Author Archives: Sarah Phillimore

Evidence and Admissions made in the Family Court – what happens if the police are interested?

Section 98 of the Children Act

The purpose of this section is to encourage parents to speak openly and honestly in the family court about what happened to their child. It is supposed to provide them with safeguards against the involvement of the police who might want to prosecute them for criminal offences if they admit to, or the family court finds they have, hurt their children.

However, the situation is very complicated for even experienced lawyers to understand and it seems that it would be risky for any family lawyer to attempt to reassure their client that information or admissions contained in family proceedings will stay there.

98 of the Children Act 1989 provides that:

1. In any proceedings in which a court is hearing an application for an order under Part IV and V, no person shall be excused from-

A. giving evidence on any matter; or

B. answering any question put to him in the course of his giving evidence, on the ground that doing so might incriminate him or his spouse or civil partner of an offence.

2. A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse or civil partner in proceedings for an offence other than perjury.

I tried to provide a ‘translation’ of this in this post. 

Attempt at Plain English Version: No guarantees of confidentiality can be given by the family court.

The judge should give a warning in the following terms when a parent is being questioned about causing harm to a child:

  • I need to explain a rule of law to you. Its important you understand this. Your lawyer can explain it further to you, it is their duty to do so.
  • allegations are made against you in these family proceedings. The family court is not involved in any decisions made in the criminal courts about whether you should be found guilty or acquitted of any criminal offence.
  • However, in these family proceedings, the court will have to decide whether or not the allegations made against you are true. If they are found to be true, this would mean you have done something which may also be a criminal offence.
  • in the family proceedings you aren’t allowed to refuse to answer questions or provide evidence in writing on the basis that your answers might show you or your spouse had done something criminally wrong.
  • If you do give evidence that suggests you have done something criminally wrong, this evidence is NOT allowed in any criminal proceedings against you UNLESS you are being prosecuted for perjury (i.e. you have lied on oath in the family court).
  • BUT you must understand that if the family court gives permission that ANYTHING you say or write down for these proceedings may be given to the police for them to use during their investigations into your conduct AND if you did end up in a criminal court, the prosecution might make an application for permission to ask you questions about anything you said in the family court.

The court gave guidance in A Local Authority v PG [2014] EWHC 63 (Fam) about the impact of section 98:

  • when a party to care proceedings is ordered to file and serve a response to threshold and/or to file and serve a narrative statement, that party must comply with that order and must do so by the date set out in the order;
  • the importance of parents or intervenors giving a frank, honest and full account of relevant events and matters cannot be overstated. It is a vital and central component of the family justice system;
  • a legal practitioner is entitled to advise a client of (i) the provisions and import of s.98 of the 1989 CA and (ii) the ability of the police and/or a co-accused to make application for disclosure into the criminal proceedings of statements, reports and documents filed in the care proceedings;
  • it is wholly inappropriate and potentially a contempt of court, however, for a legal practitioner to advise a client not to comply with an order made in care proceedings;
  • It is wholly inappropriate and potentially a contempt of court for a legal practitioner to advise a client not to give a full, accurate and comprehensive response to the findings of fact sought by a local authority in the threshold criteria document. This applies both where that advice is limited in time, eg until after a criminal defence statement has been filed and served and, worse still, the advice is given not to make such a response at all.

Some important points

Automatic disclosure of judgments under Rule 12.73

Rule 12.73 of the FPR 2010 and PD 12G mean any party has an automatic right to disclose to police/CPS whole or part of a judgment in a family case for the purpose of a criminal investigation or to enable the CPS to discharge its functions. BUT neither police nor the CPS can disclose the judgment or the information it contains  to any person without the permission of the family court judge.

Factors set out in Re C 1996

The leading authority remains  Re C sub nom Re EC [1996] 2 FLR 725 CA The court set out the following matters which a judge will consider when deciding to let the police have information from the family court. Each case must be decided on its merits and the importance of these factors will vary from case to case. The case also predates the shift in attitudes towards more openness in family proceedings and the impact of Articles 8 and 10 of the ECHR and the Human Rights Act 1998, so will need to be seen in that context.

  • The welfare and interests of the child or children concerned in the care proceedings. If the child is likely to be adversely affected by the order in any serious way, this will be a very important factor.
  • The welfare and interests of other children generally.
  • The maintenance of confidentiality in children’s cases.
  • The importance of encouraging frankness in children’s cases. The underlying purpose of s 98 is to encourage people to tell the truth in cases concerning children, and the incentive is that any admission will not be admissible in evidence in a criminal trial. But the incentive of guaranteed confidentiality is not given by the words of the section.
  • The public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice.
  • The public interest in the prosecution of serious crime and the punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children. There is a strong public interest in making available material to the police which is relevant to a criminal trial. In many cases, this is likely to be a very important factor.
  • The gravity of the alleged offence and the relevance of the evidence to it. If the evidence has little or no bearing on the investigation or the trial, this will militate against a disclosure order.
  • The desirability of co-operation between various agencies concerned with the welfare of children, including the social services departments, the police service, medical practitioners, health visitors, schools, etc. This is particularly important in cases concerning children.
  • In a case to which s 98(2) applies, the terms of the section itself, namely, that the witness was not excused from answering incriminating questions, and that any statement of admission would not be admissible against him in criminal proceedings. Fairness to the person who has incriminated himself and any others affected by the incriminating statement and any danger of oppression would also be relevant considerations.
  • Any other material disclosure which has already taken place.

 

A parent who confesses

There is also very useful discussion about the operation of section 98(2) and disclosure of documents to the police in the case of Re X and Y (Children: Disclosure of Judgment to Police) [2014]. This case involved a parent who confessed to causing a serious injury to a child. This confession came AFTER a fact finding hearing where the Judge couldn’t decide which parent hurt the child. On giving judgment the Judge commented that it would be possible to rehabilitate the child back to the family if the perpetrator gave a full and frank account.  The father confessed to causing the injury 2 days later and the parents separated. The children went back to their mother and Baker J gave a further judgment, exonerating the mother of causing harm.

The Father then applied for an order to stop any of this information being sent to the police/CPS. The police had by now closed their file on the case. The police cross applied to see the information about the confession so they could decide whether or not to prosecute the father. Baker J allowed the police and CPS to see the judgments but with limits on their use; they could not discuss the contents of the judgments with either parent without the court’s permission.

At para 22, Baker J considered the question of whether the father’s confession could be used in criminal proceedings – was he protected by section 98? It is for the criminal courts to decide if a admission could be used as evidence within the criminal trial or whether section 98(2) provided protection but noted that he knew of no reported case where section 98(2) has been considered by the criminal courts. In the family court, such confessions have been used to ‘shape the nature and range of the inquiries’ the police undertake [Oxfordshire CC v P [1995] 1 FLR 797].

Therefore, the police can ask a suspect about his previous confession in a further interview. If the suspects admits it was truthful, that could be evidence admitted into his criminal trial. However, being questioned in a police interview in this way runs a serious risk that any protection offered by section 98 would be nullified – as recognised by the court in Re M [2001] 2 FLR 1316.

There is – as yet – no judicial answer to the question raised in Re X &Y as to whether a suspect’s confession could be raised in a criminal trial as a ‘previous inconsistent statement’ pursuant to s119 of the Criminal Justice Act 1993.

This seems to be the worst of all worlds. Of course the police are going to be interested in a confession or an adverse judgment. Of course they are going to want to rely on it and ask questions about it. It does seem that the practical use of section 98 has been considerably eroded.

 

Liz Ingham comments:

It seems a shame, particularly in a climate where the police and CPS appear to await the outcomes of fact finding hearings before deciding on whether to prosecute and where there is sometimes inordinate delay in criminal trials being heard, that the laudable aim of section 98(2) to encourage frankness in the family courts is being eroded by the spectre of criminal proceedings waiting in the wings.

The section was put there for a purpose – if it was not to provide a complete shield for parents who are frank in children cases in order to encourage them to be so, what was the point of it? Is it right to leave the amount of protection it provides to a parent to be determined in the criminal courts where there is no necessity to consider the factors which may compete against the criminal jurisdiction’s perception of fairness such as the need to preserve the integrity of the family justice system as a whole in providing swift and child focused justice? Would it not be better to have children returned home to one parent quickly following being injured by the other parent than to be removed from their birth family for months at best (pending a fact finding hearing) and for life at worst (due to both parents remaining in the pool of perpetrators) even if the price for that were that the guilty parent escaped criminal prosecution? For the children in Re X & Y, perhaps it was fortunate that Baker J did not give the warning under section 98(2). It might have discouraged the Father from being frank and the children would have remained separated from both of their parents.

 

 

Further Reading

 

Care Crisis Review

Today, June 13th the Family Rights Group published the Care Crisis Review report. The email sending out the press release states:

The Review confirms there is a crisis in Children’s Social Care and Family Justice Sector, explores the reasons why and sets out 20 options for change.

Over 2000 people and organisations contributed to the Review, including the Local Government Association, Ofsted, Cafcass and Cafcass Cymru, the Association of Directors of Children’s Services, the All Wales Heads of Children’s Services, third sector organisations and alliances, the Offices of the English and Welsh Children’s Commissioners, members of the judiciary, lawyers, social care practitioners, young people and families.

For further information please contact Cathy Ashley, Chief Executive, Family Rights Group. [email protected]

Read the report here.

The 20 options for change

  • Immediate steps that could be taken to move away from an undue focus on processes and performance indicators, to one where practitioners are able to stay focused on securing the right outcomes for each child.
  • Approaches, including family group conferences, in which families are supported to make safe plans for their child.
  • Suggestions of ways in which statutory guidance, such as Working Together to Safeguard Children, can be changed in order to promote relationship-based practice.
  • Opportunities for revitalising local and national family justice forums and other mechanisms, so that all can become places where challenges within the system are discussed and solutions developed.
  • Proposals for the Department for Work and Pensions and the Department for Education, in consultation with the devolved administrations, to examine the impact of benefit rules and policies, and the projected effect of planned benefit reforms, on the numbers of children entering or remaining in care.
  • A call for the Ministry of Justice to undertake an impact assessment of the present lack of accessible, early, free, independent advice and information for parents and wider family members on the number of children subject to care proceedings or entering or remaining in the care system, and the net cost to the public purse.
  • That the National Family Justice Board revises the approach to measuring timescales, including the 26 week timescale for care proceedings.
  • That there are improvements in exploring and assessing potential carers from within the family, when a child cannot live at home, and better support is provided to such carers and children so they do not face severe financial hardship.
  • That Ofsted and Social Care Wales in their inspections and research should take into account the duties on local authorities to support families and to promote children’s upbringing within their family.

The report also notes the £2 billion shortfall in children’s social care service and supports The ADCS and LGA’s call for Government to provide the cash, making the uncontroversial point that “Money and resources matter for families and for services”.

I don’t disagree with any of those 20 points. That there is a crisis in the child protection system is obvious and has been for a long time now. The President of the Family Division agrees.  Lord Justice McFarlane’s speech at the launch of the Review is now available online.

I first wrote this post about ‘Forced adoption’ in 2014. I have long commented upon and decried the frankly woeful state of the debate in our country about these vital issues and I have warned time and time again at the dangerous impact of those who profess to ‘campaign’ for parents.

However, I am sadly very pessimistic that anything is going to change. There can be little doubt what the problems are and little doubt about what is needed to fix them. Social workers who are not struggling under excessive case loads. Who have access to services and support for families who are struggling. That needs money. There isn’t any and there won’t be any because we have shown, collectively, as a society  – when we need to make a choice about the politicians we elect, we chose those who promise to cut taxes and hence services.

However, it goes further and deeper than that I fear. The only value children seem to have in our society is as economic actors; if they aren’t on track to achieve whatever grade is now valued in school exams, they are worthless. If they fail, its because they deserved to. Because they were lazy or didn’t try.  The culture of blame and shame which makes it so difficult for people to own and learn from their mistakes is enthusiastically promoted by politicians and journalists.

Journalists tell me that there is no point in trying to move away from sensationalist reporting and click bait headlines because ‘it’s what people want’. Even with easily available published judgments to the cases they write about, they will not provide their readers with a link to that judgment or even read it themselves.

I note with sadness that, for example, The Times offers a short comment on this review and can’t even be bothered print the correct name of the Family Rights Group.

We are really in a mess.

What’s the way out? Short of a magic money tree and shipping a boatload of politicians and journalists off to some hellish version of Love Island where they can simply rant at each other and leave the rest of us in peace, I have no clue.

All I can do is continue to operate in my sphere of influence. If we cannot make the fundamental changes to the system that I and many others think are needed, we can try and make parents and children have an easier passage through the system, to feel less brutalised by a system they do not understand or which is not well explained.

I think we do that by talking, listening and discussing. To find out what we can achieve to make things better.

The Transparency Project is again supporting #CPConf2018 and we are going to meet in London on 15th September to talk particularly about the issue of removal of children on the basis of future emotional harm. All are welcomed who have an interest – which really, should be all of us.

‘Project Social Work’ – A Risky Business

Red, Orange, Green

I am grateful for this blog post from one of our regular parent contributors about how lack of realistic appraisal of various risk factors is impacting on society and services in general, and social work is of course not exempt from these pressures and failures.

I regularly need to prepare risk registers in my work. For anyone not familiar with these, a risk register is essentially a document that sets outs all your fears/risks about x, the actions that need to be taken to lessen these risks, the impact if the risk materialises and the likelihood of the risk materialising. A risk register should also identify who is managing each risk (ownership). Risk registers are dynamic – each risk gets a numerical score derived from probability and impact ratings and associated colour coding – green (ow risk), orange (medium risk) or red (high risk) to show what risks are the most and least critical at any one time.

It probably says something about me that I like preparing risk registers. For me they are never generic documents. I’m a worrier and the risk register and the associated thinking behind it helps me get perspective on my fears, think holistically and come up with workable strategies to address risks. I also know that it is part of my job to ensure risks are understood when decisions are made, often by people with very competing priorities and different skill sets to mine and a risk register gives a framework for this.

Risk registers used well also evidence good decision-making. If a decision is made to do or not do something, it should be that decisions address risk in an appropriate way when viewed in the round.

I’ve a superficial understanding of social work processes but I believe that understanding and managing risk is key to what social workers do. In my world risk averse management practice means that there needs to be a discussion at board level about whether I can be authorised to use my own initiative to purchase a biro while strategic risks escalate (e.g. reputational, operational, financial ) because they do not get enough focus. In the social work world, risk averse social work practice means splitting families ‘just in case’, without meaningful consideration of the potentially negative intergenerational impact on families affected and /or their ongoing relationship, potentially of disaffection, with the State thereafter. If resources are spent addressing medium or low risk situations, there is less money available to address the needs of those most in need.

Project UK

I know this is sounding like a very ‘dry ‘post but actually I feel like shouting at anyone within earshot that ‘Project UK ’ – the nuts and bolts of how the country is run rather that ‘Project UK Conservative Government” has a risk register that is overwhelmingly red. I realise that many people, brighter and more involved than I am, know this and hope there will be an opportunity to address some of these issues post-Brexit. Until then normal business in Westminster is on-hold. The only Project UK risks that are being managed are ones around cash flow (Austerity). It seems that these are being managed in a way that is equivalent to requiring board approval to purchase a biro with all the problems that brings.

Here are just a few examples of very serious difficulties with Project UK :-

  • There may be 50,000 children excluded from school being ‘home schooled’ I say ‘may’ because there is no register. There is no meaningful policy or additional resources to meet the needs of these children because to address their needs will mean unpicking many of the ‘reforms’ of the Education system based on survival of the fittest of the last decade.
  • 1 in 8 deaths of learning disabled people results from neglect by those whose job it is to care for and provide services for them. Most are indifferent to this.
  • Our justice systems are crumbling relics from an age when people had rights and those rights mattered.
  • Our prison systems, containing some of the most vulnerable people in society, resemble nothing as much as ‘Lord of the Flies’.
  • We have relied on inward immigration in lieu of meaningful education and workforce development strategies for decades. We do not have enough doctors, carers, scientists, social workers, construction professionals to run our services and this inward immigration tap looks like it will be shut off post-Brexit with catastrophic consequences for service and infrastructure delivery.
  • Commercial markets have been created for example between companies caring for children, between schools and types of school, between hospitals etc so that Government no longer has meaningful control of any of the levers of service delivery. Government departments manage markets to a lesser or greater degree, because they pay for them but no-one in Government is looking at who services are for and what their needs are, unless service users vote for the political party in power. (Think about finance made available to increase the number of school places in selective grammar schools in this context)

 

What is a crisis?

I think it is fair to say that the contract between State and individual is in very poor condition. Looking at the newspapers today this headline – Au pair shortage sparks childcare crisis for families made me smile. I realise no-one wants an endless news diet of Grenfell fire, Windrush scandal, Brexit omni-shambles but ‘a crisis’ given all of these..A crisis?

So have we always had:-

– A press that in the main focuses on the priorities of the noisy middle classes, ( you will have to work hard to convince me that the au-pair shortage is not a middle class difficulty) divorced from people who need unambiguous and enforceable rights to meaningful support around their needs? ( A safe place to live, protection from abuse and exploitation if vulnerable, Specialist services.)

– Policy-makers who only look to meeting their needs of their voter demographics – currently the middle class and the old or the male and pale unions?

– Departmental remits with narrow goals often a version of a ‘Carry On Regardless’ around what was included in the Election Mainifesto?

My feeling is some of this was always probably true but not to the extent that it is now plus all the ground rules are changing. Voters may matter but so do twitter users. Powerful countries interests have become subservient to those of big business and our policy-makers seem unsure as to what they can or should do in the circumstances particularly if they have spend the last three decades creating markets for big business where there were none before.

The UK is experiencing the last symptom (and it may yet kill us) of a toxic legacy of Empire and are wearing newly purchased Emperor’s clothes. Ridicule, disbelief and pity to follow…

Project Social Work

‘Project Social Work’ seems to have a similarly red hued risk register -for example:

  • around workforce development (red- a major battle between big business and the university sector in progress),
  • stability (red – no-one seems clear on the role of social work and where this fits in relation to working with families, big business and government )
  • retention in the role, (red,-burnout and churn the norm)
  • resources (red – the Local Govt financial settlement means the rich boroughs get richer and the poor boroughs get poorer and with more and more demand on their services. Interestingly though the first Local Authority, Northamptonshire to go bust was one that reconfigured all services around the needs of big business )

On the positive side ‘individual social worker’s values’ would not be coloured red on my ‘Project Social Work’ register because although it is a dreadful time to have the role of providing help on behalf of the State when the State has little if any interest in the troubles or difficulties of those that need help, it seems to me that there are many good social workers who to their credit, try to put people they are there to help and their needs first.

That is some achievement given the big picture. Social workers like these need all the help and encouragement they can get.

Mothers are more likely to abuse children than fathers. Fact?

I recently had a bit of a heated debate with a anonymous tweeter ‘Preserved by Faith’ who was very sure that 71% of children killed by a family member are killed by their mother. She relied upon statistics provided by Mark Rosenthal’s ‘Breaking the Science’

These appear to be credible and are taken from the US Department of Health and Human Services.

Data from U.S. Dept. of Health and Human Services “Child Maltreatment” reports, 2001-2006*
Victims by Parental Status of Perpetrators
  Child abuse and neglect Child fatalities
  2001-2006 2001-2006
Mother Only 1,452,099 1,704
Mother and Other 222,836 565
Mother total (alone or with someone other than the father) 1,674,935 2269
Father Only 661,129 859
Father and Other 37,836 77
Father total (alone or with someone other than the mother) 698,965 936
Both total (Involving one parent acting alone or in concert with someone not the child’s other parent) 2,373,900 3,205
 
Percent of cases involving one parent acting either alone or in concert with someone other than the child’s other parent
Mother Involved But Not Father 70.6% 70.8%
Father Involved But Not Mother 29.4% 29.2%

What I don’t know because the table doesn’t make it clear, is how many of these mothers and fathers were living together at the time the child died. Is part of the reason that more children are killed by mothers because more women than men are primary carers of children? The vast majority of lone parents are mothers. In the UK in 2014 for example 91% of lone parents were women.

But probably a more interesting percentage that can be gleaned from these figures is that children killed by parents acting alone. I haven’t analysed those figures when a parent ‘acted’ with another because no explanation is given of what that means or what degree of culpability was afforded the parent as opposed to the ‘other’.

1,704 were killed by a mother acting alone. That represents only 0.12% of the1,452,099 children who are neglected by their mother alone.  For fathers, who by themselves neglected 661,129 children, they killed 0.13% (859). So in terms of parents acting alone, fathers kill MORE children than mothers.

She then moved on to assert that mothers were more likely to abuse children than father’s full stop, referring to an Australian article ‘Why aren’t we talking about abusive mums?‘. Again I wonder to what extent this is reflection of the fact that women are overwhelmingly more likely to be lone carers, and considerably more likely to be poor.

Half of all absent fathers in the UK pay nothing towards their children. Women are also more likely than men to be victims of violence and abuse from intimate partners.

https://twitter.com/PreservedFaith/status/1003989261253795840

Lets look at this article. It has a link to its claim that ‘children are far more likely to suffer abuse or neglect at the hands of mothers – but that link is simply to another article offering the experiences of ‘Sarah’ who was sexually abused by her mother and I couldn’t find any reference to statistics there.

It does however quote this study

The Child Family Community Australia reports, “A British retrospective prevalence study of 2669 young adults aged 18-24 (May-Chahal & Cawson, 2005) found that mothers were more likely than fathers to be responsible for physical abuse 49 per cent of incidents compared to 40 per cent).”

So no 70/30 split in terms of physical abuse.

It then says this, but provides no link to any published statistics in support

DHHS data in the UK shows that of children abused by one parent between 2001 and 2006, 70.6 per cent were abused by their mothers, 29.4 per cent were abused by their fathers.

I wonder if that is actually a reference to the statistic quoted by Mark Rosenthal given the reference to ‘DHHS’ which isn’t a UK body. With such precise statistics quoted, the lack of any link is odd.

‘Preserved by Faith’ also referred to this data from the American Society for the Positive Care of Children. But this doesn’t seem to break down the figures to show what proportion of the abusers were mothers and what proportion fathers or step fathers. However they are a shocking light shone on just how dangerous parents are for children.

NATIONAL CHILD ABUSE STATISTICS

  • 4 million child maltreatment referral reports received.1
  • Child abuse reports involved 7.2 million children.1
  • 3.4 million children received prevention & post-response services.1
  • 207,000 children received foster care services.1
  • 75.3% of victims are neglected.1
  • 17.2% of victims are physically abused.1
  • 8.4% of victims are sexually abused.1
  • 6.9% of victims are psychologically maltreated.1
  • Highest rate of child abuse in children under one (24.2% per 1,000).1
  • Over one-quarter (27.%) of victims are younger than 3 years.1
  • Annual estimate: 1,670 to 1740 children died from abuse and neglect.1,3
  • Almost five children die every day from child abuse.1,2
  • 80% of child fatalities involve at least one parent.1
  • 74.8% of child fatalities are under the age of 3.1
  • 72.9% of the child abuse victims die from neglect.1
  • 43.9% of the child abuse victims die from physical abuse.1
  • 49.4% of children who die from child abuse are under one year.1
  • Almost 60,000 children are sexually abused.
  • More than 90% of juvenile sexual abuse victims know their perpetrator
  • Estimated that between 50-60% of maltreatment fatalities are not recorded on death certificates. 
  • Child abuse crosses all socioeconomic and educational levels, religions, ethnic and cultural groups.1

But what is the point of all of this?

I don’t think the statistics show that mothers are more evil and more prone to abuse children than fathers. I think the statistics show that mothers are more likely to be in a situation where they will be poor and under stress. I really don’t know what ‘Preserved by Faith’ was trying to argue. She seemed to have a pretty clear animus against her step children’s mother but it wasn’t clear if she was trying to argue that the mother was therefore more likely to murder her children so custody should be given to their dad, now married to ‘Preserved by Faith’.

I could see that ‘Preserved by Faith’ was pretty angry and upset at what she perceived to be the situation. And yes, if its true what she set out, that’s a hard road to travel.

https://twitter.com/PreservedFaith/status/1003987854555566085

But does the path get any easier by relying on partial statistics to make some general point that as mothers are 70% of child killers, then HER step children should spend 50% of their time with their dad?

The tragedy of these cases is that the adults involved often cannot look beyond their own anger and they fall back on tired generalisations about ‘men’ versus ‘women’. If their rage is palpable to me – a complete stranger they ‘meet’ on the internet, I wonder what is is like for the children in their lives who presumably have a much more immediate and proximate exposure to such negative emotions. Their mother and father are not statistics for them.

Further Reading

Who Kills Children? Re-examining the evidence is a paper from the Bristish Journal of Social Work in 2013. The full article is available only on subscription but the abstract is interesting. It doesn’t support my speculation that poverty is linked to greater rates of child death.

Abstract

Violent children’s deaths have become a surrogate indicator of effective child protection but can those who kill children be better identified? A decade-long study of child homicide assailants (population of 2.5 million) is re-examined in the context of nineteen Western nations’ child mortality rates and child-abuse-related deaths, correlated with four international measures of relative poverty, focusing on income inequality. Child mortality rates of the nineteen countries were ranked and correlated with levels of poverty. Child mortality and poverty strongly correlated but, unexpectedly, child-abuse-related deaths did not. Child homicide assailants are extremely rare, but three distinct within-family assailant categories can be identified: mentally ill parents, mothers with a child on the Child Protection Register and men with previous convictions for violence. Mentally ill parents were the most frequent assailants, but violent men killed over five times the rate of mentally ill parents. The juxtaposed results indicate that the assailants’ problems are essentially psycho-criminological, especially violence, rather than socio-economic, although poverty worsens most situations. Despite the dangers of ‘false positives’, children’s services need to give greater weighting to the child protection–psychiatric–violence interface to assist front line staff in improving risk assessment and contribute to reducing the impact that parental mental illness can have on the child.

Filicide: Mental Illness in Those who Kill Their Children  2013 paper which concluded: 6144 people were convicted of homicide, 297 were filicides, and 45 cases were filicide-suicides. 195 (66%) perpetrators were fathers. Mothers were more likely than fathers to have a history of mental disorder (66% v 27%) and symptoms at the time of the offence (53% v 23%), most often affective disorder. 17% of mothers had schizophrenia or other delusional disorders. Overall 8% had schizophrenia. 37% were mentally ill at the time of the offence. 20% had previously been in contact with mental health services, 12% within a year of the offence.

Just what is the place of parents in the hierarchy of child protection?

When ‘knowing your rights’ equates to ‘sense of entitlement’ and what this says about child protection practices today.

It is a frequent complaint made to me that parents from poor backgrounds are targeted in care proceedings because they are poor. That the struggles they have in parenting are reflections of their alienation from more affluent society and that they need support for this – not condemnation.  There is very worrying evidence that rates of child protection intervention shoot up in the more deprived areas of the country which certainly demonstrates a link between poverty and increased likelihood that your child will be taken into care.

Can this really all be down to ‘bad’ rather than ‘sad’ parents? Are wealthier parents not exposing their children to any kind of harm worthy of state intervention? Or are they just better able to hide it or to avoid professional scrutiny?

So it was very interesting to read Professor Claudia Bernard’s research ‘An Exploration of How Social Workers Engage Neglectful Parents from Affluent Backgrounds in the Child Protection System’.

This research was commissioned by the City of London to find out what is known about child neglect in affluent families. There is little current research on this issue and Professor Bernard wanted to investigate what factors arise for social workers in responding to child neglect in  affluent families.

 

How is neglect defined?

Working Together to Safeguard Children (2015) definition of neglect is used:

“The persistent failure to meet a child’s basic physical and/or psychological needs, likely to result in the serious impairment of the child’s health and development” (DfE 2015).

‘Neglect’ is still the most common reason for child protection proceedings. Most investigations into ‘neglect’ focus on those families already known to the authorities and who are likely to be members of lower socio-economic groups. Issues of neglect in more affluent families is generally off the radar. A child who comes to school dirty and smelly is pretty easy to spot – but the child who lacks emotional attunement with a wealthy and largely absent parent is less immediately visible. Lack of immediately visible harm can flow from those parents who do not spend enough quality time with their children, pressure them to be high achievers and thus create psychological and emotional problems for the children in adulthood.

Such harm is recognised as an ‘ACE’ – an adverse childhood experience. As the study points out:

Adverse childhood experiences refer to physical and emotional abuse, sexual abuse and neglect, being exposed to domestic violence, substance abuse, and other early life stressors (Felitti et al. 1998). While many ACEs are disproportionately found in economically disadvantaged communities, it is important to note that research has identified that ACEs are far from absent in more affluent families (Bellis et al. 2014).

What did the research set out to do and what did it find?

The research posed three specific questions to participants from 12 different and diverse local authorities. The limitations of this work are recognised – it is small scale and exploratory and was not trying to elicit statistical or generalisable data.  

  • How do social workers identify risk factors for vulnerable children in affluent circumstances?
  • Which factors inhibit or enable social workers’ engagement with affluent parents when there are child protection concerns?
  • What kind of skills, knowledge and experience is necessary for frontline social workers to effectively assert their professional authority with affluent parents when there are concerns about abuse and neglect?

Key messages identified

  • The findings revealed that thresholds for neglect are not always understood, which posed challenges for effectively safeguarding children at risk of significant harm in privileged families.
  • The vast majority of the cases described by the participants concerned emotional neglect, although other forms of maltreatment, such as sexual abuse, child sexual exploitation and emotional abuse, were also identified.
  • Commonly-encountered cases involved struggling teenagers in private fee-paying and boarding schools,
  • Participants gave many examples to show how parents had the financial resources to access psychological support through private care providers to address their children’s emotional and behavioural problems; some practitioners viewed this as a positive outcome for the child, but some saw this as a way for the parents to opt out of the statutory child protection system, and to thus slip under the radar of children’s services.
  • Participants consistently cited that highly resistant parents were more likely to use legal advocates or the complaints procedures to challenge social workers.
  • All of the participants also experienced the challenges of inter- agency working with private fee-paying and boarding schools when child protection concerns were raised.
  • Considerable experience, practice wisdom and knowledge of neglect were essential in relation to working with highly resistant parents who had the resources to challenge social workers’ decision-making.
  • Skills, knowledge and competence: all of the participants highlighted the important role that supportive managers and good supervision played in helping them to effectively intervene in affluent families.

 

 

Conclusions and comments

One problem here is that the ‘vast majority’ of cases involving affluent parents involved ’emotional neglect’ – a phrase which almost every parent I have ever spoken to reacts to with baleful suspicion. Unsurprisingly, as the research noted: ‘Participants stressed that the vague and ambiguous nature of emotional neglect was one possible factor making it difficult to interpret and assess indicators of emotional neglect’.

But the much more troubling issue was the apparent assumption that parents’ knowledge of and willingness to act upon their legal rights was a Bad Thing.

The key question identified in the study is how to assess the psychological and emotional availability of parents and when and how the state should intervene, particularly as we are now embedded in a culture of ‘neoliberalism‘, where hierarchies are seen as based on competence and those who do not strive to achieve will fail and be left to fail.  How can we criticise parents for wanting their children to adapt and thrive in this environment?

I am sure many parents would be taken aback at the notion that their wish for their child to do well and their decision to push a child to achieve should be seen in the same category of the child who is not fed or clothed well enough, who has no toothbrush or no clean bed to sleep in. However, while relative affluence may mean it is easy for parents to avoid obvious physical signs of neglect – for example, by paying someone else to take care of their children’s physical needs – it does not mean that their children escape from emotional or psychological harm.

However, if we want parents to get on board with this we have to be able to explain it clearly and engage them to listen. What does the study tell us about this?

The comments I found most interesting were these:

All of the participants described difficulties in maintaining focus on the child because of the way that parents used their status and social capital to resist child protection intervention, and many also displayed a sense of entitlement to do as they pleased and that they know best.

One participant commented:

“Those children are quite hidden, because parents know their rights, they are articulate, and they can be quite avoiding. I would say that social workers are quite often concerned that working with affluent parents rather than with other parents because they are educated and they are very challenging”.

The report notes

in some cases, their obstruction towards social workers manifested in formal complaints to senior managers and elected councillors and the threat of legal action.

And

Participants elaborated the ways that the parents’ class backgrounds gave them an unspoken advantage, which meant that they were generally knowledgeable about the workings of organisations such as children’s social care and the safeguarding process; perhaps more crucially, their sense of entitlement, brought a greater confidence to challenge the child protection decision-making processes.

The point is that the vast majority of parents resist social work intervention when the allegations made about their parenting are serious and are made in a clumsy or belittling way by someone the parent does not know and trust. The vast majority of parents who contest these matters in court will say ‘they know best’ – so, of course they will ‘do as they pleased’ – a revealingly pejorative way of referring to parents acting on what they think is the right thing for their child.

The use of phrase ‘know their rights’ as if this was somehow a criticism – ‘a sense of entitlement’ –  was a chilling echo to my earlier conversations with social workers about the law merely being ‘an aspect’ of what they do and Louise Tickle’s examination of long standing and extremely serious failings on the part of social workers to understand their legal obligations behind the use of section 20 accommodation.  Not all formal complaints are made to ‘obstruct social workers’. I often advise clients to make formal complaints about some piece of bad practice – but of course to parents in the middle of proceedings, how many of them have the time and space to do this? They tell me they are worried what will happen to them if they are seen to complain – it looks like they have a point.

Parents resist intervention because they deliberately wish to evade detection to carry on abusing their children (a small minority) or – much more likely – because they lack the skills or insight to accept that they are in fact doing harm to their children. it is easier to resist intervention or criticism than accept that you might be doing something to hurt the person you love very much.

Rich parents use status and social capital to dodge intervention; poor parents use other blunter techniques. But the common thread to all successful interventions with families must be social workers with the time, space and skill to build relationships of trust. And I am not sure that this time or space exists anymore. Its useful to focus on a group who may be escaping necessary intervention and to ask some questions why – but not if that takes away proper consideration of how the fundamentals of social work are being neglected and degraded.

Its not about money. Its about trust, its about relationships, its about working together. I am not sure how helpful it is to set up another group of parents to potentially demonise for their horrid neglectful ways .

When asked what helped, participants replied:

Participants cite the organisational cultures of support, purposeful informal conversations about the case with colleagues, good supervision, knowledge and confidence and responsive managers, themed learning activities, as key to their ability to work in this complex field.

It is both sad and revealing that ‘building relationships of trust with the parents we work with’ did not feature in that list.

It is high time we grappled with the increasing push in social work to see the child in isolation from family and community and that any indignity heaped on a family can be justified on the basis that the social worker is ‘there for the child’.  Issues of neglect and abuse which do not involve immediate and substantial harm – the broken bone, the sexual assault – are always going to be tricky to identify, define and deal with in the right way at the right time. The key to all of this will be working together.

I leave you with one final comment from the research

For example, some participants spoke of being belittled and humiliated by parents in meetings, leaving them feeling as if they had to prove themselves and establish their credibility

This is what parents tell me they feel in care proceedings. Time and time again. This is what happens when you set each other up in opposition. When the culture is one of blame and shame. It cuts both ways – and it hurts everyone.

Further reading






Communicating with the Home Office in family proceedings.

COMMUNICATING WITH UK VISAS AND IMMIGRATION (UKVI)
IN FAMILY PROCEEDINGS

Protocol agreed between the President of the Family Division and the Home Office issued on 16 May 2018

1 This Protocol enables the family courts (the Family Division of the High Court of Justice and the Family Court) to communicate with UK VISAS AND IMMIGRATION (UKVI), the relevant division of the Home Office, to obtain immigration and visa information for use in family court proceedings. Although it replaces and supersedes the previous guidance issued in 2002, 2004, 2006, 2010 and 2014, in particular to reflect new UKVI processes and contact details, it does not alter the nature or purpose of the Protocol.

2 There are three parts of the process:

(1) HMCTS form EX660 (rev 04/18), a copy of which is annexed to this Protocol, must be completed by the parties and approved by the judge.

(a) The EX660 must be typed, not handwritten.
(b) The EX660 must be completed in full, specifying the details of the relevant family members and their relationship to the child(ren). Details of both mother and father/adoptive parents if known should be provided, whether or not they are involved in the proceedings, as this enables UKVI to trace the child(ren)’s records.
(c) The EX660 and the order must specify the questions the court wishes to be answered by UKVI.
(d) The EX660 must contain the name and contact details of someone who has agreed and is able to provide further information if needed.
(e) The EX660 must clearly state the time by which the information is required.

Failure to do this may cause delay in the time it takes UKVI to process the request.

(2) An order in the relevant form, a copy of which is annexed to this Protocol, must be drawn up, approved by the judge and sealed by the court.

(a) The order must clearly state the time by which the information is required.
(b) The order must specify any additional information or documents, such as a synopsis, which it wishes UKVI to have and set out in the order that the leave of the court to make disclosure to UKVI has been given. (Note that it may be a contempt of court to disclose this information otherwise.)

(3) The UKVI SVEC pro-forma must be completed by the court staff utilising the information in the EX660 and the order.

(a) All relevant fields in the SVEC pro-forma must be completed:
i. Section A – All fields to be completed if known
ii. Section B – Enquiry Type – Select Standard
iii. Section C – Select Subject 1 and complete all fields.
iv. Section D – Enter “Y” in “Other ” field only.
v. Section E – Enter ” Please refer to court order and EX660″.
vi. For more than one subject, select subject 2 and so on, completing steps C-E for each one.
(b) In Section B there are two fields, “Court date” and “required date”, which must be completed. In both fields the date the information is required should be entered, not the court date. These fields generate the target date on UKVI systems and, as the information ordered by the court will be required before the date of the court hearing, this will ensure that the information is provided in time.

3 The EX660 and the order must contain sufficient information to enable UKVI to understand the nature of the case, to identify whether the case involves an adoption, and to identify whether the immigration issues raised relate to an asylum or a non- asylum application.
4 In order to comply with the agreed four (4) week period for UKVI to provide a response to the court, the sealed order should be available to be sent by the court staff to UKVI on the same day that the order is made. Where that is not possible, the court, when stating the required date of receipt by the court of the information requested, must allow any additional time necessary for the preparation, sealing and sending of the order. This is to ensure that UKVI has four (4) weeks to provide a response from the time it receives the order.
5 The sealed order, completed EX660 and SVEC pro-forma should be sent immediately by the court to [email protected] including EEREQUEST on the subject line of the email. The request for information will be rejected by UKVI if either the sealed order or the SVEC pro-forma is not provided.
6 Where the court wishes to progress a case that may be delayed, it may send an email to [email protected]
7 The UKVI official will be personally responsible for either:
(i) answering the query themselves, by retrieving the file and preparing a statement for the court; or
(ii) forwarding to a caseworker or relevant official with carriage of the particular file.
8 UKVI will ensure that their information is received by the court in time, as instructed by the judge or court making the request.

James Munby, President of the Family Division






Bristol Family Law Scheme – reflections on the needs of litigants in person

The Bristol Family Law Scheme was established in 2015. It is made up of volunteers from local solicitors firms and chambers; there are about 30 volunteers on the current rota. Administrative support is provided by the PSU at the Bristol Civil Justice Centre. The scheme used to run weekly but now runs fortnightly due to pressure on the volunteers. There are 7 slots available from 10am – 4pm for 30 minutes each.

The scheme is directed at private law proceedings only – i.e disputes between parents about how they spend time with their children post separation.

Each volunteer was asked to complete a form detailing the type of issues raised by each client.

I have been able to analyse the forms for 57 sessions between 5th November 2015 and 28th September 2017, involving 246 people, thus averaging about 4 per session.

What follows can only be a rough and ready statistical analysis – clearly volunteers did not complete forms for each session and there are indications that it wasn’t always easy to identify a category of presenting issue. But this gives a rough idea of what are the pressing matters for those who seek to use the scheme.

English as a second language 65 26%
Likely to be in person 199 80%
Mental health problems 36 14%
Substance abuse 39 16%
Learning difficulties or literacy problems 31 13%
Immigration difficulties 13 5%
Child abduction 14 5%
Violence or sexual abuse of adult or child 130 53%
Previous proceedings 91 37%
Leave to remove 17 7%
Current criminal proceedings 10 4%
Reference to other agencies 42 17%

 

Some comments on the statistics

Unsurprisingly 80% of those attending were likely to be self representing at any future hearings. What leaps out is that a quarter of all clients did not have English as their main language and over half were describing issues of physical or sexual violence directed at either adults or children in their proceedings.

Interestingly 37% of the clients had been involved in previous proceedings which supports my view that the court is not likely to be the best arena to resolve adult difficulties around child arrangement orders.

On average, only 4 out of the 7 slots were filled at each session. This appears primarily due to clients who book a session but simply don’t attend and the reasons for that are not known.

It appears clear that the scheme meets a need for local people who are unrepresented in family proceedings. Whether or not such short advice sessions can make much realistic positive long term impact in proceedings involving such serious issues is another question and one beyond my attempts here at statistical analysis.

Family Court Information website

Every client is provided with a letter providing the address of the Family Court information website

Web site statistics show from 10 months between July 2017 and April 2018 104,890 users and 138,125 sessions. Interestingly only 2.3% of those users (2,585) were accessing the site from Bristol – a staggering 27% (29,934) were accessing the site from London. People in every major city were accessing the site and the bounce rate was a reasonable 69% – i.e. people weren’t simply leaving the site after visiting one page.

This suggests that there is considerable appetite country wide for this kind of information and a need for each local court centre to have its own online source of information.






Innovations in Children’s Social Care – to what extent are parents and children included?

This is a post by a parent. NESTA is an ‘innovation foundation’ backing new ideas to tackle ‘the big challenges of our time’. The What Works Centre for Children’s Social Care is a new project to foster evidence-informed practice in the sector in England. The Development Team is helping to identify what the Centre should focus on, how it should identify and share evidence, and how it should be managed and led.

She poses the stark question – are children and families going to be direct participants in this endeavour or is it more an effort to find cheaper innovations with no clear definition of what is meant by ‘success’? I would be interested to know what response this parent receives…

 

WHAT WORKS CENTRE
OPEN LETTER to NESTA

​Dear Sir/Madam

I’m the parent of a young person who entered Care in adolescence. I’ve been campaigning and working for better rights for families in similar circumstances and for children with disabilities who enter Care since then.

I understand that NESTA will have a key role in the new What Works Centre for Children’s Social Care

As I understand it, there are a number of ethical issues that need to be addressed as regards the aims of the Centre and how these should be achieved. The Children’s Act 1989, is the primary piece of legislation to protect the welfare of children and it is generally accepted that it was intended to promote collaborative working between families and Agencies in the best interests of children.

The Main Principles of the Act are:
– the welfare of the child is the paramount consideration.
– wherever possible, children should be brought up and cared for within their own families.
– parents with children in need should be helped to bring up their children themselves; this help would be provided as a service to the child and his family.

It seems apparent that we are at a crossroads as regards working with families in England and Wales with some stark choices:-
​ Are the principles of the Children’s Act to be bravely embraced as never before including involving parents and carers in real decision-making at strategic level when it comes to designing social care services for children and families?
Or
Are children and families to be treated as ‘guinea pigs’ in developing commercially viable ‘interventions’ in the name of ‘innovative practice in child protection’ with little say in the matter and no clear idea of how success is defined relative to the Children’s Act 1989?

I have been in a considerable number of rooms containing child protection professionals with a ‘we know best’ attitude when it comes to working with families and I find this both dispiriting and disturbing. What I’m sure of is that this attitude will never deliver for children and families. Not all programmes are like this thankfully. I’m a parent/carer member of a NHS Programme for example which has an ethos of co-production.

Please, please involve families (birth, adoptive, kinship etc) in the new Centre at decision-making level. To do anything other than this is highly unethical and will undermine the stated aims of the Centre.

This is my submission to the Care Crisis Review for what it is worth.
https://childprotectionautisticchild.weebly.com/respect.html

I look forward to a response to this email.

Yours Sincerely
 






Are you sitting comfortably? The Art of Story Telling

As a species we appear to be primed to impose a narrative on our experiences. We love stories and we need them. As Adam Gopnik commented in 2012, looking at the science behind storytelling:

Gottschall’s encouraging thesis is that human beings are natural storytellers—that they can’t help telling stories, and that they turn things that aren’t really stories into stories because they like narratives so much. Everything—faith, science, love—needs a story for people to find it plausible. No story, no sale.

The book ‘The Seven Basic Plots: Why we tell stories’ is described thus:

This remarkable and monumental book at last provides a comprehensive answer to the age-old riddle of whether there are only a small number of ‘basic stories’ in the world. Using a wealth of examples, from ancient myths and folk tales via the plays and novels of great literature to the popular movies and TV soap operas of today, it shows that there are seven archetypal themes which recur throughout every kind of storytelling.

It is of course a bitter irony that its author is Christopher Booker, one of the chief proponents over many years of the narrative of the ‘evil and secret’ family courts that do untold harm to ‘innocent’ families for no reason other than caprice and cruelty. See this post for how he wrote about the case of Marie Black, a convicted paedophile in the criminal courts but to Booker simply another in a long line of victims of the family courts.

So I can conclude that stories are important to our psychological make up as a species and that there are only a limited number of ‘basic stories’ . I can also conclude that the family justice system has not been able to grapple with this narrative drive for some very obvious reasons. Predominantly this is the operation of section 12 of the Administration of Justice Act which prohibits publication of details of proceedings held in private – as most proceedings under the Children Act are.

This insistence on privacy is to protect the identity of the children involved becoming widely known – a perfectly proper endeavour. Children did not ask to be born and they certainly did not ask to become involved in public airing of the family’s dirty secrets.

But this has lead to silence from those who know best about how cases are argued, how judges make decisions, why and how families are separated and children adopted. Into that silence, over the years, has come the noise and chatter of many groups and individuals who for a variety of reasons have a strong and appealing narrative about the family justice system. Many of these narratives bear no resemblance to reality but to counter them is next to impossible because of course responsible commentators cannot refer to the details of actual court proceedings involving children.

This has all come to a head recently with the death of Alfie Evans on 28th April 2018. The ‘compassionate’ judgments in this case have been published. But how many are reading them?

https://twitter.com/SVPhillimore/status/991621229391044608

 

Its always interesting to apply a Dunning Fog index test to published text.This is

a weighted average of the number of words per sentence, and the number of long words per word. An interpretation is that the text can be understood by someone who left full-time education at a later age than the index.

To be ‘universally accessible’ the text needs to score no more than 8. To be ‘widely accessible’ no more than 12. Looking at the first judgment in Alfie Evan’s case in February 2018, a random paragraph scores 18.61. The Church Militant article, pictured above, scored 13.29 and of course was accompanied by heart wrending photographs of a little boy and a far more instantly accessible and emotional narrative than that provided by the court judgments.

Many lawyers commented on social media that they could not understand why so many appeared to be by-passing the compassion and legal wisdom of the published judgments and preferring instead to share the more lurid and fantastical stories playing out around Alfie’s life and death. Perhaps this discussion may give them a clue.

Why does this matter? The difference between ‘active’ and ‘passive’ transparency

It matters because those who peddle the strong but wrong narratives have a reach and influence far beyond comments on a screen. No sadder and clearer example can be found than in the Alfie Evans case where hundreds of people marched on a children’s hospital to shout abuse at doctors and nurses. The comments of the Court of Appeal in the final court judgment in April 2018 make for troubling reading:

  1. We were reminded that in the past leading counsel, Mr Stephen Knafler QC, acting then on behalf of both of the parents, deprecated the involvement of legally qualified but not practising lawyers who introduced (to use Mr Knafler’s phrase) a “darker side” to what was otherwise valuable support. It has become apparent to this court, and we referred to it in the postscript to the judgment that we gave on 6 March 2018 in relation to the first appeal, that there was some coordinated organisation of potential medical experts in relation to more than one of these vulnerable families, the same expert being covertly introduced to Kings College Hospital to examine secretly one child in the paediatric intensive care unit there and the next day to go to Alder Hey, again covertly and secretly, to purport to examine Alfie there.

  2. It is not the function of this court now to embark upon an investigation of these matters, but it has become apparent, in particular in terms of the information we have been given about the instruction of the new legal team for the mother today and the drafting of the grounds of appeal upon which Mr Coppel purported to rely at the start of his submissions, (with its unhappy emphasis on prospective criminal proceedings against the staff at Alder Hey) that the representation of the parents may have been infiltrated or compromised by others who purport to act on their behalf. I say no more, but I have in mind the tenuous nature of the direct contact that Mr Coppel and his instructing solicitors had with the mother and yet the clear grounds of appeal that he was instructed to put forward on her behalf, which were, it now transpires, drafted by a lawyer who is not before the court. It may be that some investigation of whether, in this country, at this time, parents who find themselves in these awful circumstances, and are therefore desperate for help and vulnerable to engaging with people whose interests may not in fact assist the parents’ case, needs some wider investigation, but I do no more than draw attention to the concern that this court has at what seems to be an unhelpful development which may, in reality, be contrary to the interests of such parents.

There are many other examples of this kind of attack on the rule of law and the erosion of public trust and confidence in the family justice system. The same names crop up over and over again – Sabine McNeil, John Hemming, Ian Josephs and Christopher Booker for example. They all promote the narrative that parents would be better off leaving the jurisdiction than facing the UK family court system. Josephs and Hemming provide money and accommodation for mothers they persuade to ‘flee’. For many, this proves a disastrous decision.

Sabine McNeil was one of those ‘campaigners’ responsible for promoting the ‘Hampstead Hoax’ which even now continues to cause anxiety to local parents who find themselves branded satanic abusers. The judgment in the fact finding hearing sets out the truth but that judgment can make no inroads into the deluded certainties of those who are convinced that a primary school in Hampstead routinely organised the murder of babies and the wearing of their skin as shoes.

Although Sabine McNeil is now in prison, it is sobering to remember that only in 2014 she was presenting a petition to the European Parliament about the UK family courts, which lead to a visit to London by a European delegation in November of that year.

Also in 2014 the President of the Family Division Sir James Munby made it clear that things had to change, saying:

I am determined to take steps to improve access to and reporting of family proceedings. I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice.’

The President issued guidelines for the publication of judgments and the last four years have seen a significant increase in the number published – however, there appears no clear or coherent strategy behind this. Some judges publish a lot, some none at all. Publishing a judgment, as I have commented, doesn’t mean that anyone will read it or that it can stand up to a much more immediate and ‘sexy’ narrative.

So what’s the solution?

Family lawyers and the family justice system need to understand the difference between ‘active’ and ‘passive’ transparency and need to be more willing to promote the first. ‘Transparency’ is about so much more than just allowing passive public scrutiny of processes and outcomes: we must generate a far greater understanding amongst the public about what is behind the decisions made. This becomes an increasingly urgent project as distrust between parents and professionals apparently hardens and increases. For example, in 2017 McFarlane LJ noted with disquiet in the first Bridget Lindley Memorial Lecture:

‘From what I have been told from a range of sources, and from my own exposure on a daily basis to litigants in person seeking to appeal child care decisions, there is a significant and growing distrust shown by some parents in child care lawyers and judges. This is deeply worrying and needs to be addressed if it is not to lead to yet more parents disengaging from working with professionals and the process in a way which can, in my view, only damage their interests rather than enhance them.’

This worrying evidence of growing distrust between parents and professionals was also highlighted by the journalist and Transparency Project member Louise Tickle who delivered the second BLM lecture on March 13th in Birmingham. Louise is an example of the benefits of a particular type of ‘active’ transparency – encouraging intelligent outsiders to examine our current closed systems and highlight where practice and procedure that to family lawyers seems normal, may appear bizarre and even frightening to those on the outside. Her clear conclusion was that the secrecy of the family courts was a disgrace and led to bad practice escaping scrutiny and censure. When writing about family cases her inbox became ‘one long scream of pain’.

Little wonder then that the narratives about the ‘evil secret family courts’ take such firm grasp and no doubt at all about the damage they do – not just to individuals who find themselves taking some very bad advice, but to society as a whole, for respect for the rule of law.

All of us involved in the family justice system have to start getting better at telling our story.

https://twitter.com/SVPhillimore/status/991627404891377664

 

Further Reading

 

  • Note in particular this article Science vs Conspiracy: Collective Narratives in the Age of Misinformation: ‘the World Wide Web has changed the dynamics of information transmission as well as the agenda-setting process [1]. Relevance of facts, in particular when related to social relevant issues, mingle with half-truths and untruths to create informational blends [2, 3]. In such a scenario, as pointed out by [4], individuals can be uninformed or misinformed and the role of corrections in the diffusion and formation of biased beliefs are not effective. In particular, in [5] online debunking campaigns have been shown to create a reinforcement effect in usual consumers of conspiracy stories.’

 






Keep on Running Part II

On 12th April 2018 Mr Justice Francis gave judgment in the case of CFA (Ireland) v F [2018] EWHC 939 (Fam) (12 April 2018).

This is a case about parents ‘fleeing’ from the UK to Ireland in an attempt to avoid child protection proceedings here. I have written before about this phenomenon and the dangers it can pose to parents and children. See  ‘Helping Parents leave the Jurisdiction’ first published in September 2015 and ‘Mums on the Run’ first published in September 2016.

This current is case is another illustration of the futility of this strategy.

I would be interested to know who helped the parents in this case leave the jurisdiction and what interest or investigation – if any – they made into what is described as the ‘extremely complicated’ background of the mother.

If previous cases are any guide, they made none because they don’t see this as relevant – the only goal is to get parents out of the ‘clutches’ of the evil child snatchers. It seems that the issue of ‘mums on the run’ is gaining increasing prominence. The influence of certain individuals such as John Hemming and Ian Josephs in the continued encouragement of this often futile endeavour, needs to be taken much more seriously by all those charged with securing the welfare of children.

Josephs is quite clear that he gives money to parents without any check or even concern about what challenges and traumas they have faced which might impact on their ability to provide safe care for a child. The most notorious example of this is of course Marie Black – a convicted paedophile who Josephs helped travel to France before her trial and conviction.

I have commented over the years that it is going to take a child to die before anyone takes this seriously. I really hope I am wrong about that.

 

Facts of this case and the court’s decision

CFA involved a child F, who was born in late 2017 and at the time of the court hearings was living in foster care in Ireland. Her parents had travelled from the UK to Ireland when the mother was pregnant with F and another sibling was in the care of an English local authority. The issue was now which country should decide where F should live as she was growing up.

Article 15 of the Brussels II regulations sets out the procedure the courts need to follow when transferring these cases.

Article 15(1) provides:

“By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:

The matter had first come before Judge O’Leary in Ireland on 8 January 2018 and she granted the Article 15 request to transfer. The parents appealed and it came before HHJ Donnabháin on 6 February 2018 who confirmed that earlier decision. The matter then came before the English courts. In February 2018 MacDonald J agreed with the Irish courts.

MacDonald J allowed the mother and father the chance to argue about why this shouldn’t happen and the parents put their arguments in writing and appeared before Francis J. After some confusion about whether the parents were physically in Ireland and attempting to challenge decisions made there, the hearing got underway but required considerably more time than the hour which it had optimistically been allowed.

Francis J was clear that factual background of the parents ‘fleeing’ was not relevant to the decision he was now making and he didn’t hold it against the parents ‘as a black mark’. He recognised that the Irish judgments contained some very important information and he cited it at some length. He found that the Irish courts had give very clear reasons as to why F’s case should be transferred.

HHJ Donnabháin had found that F has ‘a UK nationality and identity.’ Further, the mother’s circumstances also raised concern. At para 5 he said:

This lady’s background [by which he means the mother] is extremely complicated and requires the fullest access to all the medical, psychiatric, and social work reports which exist. These reports can only be ultimately relied upon to be produced in the United Kingdom and they are of fundamental importance to informing any court decision regarding the child’s welfare.”

And at para 13 he said:

I should say that it is obvious to me from the background that I have read about this case that the mother is entitled to the court’s greatest sympathy and understanding for she has had, it is undoubtedly true, an extremely difficult, troubled, and traumatic time. I need say no more about that for the purposes of this judgment but it is important to her that she knows that it is acknowledged by me when giving this judgment.

Francis J reminded himself of the observations of the President of the Family Division in Re HJ (A Child) [2013] EWHC 1867 (Fam) which commented that transfer requests were effectively a ‘summary process’ – to go into the merits of the case in any great detail would risk protracted and costly battles as to which is the correct jurisdiction. So the transfer decision must be made swiftly and what really matters in this case is the decision that will be made in due course by the court deciding where F should live as she grows up.

The proposed transfer must be in the best interests of the child and Francis J found that the  Irish courts had already made that assessment and found the transfer would be positively beneficial.

The parents’ arguments against transfer

The parents argued they are settled in Ireland and want to be assessed there. However the Judge responded that transferring the case to England would not prevent the parents being assessed in what they say is now their home country and he did not see this as a determinative feature.

Of more importance was their argument that if F came to England that would make it more difficult for them to see her. However, the Judge commented that there was nothing to stop the local authority, if they obtained an interim care order for F, to allow her to stay in the interim care of her current foster carers in Ireland: ‘There is nothing particularly unusual about that. Indeed, Schedule 2 of the Children Act 1989 specifically provides for such placement’.

F’s guardian in Ireland made it clear shat F should not be moved in the interim and Francis J agreed.

…I am not saying that it would mean that there could not ever be a change of interim care, but it seems to me that a change of interim care is almost always to be avoided in these cases if the interim care is satisfactory. As far as I can see here, it is not just satisfactory but extremely good interim care that F is currently enjoying. However, there is no reason for me to think that the acceptance of a transfer request would alter the possibility of F continuing to be with her Irish foster carers.

The Judge however rejected the parents’ arguments that it would be contrary to F’s best interests to endure a short journey from Ireland to England and further comments that if F did end up living in England then the parents could be helped to travel to see her, at least in the short term.

 

He concluded at para 33:

I am completely satisfied that it is in F’s best interests for this case to be transferred to England. Moreover, the principles of comity require that I should have very considerable respect and regard for the Irish order, which I do, albeit that I am of course not bound to accept the request. However, having applied, I hope properly, the test which is set out in Article 15(5) and its interpretation by recent case law, I am completely satisfied that this court should accept the request and I now do so.

Further Reading

A case in August 2018 where an Advocate General of the European Court of Justice was highly critical of the actions of both the English and Irish authorities, who organised the removal of children from Ireland without the parents knowledge and without them having sight of the English LA’s application to enforce orders for removal.  See this post from The Transparency Project. 

The Irish courts  have also commented critically, as reported by the Irish Examiner:

Irish social workers must “stop immediately” the practice of acting in conjunction with their UK counterparts in seeking the return to Britain of children at the centre of care proceedings without the parents’ knowledge of that application, the Court of Appeal has said.

If it does not stop, social workers could face contempt of court proceedings, Mr Justice Gerard Hogan said. He also expressed the “deepest misgivings” about the conduct of Irish and English social workers in one such case.

However In Lincolnshire County Council v J.MCA & anor [2018] IEHC 514 (25 September 2018) the Irish court ordered the return to England of a child removed by her parents after the making of interim care orders; following mistaken advice from a McKenzie Friend in England that the father’s ‘parental rights’ permitted them to do this.

Part of the parents’ arguments against return was that their English lawyers had not ‘fought’ for them and the English courts had made the wrong decisions. The Irish court pointed out that the decisions so far of the English courts were interim decisions only. They said this about the parents’ challenge to the English court system at para 39 of the judgment:

…the respondents have in substance made an allegation that the English courts are unwilling to protect their rights or those of the child. This allegation has been made without any supporting expert evidence or any affidavit from the lawyers who represented the respondents in the English courts or any evidence other than the opinion of the respondents. I have no hesitation in rejecting the submission. The respondents were afforded legal representation before the English court; appropriate hearings were conducted; a doctor gave evidence and was cross-examined; future hearings were being planned; this was all done in a similar fashion to how adversarial proceedings are carried out in Ireland. Further, the interim arrangement was in my view a humane one, involving the child being placed with her grandmother and the respondents being permitted three access visits per week. There is no evidence at all to suggest that the English courts are unwilling to protect the child’s rights or those of the respondents. In reality all that is offered is the respondents’ personal view that the doctors and the court were wrong in their diagnosis and that they were being treated unfairly by the courts. They could have advanced their case vigorously if they had stayed for the full hearing; and it can be done on their behalf at any future hearing, with appropriate evidence …