ex (M) took our daughters and social services insisted he returned them.

I got into a relationship with an old friend (GM) and had baby P in 2014 and my eldest moved back to her father.

My children had been subject to numerous child protection plans and at this point only the eldest 3 were subject to plan. We were in court for child arrangement orders. My eldest 3 lived with A. Youngest 4 stayed with me.

A few weeks later A and his uncle hurt R and my 3 returned home.

Suddenly my partner (SG) started drinking. He didn’t want my eldest 3 at home and threatened to take our child (P) and tell social services I couldn’t cope. The children moved to paternal grand mother. The eldest returned a few months later and my partner threatened to take baby P if I let her stay. My daughter moved in with a friend.

Then S and R returned.

R went into care in March 2015.

L went into care in October 2015.

SG was being abusive. I kicked him out. Returned hours later to find out he had broken in and was refusing to leave. He said if I made him leave he would break into the house and take baby P from his cot. He had ultimate control. He wouldn’t engage with the local authority. Blamed me when they wanted him to work with them saying I wanted it not them.

then late Jan 2016 he was violent. I called the police. He was arrested. Then I failed my children AGAIN.

I made an additional statement. His bail was dropped and he came to the house to visit our child. The next day the local authority started care proceedings.

SG said he wanted to take me to the doctors to get me help because “I was mental”. If I didn’t let him come home then the children would go into care and it would be my fault.

An ICO was granted for D (stayed with father) L and R. I agreed L and G could live with M and they went that weekend on a supervision order

E and P were put on a supervision order to at home with me.

then D was removed from her father.

twice more the local authority requested ICO and removal of E and P. Twice more the judge refused. The last time she said if the psychological report was similar to the social report then she would agree adoption. If not then the LA should close the case.

On the final day of proceedings E and P were made subject to full care orders and placement orders and removed the same night.

I tried to revoke in August but the local authority placed them the same day. On advice from CAFCASS the judge did not grant leave to revoke. However the judge said she wanted to see me back before December 2017 to oppose the adoption.

The paperwork arrived in July and we went to court in August. I was granted legal aid in the changes I have made. The LA were doing a new assessment.

Now the adoption hearing is upon us with a final decision next week.

the LA and guardian believe I have not made enough of the RIGHT changes. They believe I have a man visiting or living with me. They want adoption.

The LA were given 28 weeks to place E for adoption or he would go into long term foster care. The LA extended this deadline on their own back WITHOUT having it RATIFIED by a judge.

I met my barrister who told me opposing is a 2 stage test. Is there changes? Yes there is.

With that in mind would the judge grant leave to oppose. My barrister said NO. the point is a lot of parents make changes. However this is never enough to “open the door” to grant leave. To grant leave the judge has to believe that the parent has a solid change of opposing the order. They have to keep in mind the welfare of the children. Their welfare is paramount.

On this basis parents always fail. Judges do NOT give leave to oppose.

So I have to question this.

Why is it written into law that parents can oppose if the Judge refuses permission EVERY TIME.

It either needs to be taken out of law as a null point or judges need to start granting leave to oppose.

As it stands parents can show significant change and still not be granted leave.

Either uphold the law and grant parents leave or remove it. This law is dangled in front of parents as a possibility and then snatched away by the court. Same as contact with an adopted child. The law states it can happen then refuses parents who apply for it.

Parents are going to stop trying to break the cycle if there is no chance of of opposing adoptions or having contact with an adopted child.

Why its time to open up the Family Courts

On Saturday 3rd November I attended a workshop at UWE organised by journalist Louise Tickle as part of her project to investigate opening up the family courts and recalibrate the balance between privacy and scrutiny. Disclaimer: both Louise and I are members of  The Transparency Project, so our interest in and commitment to further openness of the family courts is obvious and I make no secret of my bias in favour of this happening as soon as possible.

I have undergone an evolution in my views since 2011, when I first took up any kind of campaigning role. Whilst I initially parroted the phrase ‘private not secret’ and worried about the impact on children of increased scrutiny, my exposure over the years to obvious examples of where the system was failing has changed my views.

This blog post is an attempt to outline what I think are the most important reasons for opening up the family courts and what we can do about the real and serious fears of many that we are simply encouraging a salacious and irresponsible Press to make free with a family’s misery.

Have a look at the Twitter hashtag #openfamilycourt for some contemporaneous tweeting about what happened at the workshop.

Justice must be seen to be done

This is the simple, basic and big one.  As David Burrows has pointed out (see ‘Further Reading’ below), family lawyers look through the wrong end of the telescope, assuming that family cases must be held in private from the outset when in fact it is the ‘open court principle’ that is the default position.  Issues of permissible privacy and statutory limitation, especially regarding children can be discussed from that starting point.

As far as is possible we should strive to make sure that the public can access the courts and understand the system of justice that operates in their name.  It is the fundamental principle underpinning our entire system of justice and for too long the family court system has been allowed to develop along tracks which lead it far away.

 

Lack of scrutiny can have terrible consequences.

https://twitter.com/SVPhillimore/status/1058733467033370624

It is very clear to me – not just from this workshop, but from attempts to engage with a wide range of people over many years – that most of us are just stuck on broadcast when it comes to issues that cause us particular pain. Our view of the situation narrows to encompass only that which has hurt us. This is entirely understandable and I don’t criticise anyone for it unless and until they demonstrate to me that their minds are closed to any possibility that their views may sensibly be challenged.

This single issue focus is often a massive block to any sensible discussion about how we move forward and it is made far worse by the obstacles the current family justice system puts in the way of understanding and scrutiny. I don’t pretend that opening the courts would be a miracle cure for the single issue campaigner – but it would allow me more authority when I say that their perception or their understanding is wrong; THIS is what happened.

I have often wondered why the lawyers are so absent from the parents’ narratives on social media. I am now beginning to understand exactly why. What was telling from many of the parents at the workshop was that the lack of public scrutiny meant that no one really understood the system they were entering, they felt powerless to engage with or even challenge their own lawyer and the power imbalance was thus magnified.  A system of parent advocates could be a way forward. 

 

Lack of scrutiny allows stale cliche to become unchallenged truth

There are stock phrases and belief systems that influence the family justice system. Many – in my view – are based on imperfect understanding of existing research, wishful thinking or used as a quick get away from any attempt to actually think and worry about a situation that may actually be incapable of resolution, so lets just get rid of it quickly. Lack of scrutiny or outside challenge means they have been allowed to harden over the years into inescapable ‘truth’.

We are doing this in the child’s best interests, which are paramount.

The most stale and dangerous of them all. It needs unpicking. First how do we find out what is in the child’s best interests and what does ‘paramountcy’ actually mean in the context of the family and wider community?

Children in my cases roughly fall into two camps. They are very young and they can’t speak. We thus find their ‘wishes and feelings’ reported as ‘If Baby X could speak I am sure he would say he would like a warm loving home!’. Or they are frightened and angry teenagers who are desperate for an adult to take control and keep them safe, but find instead that the adults tip toe around them ‘respecting’ their autonomy – until of course the teenager says or does something the adult doesn’t like, in which case all that Gillick competence dries up and blows away.

I am fed up of being involved in cases where children are separately represented but who won’t meet with their lawyers and give instructions. Not only is this a massive drain on the public purse but it also means we aren’t listening to what these children are telling us loud and clear. Be the adult. Make decisions to keep me safe.  There is a limit to the extent that children’s views can inform us of their best interests.  They lack perspective and understanding about how their choices today can impact their lives down the line. And most of them, on some level, understand that – and crave an adult who cares enough to take that burden of responsibility away.

What is in a ‘child’s best interests’ is then perhaps more accurately rendered as ‘what do I the adult, with my preconceptions, bias, or dangerously high workload, think I can get away with recommending on the basis that its in the child’s best interests?’

Even more perniciously, is the fact that a child’s ‘best interests’ has become narrowed to seeing that child entire and alone in the universe – divorced from family, friends, community etc. The fact that it might be in a the child’s long term best interests to remain links with his family is overshadowed by the immediate ‘best interests’ to be removed from a potentially harmful situation. We see this in the cry of the social worker ‘I am not here for you! I am here for YOUR CHILD’. We see this in the words of the court – Lord Kerr in B (A Child) [2009]

All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s best interests. This is the paramount consideration. It is only as a contributor to the child’s welfare that parenthood assumes any significance.In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim.

i think this is wrong, is going too far, is using section 1 of the CA as a vehicle to drive us far away from what is actually in the best interests of children – to have a safe, permanent home and good relationships with those who love them and who share their identity. Children are not born as a blank slate to be easily picked up and dropped into a new adopted family.

I could be entirely wrong about all of this. But we are not able to talk about it, openly and honestly.  It is worth noting that all those at the workshop echoed the concerns expressed by the (now) President of the Family Division in 2017 – that there is no feedback loop in the system. Judges aren’t routinely told about outcomes for children. Greater scrutiny and openness can only improve this dire state of affairs.

 

But what about the risks to children of increased openness?

I accept that this is a real and serious fear and was certainly recognised by those at the workshop. What I don’t accept however is that debate stops at mere recitation of this risk. If reliance is placed on any assumption that open family courts will harm children then I am going to need to see a lot more research that goes beyond a small and self selecting group. The 2014 report from NYAS/ALC involved only 11 children, for example. Earlier research in 2010 asked only 51 children.

I am going to demand actual analysis of the harm that will befall a child if family proceedings are reported but the name of the child is kept out of it.

It seems to me that the reality is that those in the child’s locality will already be well aware that there have been some sort of legal proceedings; those outside the child’s locality won’t care. So long as the child’s name is kept out of it, so no digital footprint is created that might lead to unpleasant shocks in years to come, what actually is the harm that is caused? If the only harm that is identified is some degree of embarrassment, can that always and automatically be enough to over turn the fundamental principle of open justice?

Maybe I am wrong about this too. But whatever your interpretation of current research, there is never any excuse for Judges and lawyers then to fail to apply the relevant law and to carry out the necessary balancing act between Articles 8 and 10. The recent difficulties faced by Louise Tickle in attempting to persuade a Judge to relax a reporting restrictions order is a clear example of this.

https://twitter.com/SVPhillimore/status/1058736055774576640

 

Conclusions

So what do I think the next steps should be? If my pious arguments about legal principle and open justice don’t move you, maybe this will. The practical reality is – now that every one is a micro publisher, with an audience of potentially millions around the world – that the genie is already out of the bottle with regard to information circulating on social media and we either take control of this or we let it drown us. What do I think the next steps should be?

  • Louise continues with her investigations
  • Some one commissions fresh research into the likely impact of open courts on children, with a sample size greater than 11.
  • Proper analysis and investigation of what other jurisidictions are doing and how they protect children – see article below in Further Reading where I set out what is being done in some US states
  • Proper backing and funding to a system for parent advocates – to help parents bridge the gap of understanding and enable them to engage better with their lawyers.
  • A form of accreditation for journalists who wish to report on family cases so we reduce the risk of the current salacious and irresponsible ‘cherry picking’ only the ‘sexy’ information to report,  which causes such justifiable distrust in journalism as a profession.

 

Further Reading

The recent debate about opening up the Family Courts Sarah Phillimore December 2014 (includes discussion of what happens in some US States).

Transparency: What can I talk about? Who can I talk to? Sarah Phillimore 2014

Family proceedings: ‘the open court principle’ David Burrows December 2014

Opening up a closed system; the second Bridget Lindley Memorial Lecture Louise Tickle March 2018

Legal Blogging: a dry run in the Court of Protection Lucy Reed Pink Tape August 2018

Parent Advocates – a necessary bridge between the parent and the professional

I am grateful for this guest post from @DVHurts who discussed the notion of ‘parent advocates’ explored at the recent conference on 29th October 2018 organised by the Family Rights Group. This is something I have long thought would be a very useful addition to the system; such thoughts were cemented by discussions on November 3rd at a workshop organised by journalist Louise Tickle about opening up the family court – again what is repeated by parents is that they need help to understand the process and to get the best out of their lawyers. 

 

My position was clear and inflexible.  I didn’t want counsellors working out the personal problems on my payroll.  I wanted at least five years of sobriety, regardless of how much education they had.  They had to have been no breach of sobriety to grasp the spiritual nature of recovery and to ensure that the focus would stay on the client and not shift to themselves                                                                                                                                            

For a little light reading over the last week I have been browsing through Slaying the Dragon, The History of Addiction Treatment and Recovery in America, by William L .White. By grace, I do not have addiction problems myself , but I am interested in the treatment of addiction. The above quote originated from one of the addiction counsellors in the treatment centre, he was himself an alcoholic in good recovery. He was employed by the facility , alongside others in recovery and paid the same as other staff members in similar grades of work. The care team is described as inter-disciplinary not multi disciplinary.

 Also this week I attended this week Your Family Your Voice Alliance conference: Tackling the care crisis-Families Driving Reform run by the Family Rights Group  I came away with hope in my heart, that change is not only possible but will happen. the conference outlined one of the catalysts for change should be the training and  employment of parent advocates. Just as a recovered alcoholic has been shown by research to be the most effective person to lead another into sobriety, a parent who has been through the system, will as an expert through experience, be able to come alongside a parent and guide them through.

The conference was opened by the Your Family Your Voice Co- Chair and a Family Rights Group trustee Angela Frazer -Wicks, who like me is a  birth parent.  She has campaigned and worked with local authorities and is an excellent example of how a  dedicated parent can work within the system.

There  were a number of topics covered in the conference, but in this post I am just want to concentrate on parent advocacy. I am birth parent and this therefore is a personal view. A large part of my journey and recovery into wellness has been due to peer support and so I am an enthusiast. One of the primary factors was not realising that I was not the only person in the universe ploughing through the muck.The other has been my situation is not hopeless, there are tools to use , that others have done so in the past and I wanted what they had and I could get it when I had put the work in. They were willing to get down into the hole I found myself and show me the way out. During this process of change I also had help  on a 1:1 basis and having the ability to call on someone who understood the situation from their own experience has been key. By putting in the work, which includes looking into how your family ended up in the situation in the first place , which absolutely must not be a shaming exercise,  (shame is negative as I explored here) but a realistic evaluation, combined with solutions.

 What is an advocate? 

The dictionary definition relates more to a lawyer, one who puts your case in a court of law. So normally a well educated professional. Yet peer advocates who are now widely used within mental health services do not fulfil this role. They are more a bridge between the service user and the professional, when the service user does not have the capacity to understand , whether through mental health problems or simply fear.                               

There is another word paraclete, which originates from late Greek, which also means advocate and mediator. I understand lawyers can be both, however I think I am trying to look at a different role, with boundaries that are there but less rigid than between a lawyer and a client. It actually is more helpful as a definition, as it explains that a paraclete is one who is a comforter as well as speaking on you behalf. In Christianity the Holy Spirit is referred as the paraclete, the one who speaks to God on your behalf when you don’t know what to say and signposts you in the right direction.  He is always there to call on and if you listen, you will  be looked after. It is a personalised “service”.I  understand, that some won’t  like the religious illustration, but it is most effective way, I can personally explain what I see the role of the advocate to be.

Parent advocates, alongside other measures instigated by parents in New York City have reduced children in out of home placements by 82% since 1992. There are still approximately 100 parent advocates in New York today.  David Tobias, Ph.D. who as Executive director of the Child Welfare Fund, was at the coalface of the change to parents being seen as partners in the child protection system.In his address to conference , he stressed that not every parent could become an advocate and there was extensive training before they were accredited as advocates. This goes back to the quote at the top of this post. Parent advocates , would have to be selected from those that have the necessary maturity and qualities that can act as that bridge. They would not be a disruptive force, sure they would have their own bias, as we all do but would have worked through that , in order to put the family they are supporting first. They would need regular supervision, just as counsellors do.

When questioned, David said we need to get a curriculum together to train advocates. That sounds easy enough as it could draw from mental health advocacy training. So what else is stopping us? Money basically and to a lesser extent geography, as of course we are talking about a country not a city.

The other problem that arose in addiction centres is the professionals accepting the recovered addicts as equals in a team, the hierarchy being flattened was not universally popular, though these problems ironed over time.

We have been discussing this a number of years now, it needs to become a reality, the evidence is there, that parent advocacy works and the system is sinking from all perspectives, care figures rocketing ,parents broken, courts over stretched, social workers stressed and leaving the profession.

Last but not least the system is failing children. It could be started,  it could be evaluated,what  financial cost would there be of a number of parent advocates per area in relation to the millions spent on proceedings and looked after care at the moment?

There has been a discussion on Twitter and I think this is an excellent suggestion:

 

I fought the law – what are the implications of section 12 of the Administration of Justice Act?

I was asked by the journalist Louise Tickle to consider whether or not she would be in contempt of court if she published a blog post detailing her frustrations with the way the family court had dealt with a recent application made by a number of journalists.

In brief, the journalists attended a final hearing which had come about due to a decision made by the Court of Appeal that has already been reported and is in the pubic domain. That judgement names the relevant LA and social worker and provides personal detail about the mother, including her ethnicity and the date of birth of her child. What the journalists wanted to do was to report on the final hearing but also link in their reporting to this published judgment as otherwise it was difficult to understand how the case had taken the shape it had.

The Judge at the final hearing was not minded to permit publication of anything that might identify the ethnicity of the mother nor the identities of any professional parties – which poses the immediate problem that no reference could then be made to the prior judgment already published which contained that information.

Louise was unhappy with this outcome and I had to agree it was deeply unsatisfactory. I have not held back criticising journalists who refuse to link to judgments or even read them and end up publishing something partial and inaccurate. Therefore I am troubled to be told that journalists who wished to report by reference to the actual facts already in the public domain were being told that they may not – and even worse, that their right to freedom of expression from Article 10 of the ECHR, did not appear to be given any proper consideration by the Judge or the other advocates.

I read Louise’s proposed blog post and ran this past my understanding of the consequences that followed from applying section 12 of the Administration of Justice Act. My analysis of the law follows below.

I don’t think Louise is going to be hauled before a Judge and found in contempt of court for publishing her blog. But I didn’t feel that I could offer robustly confident advice that she would not. It is clear that each case will turn on its own facts and thus there is very little guidance for the lay person or lawyer who doesn’t deal with such matters on a regular basis – which I imagine is all of us.

For so long the family court have operated without public scrutiny that I do not think it is common place for Judges to be asked to consider relaxing the requirements of section12 AJA in general run of the mill family cases.

I hope I am right about all this. But I am not sure. It seems a rather unsatisfactory state of affairs that public comment about the family justice system should operate under such a climate of fear. Being found in contempt of court is a serious business; one possible punishment is the loss of your liberty. When facing serious consequences, the law that imposes them needs to be clear and it needs to be accessible. Lawyers need to understand and apply the necessary balancing exercise between Articles 8 and 10. How many do?

I do not think that our law about reporting matters in the family court is clear, accessible or consistently applied and .I will follow developments here with interest. Louise has launched a crowdfunder to raise the costs of her proposed appeal.

My view of the law.

Section 12 of the Administration of Justice Act 1960 forbids the publication of information relating to proceedings under the Children Act 1989 or the Adoption Act 2002. There is no time limit so the prohibition operates even after proceedings end.

Sub section (2) of the AJA exempts ‘the publication of the text or a summary of the whole or part of an order made by a court sitting in private’ UNLESS the court expressly prohibits the publication. There is no other exemption or explanation of terms offered by the statute.
We therefore need to look to case law and other general principles to understand what is meant by ‘information’.

With regard to publication, something is ‘published’ whenever it would be considered published according to the law of defamation UNLESS someone is communicating information to a professional in order to protect a child. A blog post published on the internet would thus clearly meet the definition of publication and by publishing a general blog, Ms Tickle could not avail herself of the defence that she is communicating to a professional.

Publication of “the nature of the dispute”, which is permissible, and publication of even summaries of the evidence, which is not.

What is meant by ‘information’? Munby J (as he then was) considered this in Re: B (A Child) (Disclosure) [2004] 2 FLR 142. He identified classes of information falling into this category as likely to be [para 66] :

  • accounts of what has gone on in front of the judge sitting in private
  • documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings,
  • Transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment. (I emphasise that this list is not necessarily exhaustive.)… likewise…extracts or quotations from such documents…also the publication of summaries

The identity of witnesses in care proceedings is not protected by section 12 and if any witness does want to remain anonymous they will have to convince the court that their need for anonymity was more important than the need for openness.

Section 12 does not prevent publication

  • of the fact that proceedings are happening, or
  • Identification of the parties or even of the ward himself. EDIT BUT PLEASE NOTE THAT s97 of the Children Act forbids naming children in current care proceedings.
  • or the comings and goings of the parties and witnesses,
  • or incidents taking place outside the court or indeed within the precincts of the court but outside the room in which the judge is conducting the proceedings.

However. at para 77 Munby J poses his final question ‘the extent to which section 12 prohibits discussion of the details of a case’. It is likely to be this question that is of most interest to Ms Tickle. He found he was assisted by Wilson J’s analysis in X v Dempster. There the question (see at p 896) was whether there was a breach of section 12 by publishing the words:
“Says a friend of [the mother]: “She has been portrayed as a bad mother who is unfit to look after her children. Nothing could be further from the truth. She is wonderful to [them] and they love her. She wants custody of [them] and we will see what happens in court”.”

Wilson J commented:

I am satisfied that the reference to the portrayal of the mother in the proceedings as a bad mother went far beyond a description of the nature of the dispute and reached deeply into the substance of the matters which the court has closed its doors to consider. If the reference could successfully be finessed as a legitimate identification of the nature of the dispute, the privacy of the proceedings in the interests of the child would be not just appropriately circumscribed but gravely invaded.

Munby J agreed with this observation and concluded:

Every case will, in the final analysis, turn on its own particular facts. The circumstances of the human condition, and thus of litigation, being infinitely various, it is quite impossible to define in abstract or purely formal terms where precisely the line is to be drawn. Wilson J’s discussion in X v Dempster, if I may respectfully say so, comes as close as anyone is likely to be able to illuminating the essential distinction between publication of “the nature of the dispute”, which is permissible, and publication of even summaries of the evidence, which is not.

Consideration of the case law when applied to Ms Tickle’s proposed blog

For a lawyer asked to give advice, the heart sinks upon encountering the phrase ‘every case will, in the final analysis, turn on its own particular facts’. This clearly makes it difficult to offer firm advice.

It is my view that the thrust of the blog post is very clearly to highlight Ms Tickle’s understandable frustration with what seems like a wholly inadequate approach by the court to the necessary balancing exercise of ECHR Articles 8 and 10. I do not think that anything she proposes to publish will fall foul of the distinction identified in X v Dempster. The ‘dispute’ which she wishes to highlight is in fact removed from the actual facts of the care/placement proceedings before the court and is a dispute about an ancillary matter; the relaxation or otherwise of reporting restrictions given that risk (I assume) of jigsaw identification once any reporting of this matter is linked to an earlier Appeal Court decision already in the public domain.

I must stress to Ms Tickle that in offering my opinion as I do, cannot be seen as any kind of guarantee that she would NOT face proceedings for contempt arising out of her blog post. It may be that my opinion is not shared by a Judge hearing this matter. However, I reflect upon the fact that she has clearly taken great care to strip any identifying details from the blog. In my view it is unlikely that any such proceedings would be bought; I would consider them wholly disproportionate in all the circumstances. In my view, the LA is the only party likely to consider such action and I would hope they have better things on which to spend their time and money.

 

Further reading

The opposite of transparency – an appeal against a reporting restrictions order Louise Tickle’s post on the Open Family Court website.

For a more general discussion of the principles around transparency in the family court see this post 

Or visit The Transparency Project website. 

Born into Care: Newborns in Care Proceedings In England

On 9th October 2018 I attended the launch of the Summary Report of ‘Born into care: Newborns in care proceedings in England’ from the Nuffield Family Justice Observatory for England and Wales.

The Nuffield Family Justice Observatory aims to support the best possible decisions for children by improving the use of data and research evidence in the family justice system. The main report will be online as of 10th October; this post deals with a summary and overview of its main findings.

The focus of the report is new borns subject to care proceedings, ‘new born’ being defined as an infant less than 7 days old. ‘An infant’ is a child less than 12 months old. The study used CAFCASS data from 2007 to 2017 to provide the first estimate of what proportion of care proceedings for infants are issued for newborns.

Numbers are on the rise

In the decade covered by the study, 173,002 children were involved in care proceedings and 47,172 (27%) were infants. At the outset, 32% of care proceedings were for newborns – by the end that had increased to 42%. Newborn cases also increased in volume over time; at the outset 1,039 cases were issued involving newborns; at the end 2,447. Thus the likelihood of newborns in the general population become subject to care proceedings has more than doubled. 

Regional variations

An alarming finding was the marked difference between the regions. The North West had the highest rates at 30 newborn cases per 10,000 live births in general population. Contrast this to London which had only 18 newborn cases per 10,000 live births.  A minority of LAs departed significantly from the expected average – the range for such outliers in 2016 was between 55 and 159 newborns per 10,000 live births. This is clearly troubling, and we need to investigate more closely the reasons behind such regional disparity.

The report suggests that differences are most likely attributable ‘to an interaction between professional practice and socio-demographic factors’. Of particular interest to me was the suggestion that we should investigate the influence of the local Designated Family Judges.  As it is a matter of some annoyance to me that different courts are developing divergent ‘local practice’  with regard to primarily administrative matters, it is not a great leap to think that a particular culture or approach may start to take root under the leadership of a particular Judge.

Subsequent Infants

This refers to newborns who had already had an older sibling appearing in care proceedings. In 2012/3 and 2016/7 this represented 47% of newborns. Without the experiences of an older sibling to inform the court, this raises issues about how the claim of ‘significant harm’ is going to be proved to the court – pregnancy provides only a very short window for an assessment of parenting capacity and support for change.

Duration of care proceedings

In 2012/13 only 28% of care proceedings completed within 26 weeks – in 2016/7 this increased to 61%. More research is needed to understand what is happening and what is different about the 39% of cases that do not complete within 26 weeks.

Final Legal orders

The total percentage of newborns subject to final care and placement orders was 47%. 21% were placed with extended family. 13% were placed with family. This requires further investigation – we need to know more about the circumstances behind those percentages.

Further questions

The report identifies the following areas requiring further consideration

  • Is increasing financial hardship for families a factor in the rising rates of newborns in care proceedings?
  • What is the impact of the reduction in preventative services on rates of newborns coming before the courts?
  • Does a defensive risk averse culture mean that professionals are less likely to want to work with the family without the security of a court order?
  • What accounts for fluctuations in the volume of newborn cases over time and place?

 

Main themes emerging from discussion

  • Loss of empathy in the system. What’s going wrong when people in the system want to do their best. ‘The arms that we used to put around families – which are no longer there’.
  • Development of ‘best practice’ in the maternity setting  – how to make the whole experience of removal less brutal for mothers (and fathers). A lot of this would be fairly simple to adopt and wouldn’t cost a huge amount – so why aren’t we doing it?
  • A need for better knowledge about what is done elsewhere – how do jurisdictions beyond England protect newborns, whilst also ensuring the rights of parents and wider family.
  • We have the numbers – now we need to drill down and look at reasons WHY such care proceedings are initiated.
  • And what happens AFTER proceedings? Are there groups of children who should be followed up?

 

https://twitter.com/SVPhillimore/status/1049593241341976576

https://twitter.com/SVPhillimore/status/1049644912575172608

https://twitter.com/SVPhillimore/status/1049648166075883520

Further reading

Care Crisis Review – report from the Family Rights Group

A little less conversation a little more action 

Myths and Monsters of Child Protection 

I have mainly stopped screaming; the imbalance between support and intervention.

Thanks to this guest post from a parent who wishes to remain anonymous.

I have mainly stopped screaming, I screamed a lot at first at the injustice of it all and the pain of separation. Today though I am suppressing an internal scream, the anguish now being punched out onto my keyboard.

I answered a strange mobile number this afternoon, I don’t normally but is just as well, because my son had borrowed his neighbours phone, to contact me. Could he have some money please a fiver would do? In truth I had been waiting for this call and this is why:

Over a month ago a letter was opened and ignored by him, it was telling him he had to apply for universal credit as income support had finished. He is at college, and has been offered a job and is just waiting to start it, for anyone who wishes to judge. My son has a communication disorder, so severe that he reached the criteria for a special school and he had been statemented at 7 years old. He is a care leaver and through circumstances he was placed into a flat by himself on leaving care.  Except he was not supposed to be on his own, his EHCP stated that his was to receive 20 hours of support a week, via employing support workers . It hasn’t happened, not one single solitary hour , and because he is over 18 it is apparently none of my business.  He does have some limited help from the pathway team and I am not criticising individuals. I spent hours in meetings before he left care making sure there was a workable transition plan in place. For what?

To apply for Universal Credit or to use any Government on line service you first have prove your identity. Now I have tried this very recently and nearly threw my laptop out of the window. Despite having input 3 bank cards and my driving licence, Government Verify via the Post Office still refused to recognise me and I am signed up to the electoral register, get post etc. In fact Verify has a failure rate of over 50% https://www.bbc.co.uk/news/uk-politics-41642044. So what chance does a care leaver , let alone one with learning difficulties actually have of managing this transition onto universal credit by themselves.

My son also did not understand that if a standing order bounces , you quickly rack up overdraft charges. So before long having no money actually turns into mounting debt. To some small extent he is lucky, we still have a relationship and I know how to cope. Before this change to universal credit he was actually managing money very well, as I told him to set himself a weekly budget and only use cash. Many care leavers lose their links to family members and if no one teaches them about financial matters how are they supposed to know?

The child protection system to me is like a three humped camel (bear with me) , the first hump consists of pre proceedings, this hump is too little and can be non functional, the third hump is after the young person leaves proceedings, this is much the same as the first. The middle hump, is enormous and bloated , it consumes all the nourishment that should be in the other humps. It shouldn’t be there as it unbalances the camel and makes it topple over. We know that the system is teetering, someone please listen, for the sake of the young people like my son who are being failed by a gross imbalance between support and intervention.